Tag Archives: A.R.S. § 32-2199.01

Jeremy R. Whittaker vs The Val Vista Lakes Community Association

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Case Summary

Case ID 25F-H041-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-06-05
Administrative Law Judge Velva Moses-Thompson
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jeremy R. Whittaker Counsel —
Respondent The Val Vista Lakes Community Association Counsel Josh Bolen, Esq.

Alleged Violations

Article IV, Section 3 of the Bylaws

Outcome Summary

Petitioner was deemed the prevailing party as Respondent admitted violating Article IV, Section 3 of the Bylaws. Respondent was ordered to refund the $500 filing fee and comply with the Bylaws. However, the request for a civil penalty was denied because Petitioner failed to meet their burden of proof.

Why this result: Petitioner failed to meet its burden to establish that a civil penalty should be imposed.

Key Issues & Findings

Failure to require Board Candidate disclosure of familial ties and conflicts of interest.

Respondent admitted that the 2023 Board Candidate Application form failed to comply with Article IV, Section 3 of the Bylaws by not requiring disclosure of familial ties, business, or conflicts of interest, as required for Board candidates.

Orders: Respondent ordered to pay Petitioner $500.00 (filing fee refund) within thirty days and directed to comply with Article IV, Section 3 of the Bylaws. Civil penalty denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 32-2199.01
  • Article IV, Section 3 of the Bylaws

Audio Overview

Decision Documents

25F-H041-REL Decision – 1297701.pdf

Uploaded 2026-01-23T18:18:56 (46.2 KB)

25F-H041-REL Decision – 1297767.pdf

Uploaded 2026-01-23T18:19:01 (47.1 KB)

25F-H041-REL Decision – 1301723.pdf

Uploaded 2026-01-23T18:19:07 (56.1 KB)

25F-H041-REL Decision – 1301746.pdf

Uploaded 2026-01-23T18:19:12 (45.1 KB)

25F-H041-REL Decision – 1304724.pdf

Uploaded 2026-01-23T18:19:17 (47.6 KB)

25F-H041-REL Decision – 1314414.pdf

Uploaded 2026-01-23T18:19:21 (92.7 KB)





Briefing Doc – 25F-H041-REL


Briefing: Case No. 25F-H041-REL, Whittaker v. The Val Vista Community Association

Executive Summary

This briefing synthesizes the key events, arguments, and outcomes of the administrative case Jeremy R. Whittaker v. The Val Vista Community Association (No. 25F-H041-REL), adjudicated by the Arizona Office of Administrative Hearings. The central dispute involved the Association’s failure to comply with its own bylaws during its 2023 Board of Directors election.

The Petitioner, Jeremy R. Whittaker, alleged that the Association violated Article IV, Section 3 of its bylaws by using a candidate application form that did not require the disclosure of familial ties or conflicts of interest. This issue became prominent when two board candidates, Diana Ebertshauser and Brodie Hurtado, did not disclose their familial relationship with a partner at the law firm hired to count election votes until after the election.

The Association admitted to the violation, which significantly narrowed the legal proceedings. Administrative Law Judge (ALJ) Velva Moses-Thompson focused the case exclusively on determining whether a civil penalty against the Association was warranted. Consequently, several motions and requests from the Petitioner to broaden the scope—including a motion to consolidate cases, attempts to argue attorney misconduct, and subpoenas for numerous witnesses—were denied as irrelevant to the single issue at hand.

In the final decision issued on June 5, 2025, the ALJ found that while the Association had indeed violated its bylaws, the Petitioner failed to present sufficient evidence to justify a civil penalty. Despite the denial of a penalty, the Petitioner was declared the “prevailing party.” The Association was ordered to refund the Petitioner’s $500 filing fee and to ensure future compliance with its bylaws.

Case Overview and Parties

Detail

Description

Case Number

25F-H041-REL

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Velva Moses-Thompson

Petitioner

Jeremy R. Whittaker

Respondent

The Val Vista Community Association

Respondent’s Counsel

Josh Bolen, Esq. of CHDB Law, LLP

Core Allegation and Admitted Violation

Bylaw at Issue: Article IV, Section 3

The petition centered on a violation of the Association’s bylaws governing the election of its Board of Directors. The relevant section, Article IV, Section 3, mandates specific disclosures from candidates:

“Each candidate for the Board of Directors shall fill out an application which at minimum will require the candidate to disclose any familial, business or ownership relationships with other Directors or candidates; any current or anticipated conflicts of interest with the Association… and whether they have previously served on the on the Board.”

Nature of the Violation

The core of the case was the Association’s use of a non-compliant application form for its 2023 Board election.

• Deficient Application: The 2023 Board Candidate Application form failed to require candidates to disclose familial ties or other conflicts of interest as stipulated by the bylaws.

• Undisclosed Conflict: Board candidates Diana Ebertshauser and Brodie Hurtado did not disclose their familial ties to a partner at the law firm Carpenter Hazelwood. This disclosure was only made after the election, in which the firm was asked to count the votes.

• Respondent’s Admission: The Val Vista Community Association filed a written answer admitting that the candidate application forms supplied by the 2023 Board were not in compliance with Article IV, Section 3. This admission eliminated the need to litigate the facts of the violation itself.

Key Procedural Rulings and Hearing Scope

Following the Association’s admission, ALJ Velva Moses-Thompson strictly limited the scope of the proceedings to the single question of whether a civil penalty was appropriate. This focus resulted in several key rulings that shaped the case.

Narrowing the Hearing’s Scope

During the May 16, 2025 hearing, the ALJ explicitly defined the legal boundaries:

“The only way for the association to violate this bylaw is to fail to require the candidate to disclose any familial uh conflicts of interest. So that is the sole issue for this hearing… I can’t make decisions just about anything, but it’s specifically related to the alleged violation.”

The Petitioner’s attempts to introduce other issues were consistently disallowed. During his opening statement, Mr. Whittaker began to argue for sanctions against the Respondent’s attorneys for alleged discovery violations and harassment. The ALJ interrupted, stating, “these may be important and relevant issues, but not to the alleged violation today,” and clarified that “the attorneys are not the association.”

Denied Motions and Subpoenas

Several requests by the Petitioner were denied on the grounds of relevance to the narrowly defined issue:

• Motion to Consolidate (Denied April 24, 2025): The Petitioner’s motion to consolidate docket No. 25F-H041-REL with a separate case, No. 25F-H046-REL, was denied.

• Subpoena for Laura Tannery (Denied May 6, 2025): A subpoena request for Ms. Tannery was denied because the “Petitioner has not demonstrated the relevance of Ms. Tannery’s testimony to the issue of whether a civil penalty should be imposed.”

• Mass Subpoenas Quashed (May 13, 2025): Subpoenas issued on April 28, 2025, for eight individuals were quashed following a motion from the Respondent. The individuals were Brodie Hurtado, Diana Ebertshauser, Kevin McPhillips, Jonathan Ebertshauser, Esq., Joshua Bolen, Esq., Rob Actis, David Watson, and Laura Tannery.

In contrast, the Respondent’s motion to vacate the hearing was denied on April 24, 2025, with the ALJ affirming that a hearing was necessary to rule on the civil penalty question.

Final Decision and Outcome

The Administrative Law Judge Decision, issued on June 5, 2025, provided a conclusive resolution to the matter.

Ruling on Standing

The Respondent had moved to dismiss the petition, arguing the Petitioner lacked standing because he only became a property owner in June 2024, after the 2023 violation occurred. The ALJ rejected this argument, concluding that the Petitioner had standing because he “was a member of Respondent at the time that the petition was filed.”

Ruling on the Violation and Civil Penalty

• Violation Confirmed: The decision reiterated that “Respondent has admitted that it violated Article IV, Section 3 of Respondent’s Bylaws.”

• Civil Penalty Denied: The ALJ determined that a civil penalty was “not appropriate in this matter.” The official reasoning was that the “Petitioner failed to meet its burden to establish that a civil penalty should be imposed” and “did not present relevant evidence” at the hearing to support such a penalty.

Final Orders

The ALJ’s order contained three key directives:

1. Prevailing Party: The Petitioner, Jeremy R. Whittaker, was deemed the prevailing party.

2. Reimbursement: The Respondent was ordered to pay the Petitioner his $500.00 filing fee within thirty days.

3. Future Compliance: The Respondent was directed to comply with Article IV, Section 3 of its bylaws in all future elections.

All other forms of requested relief were denied.

Timeline of Key Events

The Val Vista Community Association holds its Board election using non-compliant candidate applications.

June 2024

Jeremy R. Whittaker becomes a property owner in the Val Vista Lakes development.

May 20, 2019

Petitioner files a single-issue petition with the Department of Real Estate (as recorded in the final decision).

April 24, 2025

ALJ denies Respondent’s motion to vacate the hearing and Petitioner’s motion to consolidate cases.

April 28, 2025

The tribunal signs subpoenas for eight individuals.

May 6, 2025

A sanctions hearing is scheduled for May 16. The Petitioner’s subpoena request for Laura Tannery is denied.

May 9, 2025

Deadline for parties to provide information regarding the 2023 election and discovery of the conflict.

May 13, 2025

ALJ grants Respondent’s motion to quash all eight subpoenas.

May 16, 2025

A hearing is held to determine the appropriateness of a civil penalty.

June 5, 2025

The final Administrative Law Judge Decision is issued.






Study Guide – 25F-H041-REL


{
“case”: {
“docket_no”: “25F-H041-REL”,
“case_title”: “Jeremy R. Whittaker vs. The Val Vista Lakes Community Association”,
“decision_date”: “2025-06-05”,
“alj_name”: “Velva Moses-Thompson”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“questions”: [
{
“question”: “Can I file a petition against my HOA for a violation that occurred before I became a homeowner?”,
“short_answer”: “Yes. You have standing to file a petition as long as you are a member of the association at the time you file the paperwork, even if the violation happened prior to your ownership.”,
“detailed_answer”: “The ALJ rejected the HOA’s argument that the homeowner lacked standing because they were not a member at the time of the alleged violation. The ruling established that standing is determined by membership status at the time of filing.”,
“alj_quote”: “The Administrative Law Judge concludes that Petitioner had standing to file the petition. Petitioner was a member of Respondent at the time that the petition was filed.”,
“legal_basis”: “A.R.S. § 32-2199.01”,
“topic_tags”: [
“Standing”,
“Homeowner Rights”,
“Procedure”
]
},
{
“question”: “If the HOA admits they violated the bylaws, will they automatically be required to pay a civil penalty?”,
“short_answer”: “No. An admission of guilt does not automatically result in a monetary fine. The homeowner must still provide evidence proving that a penalty is necessary or appropriate.”,
“detailed_answer”: “In this case, the HOA admitted that their candidate application forms violated the bylaws. However, the judge ruled that no civil penalty was appropriate because the petitioner did not present sufficient evidence to justify imposing one.”,
“alj_quote”: “Respondent has admitted that it violated Article IV, Section 3 of Respondent’s Bylaws. However Petitioner failed to meet its burden to establish that a civil penalty should be imposed in the above-entitled matter.”,
“legal_basis”: “A.R.S. § 33-1804(A)”,
“topic_tags”: [
“Civil Penalties”,
“Violations”,
“Burden of Proof”
]
},
{
“question”: “Does the HOA have to require board candidates to disclose conflicts of interest or family ties?”,
“short_answer”: “Yes, if the association’s bylaws specifically require such disclosures in the candidate application.”,
“detailed_answer”: “The decision affirmed that the HOA violated its bylaws by failing to require candidates to disclose familial relationships. The bylaws stated that the application ‘at minimum’ must require disclosure of familial, business, or ownership relationships.”,
“alj_quote”: “Each candidate for the Board of Directors shall fill out an application which at minimum will require the candidate to disclose any familial, business or ownership relationships with other Directors or candidates…”,
“legal_basis”: “Bylaws Article IV, Section 3”,
“topic_tags”: [
“Elections”,
“Board of Directors”,
“Conflicts of Interest”
]
},
{
“question”: “If I win my case against the HOA, will I get my filing fee back?”,
“short_answer”: “Yes. If the homeowner is deemed the prevailing party, the judge can order the HOA to reimburse the filing fee.”,
“detailed_answer”: “Because the petitioner prevailed in establishing that a violation occurred (via the HOA’s admission), the ALJ ordered the HOA to pay the $500 filing fee directly to the petitioner within 30 days.”,
“alj_quote”: “IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.”,
“legal_basis”: “A.R.S. § 32-2199.01”,
“topic_tags”: [
“Fees”,
“Remedies”,
“Prevailing Party”
]
},
{
“question”: “What is the standard of proof required to win a hearing against an HOA?”,
“short_answer”: “The standard is a ‘preponderance of the evidence,’ meaning the claim is more likely true than not.”,
“detailed_answer”: “The petitioner bears the burden of proving the violation. This does not require removing all doubt, but providing evidence that has ‘the most convincing force’ to incline a fair mind to one side.”,
“alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated… by a preponderance of the evidence.”,
“legal_basis”: “A.A.C. R2-19-119(B)(1)”,
“topic_tags”: [
“Legal Standards”,
“Evidence”,
“Procedure”
]
},
{
“question”: “What happens if the HOA used invalid forms for a past election?”,
“short_answer”: “The judge may order the HOA to comply with the bylaws for future actions, even if they do not impose a fine for the past violation.”,
“detailed_answer”: “The ALJ ordered the HOA to comply with the specific bylaw section regarding candidate applications going forward, ensuring future elections meet the disclosure requirements.”,
“alj_quote”: “IT IS FURTHER ORDERED that Respondent is directed to comply with Article IV, Section 3 of Respondent’s Bylaws.”,
“legal_basis”: “Order”,
“topic_tags”: [
“Remedies”,
“Compliance”,
“Elections”
]
}
]
}






Blog Post – 25F-H041-REL


{
“case”: {
“docket_no”: “25F-H041-REL”,
“case_title”: “Jeremy R. Whittaker vs. The Val Vista Lakes Community Association”,
“decision_date”: “2025-06-05”,
“alj_name”: “Velva Moses-Thompson”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“questions”: [
{
“question”: “Can I file a petition against my HOA for a violation that occurred before I became a homeowner?”,
“short_answer”: “Yes. You have standing to file a petition as long as you are a member of the association at the time you file the paperwork, even if the violation happened prior to your ownership.”,
“detailed_answer”: “The ALJ rejected the HOA’s argument that the homeowner lacked standing because they were not a member at the time of the alleged violation. The ruling established that standing is determined by membership status at the time of filing.”,
“alj_quote”: “The Administrative Law Judge concludes that Petitioner had standing to file the petition. Petitioner was a member of Respondent at the time that the petition was filed.”,
“legal_basis”: “A.R.S. § 32-2199.01”,
“topic_tags”: [
“Standing”,
“Homeowner Rights”,
“Procedure”
]
},
{
“question”: “If the HOA admits they violated the bylaws, will they automatically be required to pay a civil penalty?”,
“short_answer”: “No. An admission of guilt does not automatically result in a monetary fine. The homeowner must still provide evidence proving that a penalty is necessary or appropriate.”,
“detailed_answer”: “In this case, the HOA admitted that their candidate application forms violated the bylaws. However, the judge ruled that no civil penalty was appropriate because the petitioner did not present sufficient evidence to justify imposing one.”,
“alj_quote”: “Respondent has admitted that it violated Article IV, Section 3 of Respondent’s Bylaws. However Petitioner failed to meet its burden to establish that a civil penalty should be imposed in the above-entitled matter.”,
“legal_basis”: “A.R.S. § 33-1804(A)”,
“topic_tags”: [
“Civil Penalties”,
“Violations”,
“Burden of Proof”
]
},
{
“question”: “Does the HOA have to require board candidates to disclose conflicts of interest or family ties?”,
“short_answer”: “Yes, if the association’s bylaws specifically require such disclosures in the candidate application.”,
“detailed_answer”: “The decision affirmed that the HOA violated its bylaws by failing to require candidates to disclose familial relationships. The bylaws stated that the application ‘at minimum’ must require disclosure of familial, business, or ownership relationships.”,
“alj_quote”: “Each candidate for the Board of Directors shall fill out an application which at minimum will require the candidate to disclose any familial, business or ownership relationships with other Directors or candidates…”,
“legal_basis”: “Bylaws Article IV, Section 3”,
“topic_tags”: [
“Elections”,
“Board of Directors”,
“Conflicts of Interest”
]
},
{
“question”: “If I win my case against the HOA, will I get my filing fee back?”,
“short_answer”: “Yes. If the homeowner is deemed the prevailing party, the judge can order the HOA to reimburse the filing fee.”,
“detailed_answer”: “Because the petitioner prevailed in establishing that a violation occurred (via the HOA’s admission), the ALJ ordered the HOA to pay the $500 filing fee directly to the petitioner within 30 days.”,
“alj_quote”: “IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.”,
“legal_basis”: “A.R.S. § 32-2199.01”,
“topic_tags”: [
“Fees”,
“Remedies”,
“Prevailing Party”
]
},
{
“question”: “What is the standard of proof required to win a hearing against an HOA?”,
“short_answer”: “The standard is a ‘preponderance of the evidence,’ meaning the claim is more likely true than not.”,
“detailed_answer”: “The petitioner bears the burden of proving the violation. This does not require removing all doubt, but providing evidence that has ‘the most convincing force’ to incline a fair mind to one side.”,
“alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated… by a preponderance of the evidence.”,
“legal_basis”: “A.A.C. R2-19-119(B)(1)”,
“topic_tags”: [
“Legal Standards”,
“Evidence”,
“Procedure”
]
},
{
“question”: “What happens if the HOA used invalid forms for a past election?”,
“short_answer”: “The judge may order the HOA to comply with the bylaws for future actions, even if they do not impose a fine for the past violation.”,
“detailed_answer”: “The ALJ ordered the HOA to comply with the specific bylaw section regarding candidate applications going forward, ensuring future elections meet the disclosure requirements.”,
“alj_quote”: “IT IS FURTHER ORDERED that Respondent is directed to comply with Article IV, Section 3 of Respondent’s Bylaws.”,
“legal_basis”: “Order”,
“topic_tags”: [
“Remedies”,
“Compliance”,
“Elections”
]
}
]
}


Case Participants

Petitioner Side

  • Jeremy R. Whittaker (petitioner)
    Appeared on behalf of himself

Respondent Side

  • Josh Bolen (respondent attorney)
    CHDB Law, LLP
  • Diana Ebertshauser (board member)
    The Val Vista Community Association
    Board candidate who failed to disclose familial ties; subpoena quashed
  • Brodie Hurtado (board member)
    The Val Vista Community Association
    Board candidate who failed to disclose familial ties; subpoena quashed

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Administrative Law Judge
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • vnunez (ADRE staff)
    ADRE
    Recipient of Order transmission (listed by email handle)
  • djones (ADRE staff)
    ADRE
    Recipient of Order transmission (listed by email handle)
  • labril (ADRE staff)
    ADRE
    Recipient of Order transmission (listed by email handle)
  • mneat (ADRE staff)
    ADRE
    Recipient of Order transmission (listed by email handle)
  • lrecchia (ADRE staff)
    ADRE
    Recipient of Order transmission (listed by email handle)
  • gosborn (ADRE staff)
    ADRE
    Recipient of Order transmission (listed by email handle)

Other Participants

  • Laura Tannery (witness)
    Subpoena quashed/denied
  • Kevin McPhillips (witness)
    Subpoena quashed
  • Jonathan Ebertshauser (attorney/witness)
    Subpoena quashed
  • Rob Actis (witness)
    Subpoena quashed
  • David Watson (witness)
    Subpoena quashed

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.

Shawna Townsend v. North Canyon Ranch Owners Association

Posted on by

Case Summary

Case ID 23F-H018-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-02-07
Administrative Law Judge Sondra J. Vanella
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Shawna Townsend Counsel —
Respondent North Canyon Ranch Owners Association Counsel Haidyn DiLorenzo

Alleged Violations

CC&Rs Section 4.3 Storage, Section 4.17 Motor Vehicles, Community Guidelines 2007

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that Petitioner failed to establish by a preponderance of the evidence that the North Canyon Ranch Owners Association violated its governing documents regarding the storage of a truck camper.

Why this result: Petitioner failed to meet the burden of proof. The ALJ concluded that the Petitioner's 'truck camper' falls within the scope of prohibited items, specifically as 'other similar equipment' under the CC&Rs and rules, making her argument one of semantics.

Key Issues & Findings

Whether the HOA violated its governing documents by issuing a fine for parking a mounted truck camper, based on the Petitioner's claimed 'legal loophole'.

Petitioner claimed a 'legal loophole' existed because the governing documents prohibited 'unmounted pickup camper units' or 'detached campers,' but not her currently mounted/attached truck camper. The ALJ found the truck camper was unequivocally prohibited as 'other similar equipment' under the CC&Rs and Rules, dismissing the petition.

Orders: Petition dismissed. No action is required of Respondent in this matter.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&Rs § 4.3
  • CC&Rs § 4.17
  • Community Guidelines 2007
  • A.R.S. § 32-2199.01
  • A.R.S. § 33-2102(18)(e)

Analytics Highlights

Topics: HOA, truck camper, recreational vehicle, storage violation, legal loophole, fines, administrative hearing, Arizona
Additional Citations:

  • CC&Rs § 4.3
  • CC&Rs § 4.17
  • Community Guidelines 2007
  • A.R.S. § 32-2199.01
  • A.R.S. § 33-2102(18)(e)

Video Overview

Audio Overview

https://open.spotify.com/episode/3VfSftsftJCKZSx128aEN0

Decision Documents

23F-H018-REL Decision – 1031834.pdf

Uploaded 2026-01-23T17:52:42 (167.3 KB)





Study Guide – 23F-H018-REL



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