Tag Archives: A.R.S. § 32-2199

Deatta M. Pleasants v. Pinecrest Lake Property Owners Association, Inc.

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Case Summary

Case ID 25F-H021-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-02-20
Administrative Law Judge Sondra J. Vanella
Outcome total_loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deatta M. Pleasants Counsel —
Respondent Pinecrest Lake Property Owners Association, Inc. Counsel David Onuschak

Alleged Violations

CC&R Rev 2022, Article II., Sec. I (alpha) 2. Maintenance and Repair, By the Association

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to meet the burden of proof to establish a violation of the CC&Rs by the Association. The Association maintained the underground culverts in accordance with Navajo County approved plans, and the evidence established the culverts were functioning as intended. Flooding experienced by the Petitioner was expected due to the lot's location in a FEMA Floodway during an exceptional storm (likely a 100-year event).

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the CC&R provision; the culverts were maintained and functioning as intended, and flooding was anticipated given the lot's location in a FEMA Floodway during the exceptional storm event.

Key Issues & Findings

The association will not repair the culvert (common area) to allow the ditch to drain.

Petitioner alleged the HOA violated CC&Rs by failing to repair or connect a culvert (common area), causing her lot located in a regulatory floodway to flood during a severe (100-year) storm in July 2021. The Respondent contended the drainage system was maintained, functioned as intended, and the flooding was due to the exceptional storm magnitude and the property's location in a floodway.

Orders: No action required of Respondent; Petitioner's Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • CC&R Rev 2022, Article II., Sec. I (alpha) 2

Analytics Highlights

Topics: HOA Dispute, CC&R Maintenance Violation, Drainage System, Culvert Maintenance, FEMA Floodway, 100-Year Storm, Civil Engineer Testimony
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • CC&R Rev 2022, Article II., Sec. I (alpha) 2
  • CC&Rs Rev. September 2022, Article 1, D.




Briefing Doc – 25F-H021-REL


Briefing Document: Pleasants v. Pinecrest Lake Property Owners Association, Inc.

Executive Summary

This document provides a comprehensive analysis of the administrative hearing and final decision in the matter of Deatta M. Pleasants versus the Pinecrest Lake Property Owners Association, Inc. (HOA). The core of the dispute centered on Ms. Pleasants’ allegation that the HOA violated community CC&Rs by failing to repair a common area culvert, which she claimed caused her property (Lot 185) to flood during a severe storm in July 2021.

The Respondent HOA countered that the drainage system was constructed in accordance with plans approved by Navajo County in the 1980s and has been properly maintained. The defense’s central arguments were that the July 2021 storm was a “100-year storm,” a weather event that exceeded the system’s “50-year storm” design capacity, and that Ms. Pleasants’ lot is situated within a FEMA-designated regulatory floodway, where flooding during such an event is an expected occurrence.

Expert testimony from Dr. Zachary Barlo, a licensed civil engineer retained by the HOA, was pivotal. Dr. Barlo concluded that the drainage system was constructed in “general substantial conformance” with the original plans, is adequately maintained, and functions as designed. He testified that the feature Ms. Pleasants believed to be a disconnected culvert was, in fact, a roadway hatch pattern on the design plans. Crucially, he affirmed that flooding on Lot 185 would be expected during a major storm event due to its location in the floodway, regardless of culvert improvements.

The Administrative Law Judge ultimately dismissed Ms. Pleasants’ petition. The final decision held that the Petitioner failed to establish by a preponderance of the evidence that the HOA had violated the CC&Rs. The ruling affirmed that the HOA had maintained the system and that the flooding was a predictable consequence of an exceptionally severe storm impacting a property located in a high-risk flood zone.

1. Case Overview

• Case Number: 25F-H021-REL

• Petitioner: Deatta M. Pleasants, owner of Lot 185

• Respondent: Pinecrest Lake Property Owners Association, Inc.

• Jurisdiction: Office of Administrative Hearings (OAH), Phoenix, Arizona

• Presiding Judge: Administrative Law Judge Sondra J. Vanella

• Hearing Date: February 4, 2025

• Decision Date: February 20, 2025

2. Petitioner’s Allegation and Testimony

Core Claim

The Petitioner, Deatta M. Pleasants, alleged that the Respondent violated Article II, Section I of the revised 2022 CC&Rs. This section assigns the HOA the “full power and duty to maintain, repair and make necessary improvements in the COMMON AREA,” including underground culverts. The petition asserted, “The association will not repair the culvert (common area) to allow the ditch to drain.”

Central Arguments and Evidence

• The July 2021 Storm: The complaint originated from a single, severe storm in July 2021, which caused significant flooding on Petitioner’s property, Lot 185. Ms. Pleasants testified that while the storm was severe, she believes subsequent flooding was due to a malfunctioning drainage system, not the storm’s magnitude alone.

• Interpretation of Design Plans: Ms. Pleasants asserted that a double-line feature on the original circa 1986 drainage plans represented a proposed culvert. She believed this culvert was intended to connect a roadside ditch to the main regional drainage infrastructure but was improperly installed or left disconnected, causing a blockage and subsequent overflow.

• Observed Conditions: The Petitioner presented photographs from the 2021 storm depicting a 21-foot by 5-foot ditch in front of her property completely full of water and not draining. She argued this demonstrated a functional failure of the system.

• Rejection of Floodway Argument: Ms. Pleasants testified that she was “highly disappointed in the engineering report” and that her lot’s location within a FEMA flood plain “has absolutely nothing to do with the functionality and performance of this storm drain channel that is meant to keep from flooding.”

• HOA Responsibility: The Petitioner maintained that it is the HOA’s “fiduciary responsibility” to remedy the issue by connecting what she believes to be the main drain.

3. Respondent’s Position and Defense

Core Defense

The Respondent HOA’s position was that it has fulfilled its maintenance obligations under the CC&Rs and that the flooding was an unavoidable result of an extreme weather event impacting a property in a high-risk area.

Key Arguments and Testimony

• System Design and Approval: The drainage system was constructed in the mid-1980s based on plans approved by Navajo County. The design standards at the time, and currently, require the system to handle a 50-year storm event.

• Storm Severity: The July 2021 storm was characterized as an exceptional event, a “100-year storm,” that produced approximately three inches of rain within hours. This exceeded the design capacity of the drainage infrastructure.

• FEMA Floodway Designation: A critical element of the defense was that Lot 185 is located within a FEMA-designated regulatory floodway. Testimony established this as the highest-risk flood category, specifically designated to allow for the unimpeded flow of floodwater.

• Maintenance Record: HOA President Sharon Seekins testified that the association periodically inspects and maintains the common area drainage system, including recent improvement projects on the Oklahoma Draw Wash. She noted that under the CC&Rs, individual lot owners are responsible for maintaining the drainage ditches directly in front of their properties.

• Lack of Other Complaints: Ms. Seekins testified that no other homeowners filed formal complaints about the drainage system’s performance following the July 2021 storm.

4. Expert Witness Testimony: Dr. Zachary Barlo

Dr. Zachary Barlo, a Senior Civil Engineer with a PhD, was retained by the Respondent to inspect the drainage system and provide an expert opinion. His testimony was a cornerstone of the Respondent’s case.

Credentials and Experience

• Position: Senior Engineer at Ironside Engineering Development, Inc.

• Education: PhD and Master of Science in Civil Engineering from Oregon State University; undergraduate degree in Civil Engineering from Virginia Tech.

• Licensure: Licensed Professional Engineer in the State of Arizona.

• Expertise: Extensive experience with drainage systems, Navajo County codes, and FEMA regulations.

Inspection and Analysis

Dr. Barlo conducted two field visits in June and December of 2024. His process involved:

1. Reviewing the original circa 1986 construction and drainage plans.

2. Conducting a visual and physical inspection of the as-built infrastructure near Lot 185, including measuring culverts.

3. Speaking with both Ms. Pleasants and HOA representatives to understand the concerns.

Key Findings and Professional Opinion

Finding Category

Dr. Barlo’s Testimony and Conclusions

Conformance with Plans

The existing infrastructure was found to be in “general substantial conformance with the original plan.” Notably, a 24-inch pipe was installed where an 18-inch pipe was specified, which he described as a “betterment to the design” as it increases the capacity to convey water.

The Disputed “Culvert”

The double-line feature on the plans, which the Petitioner believed was a disconnected culvert, is not a culvert. Dr. Barlo identified it as part of the “hatch pattern of the roadway track.” He supported this by noting the absence of design specifications like invert elevations, which are present on all actual culverts shown in the plans.

System Functionality

The drainage system is designed to handle a 50-year storm. The July 2021 storm was “generally believed” to be larger than a 50-year event. He opined that the Respondent has adequately maintained the drainage system and that it is not in a state of disrepair.

Impact of FEMA Designation

Lot 185’s location in a regulatory floodway is highly significant. Dr. Barlo explained this area is designed for “unimpeded discharge” and is expected to have “deeper discharge depths” during major storms.

Conclusion on Flooding

Dr. Barlo stated definitively: “flooding of the area would be expected in this area in large storm events based on the FEMA designation regardless of the culvert improvements.” He testified that the conditions Ms. Pleasants experienced were what he would expect during a 100-year storm event on that specific lot.

5. Hearing Outcome and Judicial Decision

The Administrative Law Judge’s decision, issued on February 20, 2025, ruled conclusively in favor of the Respondent.

Conclusions of Law

• The Judge found that the Petitioner, who bore the burden of proof, failed to establish by a preponderance of the evidence that the Respondent violated Article II, Section I of the CC&Rs.

• The ruling stated, “The credible evidence of record established that Respondent has maintained the underground culverts that were constructed in accordance with the Navajo County approved plans.”

• It was further established that “the underground culverts are functioning as intended.”

Final Determination

The Judge concluded that the flooding experienced by the Petitioner was a predictable and expected outcome given the circumstances: “Unfortunately, Petitioner’s lot is located in a FEMA Floodway and flooding of the area would be expected in large storm events which is exactly what occurred in July 2021, and has not occurred since.”

IT IS ORDERED that no action is required of Respondent in this matter and that Petitioner’s Petition is dismissed.


Questions

Question

Who is responsible for proving that the HOA violated the CC&Rs during a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner to prove by a 'preponderance of the evidence' that the HOA committed the alleged violation. The HOA does not have to prove they are innocent unless they are establishing an affirmative defense.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • Burden of Proof
  • Legal Standards
  • Procedure

Question

Is the HOA responsible for flooding damage caused by an unusually severe storm?

Short Answer

Generally no, if the drainage system was properly maintained and the flooding was due to the severity of the storm and property location.

Detailed Answer

If an HOA maintains its drainage system according to the approved design plans, it is not necessarily liable for flooding caused by extreme weather events (like a 100-year storm) that exceed the system's design capacity, especially if the home is located in a known flood zone.

Alj Quote

Unfortunately, Petitioner’s lot is located in a FEMA Floodway and flooding of the area would be expected in large storm events which is exactly what occurred in July 2021, and has not occurred since.

Legal Basis

Factual Finding / Liability Standards

Topic Tags

  • Flooding
  • Maintenance
  • Liability

Question

Does the HOA have to upgrade old infrastructure to meet modern standards?

Short Answer

The decision implies no, as long as the system is maintained according to the originally approved plans.

Detailed Answer

The ALJ found that the HOA met its obligations by maintaining the system in accordance with the plans approved at the time of construction (late 1980s), which were designed for a '50-year storm,' even if modern severe storms exceed that capacity.

Alj Quote

The credible evidence of record established that Respondent has maintained the underground culverts that were constructed in accordance with the Navajo County approved plans.

Legal Basis

CC&R Interpretation

Topic Tags

  • Maintenance
  • Infrastructure
  • Grandfathering

Question

How much evidence is needed to win a case against the HOA?

Short Answer

A 'preponderance of the evidence,' meaning the claim is more probably true than not.

Detailed Answer

The homeowner must provide evidence that has 'superior evidentiary weight' and is more convincing than the HOA's evidence. It is not about the number of witnesses, but the convincing force of the evidence presented.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5

Topic Tags

  • Evidence
  • Legal Standards

Question

Can I rely on my own interpretation of engineering plans to prove a violation?

Short Answer

Likely not, if the HOA presents conflicting expert testimony.

Detailed Answer

In this case, the homeowner believed a marking on the plan was a missing culvert, but the HOA's expert engineer testified it was a roadway hatch pattern. The ALJ relied on the expert's interpretation over the homeowner's assumption.

Alj Quote

Dr. Barlow testified that Petitioner’s belief that double lines in the red box on the plans are supposed to be a designated culvert, is erroneous, as those lines are part of the roadway designation.

Legal Basis

Expert Testimony

Topic Tags

  • Evidence
  • Expert Witnesses
  • Dispute Resolution

Question

Is a single incident of failure enough to prove the HOA isn't maintaining common areas?

Short Answer

Not necessarily, especially if the incident was caused by exceptional circumstances.

Detailed Answer

The ALJ noted that the petition was based on a single storm event in July 2021 described as 'exceptional and unusually severe,' and there were no other complaints. This isolated incident was insufficient to prove a failure to maintain.

Alj Quote

Ms. Seekins testified (and Petitioner agreed) that the Petition was filed due to an occurrence from a single storm in July 2021, and that there have been no other complaints to the Board regarding the culverts.

Legal Basis

Factual Finding

Topic Tags

  • Maintenance
  • Enforcement
  • Violations

Case

Docket No

25F-H021-REL

Case Title

Deatta M. Pleasants v. Pinecrest Lake Property Owners Association, Inc.

Decision Date

2025-02-20

Alj Name

Sondra J. Vanella

Tribunal

Office of Administrative Hearings

Agency

Arizona Department of Real Estate

Questions

Question

Who is responsible for proving that the HOA violated the CC&Rs during a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner to prove by a 'preponderance of the evidence' that the HOA committed the alleged violation. The HOA does not have to prove they are innocent unless they are establishing an affirmative defense.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • Burden of Proof
  • Legal Standards
  • Procedure

Question

Is the HOA responsible for flooding damage caused by an unusually severe storm?

Short Answer

Generally no, if the drainage system was properly maintained and the flooding was due to the severity of the storm and property location.

Detailed Answer

If an HOA maintains its drainage system according to the approved design plans, it is not necessarily liable for flooding caused by extreme weather events (like a 100-year storm) that exceed the system's design capacity, especially if the home is located in a known flood zone.

Alj Quote

Unfortunately, Petitioner’s lot is located in a FEMA Floodway and flooding of the area would be expected in large storm events which is exactly what occurred in July 2021, and has not occurred since.

Legal Basis

Factual Finding / Liability Standards

Topic Tags

  • Flooding
  • Maintenance
  • Liability

Question

Does the HOA have to upgrade old infrastructure to meet modern standards?

Short Answer

The decision implies no, as long as the system is maintained according to the originally approved plans.

Detailed Answer

The ALJ found that the HOA met its obligations by maintaining the system in accordance with the plans approved at the time of construction (late 1980s), which were designed for a '50-year storm,' even if modern severe storms exceed that capacity.

Alj Quote

The credible evidence of record established that Respondent has maintained the underground culverts that were constructed in accordance with the Navajo County approved plans.

Legal Basis

CC&R Interpretation

Topic Tags

  • Maintenance
  • Infrastructure
  • Grandfathering

Question

How much evidence is needed to win a case against the HOA?

Short Answer

A 'preponderance of the evidence,' meaning the claim is more probably true than not.

Detailed Answer

The homeowner must provide evidence that has 'superior evidentiary weight' and is more convincing than the HOA's evidence. It is not about the number of witnesses, but the convincing force of the evidence presented.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5

Topic Tags

  • Evidence
  • Legal Standards

Question

Can I rely on my own interpretation of engineering plans to prove a violation?

Short Answer

Likely not, if the HOA presents conflicting expert testimony.

Detailed Answer

In this case, the homeowner believed a marking on the plan was a missing culvert, but the HOA's expert engineer testified it was a roadway hatch pattern. The ALJ relied on the expert's interpretation over the homeowner's assumption.

Alj Quote

Dr. Barlow testified that Petitioner’s belief that double lines in the red box on the plans are supposed to be a designated culvert, is erroneous, as those lines are part of the roadway designation.

Legal Basis

Expert Testimony

Topic Tags

  • Evidence
  • Expert Witnesses
  • Dispute Resolution

Question

Is a single incident of failure enough to prove the HOA isn't maintaining common areas?

Short Answer

Not necessarily, especially if the incident was caused by exceptional circumstances.

Detailed Answer

The ALJ noted that the petition was based on a single storm event in July 2021 described as 'exceptional and unusually severe,' and there were no other complaints. This isolated incident was insufficient to prove a failure to maintain.

Alj Quote

Ms. Seekins testified (and Petitioner agreed) that the Petition was filed due to an occurrence from a single storm in July 2021, and that there have been no other complaints to the Board regarding the culverts.

Legal Basis

Factual Finding

Topic Tags

  • Maintenance
  • Enforcement
  • Violations

Case

Docket No

25F-H021-REL

Case Title

Deatta M. Pleasants v. Pinecrest Lake Property Owners Association, Inc.

Decision Date

2025-02-20

Alj Name

Sondra J. Vanella

Tribunal

Office of Administrative Hearings

Agency

Arizona Department of Real Estate

Deatta M. Pleasants v. Pinecrest Lake Property Owners Association,

Posted on by

Case Summary

Case ID 25F-H021-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-02-20
Administrative Law Judge Sondra J. Vanella
Outcome total_loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deatta M. Pleasants Counsel —
Respondent Pinecrest Lake Property Owners Association, Inc. Counsel David Onuschak

Alleged Violations

CC&R Rev 2022, Article II., Sec. I (alpha) 2. Maintenance and Repair, By the Association

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to meet the burden of proof to establish a violation of the CC&Rs by the Association. The Association maintained the underground culverts in accordance with Navajo County approved plans, and the evidence established the culverts were functioning as intended. Flooding experienced by the Petitioner was expected due to the lot's location in a FEMA Floodway during an exceptional storm (likely a 100-year event).

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the CC&R provision; the culverts were maintained and functioning as intended, and flooding was anticipated given the lot's location in a FEMA Floodway during the exceptional storm event.

Key Issues & Findings

The association will not repair the culvert (common area) to allow the ditch to drain.

Petitioner alleged the HOA violated CC&Rs by failing to repair or connect a culvert (common area), causing her lot located in a regulatory floodway to flood during a severe (100-year) storm in July 2021. The Respondent contended the drainage system was maintained, functioned as intended, and the flooding was due to the exceptional storm magnitude and the property's location in a floodway.

Orders: No action required of Respondent; Petitioner's Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • CC&R Rev 2022, Article II., Sec. I (alpha) 2

Analytics Highlights

Topics: HOA Dispute, CC&R Maintenance Violation, Drainage System, Culvert Maintenance, FEMA Floodway, 100-Year Storm, Civil Engineer Testimony
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • CC&R Rev 2022, Article II., Sec. I (alpha) 2
  • CC&Rs Rev. September 2022, Article 1, D.

Audio Overview

Decision Documents

25F-H021-REL Decision – 1252432.pdf

Uploaded 2026-01-23T18:15:12 (52.5 KB)

25F-H021-REL Decision – 1275219.pdf

Uploaded 2026-01-23T18:15:14 (128.4 KB)





Briefing Doc – 25F-H021-REL


Briefing Document: Pleasants v. Pinecrest Lake Property Owners Association, Inc.

Executive Summary

This document provides a comprehensive analysis of the administrative hearing and final decision in the matter of Deatta M. Pleasants versus the Pinecrest Lake Property Owners Association, Inc. (HOA). The core of the dispute centered on Ms. Pleasants’ allegation that the HOA violated community CC&Rs by failing to repair a common area culvert, which she claimed caused her property (Lot 185) to flood during a severe storm in July 2021.

The Respondent HOA countered that the drainage system was constructed in accordance with plans approved by Navajo County in the 1980s and has been properly maintained. The defense’s central arguments were that the July 2021 storm was a “100-year storm,” a weather event that exceeded the system’s “50-year storm” design capacity, and that Ms. Pleasants’ lot is situated within a FEMA-designated regulatory floodway, where flooding during such an event is an expected occurrence.

Expert testimony from Dr. Zachary Barlo, a licensed civil engineer retained by the HOA, was pivotal. Dr. Barlo concluded that the drainage system was constructed in “general substantial conformance” with the original plans, is adequately maintained, and functions as designed. He testified that the feature Ms. Pleasants believed to be a disconnected culvert was, in fact, a roadway hatch pattern on the design plans. Crucially, he affirmed that flooding on Lot 185 would be expected during a major storm event due to its location in the floodway, regardless of culvert improvements.

The Administrative Law Judge ultimately dismissed Ms. Pleasants’ petition. The final decision held that the Petitioner failed to establish by a preponderance of the evidence that the HOA had violated the CC&Rs. The ruling affirmed that the HOA had maintained the system and that the flooding was a predictable consequence of an exceptionally severe storm impacting a property located in a high-risk flood zone.

1. Case Overview

• Case Number: 25F-H021-REL

• Petitioner: Deatta M. Pleasants, owner of Lot 185

• Respondent: Pinecrest Lake Property Owners Association, Inc.

• Jurisdiction: Office of Administrative Hearings (OAH), Phoenix, Arizona

• Presiding Judge: Administrative Law Judge Sondra J. Vanella

• Hearing Date: February 4, 2025

• Decision Date: February 20, 2025

2. Petitioner’s Allegation and Testimony

Core Claim

The Petitioner, Deatta M. Pleasants, alleged that the Respondent violated Article II, Section I of the revised 2022 CC&Rs. This section assigns the HOA the “full power and duty to maintain, repair and make necessary improvements in the COMMON AREA,” including underground culverts. The petition asserted, “The association will not repair the culvert (common area) to allow the ditch to drain.”

Central Arguments and Evidence

• The July 2021 Storm: The complaint originated from a single, severe storm in July 2021, which caused significant flooding on Petitioner’s property, Lot 185. Ms. Pleasants testified that while the storm was severe, she believes subsequent flooding was due to a malfunctioning drainage system, not the storm’s magnitude alone.

• Interpretation of Design Plans: Ms. Pleasants asserted that a double-line feature on the original circa 1986 drainage plans represented a proposed culvert. She believed this culvert was intended to connect a roadside ditch to the main regional drainage infrastructure but was improperly installed or left disconnected, causing a blockage and subsequent overflow.

• Observed Conditions: The Petitioner presented photographs from the 2021 storm depicting a 21-foot by 5-foot ditch in front of her property completely full of water and not draining. She argued this demonstrated a functional failure of the system.

• Rejection of Floodway Argument: Ms. Pleasants testified that she was “highly disappointed in the engineering report” and that her lot’s location within a FEMA flood plain “has absolutely nothing to do with the functionality and performance of this storm drain channel that is meant to keep from flooding.”

• HOA Responsibility: The Petitioner maintained that it is the HOA’s “fiduciary responsibility” to remedy the issue by connecting what she believes to be the main drain.

3. Respondent’s Position and Defense

Core Defense

The Respondent HOA’s position was that it has fulfilled its maintenance obligations under the CC&Rs and that the flooding was an unavoidable result of an extreme weather event impacting a property in a high-risk area.

Key Arguments and Testimony

• System Design and Approval: The drainage system was constructed in the mid-1980s based on plans approved by Navajo County. The design standards at the time, and currently, require the system to handle a 50-year storm event.

• Storm Severity: The July 2021 storm was characterized as an exceptional event, a “100-year storm,” that produced approximately three inches of rain within hours. This exceeded the design capacity of the drainage infrastructure.

• FEMA Floodway Designation: A critical element of the defense was that Lot 185 is located within a FEMA-designated regulatory floodway. Testimony established this as the highest-risk flood category, specifically designated to allow for the unimpeded flow of floodwater.

• Maintenance Record: HOA President Sharon Seekins testified that the association periodically inspects and maintains the common area drainage system, including recent improvement projects on the Oklahoma Draw Wash. She noted that under the CC&Rs, individual lot owners are responsible for maintaining the drainage ditches directly in front of their properties.

• Lack of Other Complaints: Ms. Seekins testified that no other homeowners filed formal complaints about the drainage system’s performance following the July 2021 storm.

4. Expert Witness Testimony: Dr. Zachary Barlo

Dr. Zachary Barlo, a Senior Civil Engineer with a PhD, was retained by the Respondent to inspect the drainage system and provide an expert opinion. His testimony was a cornerstone of the Respondent’s case.

Credentials and Experience

• Position: Senior Engineer at Ironside Engineering Development, Inc.

• Education: PhD and Master of Science in Civil Engineering from Oregon State University; undergraduate degree in Civil Engineering from Virginia Tech.

• Licensure: Licensed Professional Engineer in the State of Arizona.

• Expertise: Extensive experience with drainage systems, Navajo County codes, and FEMA regulations.

Inspection and Analysis

Dr. Barlo conducted two field visits in June and December of 2024. His process involved:

1. Reviewing the original circa 1986 construction and drainage plans.

2. Conducting a visual and physical inspection of the as-built infrastructure near Lot 185, including measuring culverts.

3. Speaking with both Ms. Pleasants and HOA representatives to understand the concerns.

Key Findings and Professional Opinion

Finding Category

Dr. Barlo’s Testimony and Conclusions

Conformance with Plans

The existing infrastructure was found to be in “general substantial conformance with the original plan.” Notably, a 24-inch pipe was installed where an 18-inch pipe was specified, which he described as a “betterment to the design” as it increases the capacity to convey water.

The Disputed “Culvert”

The double-line feature on the plans, which the Petitioner believed was a disconnected culvert, is not a culvert. Dr. Barlo identified it as part of the “hatch pattern of the roadway track.” He supported this by noting the absence of design specifications like invert elevations, which are present on all actual culverts shown in the plans.

System Functionality

The drainage system is designed to handle a 50-year storm. The July 2021 storm was “generally believed” to be larger than a 50-year event. He opined that the Respondent has adequately maintained the drainage system and that it is not in a state of disrepair.

Impact of FEMA Designation

Lot 185’s location in a regulatory floodway is highly significant. Dr. Barlo explained this area is designed for “unimpeded discharge” and is expected to have “deeper discharge depths” during major storms.

Conclusion on Flooding

Dr. Barlo stated definitively: “flooding of the area would be expected in this area in large storm events based on the FEMA designation regardless of the culvert improvements.” He testified that the conditions Ms. Pleasants experienced were what he would expect during a 100-year storm event on that specific lot.

5. Hearing Outcome and Judicial Decision

The Administrative Law Judge’s decision, issued on February 20, 2025, ruled conclusively in favor of the Respondent.

Conclusions of Law

• The Judge found that the Petitioner, who bore the burden of proof, failed to establish by a preponderance of the evidence that the Respondent violated Article II, Section I of the CC&Rs.

• The ruling stated, “The credible evidence of record established that Respondent has maintained the underground culverts that were constructed in accordance with the Navajo County approved plans.”

• It was further established that “the underground culverts are functioning as intended.”

Final Determination

The Judge concluded that the flooding experienced by the Petitioner was a predictable and expected outcome given the circumstances: “Unfortunately, Petitioner’s lot is located in a FEMA Floodway and flooding of the area would be expected in large storm events which is exactly what occurred in July 2021, and has not occurred since.”

IT IS ORDERED that no action is required of Respondent in this matter and that Petitioner’s Petition is dismissed.






Study Guide – 25F-H021-REL


{ “case”: { “docket_no”: “25F-H021-REL”, “case_title”: “Deatta M. Pleasants v. Pinecrest Lake Property Owners Association, Inc.”, “decision_date”: “2025-02-20”, “alj_name”: “Sondra J. Vanella”, “tribunal”: “Office of Administrative Hearings”, “agency”: “Arizona Department of Real Estate” }, “questions”: [ { “question”: “Who is responsible for proving that the HOA violated the CC&Rs during a hearing?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner to prove by a ‘preponderance of the evidence’ that the HOA committed the alleged violation. The HOA does not have to prove they are innocent unless they are establishing an affirmative defense.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Procedure” ] }, { “question”: “Is the HOA responsible for flooding damage caused by an unusually severe storm?”, “short_answer”: “Generally no, if the drainage system was properly maintained and the flooding was due to the severity of the storm and property location.”, “detailed_answer”: “If an HOA maintains its drainage system according to the approved design plans, it is not necessarily liable for flooding caused by extreme weather events (like a 100-year storm) that exceed the system’s design capacity, especially if the home is located in a known flood zone.”, “alj_quote”: “Unfortunately, Petitioner’s lot is located in a FEMA Floodway and flooding of the area would be expected in large storm events which is exactly what occurred in July 2021, and has not occurred since.”, “legal_basis”: “Factual Finding / Liability Standards”, “topic_tags”: [ “Flooding”, “Maintenance”, “Liability” ] }, { “question”: “Does the HOA have to upgrade old infrastructure to meet modern standards?”, “short_answer”: “The decision implies no, as long as the system is maintained according to the originally approved plans.”, “detailed_answer”: “The ALJ found that the HOA met its obligations by maintaining the system in accordance with the plans approved at the time of construction (late 1980s), which were designed for a ’50-year storm,’ even if modern severe storms exceed that capacity.”, “alj_quote”: “The credible evidence of record established that Respondent has maintained the underground culverts that were constructed in accordance with the Navajo County approved plans.”, “legal_basis”: “CC&R Interpretation”, “topic_tags”: [ “Maintenance”, “Infrastructure”, “Grandfathering” ] }, { “question”: “How much evidence is needed to win a case against the HOA?”, “short_answer”: “A ‘preponderance of the evidence,’ meaning the claim is more probably true than not.”, “detailed_answer”: “The homeowner must provide evidence that has ‘superior evidentiary weight’ and is more convincing than the HOA’s evidence. It is not about the number of witnesses, but the convincing force of the evidence presented.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “Morris K. Udall, Arizona Law of Evidence § 5”, “topic_tags”: [ “Evidence”, “Legal Standards” ] }, { “question”: “Can I rely on my own interpretation of engineering plans to prove a violation?”, “short_answer”: “Likely not, if the HOA presents conflicting expert testimony.”, “detailed_answer”: “In this case, the homeowner believed a marking on the plan was a missing culvert, but the HOA’s expert engineer testified it was a roadway hatch pattern. The ALJ relied on the expert’s interpretation over the homeowner’s assumption.”, “alj_quote”: “Dr. Barlow testified that Petitioner’s belief that double lines in the red box on the plans are supposed to be a designated culvert, is erroneous, as those lines are part of the roadway designation.”, “legal_basis”: “Expert Testimony”, “topic_tags”: [ “Evidence”, “Expert Witnesses”, “Dispute Resolution” ] }, { “question”: “Is a single incident of failure enough to prove the HOA isn’t maintaining common areas?”, “short_answer”: “Not necessarily, especially if the incident was caused by exceptional circumstances.”, “detailed_answer”: “The ALJ noted that the petition was based on a single storm event in July 2021 described as ‘exceptional and unusually severe,’ and there were no other complaints. This isolated incident was insufficient to prove a failure to maintain.”, “alj_quote”: “Ms. Seekins testified (and Petitioner agreed) that the Petition was filed due to an occurrence from a single storm in July 2021, and that there have been no other complaints to the Board regarding the culverts.”, “legal_basis”: “Factual Finding”, “topic_tags”: [ “Maintenance”, “Enforcement”, “Violations” ] } ] }






Blog Post – 25F-H021-REL


{ “case”: { “docket_no”: “25F-H021-REL”, “case_title”: “Deatta M. Pleasants v. Pinecrest Lake Property Owners Association, Inc.”, “decision_date”: “2025-02-20”, “alj_name”: “Sondra J. Vanella”, “tribunal”: “Office of Administrative Hearings”, “agency”: “Arizona Department of Real Estate” }, “questions”: [ { “question”: “Who is responsible for proving that the HOA violated the CC&Rs during a hearing?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner to prove by a ‘preponderance of the evidence’ that the HOA committed the alleged violation. The HOA does not have to prove they are innocent unless they are establishing an affirmative defense.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Procedure” ] }, { “question”: “Is the HOA responsible for flooding damage caused by an unusually severe storm?”, “short_answer”: “Generally no, if the drainage system was properly maintained and the flooding was due to the severity of the storm and property location.”, “detailed_answer”: “If an HOA maintains its drainage system according to the approved design plans, it is not necessarily liable for flooding caused by extreme weather events (like a 100-year storm) that exceed the system’s design capacity, especially if the home is located in a known flood zone.”, “alj_quote”: “Unfortunately, Petitioner’s lot is located in a FEMA Floodway and flooding of the area would be expected in large storm events which is exactly what occurred in July 2021, and has not occurred since.”, “legal_basis”: “Factual Finding / Liability Standards”, “topic_tags”: [ “Flooding”, “Maintenance”, “Liability” ] }, { “question”: “Does the HOA have to upgrade old infrastructure to meet modern standards?”, “short_answer”: “The decision implies no, as long as the system is maintained according to the originally approved plans.”, “detailed_answer”: “The ALJ found that the HOA met its obligations by maintaining the system in accordance with the plans approved at the time of construction (late 1980s), which were designed for a ’50-year storm,’ even if modern severe storms exceed that capacity.”, “alj_quote”: “The credible evidence of record established that Respondent has maintained the underground culverts that were constructed in accordance with the Navajo County approved plans.”, “legal_basis”: “CC&R Interpretation”, “topic_tags”: [ “Maintenance”, “Infrastructure”, “Grandfathering” ] }, { “question”: “How much evidence is needed to win a case against the HOA?”, “short_answer”: “A ‘preponderance of the evidence,’ meaning the claim is more probably true than not.”, “detailed_answer”: “The homeowner must provide evidence that has ‘superior evidentiary weight’ and is more convincing than the HOA’s evidence. It is not about the number of witnesses, but the convincing force of the evidence presented.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “Morris K. Udall, Arizona Law of Evidence § 5”, “topic_tags”: [ “Evidence”, “Legal Standards” ] }, { “question”: “Can I rely on my own interpretation of engineering plans to prove a violation?”, “short_answer”: “Likely not, if the HOA presents conflicting expert testimony.”, “detailed_answer”: “In this case, the homeowner believed a marking on the plan was a missing culvert, but the HOA’s expert engineer testified it was a roadway hatch pattern. The ALJ relied on the expert’s interpretation over the homeowner’s assumption.”, “alj_quote”: “Dr. Barlow testified that Petitioner’s belief that double lines in the red box on the plans are supposed to be a designated culvert, is erroneous, as those lines are part of the roadway designation.”, “legal_basis”: “Expert Testimony”, “topic_tags”: [ “Evidence”, “Expert Witnesses”, “Dispute Resolution” ] }, { “question”: “Is a single incident of failure enough to prove the HOA isn’t maintaining common areas?”, “short_answer”: “Not necessarily, especially if the incident was caused by exceptional circumstances.”, “detailed_answer”: “The ALJ noted that the petition was based on a single storm event in July 2021 described as ‘exceptional and unusually severe,’ and there were no other complaints. This isolated incident was insufficient to prove a failure to maintain.”, “alj_quote”: “Ms. Seekins testified (and Petitioner agreed) that the Petition was filed due to an occurrence from a single storm in July 2021, and that there have been no other complaints to the Board regarding the culverts.”, “legal_basis”: “Factual Finding”, “topic_tags”: [ “Maintenance”, “Enforcement”, “Violations” ] } ] }


Case Participants

Petitioner Side

  • Deatta M. Pleasants (petitioner)
    Lot 185 owner; testified on her own behalf
  • Larry Rice (co-owner, present with petitioner)
    Present with Petitioner
  • Daphna Rice (co-owner, present with petitioner)
    Present with Petitioner (referred to as 'D. Rice')

Respondent Side

  • Pinecrest Lake Property Owners Association, Inc. (respondent (entity))
  • David Onuschak (HOA attorney)
    Jones, Skelton & Hochuli, PLC
    Represented Respondent
  • Sharon Seekins (board president, witness)
    Pinecrest Lake Property Owners Association, Inc.
    President of Respondent's Board
  • Zachary Barlo (witness, civil engineer)
    Ironside Engineering and Development, Inc.
    Testified for Respondent

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
  • Susan Nicolson (ADRE Commissioner)
    Arizona Department of Real Estate
    Recipient of Decision
  • vnunez (ADRE recipient)
    Arizona Department of Real Estate
    Email recipient of documents/decision
  • djones (ADRE recipient)
    Arizona Department of Real Estate
    Email recipient of documents/decision
  • labril (ADRE recipient)
    Arizona Department of Real Estate
    Email recipient of documents/decision
  • mneat (ADRE recipient)
    Arizona Department of Real Estate
    Email recipient of documents/decision
  • lrecchia (ADRE recipient)
    Arizona Department of Real Estate
    Email recipient of documents/decision
  • gosborn (ADRE recipient)
    Arizona Department of Real Estate
    Email recipient of documents/decision

Other Participants

  • Ryan J. McCarthy (attorney)
    Jones, Skelton & Hochuli, PLC
    Affiliated with Respondent's counsel; specific hearing role unclear

R.L. Whitmer v. Hilton Casitas Council of Homeowners

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Case Summary

Case ID 25F-H001-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-11-12
Administrative Law Judge Samuel Fox
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner R.L. Whitmer Counsel —
Respondent Hilton Casitas Council of Homeowners Counsel Emily H. Mann

Alleged Violations

A.R.S. § 33-1215(A)(1)

Outcome Summary

The Administrative Law Judge found the Respondent HOA in violation of A.R.S. § 33-1215(A)(1) for failing to contain the name of the association in the Declaration. The Petitioner was deemed the prevailing party and awarded the $500.00 filing fee, but no civil penalty was imposed.

Key Issues & Findings

Declaration requirements for naming the condominium and association.

Petitioner claimed the Declaration failed to comply with A.R.S. § 33-1215(A)(1) because it lacked the formal name of the association. Respondent argued the existing reference to the 'Council of Co-owners' was sufficient because case law established the current association was the successor entity. The Tribunal found the Declaration did not contain the name of the association as required.

Orders: Respondent shall pay Petitioner the filing fee of $500.00 within thirty (30) days and shall comply with A.R.S. § 33-1215(A)(1) going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1215(A)(1)
  • A.R.S. § 12-550
  • A.R.S. § 33-1202(15)
  • A.R.S. § 33-1219(A)
  • London v Carrick
  • Schaefer v Pro Keanti AZ2 LP
  • Eli v Cro County A

Analytics Highlights

Topics: HOA, Condominium Act, Declaration, Statute of Limitations
Additional Citations:

  • A.R.S. § 33-1215(A)(1)
  • A.R.S. § 12-550
  • A.R.S. § 33-1202(15)
  • A.R.S. § 33-1219(A)
  • A.R.S. § 32-2199
  • A.R.S. § 41-1092
  • London v Carrick
  • Schaefer v Pro Keanti AZ2 LP
  • Eli v Cro County A

Audio Overview

Decision Documents

25F-H001-REL Decision – 1235116.pdf

Uploaded 2026-01-23T18:12:40 (44.0 KB)

25F-H001-REL Decision – 1241814.pdf

Uploaded 2026-01-23T18:12:47 (115.8 KB)





Briefing Doc – 25F-H001-REL


Briefing on Administrative Hearing Case No. 25F-H001-REL

Executive Summary

This briefing document synthesizes the proceedings and outcome of the administrative hearing case R.L. Whitmer v. Hilton Casitas Council of Homeowners (No. 25F-H001-REL). The central issue was whether the Respondent Homeowners Association’s (HOA) governing Declaration complied with Arizona Revised Statutes (A.R.S.) § 33-1215(A)(1), which mandates that the Declaration contain both the name of the condominium (with the word “condominium”) and the specific name of the association.

In a decision issued on November 12, 2024, Administrative Law Judge (ALJ) Samuel Fox ruled in favor of the Petitioner, R.L. Whitmer. The ALJ found that while the Declaration’s associated plat satisfied the requirement for the condominium’s name, the Declaration failed to contain the association’s actual, current legal name, “Hilton Casitas Council of Homeowners.”

The Respondent HOA advanced three primary defenses, all of which were rejected by the tribunal:

1. Constructive Compliance: The HOA argued that the Declaration’s reference to its predecessor entity (“Council of Co-owners”), combined with numerous court rulings affirming the current HOA as its legal successor, constituted compliance. The ALJ dismissed this, stating the statute requires the actual name to be present and that “constructive compliance” is not sufficient.

2. Statute of Limitations: The HOA claimed the petition was barred by a four-year statute of limitations (A.R.S. § 12-550), as the Petitioner had notice of the Declaration’s contents since 2014. The ALJ ruled that this statute applies only to “actions” in a “court,” and that proceedings before the Office of Administrative Hearings (OAH), an executive branch agency, do not qualify.

3. Impossibility of Unilateral Action: The HOA contended that it could not be ordered to amend the Declaration because such an action requires a membership vote and is not unilaterally achievable. The ALJ found this was not a valid legal defense, as the procedural requirements for achieving statutory compliance do not excuse non-compliance.

The final order declared the Petitioner the prevailing party, ordered the Respondent to pay the Petitioner’s $500 filing fee, and mandated that the Respondent comply with A.R.S. § 33-1215(A)(1). No civil penalty was imposed.

Case Overview

• Case Number: 25F-H001-REL

• Forum: Office of Administrative Hearings (OAH), State of Arizona

• Petitioner: R.L. Whitmer

• Respondent: Hilton Casitas Council of Homeowners

• Presiding Judge: Administrative Law Judge Samuel Fox

• Respondent’s Counsel: Emily H. Mann

• Core Legal Issue: Whether the Respondent’s Declaration of Horizontal Property Regime for Hilton Casitas violates A.R.S. § 33-1215(A)(1), which states:

Procedural History

• Petition Filed: On or about June 27, 2024, R.L. Whitmer filed a petition with the Arizona Department of Real Estate alleging the violation.

• Motion to Dismiss: On October 1, 2024, the Respondent filed a motion for summary judgment (or to dismiss), which was denied by the OAH on October 18, 2024.

• Evidentiary Hearing: A hearing was held on October 25, 2024, though the hearing transcript is dated October 26, 2024.

• ALJ Decision Issued: The final Administrative Law Judge Decision was issued on November 12, 2024.

Analysis of Key Arguments and Rulings

The case centered on three distinct legal arguments presented by the Respondent HOA and the subsequent rulings by the ALJ.

1. Statutory Compliance of the Declaration

The fundamental dispute was whether the Declaration, as written, satisfied the plain language of A.R.S. § 33-1215(A)(1).

Argument / Position

Supporting Evidence / Rationale

Petitioner (Whitmer)

The Declaration is non-compliant because the legal name “Hilton Casitas Council of Homeowners” is not present anywhere in the document.

The Declaration refers to the “Council of Co-owners,” an unincorporated association created in 1972. The current non-profit corporation, formed in 1994, is not named. The Petitioner argued, “It’s just not there.”

Respondent (HOA)

The Declaration is compliant when its constituent parts are read together with established case law.

1. Condominium Name: The plat, which is legally part of the Declaration per A.R.S. § 33-1219(A), contains the phrase “HILTON CASITAS A CONDOMINIUM DEVELOPMENT.”
2. Association Name: Section 1.4 of the Declaration defines “Council” as the “Council of Co-owners.” Multiple Arizona Court of Appeals decisions have held that the “Hilton Casitas Council of Homeowners” is the legal successor entity to the “Council of Co-owners.” Therefore, a reference to the old name legally constitutes a reference to the current name.

ALJ Ruling

Violation Established. The Declaration does not contain the name of the association as required.

The ALJ agreed with the Respondent that the plat satisfied the condominium name requirement. However, the judge rejected the “successor entity” argument for the association’s name, concluding: > “The statute requires ‘the name of the association,’ not merely a reference to it. Even if the current association was the entity with standing, its name was not present in the Declaration. Assuming that there is some purpose for the statutory requirement, a reader should be able to identify the association from the declaration. Accordingly, the Tribunal is not willing to accept constructive compliance.”

2. The Statute of Limitations Defense

The Respondent argued that even if a violation existed, the Petitioner’s claim was filed too late.

Argument / Position

Supporting Evidence / Rationale

Petitioner (Whitmer)

The statute of limitations does not apply because the violation is a continuous act.

The Petitioner framed the non-compliant Declaration as a “cloud on the title,” a type of defect to which a statute of limitations is never a bar.

Respondent (HOA)

The claim is time-barred by the four-year default statute of limitations under A.R.S. § 12-550.

The Petitioner acquired his property in August 2014 and thus had constructive notice of the Declaration’s contents. The four-year period to file a claim expired in August 2018, making the 2024 petition six years too late.

ALJ Ruling

Defense Rejected. The statute of limitations does not apply to OAH proceedings.

The ALJ performed a statutory analysis, noting that A.R.S. § 12-550 applies to an “action” which is defined as “any matter or proceeding in a court.” Because the OAH is an agency of the executive branch and not a court, its proceedings are not “actions” under the statute. Therefore, the general statute of limitations is inapplicable.

3. The “Impossibility” of Unilateral Compliance

The Respondent argued that the relief sought by the Petitioner—an order to amend the Declaration—was not something the tribunal could grant because the HOA Board could not comply on its own.

Argument / Position

Supporting Evidence / Rationale

Petitioner (Whitmer)

The HOA has a clear path to compliance.

The Petitioner stated that the HOA simply needs to “call the election, amend the… or propose an amendment that cures this problem and ask the membership to approve it.” He offered to stipulate that he would not seek a contempt order if the HOA made a good-faith effort.

Respondent (HOA)

An order to amend would be inappropriate because the HOA cannot unilaterally amend the Declaration.

Amending the Declaration requires a vote of the membership (either 51% or 67%) and consent from an entity referred to as “the corporation.” If a vote failed, the HOA could not comply with the order, exposing it to further litigation from the Petitioner seeking to hold it in contempt.

ALJ Ruling

Defense Rejected. Procedural requirements for compliance do not constitute a legal defense against non-compliance.

The ALJ noted that it is ordinary for an HOA board or membership to have to vote to enact compliance with a statute. The ruling states: > “Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.” The tribunal’s role is to determine compliance and order it where it is lacking.

Final Order

The Administrative Law Judge Decision concluded with the following orders:

1. Prevailing Party: The Petitioner, R.L. Whitmer, is deemed the prevailing party.

2. Filing Fee: The Respondent must pay the Petitioner the filing fee of $500.00 within thirty days of the order.

3. Compliance: The Respondent shall comply with A.R.S. § 33-1215(A)(1) going forward.

4. Civil Penalty: No civil penalty was found to be appropriate in the matter.

The decision is binding unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days.






Study Guide – 25F-H001-REL


{ “case”: { “docket_no”: “25F-H001-REL”, “case_title”: “R.L. Whitmer v. Hilton Casitas Council of Homeowners”, “decision_date”: “2024-11-12”, “alj_name”: “Samuel Fox”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the 4-year statute of limitations for civil lawsuits apply to HOA disputes filed with the Arizona Department of Real Estate?”, “short_answer”: “No. The general statute of limitations applies to court ‘actions,’ and administrative hearings are not considered court actions.”, “detailed_answer”: “The Administrative Law Judge ruled that the general 4-year statute of limitations (A.R.S. § 12-550) does not apply to petitions filed with the Department of Real Estate/OAH. This is because the Office of Administrative Hearings is part of the executive branch, not the judicial branch, and its proceedings are not defined as ‘actions’ by the legislature.”, “alj_quote”: “Accordingly, proceedings before OAH are not ‘actions’ as defined by the legislature, and the general statute of limitations does not apply.”, “legal_basis”: “A.R.S. § 12-550; A.R.S. § 1-215”, “topic_tags”: [ “statute of limitations”, “jurisdiction”, “filing deadlines” ] }, { “question”: “Must the HOA’s Declaration explicitly state the full legal name of the Association?”, “short_answer”: “Yes. The Declaration must contain the actual name of the association, not just a definition or reference like ‘The Council’.”, “detailed_answer”: “State law requires the Declaration to contain the specific name of the association. The Judge rejected the argument that defining a term like ‘Council’ to mean the association was sufficient. The actual name must appear to ensure a reader can identify the association from the document.”, “alj_quote”: “The statute requires ‘the name of the association,’ not merely a reference to it. The name of the association as stated in the defined term ‘Council’ is not the name of the association.”, “legal_basis”: “A.R.S. § 33-1215(A)(1)”, “topic_tags”: [ “CC&Rs”, “governing documents”, “HOA name” ] }, { “question”: “Can an HOA avoid an order to amend its documents by claiming it requires a vote of the membership?”, “short_answer”: “No. Procedural difficulties, such as needing a membership vote, are not a valid legal defense for non-compliant documents.”, “detailed_answer”: “An HOA cannot use the difficulty of obtaining a membership vote as a defense against a violation finding. If the documents are non-compliant with state law, the Tribunal can order compliance regardless of the internal procedures required to fix them.”, “alj_quote”: “Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.”, “legal_basis”: “Administrative Authority”, “topic_tags”: [ “amendments”, “voting”, “defenses” ] }, { “question”: “If I win my case against the HOA, will I be reimbursed for the filing fee?”, “short_answer”: “Yes, the Judge can order the HOA to reimburse the $500 filing fee to the prevailing homeowner.”, “detailed_answer”: “When a homeowner prevails in proving a violation, the Administrative Law Judge has the authority to order the Respondent (HOA) to pay the filing fee directly to the Petitioner.”, “alj_quote”: “IT IS ORDERED that Respondent pay Petitioner the filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.”, “legal_basis”: “Administrative Remedy”, “topic_tags”: [ “fees”, “remedies”, “costs” ] }, { “question”: “Does proving an HOA violation automatically result in a civil penalty (fine) against the Association?”, “short_answer”: “No. A violation does not automatically trigger a civil penalty unless the Judge deems it appropriate.”, “detailed_answer”: “Even if a homeowner proves that the HOA violated a statute or the community documents, the Judge has discretion regarding civil penalties. In this case, despite finding a violation regarding the naming in the Declaration, the Judge decided no civil penalty was necessary.”, “alj_quote”: “No Civil Penalty is found to be appropriate in this matter.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “fines”, “civil penalties”, “enforcement” ] }, { “question”: “What is the burden of proof for a homeowner filing a petition against their HOA?”, “short_answer”: “The homeowner must prove the violation by a ‘preponderance of the evidence’.”, “detailed_answer”: “The petitioner (homeowner) is responsible for providing enough evidence to show that their contention is ‘more probably true than not.'”, “alj_quote”: “Petitioner bore the burden of proof to establish that Respondent violated applicable statutes by a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119(A)”, “topic_tags”: [ “evidence”, “burden of proof”, “legal standards” ] } ] }






Blog Post – 25F-H001-REL


{ “case”: { “docket_no”: “25F-H001-REL”, “case_title”: “R.L. Whitmer v. Hilton Casitas Council of Homeowners”, “decision_date”: “2024-11-12”, “alj_name”: “Samuel Fox”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the 4-year statute of limitations for civil lawsuits apply to HOA disputes filed with the Arizona Department of Real Estate?”, “short_answer”: “No. The general statute of limitations applies to court ‘actions,’ and administrative hearings are not considered court actions.”, “detailed_answer”: “The Administrative Law Judge ruled that the general 4-year statute of limitations (A.R.S. § 12-550) does not apply to petitions filed with the Department of Real Estate/OAH. This is because the Office of Administrative Hearings is part of the executive branch, not the judicial branch, and its proceedings are not defined as ‘actions’ by the legislature.”, “alj_quote”: “Accordingly, proceedings before OAH are not ‘actions’ as defined by the legislature, and the general statute of limitations does not apply.”, “legal_basis”: “A.R.S. § 12-550; A.R.S. § 1-215”, “topic_tags”: [ “statute of limitations”, “jurisdiction”, “filing deadlines” ] }, { “question”: “Must the HOA’s Declaration explicitly state the full legal name of the Association?”, “short_answer”: “Yes. The Declaration must contain the actual name of the association, not just a definition or reference like ‘The Council’.”, “detailed_answer”: “State law requires the Declaration to contain the specific name of the association. The Judge rejected the argument that defining a term like ‘Council’ to mean the association was sufficient. The actual name must appear to ensure a reader can identify the association from the document.”, “alj_quote”: “The statute requires ‘the name of the association,’ not merely a reference to it. The name of the association as stated in the defined term ‘Council’ is not the name of the association.”, “legal_basis”: “A.R.S. § 33-1215(A)(1)”, “topic_tags”: [ “CC&Rs”, “governing documents”, “HOA name” ] }, { “question”: “Can an HOA avoid an order to amend its documents by claiming it requires a vote of the membership?”, “short_answer”: “No. Procedural difficulties, such as needing a membership vote, are not a valid legal defense for non-compliant documents.”, “detailed_answer”: “An HOA cannot use the difficulty of obtaining a membership vote as a defense against a violation finding. If the documents are non-compliant with state law, the Tribunal can order compliance regardless of the internal procedures required to fix them.”, “alj_quote”: “Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.”, “legal_basis”: “Administrative Authority”, “topic_tags”: [ “amendments”, “voting”, “defenses” ] }, { “question”: “If I win my case against the HOA, will I be reimbursed for the filing fee?”, “short_answer”: “Yes, the Judge can order the HOA to reimburse the $500 filing fee to the prevailing homeowner.”, “detailed_answer”: “When a homeowner prevails in proving a violation, the Administrative Law Judge has the authority to order the Respondent (HOA) to pay the filing fee directly to the Petitioner.”, “alj_quote”: “IT IS ORDERED that Respondent pay Petitioner the filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.”, “legal_basis”: “Administrative Remedy”, “topic_tags”: [ “fees”, “remedies”, “costs” ] }, { “question”: “Does proving an HOA violation automatically result in a civil penalty (fine) against the Association?”, “short_answer”: “No. A violation does not automatically trigger a civil penalty unless the Judge deems it appropriate.”, “detailed_answer”: “Even if a homeowner proves that the HOA violated a statute or the community documents, the Judge has discretion regarding civil penalties. In this case, despite finding a violation regarding the naming in the Declaration, the Judge decided no civil penalty was necessary.”, “alj_quote”: “No Civil Penalty is found to be appropriate in this matter.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “fines”, “civil penalties”, “enforcement” ] }, { “question”: “What is the burden of proof for a homeowner filing a petition against their HOA?”, “short_answer”: “The homeowner must prove the violation by a ‘preponderance of the evidence’.”, “detailed_answer”: “The petitioner (homeowner) is responsible for providing enough evidence to show that their contention is ‘more probably true than not.'”, “alj_quote”: “Petitioner bore the burden of proof to establish that Respondent violated applicable statutes by a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119(A)”, “topic_tags”: [ “evidence”, “burden of proof”, “legal standards” ] } ] }


Case Participants

Petitioner Side

  • R.L. Whitmer (petitioner)
    fulcrumgroup.biz

Respondent Side

  • Emily H. Mann Phillips (HOA attorney)
    Phillips, Maceyko & Battock, PLLC
  • Robert Westbrook (HOA president)
    Hilton Casitas Council of Homeowners

Neutral Parties

  • Samuel Fox (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate (ADRE)

Justin R. Sheakley v. Arizona Hillcrest Community Association

Posted on by

Case Summary

Case ID 24F-H056-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-10-21
Administrative Law Judge Samuel Fox
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Justin R. Sheakley Counsel —
Respondent Arizona Hillcrest Community Association Counsel Quinten Cupps

Alleged Violations

CC&Rs Article 11, Section 11.2

Outcome Summary

Petitioner failed to meet the burden of proof showing Respondent violated its Community Documents concerning the determination of structural damage required for shared cost repair under CC&R 11.2.

Why this result: Petitioner failed to demonstrate by a preponderance of the evidence that the Board was unreasonable when determining the wall at issue was structurally damaged.

Key Issues & Findings

Dispute regarding cost sharing for common wall repair (structural damage determination)

Petitioner claimed the wall only required cosmetic repair (HOA responsibility per CC&R 11.2) rather than structural replacement (shared cost). The HOA relied on contractor assessment indicating structural damage. The ALJ found Petitioner failed to meet the burden of proof to show the HOA violated the CC&Rs or acted unreasonably in ordering the repair.

Orders: Respondent deemed the prevailing party.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.01
  • A.R.S. § 32-2199.02

Analytics Highlights

Topics: Structural Damage, HOA Maintenance, Cost Sharing, HOA Discretion
Additional Citations:

  • CC&Rs Article 11, Section 11.2
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.01
  • A.R.S. § 32-2199.02

Audio Overview

Decision Documents

24F-H056-REL Decision – 1211424.pdf

Uploaded 2026-01-23T18:12:24 (55.5 KB)

24F-H056-REL Decision – 1235391.pdf

Uploaded 2026-01-23T18:12:30 (125.4 KB)





Briefing Doc – 24F-H056-REL


Briefing Document: Sheakley v. Arizona Hillcrest Community Association

Executive Summary

This document synthesizes the key facts, arguments, and legal outcome of the dispute between homeowner Justin R. Sheakley (Petitioner) and the Arizona Hillcrest Community Association (Respondent). The central conflict revolves around the required repairs for a common boundary wall at the Petitioner’s property and the associated cost-sharing obligations under the community’s Covenants, Conditions, and Restrictions (CC&Rs).

The Petitioner alleged the wall only required cosmetic repairs (stucco and paint) and that the Association’s demand for a complete rebuild, with costs split 50/50, constituted a violation of the CC&Rs and was an act of retaliation for his previous opposition to a larger community project. He supported his position with a structural engineer’s report stating there was “no structural reason for the wall to be replaced.”

The Respondent countered that the wall possessed genuine structural damage, including cracking, leaning, and deflection, which necessitated a rebuild rather than a surface-level patch. The Association argued its actions were consistent with CC&R Article 11, Section 11.2, which mandates a 50/50 cost split for repairs involving structural damage. They presented expert testimony from a construction defect specialist and maintained that the Board of Directors acted within its discretionary authority to determine the appropriate level of maintenance.

The matter was adjudicated by the Office of Administrative Hearings. On October 21, 2024, an Administrative Law Judge issued a decision finding that the Petitioner failed to demonstrate by a preponderance of the evidence that the Association had violated its Community Documents. The judge ruled that the Board’s determination of structural damage was not unreasonable and that it had the authority to order the repairs and require payment from the homeowner. The Respondent was deemed the prevailing party.

Case Overview

Details

Case Number

24F-H056-REL

Petitioner

Justin R. Sheakley (Owner of 3234 W. Bajada Dr., Lot 52)

Respondent

Arizona Hillcrest Community Association

Respondent’s Attorney

Quinten Cupps, Vial Fotheringham, LLP

Presiding Judge

Samuel Fox, Office of Administrative Hearings

Hearing Date

September 30, 2024

Decision Date

October 21, 2024

Core Legal Issue

Alleged violation of CC&Rs, Article 11, Section 11.2, concerning maintenance and repair responsibilities for a common wall.

The Central Dispute: The Common Wall at Lot 52

The conflict originated from the Arizona Hillcrest Community Association’s determination that a section of the common boundary wall adjacent to Justin Sheakley’s property (Lot 52) required a complete teardown and rebuild due to structural damage. The Association proposed to undertake the repair through its chosen contractor, Elite Construction and Painting, at a total cost of approximately 4,900,andinvoicedMr.Sheakleyfor502,450), citing cost-sharing provisions for structural damage in the CC&Rs.

Mr. Sheakley disputed the classification of the damage as “structural,” arguing the issues were cosmetic. This disagreement over the scope of necessary work and the interpretation of the CC&Rs formed the basis of his petition to the Arizona Department of Real Estate, leading to the hearing.

Petitioner’s Position and Arguments (Justin R. Sheakley)

Mr. Sheakley’s case was built on the following key arguments:

• Damage is Cosmetic, Not Structural: He contended that the wall’s issues were limited to “stucco delamination” and peeling paint on the bottom courses, which did not compromise its structural integrity. His position was that the wall simply needed to be “restuckled and repainted.”

• Contradictory Assessments: He highlighted that an initial 2020 assessment by a licensed structural engineering firm, Criterium-Kessler Engineers, recommended only “routine repair of sub repair and painting” for his specific wall. He argued the Association improperly shifted its reliance from this professional engineering opinion to the opinions of general contractors (Evolution Construction and Elite Construction) who advocated for a more drastic and expensive rebuild.

• Retaliation: Mr. Sheakley testified that he believed the Association’s actions were “a retaliation for me stopping the construction in 2020 to the sum of $100,000.” This refers to his successful effort to organize residents to pause a large-scale wall repair project at the beginning of the COVID-19 pandemic.

• Potential Conflict of Interest: He raised concerns about the relationship between the contractors, noting that the owner of Elite Construction, Peter Alesi, was a former employee of Evolution Construction. He stated, “I would suspect that evolution construction was looked over and had this grow report written by the same person that owns the Elite Construction of Painting.”

• Supporting Expert Evidence: Mr. Sheakley commissioned his own report from Bringham Engineering Consultants, dated July 27, 2024, which concluded: “It is our opinion that flaking paint and discoloration of the paint has not affected the structural integrity of the wall. There is no structural reason for the wall to be replace.”

Respondent’s Position and Arguments (Arizona Hillcrest Community Association)

The Association, represented by Quinten Cupps, presented the following defense:

• Presence of Structural Damage: The Association maintained the wall suffered from significant structural issues beyond surface cosmetics. Their expert witness, Peter Alesi, testified to observing a lean towards the homeowner’s property, “deflection” (side-to-side movement), and a linear crack at the bottom course of blocks. He asserted that any simple stucco patch would “just pop right back off due to the deflection of that panel.”

• Authority Under CC&Rs: Their central legal argument rested on Article 11, Section 11.2 of the CC&Rs, which states: “In the case of destruction of both sides of such wall or structural damage, the Owner(s) owning Lots adjacent to the wall shall be responsible for one half of the cost of replacement or repair of the wall and the Association shall be responsible for the other one-half.”

• Board Discretion and Due Process: Community Manager Melanie Page testified that the Board followed a deliberate process. They obtained reports, bids, reviewed a “matrix” from Evolution mapping the damage, personally walked the community to inspect the walls, and held a vote during a board meeting to approve the repairs. The CC&Rs grant the Board sole discretion in determining the appropriate level of maintenance.

• Jurisdictional Challenge: The Association’s counsel argued that the OAH was not the proper forum for the dispute, stating, “it’s not about not a violation of 11.2, it’s an issue of whether or not we should be repairing the wall. And that’s not what for this court to decide in our opinion.” They claimed the Association was actively trying to comply with its maintenance obligations under the CC&Rs.

• Homeowner Contribution to Damage: During cross-examination, it was established that Mr. Sheakley had planted Ficus trees in January 2022 and anchored them to the wall with cables drilled into the structure. Their expert noted that Ficus trees have “very aggressive roots” that can compromise walls, and photos showed the trees touching the wall and support columns.

Key Evidence and Testimony

Witness Testimony

• Justin R. Sheakley (Petitioner): Testified about the history of the wall issue, the 2020 Criterium-Kessler report, his opposition to the initial project, his belief that the current action is retaliatory, and presented his own engineering report from Bringham Engineering.

• Melanie Page (Community Manager for AAM): Described the HOA’s multi-year process of assessing the walls, obtaining bids, and the Board’s review and approval process. She confirmed that multiple notices were sent to Mr. Sheakley regarding the planned repairs and his financial obligation.

• Peter Alesi (Owner, Elite Construction and Painting): Provided expert testimony as a general contractor with 24 years of experience, including 18 years as a certified construction defect expert. He detailed the specific structural failings of the wall, including movement, cracking, and a lean of up to 3/4 of an inch. He stated that a simple stucco repair would not fix the underlying problem.

Documentary and Physical Evidence

• CC&Rs, Article 11, Section 11.2: The foundational document governing the dispute, outlining cost-sharing responsibilities for walls with structural damage.

• Criterium-Kessler Engineers Report (2020): A structural engineering report that identified various wall issues in the community but recommended only “routine repair” for Mr. Sheakley’s lot.

• Evolution Construction Report/Matrix (2022): A report by a general contractor that mapped wall damage lot-by-lot, identifying “moderate damage” and “block cracks” at Lot 52. Mr. Sheakley used this document to point out inconsistencies, such as Elite Construction rebuilding a wall at Lot 111 that Evolution had deemed in “good condition.”

• Bringham Engineering Consultants Report (2024): Commissioned by Mr. Sheakley, this report concluded there was no structural reason to replace the wall, focusing on paint and discoloration. The judge later noted this report did not address the visible cracking.

• Photographs: Both parties submitted photographs showing stucco delamination, peeling paint, a linear crack at the base of the wall, Ficus trees anchored to the wall, and measurements demonstrating the wall’s lean.

• Google Earth Images: Mr. Sheakley presented images from 2011 and 2019 to show the wall had long-standing issues, predating his planting of the Ficus trees.

Legal Proceedings and Final Decision

The hearing was held on September 30, 2024, before Administrative Law Judge Samuel Fox. After hearing testimony and reviewing all evidence, the judge issued a decision on October 21, 2024.

Conclusions of Law

1. Burden of Proof: The Petitioner, Mr. Sheakley, bore the burden to prove by a preponderance of the evidence that the Association violated its Community Documents.

2. Definition of “Structural Damage”: As the term was not defined in the CC&Rs, the judge assigned it its ordinary meaning: “damage to the integrity of a structure that is more serious than mere cosmetic damage… damaged beyond the surface.” The judge noted that the documents do not require a specific severity of damage to trigger the repair clauses.

3. Board Authority: The Community Documents grant the Board “significant discretion and authority over walls” and other common areas.

4. Failure to Meet Burden: The judge concluded, “Petitioner did not demonstrate by a preponderance of the evidence that the Board was unreasonable when determining the wall at issue was structurally damaged.”

5. No Violation Found: The final conclusion was that “the preponderance of the evidence established that Petitioner failed to meet his burden that Respondent failed to abide by its Community Documents.”

Based on these conclusions, the judge issued the following order:

“IT IS ORDERED that Respondent be deemed the prevailing party in this matter.”






Study Guide – 24F-H056-REL


{
“case”: {
“docket_no”: “24F-H056-REL”,
“case_title”: “Justin R. Sheakley v. Arizona Hillcrest Community Association”,
“decision_date”: “2024-10-21”,
“alj_name”: “Samuel Fox”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“questions”: [
{
“question”: “Who is responsible for paying to repair a shared wall between my home and the common area?”,
“short_answer”: “Costs are split 50/50 if the damage is structural, but surface maintenance is individual.”,
“detailed_answer”: “According to the decision, standard surface maintenance (like painting) is the responsibility of the party facing that side of the wall. However, if there is ‘structural damage’ or destruction of the wall, the cost of repair or replacement is shared equally between the homeowner and the HOA.”,
“alj_quote”: “In the case of destruction of both sides of such wall or structural damage, the Owner(s) owning Lots adjacent to the wall shall be responsible for one half of the cost of replacement or repair of the wall and the Association shall be responsible for the other one-half.”,
“legal_basis”: “CC&Rs Article 11, Section 11.2”,
“topic_tags”: [
“maintenance”,
“shared walls”,
“assessments”
]
},
{
“question”: “What is the legal definition of ‘structural damage’ if it isn’t defined in the CC&Rs?”,
“short_answer”: “It means damage to the integrity of the structure that goes beyond mere cosmetic issues.”,
“detailed_answer”: “The ALJ determined that undefined terms should be given their ordinary meaning. Structural damage does not require the structure to be ‘fatally flawed’ or about to collapse; it simply means the damage affects the integrity of the structure and is more serious than surface-level cosmetic issues.”,
“alj_quote”: “Structural damage means damage to the integrity of a structure that is more serious than mere cosmetic damage. … Structural damage does not mean that the structure is fatally flawed; it means that the structure is damaged beyond the surface.”,
“legal_basis”: “Ordinary Meaning / Judicial Interpretation”,
“topic_tags”: [
“definitions”,
“maintenance”,
“legal interpretation”
]
},
{
“question”: “Who has the burden of proof when a homeowner sues their HOA?”,
“short_answer”: “The homeowner (Petitioner) must prove the violation occurred.”,
“detailed_answer”: “The homeowner filing the petition bears the burden of proving that the HOA violated the statutes, CC&Rs, or Bylaws. They must prove this by a ‘preponderance of the evidence,’ meaning it is more likely than not that the violation occurred.”,
“alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.”,
“legal_basis”: “A.A.C. R2-19-119(A) and (B)(1)”,
“topic_tags”: [
“procedural”,
“burden of proof”,
“evidence”
]
},
{
“question”: “Can the Administrative Law Judge order the HOA to pay for other damages or remediation?”,
“short_answer”: “No, the ALJ’s authority is limited to ordering compliance with documents and levying civil penalties.”,
“detailed_answer”: “The tribunal has limited jurisdiction. It can order a party to abide by the statute or community documents and can levy civil penalties for those specific violations, but it cannot order other types of remediation or penalties for conduct outside that scope.”,
“alj_quote”: “This Tribunal is not authorized to order other remediation or order civil penalties for other conduct.”,
“legal_basis”: “A.R.S. § 32-2199.02”,
“topic_tags”: [
“jurisdiction”,
“remedies”,
“penalties”
]
},
{
“question”: “Does the HOA Board have the authority to decide when a repair is necessary?”,
“short_answer”: “Yes, Boards typically have significant discretion to determine maintenance needs.”,
“detailed_answer”: “Unless the governing documents state otherwise, the Board has significant discretion and authority to determine the appropriate level of maintenance and when repairs or replacements are necessary for areas the Association is responsible for.”,
“alj_quote”: “The Community Documents in the record … grant the Board significant discretion and authority over walls and other areas that Respondent is responsible for maintaining.”,
“legal_basis”: “Community Documents / Board Discretion”,
“topic_tags”: [
“board authority”,
“governance”,
“maintenance”
]
},
{
“question”: “If I hire an engineer who says repairs aren’t needed, will that override the HOA’s decision?”,
“short_answer”: “Not necessarily, if the HOA’s decision was reasonable and supported by evidence.”,
“detailed_answer”: “Even if a homeowner provides a conflicting report, they must prove the Board acted unreasonably. In this case, the homeowner’s report focused on cosmetic issues (paint), while the HOA’s decision was based on evidence of structural damage. The homeowner failed to prove the Board’s determination was unreasonable.”,
“alj_quote”: “Petitioner did not demonstrate by a preponderance of the evidence that the Board was unreasonable when determining the wall at issue was structurally damaged.”,
“legal_basis”: “Preponderance of Evidence”,
“topic_tags”: [
“expert testimony”,
“disputes”,
“evidence”
]
}
]
}






Blog Post – 24F-H056-REL


{
“case”: {
“docket_no”: “24F-H056-REL”,
“case_title”: “Justin R. Sheakley v. Arizona Hillcrest Community Association”,
“decision_date”: “2024-10-21”,
“alj_name”: “Samuel Fox”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“questions”: [
{
“question”: “Who is responsible for paying to repair a shared wall between my home and the common area?”,
“short_answer”: “Costs are split 50/50 if the damage is structural, but surface maintenance is individual.”,
“detailed_answer”: “According to the decision, standard surface maintenance (like painting) is the responsibility of the party facing that side of the wall. However, if there is ‘structural damage’ or destruction of the wall, the cost of repair or replacement is shared equally between the homeowner and the HOA.”,
“alj_quote”: “In the case of destruction of both sides of such wall or structural damage, the Owner(s) owning Lots adjacent to the wall shall be responsible for one half of the cost of replacement or repair of the wall and the Association shall be responsible for the other one-half.”,
“legal_basis”: “CC&Rs Article 11, Section 11.2”,
“topic_tags”: [
“maintenance”,
“shared walls”,
“assessments”
]
},
{
“question”: “What is the legal definition of ‘structural damage’ if it isn’t defined in the CC&Rs?”,
“short_answer”: “It means damage to the integrity of the structure that goes beyond mere cosmetic issues.”,
“detailed_answer”: “The ALJ determined that undefined terms should be given their ordinary meaning. Structural damage does not require the structure to be ‘fatally flawed’ or about to collapse; it simply means the damage affects the integrity of the structure and is more serious than surface-level cosmetic issues.”,
“alj_quote”: “Structural damage means damage to the integrity of a structure that is more serious than mere cosmetic damage. … Structural damage does not mean that the structure is fatally flawed; it means that the structure is damaged beyond the surface.”,
“legal_basis”: “Ordinary Meaning / Judicial Interpretation”,
“topic_tags”: [
“definitions”,
“maintenance”,
“legal interpretation”
]
},
{
“question”: “Who has the burden of proof when a homeowner sues their HOA?”,
“short_answer”: “The homeowner (Petitioner) must prove the violation occurred.”,
“detailed_answer”: “The homeowner filing the petition bears the burden of proving that the HOA violated the statutes, CC&Rs, or Bylaws. They must prove this by a ‘preponderance of the evidence,’ meaning it is more likely than not that the violation occurred.”,
“alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.”,
“legal_basis”: “A.A.C. R2-19-119(A) and (B)(1)”,
“topic_tags”: [
“procedural”,
“burden of proof”,
“evidence”
]
},
{
“question”: “Can the Administrative Law Judge order the HOA to pay for other damages or remediation?”,
“short_answer”: “No, the ALJ’s authority is limited to ordering compliance with documents and levying civil penalties.”,
“detailed_answer”: “The tribunal has limited jurisdiction. It can order a party to abide by the statute or community documents and can levy civil penalties for those specific violations, but it cannot order other types of remediation or penalties for conduct outside that scope.”,
“alj_quote”: “This Tribunal is not authorized to order other remediation or order civil penalties for other conduct.”,
“legal_basis”: “A.R.S. § 32-2199.02”,
“topic_tags”: [
“jurisdiction”,
“remedies”,
“penalties”
]
},
{
“question”: “Does the HOA Board have the authority to decide when a repair is necessary?”,
“short_answer”: “Yes, Boards typically have significant discretion to determine maintenance needs.”,
“detailed_answer”: “Unless the governing documents state otherwise, the Board has significant discretion and authority to determine the appropriate level of maintenance and when repairs or replacements are necessary for areas the Association is responsible for.”,
“alj_quote”: “The Community Documents in the record … grant the Board significant discretion and authority over walls and other areas that Respondent is responsible for maintaining.”,
“legal_basis”: “Community Documents / Board Discretion”,
“topic_tags”: [
“board authority”,
“governance”,
“maintenance”
]
},
{
“question”: “If I hire an engineer who says repairs aren’t needed, will that override the HOA’s decision?”,
“short_answer”: “Not necessarily, if the HOA’s decision was reasonable and supported by evidence.”,
“detailed_answer”: “Even if a homeowner provides a conflicting report, they must prove the Board acted unreasonably. In this case, the homeowner’s report focused on cosmetic issues (paint), while the HOA’s decision was based on evidence of structural damage. The homeowner failed to prove the Board’s determination was unreasonable.”,
“alj_quote”: “Petitioner did not demonstrate by a preponderance of the evidence that the Board was unreasonable when determining the wall at issue was structurally damaged.”,
“legal_basis”: “Preponderance of Evidence”,
“topic_tags”: [
“expert testimony”,
“disputes”,
“evidence”
]
}
]
}


Case Participants

Petitioner Side

  • Justin R. Sheakley (petitioner)
    Homeowner at 3234 W. Bajada Dr.

Respondent Side

  • Quinten Cupps (attorney)
    VIal Fotheringham, LLP
  • Melanie Veach (community manager, witness)
    Half management (AAM)
    Testified for Respondent. Identified herself as Melanie Page during testimony.
  • Peter Alesi (witness)
    Elite Construction and Painting
    Owner of Elite Construction and Painting, testified regarding structural issues.

Neutral Parties

  • Samuel Fox (ALJ)
    Office of Administrative Hearings
    ALJ for the September 30, 2024 hearing and decision.
  • Sondra J. Vanella (ALJ)
    Office of Administrative Hearings
    Signed the Order Granting Continuance on August 14, 2024.
  • Susan Nicolson (commissioner)
    Arizona Department of Real Estate

Lisa Marx v. Tara Condominium Association

Posted on by

Case Summary

Case ID 24F-H054-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-09-20
Administrative Law Judge Kay A. Abramsohn
Outcome partial
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lisa Marx Counsel —
Respondent Tara Condominium Association Counsel —

Alleged Violations

A.R.S. § 33-1258(A)
A.R.S. § 33-1248 (A), (D), (E), and (F); and Tara CC&Rs Section 9(E)

Outcome Summary

Petitioner prevailed on the 'Records' issue (A.R.S. § 33-1258), resulting in a $500.00 filing fee reimbursement. Respondent prevailed on the 'Example 13' issue (A.R.S. § 33-1248 and CC&Rs § 9(E)).

Why this result: The Administrative Law Judge concluded that Petitioner failed to sustain her burden regarding the Open Meeting Law allegations, finding that TARA conducted meetings in compliance and the specific volunteer work referenced was not statutorily or contractually required to be placed on an agenda for formal action.

Key Issues & Findings

Records Access Violation

TARA failed to timely provide access to TARA HOA records it possessed, violating the ten business day fulfillment requirement for examination requests.

Orders: TARA was ordered to reimburse Petitioner $500.00.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 33-1258(A)

Open Meeting Law Violation (Example 13)

Petitioner alleged open meeting violations concerning volunteer work and projects not placed on agendas or formally voted upon by the board (Example 13).

Orders: Petitioner's Petition was dismissed as to alleged violations of A.R.S. § 33-1248(A), (D), (E), and (F) and/or Tara CC&Rs Section 9(E).

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1248(A)
  • A.R.S. § 33-1248(D)
  • A.R.S. § 33-1248(E)
  • A.R.S. § 33-1248(F)
  • Tara CC&Rs Section 9(E)

Analytics Highlights

Topics: HOA Records, Open Meeting Law, Partial Victory, Filing Fee Reimbursement, Condominium Association
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.01
  • A.R.S. § 32-2199.02
  • A.R.S. § 32-2199.04
  • A.R.S. § 32-2199.05
  • A.R.S. § 33-1248
  • A.R.S. § 33-1258
  • A.R.S. § 33-1801 et seq.
  • A.R.S. § 41-1092.09
  • Tara CC&Rs Section 9(E)

Audio Overview

Decision Documents

24F-H054-REL Decision – 1212274.pdf

Uploaded 2026-01-23T18:11:34 (70.4 KB)

24F-H054-REL Decision – 1212281.pdf

Uploaded 2026-01-23T18:11:41 (12.4 KB)

24F-H054-REL Decision – 1216809.pdf

Uploaded 2026-01-23T18:11:49 (50.9 KB)

24F-H054-REL Decision – 1225818.pdf

Uploaded 2026-01-23T18:11:58 (168.1 KB)

24F-H054-REL Decision – 1226250.pdf

Uploaded 2026-01-23T18:12:08 (41.9 KB)





Briefing Doc – 24F-H054-REL


Briefing Document: Marx v. Tara Condominium Association

Executive Summary

This document provides a comprehensive analysis of the administrative case Lisa Marx v. Tara Condominium Association (No. 24F-H054-REL), adjudicated by the Arizona Office of Administrative Hearings. The dispute centers on two primary allegations brought by homeowner and former board member Lisa Marx against the Tara Condominium Association (TARA): (1) violations of Arizona state law regarding access to association records, and (2) violations of the state’s Open Meeting Law.

The case culminated in a split decision by the Administrative Law Judge (ALJ). TARA was found to have violated A.R.S. § 33-1258 by failing to provide timely access to its financial and other records as requested by the petitioner. However, the petitioner failed to prove her second claim that TARA violated the open meeting provisions of A.R.S. § 33-1248 when board members and volunteers performed maintenance and repair projects on common areas without formal agenda items and board votes.

Consequently, the ALJ sustained the petition on the records violation and dismissed it on the open meeting violation. TARA was ordered to reimburse Ms. Marx $500, representing the filing fee for the single issue on which she prevailed. A subsequent request for rehearing filed by Ms. Marx was procedurally rejected for being submitted to the incorrect agency.

Case Background and Procedural History

Parties and Context

• Petitioner: Lisa Marx, a homeowner in the Tara Condominium Association and a former board member who served in various capacities, including Secretary, Chairperson, and Vice-Chairperson, from 2021 until her resignation in January 2024.

• Respondent: Tara Condominium Association (TARA), a 50-unit nonprofit management association, represented at the hearing by its Chairman, Mark Gottmann.

The dispute arose following a change in board leadership in early 2024, with Ms. Marx alleging the new board was operating without transparency and in violation of state statutes and the association’s governing documents.

Chronology of Key Events

Jan 2024

Lisa Marx resigns from the TARA board two weeks after being elected for a fourth term.

Feb 1, 2024

Mark Gottmann assumes the role of Chairman of the Board.

Feb–Apr 2024

Marx makes a series of five requests for association records, which are either partially or fully denied by the TARA board.

May 29, 2024

Marx files an HOA Dispute Process Petition with the Arizona Department of Real Estate, alleging two categories of violations and paying a 1,000filingfee(500 per issue).

Aug 8, 2024

TARA files an Amended Response, admitting to several of the alleged violations, offering to reimburse Marx’s $1,000 filing fee, and requesting that the hearing be vacated.

Aug 8, 2024

Marx files a reply rejecting the offer, stating that the “numerous” issues required “a ruling that is binding and definite” to “hopefully prevent further violations.”

Aug 16, 2024

The ALJ issues an order requiring Marx to narrow her petition to two specific issues, categorizing the five records-request instances as one “records” issue and requiring her to select one of the thirteen alleged open-meeting violations.

Aug 19, 2024

Marx selects “Example 13” from her petition as her second issue.

Aug 29, 2024

An administrative hearing is held before ALJ Kay A. Abramsohn.

Sep 20, 2024

The ALJ issues a final decision.

Sep 23, 2024

The ALJ issues a Minute Entry rejecting a request for rehearing filed by Marx, as it was sent to the Office of Administrative Hearings instead of the Commissioner of the Arizona Department of Real Estate.

Analysis of Disputed Issues and Testimony

The hearing focused on two central issues as narrowed by the ALJ’s order.

Issue 1: Access to Association Records (A.R.S. § 33-1258)

This issue consolidated five instances across multiple dates where Marx alleged she was improperly denied access to or provision of TARA’s records.

Petitioner’s Position (Lisa Marx):

• Marx testified that she made multiple written requests for documents including vouchers, contracts, financial reports (General Ledger, AP Distribution), architectural change forms, and violation letters.

• The board’s responses were statutorily invalid. For example, a February 22, 2024 response stated: “A member of the Association is entitled to see reasonable financial information only. A member does not have a right to see contracts entered into by the Board nor information concerning specific members. We respectfully refuse your request…” Another denial was based on her being “no longer a board member.”

• Marx argued this refusal to provide records blocks transparency, creates distrust, and prevents homeowners from ensuring the governing documents are being enforced impartially. She asserted that all requested documents, such as financial records and contracts related to common areas, are records homeowners are entitled to examine.

Respondent’s Position (Tara Condominium Association):

• Mark Gottmann testified that the board was new and that any mistakes were made out of “enthusiasm” and a desire to better the community, not malicious intent.

• He stated the board acted on advice from outside sources, including a trade association, which led them to believe they were “over-providing” documents compared to their CC&Rs, which only mandate semi-annual financial statements.

• TARA experienced delays in receiving financial reports from its management company, Colby, after it was acquired by another entity, which in turn delayed distribution to homeowners.

• Gottmann argued that some requested documents did not exist (e.g., contracts for volunteer work), while others were justifiably withheld because they contained private information about individual homeowners (e.g., violation letters, architectural change forms).

Issue 2: Open Meeting Law Violations (A.R.S. § 33-1248)

This issue centered on “Example 13” of the petition, which alleged the board undertook several projects without adhering to open meeting requirements.

Petitioner’s Position (Lisa Marx):

• Marx alleged that several projects were performed on common property without being included on a meeting agenda and without a formal vote by the board in an open meeting. These projects included:

◦ Board members spraying weeds.

◦ Board members digging up grass around trees and laying mulch.

◦ A board member refinishing wood shutters.

• She argued these actions violated A.R.S. § 33-1248 and TARA’s own CC&Rs (Section 9(E)), which states, “A majority vote of the Managers shall entitle the Board to carry out action on behalf of the owners of the units.”

• The failure to discuss these items in an open meeting denied members the right to provide input before the board took action on community property.

Respondent’s Position (Tara Condominium Association):

• Gottmann characterized the projects as ongoing operational responsibilities and good-faith efforts by volunteers to save the association money.

• The weed spraying was described as an “experiment” at no cost to TARA. The mulching was done with donated materials in response to a homeowner’s suggestion. The shutter repair was done by volunteers for a nominal cost of less than $150 for materials, which was within the monthly maintenance budget.

• He argued these were not formal actions requiring a board vote but were undertaken with an “enthusiasm and desire to make our community a better place.” TARA’s CC&Rs (Section 12, Part D) grant the board the power “to use and expend the assessments collected to maintain, care for, and preserve the common elements.”

Administrative Law Judge’s Decision and Order

The ALJ’s decision, issued on September 20, 2024, delivered a split verdict, finding for each party on one of the two core issues.

Finding on Records Violation (A.R.S. § 33-1258):

• Verdict: TARA violated the statute.

• Reasoning: The ALJ concluded that TARA failed to provide access to records it possessed within the statutorily required ten-day timeframe. While TARA had a potential defense for delays related to its management company and a valid reason to withhold records containing personal information of other members, the overall evidence demonstrated a failure to comply with the law.

• Outcome: The petitioner was deemed the prevailing party on this issue.

Finding on Open Meeting Violation (A.R.S. § 33-1248):

• Verdict: TARA did not violate the statute.

• Reasoning: The ALJ found that the petitioner failed to sustain her burden of proof. The evidence showed that TARA conducted its formal meetings in compliance with open meeting laws, providing notice and agendas. The ALJ concluded there was “no evidence in the hearing record that… those work circumstances… were required by statute or the CC&Rs to be placed on a TARA agenda for discussion and/or for ‘formal action’ by the Board.”

• Outcome: The respondent was deemed the prevailing party on this issue.

Final Order

Based on the findings, the ALJ issued the following orders:

1. Petitioner’s Petition is sustained as to the TARA violation of A.R.S. § 33-1258 (Records).

2. Petitioner’s Petition is dismissed as to the alleged violations by TARA of A.R.S. § 33-1248 (Open Meetings).

3. TARA is ordered to reimburse Petitioner in the amount of $500.00, representing the filing fee for the single successful claim.






Study Guide – 24F-H054-REL


{ “case”: { “docket_no”: “24F-H054-REL”, “case_title”: “Lisa Marx v. Tara Condominium Association”, “decision_date”: “2024-09-20”, “alj_name”: “Kay A. Abramsohn”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can my HOA refuse to provide financial records because they are waiting to receive them from their third-party management company?”, “short_answer”: “No. The HOA is responsible for providing access to records within the statutory 10-day timeframe, regardless of management company delays.”, “detailed_answer”: “The ALJ ruled that waiting for a management company to provide monthly reports does not excuse the association from its statutory obligation to make records reasonably available within 10 business days. Even if the HOA acts in good faith while waiting for a vendor, failure to provide existing records violates the statute.”, “alj_quote”: “TARA has a defense, although unsupported, regarding the time frame only as to the financial documents for which TARA was waiting from its management company. … Overall, as to A.R.S. § 33-1258, there is no evidence that, within the ten day time frame, TARA provided access to the TARA HOA records it did have and which were required to have been provided to Petitioner; therefore, the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “records request”, “financial records”, “management company” ] }, { “question”: “Does a group of board members or volunteers doing unpaid maintenance work require an open meeting and a formal vote?”, “short_answer”: “Not necessarily. If the work is volunteer-based and doesn’t require a specific contract or expenditure necessitating a vote under the CC&Rs or statutes, it may not trigger open meeting requirements.”, “detailed_answer”: “The ALJ determined that volunteer work performed by board members (like weeding or painting) to save money did not constitute ‘formal action’ that required placement on an agenda or a formal vote in an open meeting, provided no statute or governing document specifically required it.”, “alj_quote”: “There is no evidence in the hearing record that, prior to the volunteer work described in Example 13, that those work circumstances, or any projected volunteer work circumstances, were required by statute or the CC&Rs to be placed on a TARA agenda for discussion and/or for ‘formal action’ by the Board at the TARA monthly meetings.”, “legal_basis”: “A.R.S. § 33-1248”, “topic_tags”: [ “open meetings”, “volunteer work”, “board authority” ] }, { “question”: “Can the HOA withhold violation letters or architectural change forms concerning other homeowners?”, “short_answer”: “Yes, if those documents contain personal information about specific members.”, “detailed_answer”: “The decision affirms that HOAs can refuse to provide records related to specific units, such as violation notices or contracts containing personal data, under the statutory exception for personal, health, or financial records of individual members.”, “alj_quote”: “A.R.S. § 33-1258(B)(4) provides an exception to the requirement to provide records for ‘personal, health or financial records of an individual member’ … In this case, because some of the requested ‘repair’ contract information for repairs at certain addresses may have contained personal information of another member, TARA was likely within its statutory authority to refuse to provide that particular information.”, “legal_basis”: “A.R.S. § 33-1258(B)(4)”, “topic_tags”: [ “privacy”, “violation letters”, “records request” ] }, { “question”: “Can the board deny my records request because I am no longer a board member?”, “short_answer”: “No. The right to examine records belongs to all members of the association.”, “detailed_answer”: “The ALJ found the HOA in violation when it declined to provide information on the grounds that the requester was ‘no longer a Board member.’ The statute requires records be made available to ‘any member.'”, “alj_quote”: “TARA declined to provide such, stating that Petitioner was no longer a Board member. … TARA failed to comply with A.R.S. § 33-1258 regarding provision of access to TARA HOA records.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “homeowner rights”, “records access”, “board membership” ] }, { “question”: “If I file a petition with two issues and only win one, do I get my filing fee back?”, “short_answer”: “You may receive a partial reimbursement. The tribunal may order the HOA to reimburse the portion of the fee related to the successful claim.”, “detailed_answer”: “In this case, the petitioner paid 1,000fortwoissues(500 per issue). Since the petitioner prevailed on the records issue but failed on the open meeting issue, the ALJ ordered the HOA to reimburse only $500.”, “alj_quote”: “IT IS ORDERED that TARA reimburse Petitioner in the amount of $500.00. … The Administrative Law Judge concludes TARA is the prevailing party regarding the ‘Example 13’ issue and Petitioner bears the filing fee on this issue.”, “legal_basis”: “A.R.S. § 32-2199.01”, “topic_tags”: [ “filing fees”, “dispute resolution”, “penalties” ] }, { “question”: “Does being a ‘new board’ or ‘learning the ropes’ excuse the HOA from following state laws?”, “short_answer”: “No. Ignorance of the law or being a new board is not a valid defense for violating statutes.”, “detailed_answer”: “The HOA argued they were a new board acting in the best interest of the community and learning better governing practices. The ALJ acknowledged this explanation but still ruled that the failure to provide records was a violation of state statute.”, “alj_quote”: “TARA explained that the Board was a new Board and, believing it was acting in the Board’s best interest, was in the process of learning the procedures for better governing practices. … the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “board duties”, “legal compliance”, “defenses” ] } ] }






Blog Post – 24F-H054-REL


{ “case”: { “docket_no”: “24F-H054-REL”, “case_title”: “Lisa Marx v. Tara Condominium Association”, “decision_date”: “2024-09-20”, “alj_name”: “Kay A. Abramsohn”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can my HOA refuse to provide financial records because they are waiting to receive them from their third-party management company?”, “short_answer”: “No. The HOA is responsible for providing access to records within the statutory 10-day timeframe, regardless of management company delays.”, “detailed_answer”: “The ALJ ruled that waiting for a management company to provide monthly reports does not excuse the association from its statutory obligation to make records reasonably available within 10 business days. Even if the HOA acts in good faith while waiting for a vendor, failure to provide existing records violates the statute.”, “alj_quote”: “TARA has a defense, although unsupported, regarding the time frame only as to the financial documents for which TARA was waiting from its management company. … Overall, as to A.R.S. § 33-1258, there is no evidence that, within the ten day time frame, TARA provided access to the TARA HOA records it did have and which were required to have been provided to Petitioner; therefore, the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “records request”, “financial records”, “management company” ] }, { “question”: “Does a group of board members or volunteers doing unpaid maintenance work require an open meeting and a formal vote?”, “short_answer”: “Not necessarily. If the work is volunteer-based and doesn’t require a specific contract or expenditure necessitating a vote under the CC&Rs or statutes, it may not trigger open meeting requirements.”, “detailed_answer”: “The ALJ determined that volunteer work performed by board members (like weeding or painting) to save money did not constitute ‘formal action’ that required placement on an agenda or a formal vote in an open meeting, provided no statute or governing document specifically required it.”, “alj_quote”: “There is no evidence in the hearing record that, prior to the volunteer work described in Example 13, that those work circumstances, or any projected volunteer work circumstances, were required by statute or the CC&Rs to be placed on a TARA agenda for discussion and/or for ‘formal action’ by the Board at the TARA monthly meetings.”, “legal_basis”: “A.R.S. § 33-1248”, “topic_tags”: [ “open meetings”, “volunteer work”, “board authority” ] }, { “question”: “Can the HOA withhold violation letters or architectural change forms concerning other homeowners?”, “short_answer”: “Yes, if those documents contain personal information about specific members.”, “detailed_answer”: “The decision affirms that HOAs can refuse to provide records related to specific units, such as violation notices or contracts containing personal data, under the statutory exception for personal, health, or financial records of individual members.”, “alj_quote”: “A.R.S. § 33-1258(B)(4) provides an exception to the requirement to provide records for ‘personal, health or financial records of an individual member’ … In this case, because some of the requested ‘repair’ contract information for repairs at certain addresses may have contained personal information of another member, TARA was likely within its statutory authority to refuse to provide that particular information.”, “legal_basis”: “A.R.S. § 33-1258(B)(4)”, “topic_tags”: [ “privacy”, “violation letters”, “records request” ] }, { “question”: “Can the board deny my records request because I am no longer a board member?”, “short_answer”: “No. The right to examine records belongs to all members of the association.”, “detailed_answer”: “The ALJ found the HOA in violation when it declined to provide information on the grounds that the requester was ‘no longer a Board member.’ The statute requires records be made available to ‘any member.'”, “alj_quote”: “TARA declined to provide such, stating that Petitioner was no longer a Board member. … TARA failed to comply with A.R.S. § 33-1258 regarding provision of access to TARA HOA records.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “homeowner rights”, “records access”, “board membership” ] }, { “question”: “If I file a petition with two issues and only win one, do I get my filing fee back?”, “short_answer”: “You may receive a partial reimbursement. The tribunal may order the HOA to reimburse the portion of the fee related to the successful claim.”, “detailed_answer”: “In this case, the petitioner paid 1,000fortwoissues(500 per issue). Since the petitioner prevailed on the records issue but failed on the open meeting issue, the ALJ ordered the HOA to reimburse only $500.”, “alj_quote”: “IT IS ORDERED that TARA reimburse Petitioner in the amount of $500.00. … The Administrative Law Judge concludes TARA is the prevailing party regarding the ‘Example 13’ issue and Petitioner bears the filing fee on this issue.”, “legal_basis”: “A.R.S. § 32-2199.01”, “topic_tags”: [ “filing fees”, “dispute resolution”, “penalties” ] }, { “question”: “Does being a ‘new board’ or ‘learning the ropes’ excuse the HOA from following state laws?”, “short_answer”: “No. Ignorance of the law or being a new board is not a valid defense for violating statutes.”, “detailed_answer”: “The HOA argued they were a new board acting in the best interest of the community and learning better governing practices. The ALJ acknowledged this explanation but still ruled that the failure to provide records was a violation of state statute.”, “alj_quote”: “TARA explained that the Board was a new Board and, believing it was acting in the Board’s best interest, was in the process of learning the procedures for better governing practices. … the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “board duties”, “legal compliance”, “defenses” ] } ] }


Case Participants

Petitioner Side

  • Lisa Marx (petitioner)
    Tara Condominium Association (Homeowner)
    Also former HOA Secretary, Vice-Chairperson, and Chairperson.
  • Brenda Spielder (observer)
    Tara Condominium Association (Member)
    Attended hearing with Petitioner.
  • Cynthia Poland (observer)
    Tara Condominium Association (Member)
    Attended hearing with Petitioner.

Respondent Side

  • Mark Gottmann (board member)
    Tara Condominium Association
    Chairman of the Board; represented Tara at the hearing.
  • Chandler W. Travis (HOA attorney)
    Travis Law Firm PLC
    Counsel for Tara Condominium Association until August 27, 2024.
  • Stephanie Bushart (board member)
    Tara Condominium Association
  • Tina Marie Shepherd (board member)
    Tara Condominium Association
    Resigned as Chairperson on January 31, 2024.
  • Dennis Anderson (board member)
    Tara Condominium Association
    Involved in volunteer work (weed spraying, trench digging, shutter refinishing).
  • Judy Rice (board member)
    Tara Condominium Association
    Treasurer and CPA.
  • Ted (board member)
    Tara Condominium Association
    Involved in volunteer trench work.
  • Nikki (volunteer)
    Tara Condominium Association
    Involved in volunteer shutter repair.

Neutral Parties

  • Kay A. Abramsohn (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Renee Snow (volunteer)
    Tara Condominium Association
    Volunteered for landscaping committee.

Kenneth M. Halal v. Eagle Crest Ranch Homeowners Association

Posted on by

Case Summary

Case ID 24F-H045-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-06-26
Administrative Law Judge Sondra J. Vanella
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Kenneth M. Halal Counsel —
Respondent Eagle Crest Ranch Homeowners Association Counsel Alexandra M. Kurtyka

Alleged Violations

A.R.S. §§ 33-1803, 33-1804; Bylaws Article 2.3, 5.2

Outcome Summary

The Petitioner's request was dismissed. The Administrative Law Judge determined that Petitioner failed to meet the burden of proof, as the restriction of access to the Townsquare forum was a unilateral decision made by Townsquare, a separate legal entity. The cited statutes and Bylaws regarding due process for violations of Project Documents were found inapplicable because Townsquare and its Terms of Use are not governed by the HOA’s Project Documents.

Why this result: Petitioner failed to meet the burden of proof, and the cited statutes and bylaw provisions were found inapplicable since the Townsquare platform is not owned or managed by the HOA, and the restriction was imposed solely by Townsquare based on its Terms of Use, which are not HOA Project Documents.

Key Issues & Findings

Due process violation regarding removal from HOA website forum (Townsquare Forum)

Petitioner alleged violation of A.R.S. §§ 33-1803 and 33-1804, and Bylaws 2.3 and 5.2, arguing the HOA failed to provide due process when restricting his access to the Townsquare online forum. The ALJ found the cited provisions inapplicable as the restriction was imposed solely by Townsquare, a third-party entity whose Terms of Use are not Project Documents.

Orders: Petition dismissed because Petitioner failed to prove by a preponderance of the evidence that Respondent violated the cited statutes or Bylaws.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1803
  • A.R.S. § 33-1804
  • Bylaws Article 2.3
  • Bylaws Section 5.2

Analytics Highlights

Topics: HOA Dispute, Due Process, Online Forum, Townsquare, Third-Party Vendor, Project Documents
Additional Citations:

  • A.R.S. § 33-1803
  • A.R.S. § 33-1804
  • A.R.S. § 32-2199
  • Bylaws Article 2.3
  • Bylaws Section 5.2
  • CC&Rs Article 1 Section 1.36
  • Townsquare Terms of Use

Video Overview

Audio Overview

Decision Documents

24F-H045-REL Decision – 1183806.pdf

Uploaded 2026-01-23T18:08:33 (61.3 KB)

24F-H045-REL Decision – 1186944.pdf

Uploaded 2026-01-23T18:08:40 (45.9 KB)

24F-H045-REL Decision – 1193702.pdf

Uploaded 2026-01-23T18:08:55 (171.0 KB)

Questions

Question

Can my HOA be held responsible if a third-party vendor (like a website or app) bans me from their platform?

Short Answer

No, not if the vendor is a separate legal entity that makes its own decisions regarding its Terms of Use.

Detailed Answer

The ALJ ruled that if a platform is a separate legal entity and the HOA has no control over its Terms of Use or decisions, the HOA is not responsible for the vendor's unilateral decision to restrict a user.

Alj Quote

Townsquare is a separate and distinct legal entity from Respondent and Respondent has no control over Townsquare, its Terms of Use, or its decisions.

Legal Basis

Findings of Fact / Conclusions of Law

Topic Tags

  • HOA obligations
  • third-party vendors
  • liability

Question

Are the 'Terms of Use' for a community website considered official HOA 'Project Documents'?

Short Answer

No, third-party Terms of Use are not considered Project Documents.

Detailed Answer

The decision clarified that terms set by a third-party vendor do not fall under the legal definition of Project Documents (like CC&Rs or Bylaws), meaning a violation of them is not a violation of HOA rules.

Alj Quote

Townsquare’s Terms of Use is not a Project Document as that term is defined in the CC&Rs Article 1, Section 1.36.

Legal Basis

Findings of Fact #18

Topic Tags

  • governing documents
  • definitions
  • online platforms

Question

Does the HOA have to provide notice and a hearing before I am restricted from an online forum?

Short Answer

Not if the restriction is by a third party and no fine is levied by the HOA.

Detailed Answer

The due process requirements (notice and hearing) found in HOA bylaws typically apply when the Board alleges a violation of Project Documents or levies a fine. They do not apply when a third party restricts access based on their own rules.

Alj Quote

The Administrative Law Judge finds that this section is inapplicable to this matter as the Board has not levied a fine against Petitioner, nor has the Board alleged a violation of the Project Documents by Petitioner.

Legal Basis

Findings of Fact #18

Topic Tags

  • due process
  • hearings
  • fines

Question

What specifically counts as a 'Project Document' in an Arizona HOA?

Short Answer

The Declaration, Articles, Bylaws, Association Rules, and Architectural Committee Rules.

Detailed Answer

The decision cites the specific definition from the CC&Rs, limiting Project Documents to the formal governing instruments of the association.

Alj Quote

Project Document means this Replacement Declaration, the Articles, the Bylaws, the Association Rules and the Architectural Committee Rules.

Legal Basis

Findings of Fact #4

Topic Tags

  • definitions
  • governing documents

Question

Does the HOA Board need to vote in an open meeting to ban a resident from a third-party app?

Short Answer

No, if the decision is made unilaterally by the app provider.

Detailed Answer

If the third-party entity makes the sole determination to restrict a user based on a violation of their Terms of Use, the HOA Board is not taking an action that requires a vote or meeting.

Alj Quote

In this case, Townsquare, a separate legal entity not affiliated with Respondent, made the unilateral decision to restrict Petitioner’s use of the platform based upon its sole decision that Petitioner violated its Terms of Use.

Legal Basis

Conclusions of Law #6

Topic Tags

  • open meetings
  • board voting
  • procedural requirements

Question

What is the burden of proof for a homeowner filing a complaint against their HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (Petitioner) must prove that their claims are more probably true than not. This is the standard evidentiary weight required in these administrative hearings.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

Conclusions of Law #2

Topic Tags

  • legal standards
  • burden of proof

Question

Does a platform's 'Terms of Use' override the lack of HOA policy on social media?

Short Answer

Yes, the platform's rules apply independently of HOA documents.

Detailed Answer

Even if the HOA doesn't have a specific policy for the platform, the platform's own Terms of Use govern user behavior, and the platform is not governed by the HOA's documents.

Alj Quote

Townsquare is not governed by Respondent’s community documents and its Terms of Use are not Project Documents.

Legal Basis

Conclusions of Law #6

Topic Tags

  • social media
  • rules enforcement
  • jurisdiction

Case

Docket No
24F-H045-REL
Case Title
Kenneth M. Halal v. Eagle Crest Ranch Homeowners Association
Decision Date
2024-06-26
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA be held responsible if a third-party vendor (like a website or app) bans me from their platform?

Short Answer

No, not if the vendor is a separate legal entity that makes its own decisions regarding its Terms of Use.

Detailed Answer

The ALJ ruled that if a platform is a separate legal entity and the HOA has no control over its Terms of Use or decisions, the HOA is not responsible for the vendor's unilateral decision to restrict a user.

Alj Quote

Townsquare is a separate and distinct legal entity from Respondent and Respondent has no control over Townsquare, its Terms of Use, or its decisions.

Legal Basis

Findings of Fact / Conclusions of Law

Topic Tags

  • HOA obligations
  • third-party vendors
  • liability

Question

Are the 'Terms of Use' for a community website considered official HOA 'Project Documents'?

Short Answer

No, third-party Terms of Use are not considered Project Documents.

Detailed Answer

The decision clarified that terms set by a third-party vendor do not fall under the legal definition of Project Documents (like CC&Rs or Bylaws), meaning a violation of them is not a violation of HOA rules.

Alj Quote

Townsquare’s Terms of Use is not a Project Document as that term is defined in the CC&Rs Article 1, Section 1.36.

Legal Basis

Findings of Fact #18

Topic Tags

  • governing documents
  • definitions
  • online platforms

Question

Does the HOA have to provide notice and a hearing before I am restricted from an online forum?

Short Answer

Not if the restriction is by a third party and no fine is levied by the HOA.

Detailed Answer

The due process requirements (notice and hearing) found in HOA bylaws typically apply when the Board alleges a violation of Project Documents or levies a fine. They do not apply when a third party restricts access based on their own rules.

Alj Quote

The Administrative Law Judge finds that this section is inapplicable to this matter as the Board has not levied a fine against Petitioner, nor has the Board alleged a violation of the Project Documents by Petitioner.

Legal Basis

Findings of Fact #18

Topic Tags

  • due process
  • hearings
  • fines

Question

What specifically counts as a 'Project Document' in an Arizona HOA?

Short Answer

The Declaration, Articles, Bylaws, Association Rules, and Architectural Committee Rules.

Detailed Answer

The decision cites the specific definition from the CC&Rs, limiting Project Documents to the formal governing instruments of the association.

Alj Quote

Project Document means this Replacement Declaration, the Articles, the Bylaws, the Association Rules and the Architectural Committee Rules.

Legal Basis

Findings of Fact #4

Topic Tags

  • definitions
  • governing documents

Question

Does the HOA Board need to vote in an open meeting to ban a resident from a third-party app?

Short Answer

No, if the decision is made unilaterally by the app provider.

Detailed Answer

If the third-party entity makes the sole determination to restrict a user based on a violation of their Terms of Use, the HOA Board is not taking an action that requires a vote or meeting.

Alj Quote

In this case, Townsquare, a separate legal entity not affiliated with Respondent, made the unilateral decision to restrict Petitioner’s use of the platform based upon its sole decision that Petitioner violated its Terms of Use.

Legal Basis

Conclusions of Law #6

Topic Tags

  • open meetings
  • board voting
  • procedural requirements

Question

What is the burden of proof for a homeowner filing a complaint against their HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (Petitioner) must prove that their claims are more probably true than not. This is the standard evidentiary weight required in these administrative hearings.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

Conclusions of Law #2

Topic Tags

  • legal standards
  • burden of proof

Question

Does a platform's 'Terms of Use' override the lack of HOA policy on social media?

Short Answer

Yes, the platform's rules apply independently of HOA documents.

Detailed Answer

Even if the HOA doesn't have a specific policy for the platform, the platform's own Terms of Use govern user behavior, and the platform is not governed by the HOA's documents.

Alj Quote

Townsquare is not governed by Respondent’s community documents and its Terms of Use are not Project Documents.

Legal Basis

Conclusions of Law #6

Topic Tags

  • social media
  • rules enforcement
  • jurisdiction

Case

Docket No
24F-H045-REL
Case Title
Kenneth M. Halal v. Eagle Crest Ranch Homeowners Association
Decision Date
2024-06-26
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Kenneth M. Halal (petitioner)
  • Margot Castro (witness)
  • Patricia Schell (witness)
    Also referred to as Patricia Shell

Respondent Side

  • Alexandra M. Kurtyka (HOA attorney)
    CHDB Law LLP
  • Mark K. Sahl (HOA attorney)
    CHDB Law LLP
  • Donald A. Morris (board member)
    Eagle Crest Ranch Homeowners Association
    Testified as witness for Respondent; former President of the Board
  • Claudia Oberthier (witness)
    Spelled as 'O B E R T H I E R' during appearance; initially listed as 'Claudia Albert'
  • Salina Watson (property manager)
    Associa Arizona
    Subpoenaed by Petitioner

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    ADRE
  • vnunez (ADRE Staff)
    ADRE
    Listed on service list
  • djones (ADRE Staff)
    ADRE
    Listed on service list
  • labril (ADRE Staff)
    ADRE
    Listed on service list
  • mneat (ADRE Staff)
    ADRE
    Listed on service list
  • lrecchia (ADRE Staff)
    ADRE
    Listed on service list
  • gosborn (ADRE Staff)
    ADRE
    Listed on service list

Other Participants

  • Bryan Hughes (witness (subpoenaed))
    Subpoena quashed
  • Ken Humphrey (witness (subpoenaed))
    Subpoena quashed
  • Eli Boyd (witness (subpoenaed))
    Subpoena quashed
  • Dane Gilmore (witness (subpoenaed))
    Subpoena quashed

Robert P Fink & Brittany L Oleson v. Casas Arroyo Association, Inc.

Posted on by

Case Summary

Case ID 24F-H023-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-05-16
Administrative Law Judge Sondra J. Vanella
Outcome total_loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Robert P. Fink & Brittany L. Oleson Counsel —
Respondent Casas Arroyo Association, Inc. Counsel David Onuschak, Esq.

Alleged Violations

Article II Section 1(c)

Outcome Summary

Petitioners failed to establish by a preponderance of the evidence that Respondent violated CC&R Article II Section 1(c). The cited provision was inapplicable because the security gate installation did not involve transferring common area to a public agency or increasing the density of residences (the clause was read conjunctively).

Why this result: CC&R Article II Section 1(c) was inapplicable because the sentence regarding improvements and density was written in the conjunctive using the word “and,” meaning the improvement must both be placed upon the common area AND increase the density of residences, neither of which applied to the security gate installation.

Key Issues & Findings

Violation of CC&Rs regarding vote threshold for placing improvements on common area.

Petitioners alleged Respondent HOA violated CC&R Article II Section 1(c) by approving the installation of a security gate on the common area using a two-thirds standard of those who voted (resulting in 27 affirmative votes, 69-72% approval rate) when they asserted three quarters (3/4 or 30 votes out of 39 eligible lots) of eligible votes was required for an improvement on the common area.

Orders: Petitioners’ Petition is dismissed; no action is required of Respondent.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 41-1092.09
  • CC&R Article II Section 1(c)
  • CC&R Article IV Section 2

Video Overview

Audio Overview

Decision Documents

24F-H023-REL Decision – 1133251.pdf

Uploaded 2026-01-23T18:03:24 (51.2 KB)

24F-H023-REL Decision – 1135497.pdf

Uploaded 2026-01-23T18:03:25 (54.9 KB)

24F-H023-REL Decision – 1168799.pdf

Uploaded 2026-01-23T18:03:26 (47.6 KB)

24F-H023-REL Decision – 1178674.pdf

Uploaded 2026-01-23T18:03:29 (136.5 KB)

Questions

Question

Who is responsible for proving that an HOA violated the CC&Rs during a dispute hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof to establish the violation.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner filing the petition to prove that the HOA committed the alleged violation. The standard of proof required is a 'preponderance of the evidence'.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • burden of proof
  • procedural requirements
  • evidence

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

This legal standard requires that the evidence presented has superior weight and is convincing enough to incline a fair mind to one side of the issue over the other. It is not necessarily about having a greater number of witnesses.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • legal standards
  • evidence
  • definitions

Question

Can I interpret a specific sentence in the CC&Rs in isolation to prove a violation?

Short Answer

No, CC&R provisions must be interpreted within the context of the entire provision.

Detailed Answer

A homeowner cannot cherry-pick a specific clause or sentence to claim a violation. The Administrative Law Judge will look at the entire section to understand the intended scope and application of the restriction.

Alj Quote

One cannot read Section 1(c) of Article II without taking into consideration the context of the entire provision

Legal Basis

Contract Interpretation Principles

Topic Tags

  • CC&R interpretation
  • legal standards
  • context

Question

How does the word 'and' affect the interpretation of restrictions in the CC&Rs?

Short Answer

The word 'and' is conjunctive, meaning clauses it connects must be read together, not as separate independent choices.

Detailed Answer

If a CC&R provision lists restrictions connected by 'and' (e.g., no improvements AND no actions increasing density), it implies the conditions are linked. The ALJ distinguished this from the disjunctive 'or'. In this case, a restriction on improvements was linked to increasing density/transferring land because they were joined by 'and'.

Alj Quote

This sentence is written in the conjunctive. The word 'and' is used to connect the two clauses. It is not written in the disjunctive, as the word 'or' is not part of the sentence.

Legal Basis

Grammatical Interpretation of Contracts

Topic Tags

  • contract interpretation
  • grammar
  • legal standards

Question

Can the HOA use general assessment funds for safety improvements without a special homeowner vote?

Short Answer

Yes, if the CC&Rs grant authority to use assessments for health, safety, and welfare.

Detailed Answer

If the CC&Rs state that assessments are for promoting the recreation, health, safety, and welfare of residents, the Board may use general funds for improvements like security gates without a specific supermajority vote typically reserved for special assessments or land transfers.

Alj Quote

Article IV Section 2 of the 2006 recorded CC&Rs grant authority to Respondent to use the general assessment monies to 'promote the recreation, health, safety and welfare of the residents.'

Legal Basis

CC&R Article IV Section 2

Topic Tags

  • assessments
  • HOA powers
  • safety improvements

Question

Does a CC&R requirement for a 3/4 vote to 'transfer' common area apply to installing a gate?

Short Answer

No, installing a gate is not considered dedicating or transferring land.

Detailed Answer

A CC&R clause requiring a supermajority vote to dedicate or transfer common area to a public agency does not apply to the installation of a security gate, as the gate does not constitute a transfer of land ownership.

Alj Quote

The installation of a security gate does not dedicate or transfer all or any part of the common area to any public agency, authority or utility. Therefore, a three quarters vote is not required.

Legal Basis

CC&R Article II Section 1(c)

Topic Tags

  • voting requirements
  • common area
  • improvements

Question

Does a restriction on increasing the 'density of residences' apply to security improvements?

Short Answer

No, security improvements like gates do not increase residential density.

Detailed Answer

If a voting requirement in the CC&Rs is triggered by actions that 'increase the density of residences,' it does not apply to infrastructure improvements like security gates that have no effect on the number of homes or density.

Alj Quote

Further, the installation of a security gate is not an improvement that increases the density of the residences. Therefore, a three quarters vote is not required.

Legal Basis

CC&R Article II Section 1(c)

Topic Tags

  • density
  • improvements
  • voting requirements

Case

Docket No
24F-H023-REL
Case Title
Robert P. Fink & Brittany L. Oleson v. Casas Arroyo Association, Inc.
Decision Date
2024-05-16
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

Who is responsible for proving that an HOA violated the CC&Rs during a dispute hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof to establish the violation.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner filing the petition to prove that the HOA committed the alleged violation. The standard of proof required is a 'preponderance of the evidence'.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • burden of proof
  • procedural requirements
  • evidence

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

This legal standard requires that the evidence presented has superior weight and is convincing enough to incline a fair mind to one side of the issue over the other. It is not necessarily about having a greater number of witnesses.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • legal standards
  • evidence
  • definitions

Question

Can I interpret a specific sentence in the CC&Rs in isolation to prove a violation?

Short Answer

No, CC&R provisions must be interpreted within the context of the entire provision.

Detailed Answer

A homeowner cannot cherry-pick a specific clause or sentence to claim a violation. The Administrative Law Judge will look at the entire section to understand the intended scope and application of the restriction.

Alj Quote

One cannot read Section 1(c) of Article II without taking into consideration the context of the entire provision

Legal Basis

Contract Interpretation Principles

Topic Tags

  • CC&R interpretation
  • legal standards
  • context

Question

How does the word 'and' affect the interpretation of restrictions in the CC&Rs?

Short Answer

The word 'and' is conjunctive, meaning clauses it connects must be read together, not as separate independent choices.

Detailed Answer

If a CC&R provision lists restrictions connected by 'and' (e.g., no improvements AND no actions increasing density), it implies the conditions are linked. The ALJ distinguished this from the disjunctive 'or'. In this case, a restriction on improvements was linked to increasing density/transferring land because they were joined by 'and'.

Alj Quote

This sentence is written in the conjunctive. The word 'and' is used to connect the two clauses. It is not written in the disjunctive, as the word 'or' is not part of the sentence.

Legal Basis

Grammatical Interpretation of Contracts

Topic Tags

  • contract interpretation
  • grammar
  • legal standards

Question

Can the HOA use general assessment funds for safety improvements without a special homeowner vote?

Short Answer

Yes, if the CC&Rs grant authority to use assessments for health, safety, and welfare.

Detailed Answer

If the CC&Rs state that assessments are for promoting the recreation, health, safety, and welfare of residents, the Board may use general funds for improvements like security gates without a specific supermajority vote typically reserved for special assessments or land transfers.

Alj Quote

Article IV Section 2 of the 2006 recorded CC&Rs grant authority to Respondent to use the general assessment monies to 'promote the recreation, health, safety and welfare of the residents.'

Legal Basis

CC&R Article IV Section 2

Topic Tags

  • assessments
  • HOA powers
  • safety improvements

Question

Does a CC&R requirement for a 3/4 vote to 'transfer' common area apply to installing a gate?

Short Answer

No, installing a gate is not considered dedicating or transferring land.

Detailed Answer

A CC&R clause requiring a supermajority vote to dedicate or transfer common area to a public agency does not apply to the installation of a security gate, as the gate does not constitute a transfer of land ownership.

Alj Quote

The installation of a security gate does not dedicate or transfer all or any part of the common area to any public agency, authority or utility. Therefore, a three quarters vote is not required.

Legal Basis

CC&R Article II Section 1(c)

Topic Tags

  • voting requirements
  • common area
  • improvements

Question

Does a restriction on increasing the 'density of residences' apply to security improvements?

Short Answer

No, security improvements like gates do not increase residential density.

Detailed Answer

If a voting requirement in the CC&Rs is triggered by actions that 'increase the density of residences,' it does not apply to infrastructure improvements like security gates that have no effect on the number of homes or density.

Alj Quote

Further, the installation of a security gate is not an improvement that increases the density of the residences. Therefore, a three quarters vote is not required.

Legal Basis

CC&R Article II Section 1(c)

Topic Tags

  • density
  • improvements
  • voting requirements

Case

Docket No
24F-H023-REL
Case Title
Robert P. Fink & Brittany L. Oleson v. Casas Arroyo Association, Inc.
Decision Date
2024-05-16
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Robert P. Fink (petitioner)
    Testified on own behalf
  • Brittany L. Oleson (petitioner)
    Also referred to as Brittany L. Olsen
  • Juanita Havill (witness)
    Former HOA board President, Vice President, and Treasurer

Respondent Side

  • David Onuschak (HOA attorney)
    Jones Skelton & Hochuli
  • Tom Hardesty (board president)
    Casas Arroyo Association, Inc.
  • Thomas Ryan (board member)
    Casas Arroyo Association, Inc.
    Current Treasurer
  • Eric Powell (board member)
    Casas Arroyo Association, Inc.
    Also referred to as Erik Powell; testified for Respondent; former President and Secretary
  • Jim Chepales (board member)
    Casas Arroyo Association, Inc.
  • Paula Miller (witness)
    Casas Arroyo Association, Inc.
    Board Secretary
  • Leslie Kramer (HOA attorney)
    Provided legal opinions to the HOA; Affidavit admitted as Exhibit 32
  • Edwin Gaines (HOA attorney)
    Provided legal opinion to the HOA; Declaration admitted as Exhibit 31
  • Michael Shupe (HOA attorney)
    Consulted by the Board regarding the petition
  • Kevin Wallace (former board member)
    Casas Arroyo Association, Inc.
    Former Vice President

Neutral Parties

  • Sondra J. Vanella (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Rosalyn Buchas (Border Patrol Agent)
    US Customs and Border Protection
    Author of 2014 report referenced
  • Ben Cummings (Border Patrol Agent)
    US Customs and Border Protection
    Attended 2014 meeting

Other Participants

  • David Steedman (former board member)
    Casas Arroyo Association, Inc.
    Former Treasurer; present as an observer
  • Emily Masta (community member)
    Mentioned in board email communications
  • Jay Deforest (community member)
    Called 2014 Border Patrol meeting
  • Mark Stroberg (community member)
    Attended 2014 Border Patrol meeting
  • Barbara Stoneberg (community member)
    Attended 2014 Border Patrol meeting
  • Steven Sue Archbald (community member)
    Attended 2014 Border Patrol meeting
  • Laura Brown (community member)
    Long-time resident referenced regarding historic gate removal
  • Archerald Brown (community member)
    Long-time resident referenced regarding historic gate removal

Clifford S Burnes V. Saguaro Crest Homeowners’ Association

Posted on by

Case Summary

Case ID 23F-H033-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-04-14
Administrative Law Judge Sondra J. Vanella
Outcome none
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford S. Burnes Counsel —
Respondent Saguaro Crest Homeowners' Association Counsel John T. Crotty, Esq.

Alleged Violations

Articles of Incorporation, Section XV

Outcome Summary

The Administrative Law Judge dismissed the Petition, finding that the Respondent HOA did not violate Article XV of the Articles of Incorporation during the dissolution vote. The required 2/3 majority was achieved with 11 votes in favor, and the requirement for signed assent was met by the signatures provided on the ballot envelopes.

Why this result: Petitioner failed to meet the burden of proof to establish the alleged violation by a preponderance of the evidence.

Key Issues & Findings

Violation of voting requirements for dissolution of the Homeowners Association

Petitioner alleged that the dissolution vote was invalid because the ballots were not signed, and Respondent failed to achieve the 2/3 authorized votes needed, noting only 9 ballots were cast for dissolution. Respondent argued that 11 votes were cast, meeting the 2/3 requirement (10 votes needed), and that signatures on the ballot envelopes satisfied the Article XV requirement for assent given in writing and signed by Owners.

Orders: Petitioner’s Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199
  • ARIZ. REV. STAT. section 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)

Analytics Highlights

Topics: HOA, Articles of Incorporation, Voting Rights, Dissolution, Burden of Proof, Planned Community
Additional Citations:

  • A.R.S. § 32-2199
  • ARIZ. REV. STAT. section 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)

Video Overview

Audio Overview

Decision Documents

23F-H033-REL Decision – 1035350.pdf

Uploaded 2026-01-23T17:54:11 (55.1 KB)

23F-H033-REL Decision – 1049512.pdf

Uploaded 2026-01-23T17:54:15 (100.5 KB)

Questions

Question

If my HOA requires votes to be 'in writing and signed,' does the ballot itself need a signature?

Short Answer

Not necessarily. If the governing documents do not explicitly specify that the ballot itself must be signed, a signature on the envelope containing the ballot may satisfy the requirement.

Detailed Answer

The ALJ determined that if the Articles of Incorporation require assent 'in writing and signed' but do not specify that the ballot itself must be signed, a signature on the envelope containing the ballot is sufficient compliance. In this case, envelopes with the homeowner's signature, lot number, and date were deemed to satisfy the requirement.

Alj Quote

Article XV of the Articles of Incorporation does not specify that the ballot itself must signed, and in this case, the signatures are contained on the envelopes that held the corresponding ballots, thereby satisfying the language of the charged provision.

Legal Basis

Articles of Incorporation, Article XV

Topic Tags

  • voting
  • ballots
  • signatures
  • governing documents

Question

If I own multiple lots, do I need to submit a separate physical ballot for each lot?

Short Answer

No, unless you can cite specific legal authority or governing documents that require separate physical ballots.

Detailed Answer

The ALJ rejected the argument that separate ballots are required for each vote possessed by homeowners who own multiple lots, specifically noting that the petitioner failed to provide any authority supporting that claim.

Alj Quote

Petitioner further testified that there should have been separate ballots for each vote for homeowners who own two lots. However, Petitioner did not cite to any authority establishing such.

Legal Basis

Lack of citation to authority

Topic Tags

  • voting
  • multiple lots
  • ballots

Question

How are votes counted if some homeowners own more than one property?

Short Answer

Votes are counted based on 'authorized votes' rather than just the number of physical ballots cast. One ballot may represent multiple votes.

Detailed Answer

The ALJ accepted the calculation where fewer physical ballots were cast than the total vote count because some ballots represented multiple votes (one for each lot owned). The decision validated that 9 ballots could validly represent 11 authorized votes.

Alj Quote

In this case, eleven (11) votes were cast on nine (9) ballots, which represents at least 2/3 of the owners authorized to vote.

Legal Basis

Articles of Incorporation, Article XV

Topic Tags

  • voting
  • vote counting
  • authorized votes

Question

Who is responsible for proving that the HOA violated the rules?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, the homeowner alleging the violation must prove their case by a 'preponderance of the evidence.' It is not the HOA's job to disprove the allegation initially.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

ARIZ. REV. STAT. section 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • burden of proof
  • legal standards
  • administrative hearing

Question

What does 'preponderance of the evidence' mean in an HOA dispute?

Short Answer

It means the claim is more likely true than not.

Detailed Answer

The ALJ defines this standard as proof that convinces the decision-maker that the contention is 'more probably true than not,' or holds the greater weight of evidence.

Alj Quote

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5

Topic Tags

  • legal definitions
  • evidence
  • standard of proof

Case

Docket No
23F-H033-REL
Case Title
Burnes v. Saguaro Crest Homeowners' Association
Decision Date
2023-04-14
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

If my HOA requires votes to be 'in writing and signed,' does the ballot itself need a signature?

Short Answer

Not necessarily. If the governing documents do not explicitly specify that the ballot itself must be signed, a signature on the envelope containing the ballot may satisfy the requirement.

Detailed Answer

The ALJ determined that if the Articles of Incorporation require assent 'in writing and signed' but do not specify that the ballot itself must be signed, a signature on the envelope containing the ballot is sufficient compliance. In this case, envelopes with the homeowner's signature, lot number, and date were deemed to satisfy the requirement.

Alj Quote

Article XV of the Articles of Incorporation does not specify that the ballot itself must signed, and in this case, the signatures are contained on the envelopes that held the corresponding ballots, thereby satisfying the language of the charged provision.

Legal Basis

Articles of Incorporation, Article XV

Topic Tags

  • voting
  • ballots
  • signatures
  • governing documents

Question

If I own multiple lots, do I need to submit a separate physical ballot for each lot?

Short Answer

No, unless you can cite specific legal authority or governing documents that require separate physical ballots.

Detailed Answer

The ALJ rejected the argument that separate ballots are required for each vote possessed by homeowners who own multiple lots, specifically noting that the petitioner failed to provide any authority supporting that claim.

Alj Quote

Petitioner further testified that there should have been separate ballots for each vote for homeowners who own two lots. However, Petitioner did not cite to any authority establishing such.

Legal Basis

Lack of citation to authority

Topic Tags

  • voting
  • multiple lots
  • ballots

Question

How are votes counted if some homeowners own more than one property?

Short Answer

Votes are counted based on 'authorized votes' rather than just the number of physical ballots cast. One ballot may represent multiple votes.

Detailed Answer

The ALJ accepted the calculation where fewer physical ballots were cast than the total vote count because some ballots represented multiple votes (one for each lot owned). The decision validated that 9 ballots could validly represent 11 authorized votes.

Alj Quote

In this case, eleven (11) votes were cast on nine (9) ballots, which represents at least 2/3 of the owners authorized to vote.

Legal Basis

Articles of Incorporation, Article XV

Topic Tags

  • voting
  • vote counting
  • authorized votes

Question

Who is responsible for proving that the HOA violated the rules?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, the homeowner alleging the violation must prove their case by a 'preponderance of the evidence.' It is not the HOA's job to disprove the allegation initially.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

ARIZ. REV. STAT. section 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • burden of proof
  • legal standards
  • administrative hearing

Question

What does 'preponderance of the evidence' mean in an HOA dispute?

Short Answer

It means the claim is more likely true than not.

Detailed Answer

The ALJ defines this standard as proof that convinces the decision-maker that the contention is 'more probably true than not,' or holds the greater weight of evidence.

Alj Quote

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5

Topic Tags

  • legal definitions
  • evidence
  • standard of proof

Case

Docket No
23F-H033-REL
Case Title
Burnes v. Saguaro Crest Homeowners' Association
Decision Date
2023-04-14
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Clifford S. Burnes (petitioner)
    Also referred to as Clifford (Norm) S. Burnes

Respondent Side

  • John T. Crotty (HOA attorney)
    LAW OFFICES OF COLLIN T. WELCH
  • Esmeralda Sarina Ayala-Martinez (HOA President, witness)
    Saguaro Crest Homeowners' Association
    Also referred to as Sarina Martinez or Serena Martinez

Neutral Parties

  • Sondra J. Vanella (ALJ)
  • Susan Nicolson (Commissioner)
    ADRE
  • Tammy I (ALJ)
    Mentioned as presiding over related case

Other Participants

  • AHansen (ADRE staff)
    ADRE
  • vnunez (ADRE staff)
    ADRE
  • djones (ADRE staff)
    ADRE
  • labril (ADRE staff)
    ADRE