Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2020051-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2021-01-08
Administrative Law Judge
Kay Abramsohn
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Debra K. Morin
Counsel
—
Respondent
Solera Chandler Homeowners' Association, Inc.
Counsel
Lydia A. Perce Linsmeier, Esq.
Alleged Violations
CC&R Article 7, Section 7.1
Outcome Summary
The Administrative Law Judge ruled that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1, concluding that the Board is the 'sole judge' regarding appropriate maintenance of AREAS. The Petitioner failed to meet the burden of proof, and the Rehearing Petition was dismissed.
Why this result: Petitioner failed to sustain her burden to establish a violation. The governing documents grant the Board 'the sole judge' authority over maintenance, and Petitioner did not provide legal support requiring the HOA to meet the homeowner maintenance standard.
Key Issues & Findings
Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times
Petitioner alleged that Solera failed to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times, arguing that the same strict maintenance standard applied to homeowners (CC&R 7.2) should apply to the HOA (CC&R 7.1). The issue was heard on rehearing after the initial decision dismissed the petition.
Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents and was the prevailing party. Petitioner's appeal (Rehearing Petition) was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. § 32-2199.05
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Analytics Highlights
Topics: HOA Dispute, CC&R Violation, Maintenance Standard, Areas of Association Responsibility, Rehearing, Sole Judge
Briefing Document: Morin v. Solera Chandler Homeowners’ Association, Inc.
Executive Summary
This briefing document synthesizes the findings and rulings from an administrative law case involving a homeowner, Debra K. Morin (Petitioner), and the Solera Chandler Homeowners’ Association, Inc. (Respondent/Solera). The case centered on the Petitioner’s allegations that the HOA failed to maintain common areas to the standards required by its own governing documents.
The Petitioner filed a two-issue petition, with the primary surviving issue being that Solera, its Board of Directors, and its management company were not maintaining the “Areas of Association Responsibility” (AREAS) in good condition and repair at all times. The Petitioner’s core argument was that the same stringent maintenance standard applied to individual homeowners must be equally applied to the HOA. She provided extensive photographic evidence of issues such as weeds, deteriorating sidewalks, street disrepair, and exposed wiring.
The HOA defended its actions by citing its established procedures for maintenance, including a committee review process, a scheduled Reserves plan, and the use of licensed contractors. Critically, Solera’s defense rested on provisions within its Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which grant the Board of Directors the exclusive right to interpret the CC&Rs and designate it as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas.
Following an initial hearing, the Administrative Law Judge (ALJ) dismissed the petition, finding that the Petitioner had not met the burden of proof. The ALJ ruled that under the governing documents, the HOA Board has sole discretion in maintenance matters, and the Petitioner’s subjective opinions on how and when work should be done were not relevant to determining a violation. The Petitioner was granted a rehearing, where she presented additional evidence and arguments. However, the ALJ upheld the original decision, reaffirming that the CC&Rs grant the Board authority superseding that of an individual homeowner in determining appropriate maintenance. The petition was dismissed, and Solera was deemed the prevailing party in both instances.
Case Overview
Case Name
Debra K. Morin, Petitioner, v. Solera Chandler Homeowners’ Association, Inc., Respondent.
Case Number
No. 20F-H2020051-REL / 20F-H2020051-REL-RHG
Tribunal
Arizona Office of Administrative Hearings
Presiding Judge
Administrative Law Judge (ALJ) Kay Abramsohn
Petitioner
Debra K. Morin (represented herself)
Respondent
Solera Chandler Homeowners’ Association, Inc. (represented by Lydia Linsmeier, Esq.)
Petition Filed
On or about March 12, 2020
Initial Hearing
May 20, 2020 and July 15, 2020
Initial Decision
August 19, 2020 (Petition Dismissed)
Rehearing Hearing
December 16, 2020
Rehearing Decision
January 8, 2021 (Original Dismissal Upheld)
Petitioner’s Allegations and Arguments
The Petitioner, a resident of Solera for four years, filed a petition with the Arizona Department of Real Estate alleging violations of Solera’s Articles of Incorporation, By-Laws, CC&Rs, and Rules and Regulations (R&Rs). The allegations were organized into two primary issues.
Issue #1: Lack of Direct Communication
• Allegation: Solera, its Board, and its management company, Premier Management Company (Premier), “do not allow direct communication from homeowners.”
• Requested Relief: The Petitioner sought to have this “policy” rescinded.
• Outcome: This issue was connected to allegations of ethics violations based on the Board’s Code of Ethics, which the Tribunal determined was a non-governing document outside its jurisdiction. As a result, the Petitioner withdrew Issue #1 during the May 20, 2020 hearing.
Issue #2: Failure to Maintain Common Areas
• Allegation: Solera, its Board, and Premier “are not providing oversight to the General Manager in maintaining all Areas of Association Responsibility … in good condition and repair at all times.” Specific complaints included “uncontrolled weeds” and poor maintenance of the Community Center and other AREAS.
• Core Argument: The Petitioner’s central thesis was that the HOA must be held to the identical maintenance standard it imposes on homeowners. She argued that just as homeowners are required to maintain their lots “in a weed free condition 365 days a year,” the HOA has no discretion for delays in addressing maintenance issues in common areas.
• Requested Relief:
1. A public admission by the Board of its failures to follow governing documents.
2. The establishment of “direct communication rules” for reporting management deficiencies.
3. Compliance monitoring by the “Real Estate Board.”
Evidence and Specific Complaints
The Petitioner presented over 80 photographs at the initial hearing (growing to 310 by the rehearing) and multiple emails to document a wide range of perceived maintenance failures.
Maintenance Issue
Petitioner’s Specific Complaint
Uncontrolled weeds in granite rock locations throughout the community.
Community Center
Poor exterior condition.
Streets & Curbs
Deteriorating asphalt, cracking, and issues with sealing.
Sidewalks
Trip hazards and disintegrating cool-decking.
Drainage
Clogged storm drains and water pooling issues.
Landscaping
Exposed wiring for lights, exposed drip irrigation lines, and unremoved tree stumps.
Disrepair of boundary walls.
A key piece of evidence was a February 21, 2020 email exchange regarding weeds, which the ALJ found “representative of the overall situation.”
Petitioner’s Complaint: “This is NOT being done and our HOA looks disgusting with the continued presence of unchecked weeds inside and outside our community! No excuses, you cannot hold homeowners to a higher standard than you are willing to do for our HOA. You are on notice to rectify this violation immediately!”
General Manager’s Response: “…the landscape crew hula hoes and sprays daily, based on routine maintenance cycle and location of site work… Considering that we have 1,143,550 square feet of granite and 270,933 square feet of turf, the maintenance of weeds is a continuous and ongoing concern that is constantly being addressed.”
Petitioner’s Rebuttal: “YOUR response is just more excuses!… It appears that since it is not your personal money being spent, it is ok to have substandard work performance.”
Respondent’s Position and Defense
Solera HOA moved to dismiss the petition, arguing the issues were outside the Department’s jurisdiction and the requested relief could not be granted. While the motion was effectively denied after Issue #1 was withdrawn, Solera’s core defense remained consistent throughout the proceedings.
• Central Legal Argument: Solera contended that its Board of Directors is vested with the ultimate authority on maintenance matters by the community’s governing documents. It repeatedly cited CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].”
• Interpretation Authority: The HOA also pointed to CC&R Article 9, Section 9.5, which gives it the “exclusive right to construe and interpret the provisions of the [CC&Rs],” with such interpretations being “final, conclusive and binding.”
• Operational Defense: Denise Frazier, Solera’s on-site general manager, testified that the HOA has established processes for maintenance.
◦ Committee Structure: A Building and Grounds Committee (B&G) reviews projects, which are then assessed by a Finance Committee before going to the Board for approval.
◦ Reserves Schedule: Solera maintains a Reserves schedule for large projects, such as sidewalk repairs (every 4 years), street repairs (every 8 years), and sealing cracks (every 2 years).
◦ Vendor Management: The Board relies on licensed contractors for specialized work, including landscaping, tree trimming (by two different companies for different heights), and stump grinding.
• Response to Specific Issues:
◦ Weeds: Frazier attributed the prevalence of weeds in early 2020 to an unusual amount of rain, creating “optimal” conditions. She noted that Solera had instructed landscapers to use dye in the weed spray to demonstrate to residents that spraying was occurring.
◦ Sidewalks: Frazier acknowledged a several-month delay in repairing a specific sidewalk area but stated that warning cones had been placed in the interim. Solera uses a ¼ inch standard for review but the City of Chandler’s ½ inch trip-hazard guideline for repairs.
◦ Exposed Wiring: This was explained as a temporary measure by landscapers to avoid cutting electrical and irrigation lines during tree and granite replacement projects.
Rulings and Legal Conclusions
The Administrative Law Judge dismissed the Petitioner’s case after the initial hearing and reaffirmed this dismissal after a rehearing, finding that the Petitioner failed to meet her legal burden of proof.
Key Legal Principles Applied
• Burden of Proof: The ALJ established that the Petitioner “bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions.”
• Supremacy of Governing Documents: The case was decided on the interpretation of the HOA’s CC&Rs, which function as the binding contract between the association and its members.
• Board’s Discretionary Authority: The central and decisive legal conclusion was that the HOA’s governing documents explicitly grant the Board superior authority over maintenance decisions.
◦ CC&R Article 7, Section 7.1 (“sole judge”) was interpreted to mean that only Solera is charged with determining when and how to perform maintenance, repair, and replacement in common areas.
◦ The ALJ concluded this provision “lifts the Board’s authority above that of a homeowner.” The Petitioner failed to provide legal support for her argument that the same maintenance standard must be applied to the Board as is applied to homeowners.
• Jurisdictional Limits: The Tribunal’s role is limited to adjudicating alleged violations of governing documents or statutes. The ALJ noted that a “homeowner’s dissatisfaction with management is not within the purview of this process or the jurisdiction of the Tribunal.”
Final Order
The ALJ concluded that Solera was in compliance with its governing documents, including the critical CC&R Article 7, Section 7.1. The Petitioner’s subjective opinions about the timeliness or quality of repairs were deemed irrelevant in the face of the Board’s contractual authority to be the “sole judge.”
Initial Order (August 19, 2020): “IT IS ORDERED Petitioner’s Petition is dismissed and Solera is deemed the prevailing party.”
Rehearing Order (January 8, 2021): “IT IS ORDERED that Solera is the prevailing party with regard to the Rehearing, and Petitioner’s appeal is dismissed.” The order was declared binding on the parties.
Study Guide – 20F-H2020051-REL-RHG
Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.
This guide provides a review of the administrative case between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent), as detailed in the Administrative Law Judge Decision of August 19, 2020, and the subsequent Rehearing Decision of January 8, 2021.
Short-Answer Quiz
Answer the following questions in 2-3 sentences each, based on the provided case documents.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What were the two main issues the petitioner, Debra K. Morin, raised in her initial petition filed on March 12, 2020?
3. Why was the petitioner’s first issue, regarding direct communication, withdrawn during the initial hearing?
4. What was the petitioner’s central argument regarding the maintenance standard that Solera should be held to?
5. According to the CC&Rs, what specific authority does the Solera Board have regarding maintenance, which formed the core of its defense?
6. What type of evidence did the petitioner primarily use to document her claims of poor maintenance in the Areas of Association Responsibility (AREAS)?
7. Who is Denise Frazier, and what role did she play in the proceedings?
8. What was the Administrative Law Judge’s final decision in the initial hearing on August 19, 2020?
9. On what grounds did the Commissioner of the Arizona Department of Real Estate grant the petitioner’s request for a rehearing?
10. What was the final outcome of the case after the rehearing decision was issued on January 8, 2021?
Answer Key
1. The primary parties were Debra K. Morin, the Petitioner and a homeowner, and the Solera Chandler Homeowners’ Association, Inc. (Solera), the Respondent. The case was heard by Administrative Law Judge Kay Abramsohn, and Solera was represented by Premier Management Company and its on-site general manager.
2. The petitioner’s Issue #1 alleged that Solera, its Board, and its management company “do not allow direct communication from homeowners.” Issue #2 alleged they were not providing oversight to the General Manager in maintaining all Areas of Association Responsibility in good condition and repair at all times.
3. The petitioner withdrew Issue #1 after it was determined that the Tribunal’s jurisdiction does not include interpreting or applying non-governing documents. Her complaint was based on the Solera Code of Ethics, which the Tribunal could not consider.
4. The petitioner argued that the same maintenance standard must be applied to Solera as is applied to homeowners. She contended that if homeowners are required by the governing documents to maintain their lots “in good condition and repair at all times,” then the HOA must be held to the identical standard for common areas (AREAS).
5. Solera’s defense centered on CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].” Additionally, CC&R Article 9, Section 9.5 gives Solera the exclusive right to construe and interpret the CC&Rs.
6. The petitioner presented a large volume of photographic evidence, including over eighty photos for the initial hearing and more for the rehearing. These photographs were intended to document weeds, issues with sidewalks, exposed wiring, storm drains, and other maintenance problems in the common areas.
7. Denise Frazier is the on-site general manager for Solera and an employee of Premier Management Company. She testified on behalf of Solera regarding its maintenance schedules, procedures, reserve studies, and responses to the specific issues raised by the petitioner.
8. In the initial hearing, the Administrative Law Judge dismissed the petitioner’s petition and deemed Solera the prevailing party. The judge concluded that the petitioner had not demonstrated a violation of the governing documents, as the CC&Rs grant the Board sole judgment on maintenance matters.
9. The request for a rehearing was granted because the petitioner claimed there were irregularities in the proceedings, misconduct by the prevailing party, and that the decision was arbitrary, capricious, an abuse of discretion, and not supported by the evidence or contrary to law.
10. The rehearing affirmed the original decision. The Administrative Law Judge again concluded that the petitioner failed to sustain her burden of proof and that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1. The appeal was dismissed, and Solera was again named the prevailing party.
Essay Questions
The following questions are designed to encourage deeper analysis of the case. No answers are provided.
1. Analyze the central legal conflict in this case by contrasting the petitioner’s interpretation of CC&R Article 7, Section 7.2 with the respondent’s defense based on CC&R Article 7, Section 7.1 and Article 9, Section 9.5. How did the Administrative Law Judge resolve this interpretive dispute?
2. Discuss the concept of jurisdiction as it applied to this case. Explain why certain arguments and evidence presented by the petitioner—such as the Board’s Code of Ethics, Premier Management Company standards, and City of Chandler ordinances—were deemed outside the Tribunal’s authority to consider.
3. Evaluate the petitioner’s strategy and use of evidence. Discuss the strengths and weaknesses of relying heavily on photographic evidence and detailed email complaints. Why did this “enormity” of evidence ultimately fail to meet the “preponderance of the evidence” standard?
4. Explain the significance of the phrase “sole judge” in CC&R Article 7, Section 7.1. How does this clause grant discretionary authority to the HOA Board, and how did it function as the key element in defeating the petitioner’s claim?
5. Trace the procedural history of the case, from the initial Petition and Motion to Dismiss through the original hearing, the Decision, the Rehearing Request, and the final Rehearing Decision. Identify the key rulings and turning points that determined the ultimate outcome.
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judge presiding over the administrative hearing at the Arizona Office of Administrative Hearings. In this case, Judge Kay Abramsohn.
AREAS (Areas of Association Responsibility)
The common areas within the Solera development that the Homeowners’ Association is responsible for managing, maintaining, repairing, and replacing.
By-Laws
One of the governing documents for the Solera Chandler Homeowners’ Association.
CC&Rs (Declaration of Covenants, Conditions, and Restrictions)
A primary governing document for the Solera development, specifically the “Solera Declaration of Covenants, Conditions, and Restrictions for Springfield Lakes.” It outlines the rights and responsibilities of the homeowners and the association.
Denise Frazier
The on-site general manager for Solera, employed by Premier Management Company, who testified on behalf of the association regarding its maintenance operations.
Maintenance Standard
Defined in CC&R Article 1, Section 1.30 as “the standard of maintenance of Improvements established from time to time by the Board and/or the Architectural Review Committee in the Design Guidelines, or in the absence of any such standards, the standards of maintenance of Improvements generally prevailing through the Project.”
Motion to Dismiss
A formal request filed by Solera asking the Department of Real Estate to dismiss the petition on the grounds that the issues were outside the Department’s jurisdiction and the requested relief could not be granted.
Petitioner
The party who filed the petition initiating the legal action. In this case, Debra K. Morin, a homeowner in Solera.
Preponderance of the evidence
The burden of proof in this administrative proceeding. It is defined as proof that convinces the trier of fact that a contention is more probably true than not.
Premier Management Company
The management company hired by Solera to handle day-to-day operations of the community.
Project Documents
The set of governing documents for the community, defined as the CC&Rs, any supplemental declarations, the By-Laws, the R&Rs, and the Design Guidelines.
Respondent
The party against whom the petition is filed. In this case, the Solera Chandler Homeowners’ Association, Inc.
R&Rs (Rules and Regulations)
One of the governing documents for the Solera Chandler Homeowners’ Association.
Tribunal
A term used in the documents to refer to the Arizona Office of Administrative Hearings (OAH), where the hearing was conducted.
Blog Post – 20F-H2020051-REL-RHG
A Homeowner Took on Her HOA with Over 300 Photos of Evidence. The Reason She Lost Is a Warning for Everyone.
Introduction: The Familiar Fight
It’s a scenario familiar to millions of Americans living in planned communities. You receive a violation notice for a minor infraction on your property, yet when you look at the common areas your HOA is responsible for, you see overgrown weeds, cracked sidewalks, and general disrepair. It feels deeply unfair. Why are homeowners held to a strict standard while the association itself seems to neglect its duties?
This exact frustration drove Debra K. Morin to take on her Solera Chandler Homeowners’ Association. Armed with over 300 photographs documenting every weed and crack, she was certain her case was airtight. But she lost. The reasons why her case failed are a stark warning for any homeowner, revealing a legal battle that hinged entirely on the community’s binding contract: the Covenants, Conditions, and Restrictions (CC&Rs).
——————————————————————————–
The 5 Surprising Lessons from One Homeowner’s HOA Lawsuit
1. The “Sole Judge” Clause: Your HOA’s Ultimate Defense
The single most critical factor in this case was a single clause buried in the HOA’s governing documents. Ms. Morin argued that the HOA must “maintain in good condition and repair at all times” the common areas, believing this was the same standard applied to homeowners. However, the HOA pointed to CC&R Article 7, Section 7.1, which designates the HOA Board as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas.
This clause proved to be an almost impenetrable defense. In essence, the legal standard for maintenance was not what a “reasonable person” would consider good repair, but whatever the Board, in its exclusive judgment, decided was appropriate. Even with extensive photo evidence, the case failed because the contract Ms. Morin agreed to when she bought her home gave the Board the ultimate discretion. The Administrative Law Judge’s decision made this crystal clear:
“While the CC&Rs allow an owner to bring to the Board a complaint, the CC&Rs specify that the Board is the sole judge regarding appropriate maintenance, repair and replacement of all AREAS.”
This “sole judge” clause is the cornerstone of a much broader power imbalance, one that is codified throughout the governing documents.
2. A Power Imbalance Is Written into the Rules
While Ms. Morin argued for an equal standard of responsibility, the legal documents revealed a clear and intentional power imbalance. CC&R Article 9, Section 9.5, granted the HOA the “exclusive right to construe and interpret the provisions of the [CC&Rs],” and stated that its interpretation is “final, conclusive and binding.”
This structure legally transforms the relationship from a partnership of equals into one of administrator and subject, where one party holds the power of final interpretation. The governing documents describe in detail how the HOA can levy penalties against an owner for violations, but they provide no equivalent process for an owner to penalize the HOA for its failures. The judge in the rehearing decision explicitly summarized this built-in hierarchy:
“Thus, it is clear, that pursuant to the governing documents, the Board’s authority is lifted above that of a homeowner.”
With the Board’s authority so clearly established, Ms. Morin’s mountain of evidence was about to run into a contractual brick wall.
3. An “Enormity of Evidence” Isn’t Always the Right Evidence
Ms. Morin presented a significant volume of evidence, starting with over 80 photographs in the first hearing and later referencing what she called an “enormity” of evidence totaling over 300 pictures of weeds, damaged sidewalks, and other maintenance issues.
The critical legal distinction the judge made was that the photographs documented the condition of the common areas, but they did not prove a violation of the governing documents. The legal question was not, “Are there weeds?” The question was, “Did the Board violate a contract that explicitly makes it the sole judge of maintenance?” This demonstrates that in a contract dispute, the quality of evidence is defined by its relevance to the specific contractual terms, not its sheer volume.
4. “At All Times” Doesn’t Mean “Instantly”
A key part of the homeowner’s argument was that the HOA was failing to “maintain in good condition and repair at all times” by allowing maintenance issues to persist for months. In response, the HOA detailed its operational reality. The HOA provided evidence of long-term capital plans, such as sealing street cracks every two years and major sidewalk repairs on a four-year cycle. Daily tasks, like weed control, were handled by landscape crews operating on a continuous, rotating schedule across the large community.
From a legal perspective, “at all times” is interpreted through the lens of operational reasonableness for a large entity, not as a guarantee of immediate perfection. For an organization managing a vast property, this standard is met through consistent processes and schedules, not by fixing every issue the moment it is reported.
5. Your Dissatisfaction Is Not a Lawsuit
At its heart, the case was driven by Ms. Morin’s deep frustration. The judge recognized that her petition stemmed from a core belief that the Board and its General Manager were unresponsive and providing poor oversight. While these feelings may have been valid, they were not legally actionable on their own. The judge’s decision in the rehearing drew a firm line between a homeowner’s frustration and a legal claim:
“However, a homeowner’s dissatisfaction with management is not within the purview of this process or the jurisdiction of the Tribunal.”
This highlights a common misconception: while feelings of poor customer service are valid, they are legally irrelevant unless they can be tied to a specific, provable breach of the governing documents or a violation of state law.
——————————————————————————–
Conclusion: Read Before You Sign
The primary lesson from this case is the absolute authority of a community’s governing documents. In any dispute, the specific, written words of the CC&Rs—the contract you sign when you buy your home—will almost always outweigh a homeowner’s subjective standards, sense of fairness, or even a mountain of photographic evidence.
This case serves as a powerful reminder that from a contractual standpoint, the rules are not always designed to be “fair,” but to be enforceable. It leaves every homeowner with a critical question:
Before you complain about your HOA, have you read the rulebook they’re playing by—and that you agreed to?
CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5
Outcome Summary
The ALJ concluded that Foothills demonstrated Respondents' violation of the community governing documents by commencing and continuing construction of a second-story Addition without obtaining the required Architectural Committee approval. Foothills was deemed the prevailing party, and Respondents' appeal was dismissed.
Key Issues & Findings
Unauthorized 2nd story addition
Respondents constructed a second-story Addition to their property without first obtaining approval from the Foothills Architectural Committee, violating the community governing documents.
Orders: Respondents’ appeal is dismissed, and Foothills is deemed the prevailing party with regard to its Petition.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_win
Cited:
CC&Rs Article 7, Section 7.3
CC&R Article 9, Section 9.3
CC&R Article 9, Section 9.4
CC&R Article 9, Section 9.5
Analytics Highlights
Topics: architectural review, cc&r violation, unapproved construction, second story addition, prevailing party
Additional Citations:
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. §§ 32-2199(2)
A.R.S. §§ 32-2199.01(D)
A.R.S. §§ 32-2199.02
A.R.S. § 32-2199.05
A.R.S. § 41-1092
A.R.S. §32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
21F-H2120004-REL Decision – 839537.pdf
Uploaded 2026-01-23T17:34:43 (135.4 KB)
Briefing Doc – 21F-H2120004-REL
Briefing Document: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust
Executive Summary
This document synthesizes the findings and decision in the case of Foothills Club West Homeowners Association v. Subrahmanyam & Sudhakar Living Trust (No. 21F-H2120004-REL), adjudicated by the Arizona Office of Administrative Hearings. The core dispute involved the construction of a second-story addition by homeowners (Respondents) without the prior approval of the Homeowners Association (Petitioner), a direct violation of the community’s governing documents.
The Administrative Law Judge (ALJ) found conclusively in favor of the Foothills Club West HOA. The evidence demonstrated that the Respondents not only began construction without seeking approval but continued the project even after receiving a formal denial from the HOA’s Architectural Committee. A subsequent agreement between the parties, wherein the Respondents would demolish the addition in exchange for a waiver of fines, was not honored by the Respondents. The ALJ dismissed the Respondents’ appeal and declared the HOA the prevailing party, validating its authority to enforce the community’s architectural standards as outlined in its Covenants, Conditions, and Restrictions (CC&Rs).
I. Case Overview
• Case Name: Foothills Club West Homeowners Association, Petitioner, v. Subrahmanyam & Sudhakar Living Trust, Respondent.
• Case Number: 21F-H2120004-REL
• Jurisdiction: Arizona Office of Administrative Hearings
• Administrative Law Judge: Kay Abramsohn
• Hearing Date: October 5, 2020
• Decision Date: November 27, 2020
• Central Issue: The petition filed by Foothills HOA on July 24, 2020, alleged that the Respondents constructed an unauthorized and unapproved second-story addition to their property. This action was alleged to be in violation of CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5.
II. Chronology of Key Events
The hearing record established the following undisputed sequence of events:
Oct. 2018
Respondents begin construction of the second-story addition.
Nov. 7, 2018
The City of Phoenix issues a stop-work order, noting a permit is required.
Nov. 7, 2018
Foothills HOA issues a violation notice to the Respondents.
Dec. 17, 2018
Respondents obtain a permit from the City of Phoenix.
Jan. 18, 2019 (approx.)
Respondents submit a request for approval to the Foothills Architectural Committee.
Jan. 18, 2019
Foothills HOA issues a penalty notice to the Respondents, with further notices issued monthly.
Feb. 22, 2019
Foothills HOA issues a formal denial of the application.
Mar. 15, 2019
The City of Phoenix gives final approval to the construction and issues a Certificate of Occupancy.
Post Feb. 2019
The parties reach an agreement for Respondents to demolish the addition in exchange for a waiver of fines.
July 24, 2020
Foothills HOA files its petition, noting Respondents have not complied with the demolition agreement.
Oct. 5, 2020
The administrative hearing is held.
Nov. 27, 2020
The Administrative Law Judge issues the final decision.
III. Arguments of the Parties
A. Petitioner: Foothills Club West HOA
• Violation of CC&Rs: The HOA argued that the Respondents violated CC&R Article 9, Section 9.3 by commencing construction without first obtaining approval from the Architectural Committee.
• Disregard for Denial: The HOA asserted that the Respondents completed the addition after receiving a formal denial of their application.
• Breach of Agreement: The HOA noted that the parties had reached a settlement agreement for demolition, which the Respondents failed to honor. The HOA requested that the Tribunal enforce this agreement.
• Jurisdictional Distinction: The HOA maintained that approval from the City of Phoenix was a separate matter and did not negate the requirement to obtain approval from the HOA as mandated by the governing documents.
B. Respondents: Subrahmanyam & Sudhakar Living Trust
• Initial Ignorance: Respondents claimed they were initially unaware of the HOA approval requirements.
• Attempted Compliance: They argued that once notified, they followed the association’s guidance, met with the Board, and sought approval.
• Vague Denial: Respondents stated they did not understand the meaning of the denial reason, “Fails aesthetics of surrounding community,” or how the addition specifically violated community rules.
• Lack of Due Process: They argued they did not receive a letter indicating an appeal process was available and therefore felt they had not received a final “denial.”
• Demolition Delay: While not disputing the existence of the demolition agreement, Respondents cited COVID-19 issues and safety concerns for their at-risk family as reasons for requesting more time.
• Final Appeal: At the hearing, Respondents reversed their position on the agreement and requested to be allowed to keep the addition.
IV. Analysis of Governing Documents
The decision centered on specific provisions within the Foothills Club West governing documents, which constitute the contract between the HOA and the homeowners.
• CC&R Article 9, Section 9.3 (Architectural Approval): This section was central to the case. It states in pertinent part:
• CC&R Article 9, Section 9.4 (Obligation to Obtain Approval): This provision explicitly sets forth a homeowner’s obligation to secure approval from the Architectural Committee.
• CC&R Article 9, Section 9.5 (Exterior Appearance): This section clarifies that while the HOA cannot limit interior remodeling, it retains jurisdiction over any changes that are “visible from outside such [home] … or affects the exterior appearance of such [home].”
• Amended Architectural Guidelines (2013): These guidelines reinforce the CC&Rs, specifying that a homeowner’s plans must be submitted for approval through the Architectural Committee on a case-by-case basis.
V. Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions of law provided a clear framework for the final order.
A. Burden of Proof
The ALJ established that in this proceeding, the petitioner (Foothills HOA) bore the burden of proving by a “preponderance of the evidence” that the Respondents had violated the governing documents. A preponderance of the evidence is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”
B. Core Conclusion on Violations
The ALJ found that the HOA had successfully met its burden of proof. The central conclusion of law states:
“The Administrative Law Judge concludes that Foothills has demonstrated Respondents’ violation of the community governing documents, as stated in CC&R Article 9, Sections 9.3, 9.4, and 9.5, because Respondents began to construct a modification, the Addition, to their existing home prior to obtaining approval from Foothills Architectural Committee and, further, Respondents continued to construct the Addition despite receiving a denial of approval from Foothills Architectural Committee.”
This finding affirmed that the Respondents committed two distinct violations: starting work without approval and continuing work after being explicitly denied approval.
VI. Final Order and Implications
Based on the findings of fact and conclusions of law, the ALJ issued a decisive order.
• Order:
• Binding Nature: The decision notes that the order is binding on both parties unless a rehearing is requested. Pursuant to A.R.S. § 41-1092.09, a request for rehearing must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of the order.
Study Guide – 21F-H2120004-REL
Study Guide: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust
This guide provides a detailed review of the Administrative Law Judge Decision in case No. 21F-H2120004-REL. It includes a short-answer quiz to test factual recall, essay questions for deeper analysis, and a comprehensive glossary of key terms found within the document.
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Short-Answer Quiz
Instructions: Answer the following ten questions in 2-3 sentences each, based on the information provided in the source document.
1. Who are the Petitioner and Respondent in this case, and what is their relationship?
2. What was the single issue raised in the petition filed by Foothills Club West Homeowners Association?
3. According to the Petition, which specific articles and sections of the governing documents did the Respondents allegedly violate?
4. What action did the City of Phoenix take on November 7, 2018, regarding the Respondents’ construction project?
5. What reasons did the Foothills Architectural Committee provide for denying the Respondents’ application on February 22, 2019?
6. Prior to the hearing, what agreement did the parties reach in an attempt to resolve the dispute?
7. What was the Respondents’ primary argument for their actions and for their failure to comply with the association’s denial?
8. What is the legal standard of proof required in this case, and which party bore the burden of meeting it?
9. Explain the difference between the City of Phoenix’s approval and the Foothills Architectural Committee’s approval, as argued by the Petitioner.
10. What was the final order issued by the Administrative Law Judge in this matter?
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Answer Key
1. The Petitioner is the Foothills Club West Homeowners Association (“Foothills”). The Respondent is the Subrahmanyam & Sheila Sudhakar Living Trust. Their relationship is that of a homeowners’ association and a member homeowner residing within the planned community for 22 years.
2. The single issue raised was that the Respondents constructed an unauthorized and unapproved second-story addition to their property. The construction was completed even after the Foothills Architectural Committee had issued a denial of the project.
3. Foothills alleged that the Respondents violated the CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5. These articles pertain to the rights and obligations of the association and the architectural standards requiring prior approval for modifications.
4. On November 7, 2018, the City of Phoenix issued a stop-work order for the Respondents’ construction project. The order noted that the work being performed required a permit, which had not yet been obtained.
5. The Foothills Architectural Committee denied the application because it needed copies of the City permit, the plans were incomplete, and there was no documentation on the roof line or roofing materials. Furthermore, the denial stated that the project “Fails aesthetics of surrounding community.”
6. The parties came to an agreement wherein the Respondents would complete the demolition of the second-story addition. In exchange, Foothills agreed to waive the penalties that had been imposed on the Respondents for the violation.
7. The Respondents argued that they initially did not know what was required and that they cooperated with the association’s Board once notified. They claimed they did not understand what “Fails aesthetics” meant, did not receive a letter about an appeal process, and therefore did not feel they had received a final “denial.”
8. The legal standard of proof is a “preponderance of the evidence,” which is defined as proof that convinces the trier of fact that a contention is more probably true than not. The Petitioner, Foothills, bore the burden of proving the Respondents’ violation by this standard.
9. Foothills argued that approval from the City of Phoenix and approval from the association’s Architectural Committee were two different and separate matters. Even though the Respondents eventually received a City permit and a Certificate of Occupancy, this did not override the CC&R requirement to first obtain approval from Foothills.
10. The Administrative Law Judge ordered that the Respondents’ appeal be dismissed. The Judge deemed Foothills the prevailing party with regard to its petition, finding that Foothills had demonstrated the Respondents’ violation of the community’s governing documents.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Formulate an essay-style answer for each, drawing evidence and support directly from the provided legal decision.
1. Analyze the arguments presented by both the Petitioner (Foothills) and the Respondents at the hearing. Discuss the key evidence and claims each party used to support their position and explain why the Administrative Law Judge ultimately found the Petitioner’s case more persuasive.
2. Explain the distinct roles and jurisdictions of the Homeowners Association’s Architectural Committee and the City of Phoenix regarding the Respondents’ construction project. Why was obtaining a City permit and a Certificate of Occupancy insufficient for the Respondents to proceed without violating the community’s governing documents?
3. Trace the procedural history of case No. 21F-H2120004-REL, from the filing of the initial petition to the final order. Discuss key filings, motions, and deadlines mentioned in the document, including the Respondents’ attempt to consolidate another case.
4. Discuss the significance of the “contract” between the parties, as defined in footnote 15. How do the CC&Rs and the amended Architectural Guidelines function as this contract, and which specific sections were central to the judge’s conclusion that a violation occurred?
5. Evaluate the Respondents’ attempt to justify their failure to demolish the addition as per their agreement with Foothills, citing COVID-19 issues. How did their request at the hearing to keep the addition conflict with their prior agreement, and what does this reveal about their position in the dispute?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Kay Abramsohn, who presides over administrative hearings at the Office of Administrative Hearings and issues decisions.
Architectural Committee
A committee appointed by the Foothills HOA, as established by CC&R Article 9, with the authority to review, approve, or disapprove plans for construction, modifications, and additions to properties within the community.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These are the governing documents that form a binding contract between the homeowners association and the property owners, outlining their rights and obligations.
Disclosure
The formal process by which parties in a legal case provide evidence, exhibits, and information to each other before a hearing. The deadline for disclosure in this case was September 29, 2020.
Governing Documents
The set of rules for the planned community, including the CC&Rs and the amended Architectural Guidelines, which have the same force and effect as association rules.
Petitioner
The party who initiates a legal proceeding by filing a petition. In this case, the Foothills Club West Homeowners Association.
Petition
The formal document filed with the Arizona Department of Real Estate to initiate a hearing concerning violations of community governing documents. In this case, it was a “single-issue petition.”
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Subrahmanyam & Sheila Sudhakar Living Trust.
Tribunal
The Arizona Office of Administrative Hearings, the state agency authorized by statute to hear and decide contested matters referred to it, such as this dispute.
Blog Post – 21F-H2120004-REL
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This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings concerning a dispute between the Foothills Club West Homeowners Association and the Subrahmanyam & Sudhakar Living Trust. The Petitioner, the Foothills Club West Homeowners Association, filed a petition alleging that the Respondents constructed an unauthorized second-story addition to their property in violation of the association’s governing documents, specifically the CC&Rs Article 9, Sections 9.3, 9.4, and 9.5. The Administrative Law Judge determined that the Respondents violated these community documents by beginning construction prior to obtaining approval from the Foothills Architectural Committee and continuing the work despite receiving a denial. The judge ultimately concluded that Foothills was the prevailing party and dismissed the Respondents’ appeal, effectively upholding the violation finding.
What are the specific governing document violations alleged and proven against the homeowners?
How did the legal and administrative process address the unauthorized construction dispute?
What was the final resolution ordered regarding the unapproved second-story home addition?
Based on 1 source
Case Participants
Petitioner Side
John Halk(HOA attorney) BROWN/OLCOTT, PLLC Represented Petitioner Foothills Club West Homeowners Association
Nathan Tennyson(HOA attorney) BROWN/OLCOTT, PLLC Counsel for Petitioner
Respondent Side
Mary T. Hone(Respondent attorney) Mary T. Hone, PLLC Counsel for Respondent Trustees Subrahmanyam & Sheila Sudhakar
Subrahmanyam Sudhakar(respondent) Subrahmanyam & Sheila Sudhakar Living Trust Trustee of the Respondent Living Trust
Sheila Sudhakar(respondent) Subrahmanyam & Sheila Sudhakar Living Trust Trustee of the Respondent Living Trust
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings Administrative Law Judge
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
AHansen(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
djones(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
DGardner(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
ncano(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
Following a rehearing based on newly discovered evidence, the Administrative Law Judge found that Respondent violated A.R.S. § 33-1258(A) by failing to timely provide records it possessed. Respondent was ordered to reimburse the Petitioner $500.00 for the filing fee and pay a $2,500.00 civil penalty to the Department of Real Estate.
Key Issues & Findings
Failure to make association financial and other records reasonably available for examination/provide copies within ten business days.
Petitioner alleged Respondent violated A.R.S. § 33-1258 by failing to provide requested records (including bank statements and contracts) following a formal request on May 1, 2020. The Administrative Law Judge, in the rehearing, found that the evidence showed Respondent was in possession of bank statements and two signed contracts at the time of the request, contradicting prior testimony, thereby establishing a violation of the statute.
Orders: Respondent was ordered to pay Petitioner $500.00 for the filing fee reimbursement and pay a civil penalty of $2,500.00 to the Department of Real Estate, both payments due within 30 days.
Following a rehearing based on newly discovered evidence, the Administrative Law Judge found that Respondent violated A.R.S. § 33-1258(A) by failing to timely provide records it possessed. Respondent was ordered to reimburse the Petitioner $500.00 for the filing fee and pay a $2,500.00 civil penalty to the Department of Real Estate.
Key Issues & Findings
Failure to make association financial and other records reasonably available for examination/provide copies within ten business days.
Petitioner alleged Respondent violated A.R.S. § 33-1258 by failing to provide requested records (including bank statements and contracts) following a formal request on May 1, 2020. The Administrative Law Judge, in the rehearing, found that the evidence showed Respondent was in possession of bank statements and two signed contracts at the time of the request, contradicting prior testimony, thereby establishing a violation of the statute.
Orders: Respondent was ordered to pay Petitioner $500.00 for the filing fee reimbursement and pay a civil penalty of $2,500.00 to the Department of Real Estate, both payments due within 30 days.
Topics: HOA records request, A.R.S. 33-1258, Rehearing, Civil Penalty, Possession of Records
Additional Citations:
A.R.S. § 33-1258
A.R.S. § 32-2199.02
A.A.C. R2-19-119
Video Overview
Audio Overview
Decision Documents
20F-H2020064-REL Decision – 823263.pdf
Uploaded 2025-10-09T03:35:33 (108.6 KB)
Briefing Doc – 20F-H2020064-REL
Briefing Document: Babington v. Park Scottsdale II Townhouse Corporation
Executive Summary
This document synthesizes the findings from two administrative hearings concerning a records request dispute between homeowner Nancy L. Babington (Petitioner) and the Park Scottsdale II Townhouse Corporation (Respondent). The case, No. 20F-H2020064-REL, culminated in a reversal of an initial ruling, finding the Respondent in violation of Arizona law A.R.S. § 33-1258 for failing to provide association records within the statutory timeframe.
The initial hearing on August 28, 2020, resulted in a denial of the petition. The Respondent successfully argued that it could not produce the requested documents because they were not in its possession, largely due to a dispute with a former management company. However, a rehearing was granted after the Petitioner discovered new evidence.
The rehearing on March 4, 2021, established that the Respondent, through its management company Associa Arizona, was in possession of key requested documents—specifically bank statements and signed contracts—at the time of the initial request. Evidence revealed the bank statements were held at a central corporate office in Texas and were not retrieved, while signed contracts had not been forwarded to the management company by board members. The Administrative Law Judge found this directly contradicted the Respondent’s initial defense.
As a result, the Administrative Law Judge reversed the earlier decision, ordering the Respondent to reimburse the Petitioner’s $500 filing fee and imposing a $2,500 civil penalty payable to the Arizona Department of Real Estate. The case underscores an association’s responsibility to produce all records in its possession, regardless of physical location within the corporate structure, and affirms the court’s authority to levy penalties for violations.
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1. Case Overview
• Case Number: 20F-H2020064-REL
• Petitioner: Nancy L. Babington
• Respondent: Park Scottsdale II Townhouse Corporation
• Core Allegation: Violation of A.R.S. § 33-1258, which mandates that a condominium owners’ association must make its financial and other records reasonably available for examination by a member within ten business days of a request.
• Hearings Conducted:
◦ Initial Hearing: August 28, 2020
◦ Rehearing: March 4, 2021
• Presiding Administrative Law Judge: Tammy L. Eigenheer
2. Chronology of the Dispute
The dispute originated from difficulties following a change in the Respondent’s management company and subsequent records requests by the Petitioner.
• June-July 2019: The previous management company, Community Management & Consulting, LLC (CMC), terminated its agreement with the Respondent. A “financial disagreement” led to CMC withholding records, complicating the transition.
• Post-July 2019: Respondent hired Associa Arizona as its new management company. Associa and the Respondent’s counsel attempted to obtain the withheld records from CMC.
• April 29, 2020: After previous attempts to get information, Petitioner Nancy L. Babington sent a formal email to Associa and the Respondent’s Board of Directors. In the email, she stated:
• May 1, 2020: Linda Parker, Director of Client Services with Associa, replied, stating the request was not specific and asked the Petitioner to identify the exact records needed.
• May 1, 2020: The Petitioner responded with a detailed list of nine specific items:
1. All bank statements with copies of cancelled checks since Sept 1, 2019.
2. Any and all financial statements since Sept 1, 2019.
3. Any and all 1099s issued for 2019.
4. Any and all Executive Session meeting minutes conducted in 2020 (excluding statutory exemptions).
5. Any and all contracts signed in 2020.
6. Any and all outstanding invoices with a due date over 45 days.
7. Any documentation regarding the legality of the $204.75 maintenance fee.
8. Any proof of Stephen Silberschlag’s liability insurance.
9. Any landscaping plans.
• May 4, 2020: Ms. Parker from Associa responded that the company could only provide records within its possession.
• May 15, 2020: Following another email from the Petitioner, Ms. Parker stated that Associa had scheduled a meeting with the board on May 20 to discuss the request further.
• May 28, 2020: Having not received any of the requested documents, the Petitioner filed a petition with the Arizona Department of Real Estate.
3. The Initial Hearing and Decision (August – September 2020)
The first hearing focused on whether the Respondent had violated the statute by failing to produce the documents.
• The Respondent argued that it was unable to provide documents that were not in its possession.
• Joseph Silberschlag, Secretary of the Board of Directors, testified that issues with the former management company (CMC) meant neither the Respondent nor Associa had possession of many necessary documents.
• Specifically, he stated that without previous financial documents and starting balances from CMC, the association was unable to create current financial statements.
• The Respondent maintained it was under no statutory obligation to create documents to fulfill the Petitioner’s request.
• The Administrative Law Judge (ALJ) concluded that the Petitioner “failed to establish by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”
• The finding was based on the Respondent’s argument that it did not possess the requested documents at the time of the request.
• On September 17, 2020, the ALJ issued a decision denying the Petitioner’s petition.
4. The Rehearing and Reversal (March 2021)
Following the initial decision, the case was reopened based on new evidence presented by the Petitioner.
• After the September 2020 decision, the Respondent provided some of the requested documents to the Petitioner.
• Upon reviewing these documents, the Petitioner realized that the Respondent had, in fact, been in possession of several key records prior to her May 1, 2020 request.
• She filed a Rehearing Request with the Department of Real Estate, citing “newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” The request was granted.
The rehearing revealed crucial details about the location and accessibility of the requested records.
Record Type
Petitioner’s Evidence
Respondent’s Testimony/Explanation
Bank Statements
The documents received post-hearing showed that bank statements had been sent to Associa starting in August 2019.
Evelyn Shanley, Community Director for Associa, testified that statements for all HOAs were sent to a central office in Richardson, Texas. She admitted she did not contact the Texas office to obtain the statements for the Petitioner’s request. Counsel for the Respondent conceded the statements in Texas were in the possession of Associa.
Contracts
Petitioner presented two contracts signed by Board members on March 27 and March 31, 2020, prior to her request.
Ms. Shanley admitted the two signed contracts existed but stated that the Board of Directors members had not provided them to Associa.
1099 Forms
Petitioner noted a document indicating four vendors were eligible for 1099s.
Ms. Shanley denied that any 1099s had been issued.
• The documents were not in the “immediate possession” of the local Associa office.
• The matter was now moot because the Petitioner had received all requested documents.
• A civil penalty was inappropriate because the Petitioner did not specifically request one on her initial petition form.
• The evidence presented at the rehearing was “directly contradictory” to the representations made by the Respondent at the initial hearing.
• The Petitioner successfully established by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1258(A) by failing to provide documents (bank statements and contracts) that were in its possession.
• The ALJ rejected the Respondent’s argument against a civil penalty, stating that the plain language of A.R.S. § 32-2199.02 allows the judge to levy a penalty for established violations, and “nothing in the statute limits the available remedies to those specifically requested by a petitioner.”
5. Final Order and Penalties
The Administrative Law Judge Decision issued on March 24, 2021, reversed the initial finding and imposed penalties on the Respondent.
IT IS ORDERED that:
1. Respondent must pay the Petitioner her filing fee of $500.00 within 30 days.
2. Respondent must pay to the Department of Real Estate a civil penalty in the amount of $2,500.00 within 30 days.
Study Guide – 20F-H2020064-REL
Study Guide: Babington v. Park Scottsdale II Townhouse Corporation
This study guide provides a review of the administrative case involving Petitioner Nancy L. Babington and Respondent Park Scottsdale II Townhouse Corporation. It includes a short-answer quiz to test factual recall, a separate answer key, a set of essay questions for deeper analysis, and a glossary of key terms and entities involved in the proceedings.
Short-Answer Quiz
Answer each question in 2-3 sentences based on the information provided in the case documents.
1. Who were the primary parties in this case, and what was the Petitioner’s central allegation?
2. What specific Arizona statute was the Respondent accused of violating, and what does this law generally require?
3. What was the Respondent’s main defense during the initial hearing on August 28, 2020, for not providing the requested records?
4. What was the conclusion of the Administrative Law Judge in the first decision, issued on September 17, 2020?
5. On what legal grounds did the Petitioner successfully file for a rehearing of her case?
6. What new evidence regarding bank statements was presented by the Petitioner at the March 4, 2021, rehearing?
7. How did the Respondent’s management company, Associa Arizona, explain its failure to produce the bank statements and signed contracts in response to the initial request?
8. What was the final outcome of the rehearing, and how did it contradict the initial decision?
9. What two financial penalties were imposed upon the Respondent in the final order of March 24, 2021?
10. What was the Respondent’s argument against the imposition of a civil penalty, and why did the Administrative Law Judge reject it?
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Answer Key
1. The primary parties were Petitioner Nancy L. Babington, a property owner, and Respondent Park Scottsdale II Townhouse Corporation, a condominium owners association. The Petitioner alleged that the Respondent failed to provide association records she formally requested, in violation of Arizona law.
2. The Respondent was accused of violating A.R.S. § 33-1258. This statute requires a condominium owners association to make its financial and other records reasonably available for examination by a member and to provide copies of requested records within ten business days.
3. During the initial hearing, the Respondent’s main defense was that it was unable to provide the documents because they were not in its possession. The Respondent claimed its former management company, CMC, was withholding records and that without starting balances, it could not create new financial documents.
4. The Administrative Law Judge denied the Petitioner’s petition in the first decision. The judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the statute because the Respondent did not possess the documents and was not required to create them.
5. The Petitioner was granted a rehearing based on the discovery of “newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” After the first decision, the Respondent provided documents that proved it had, in fact, been in possession of some of the requested records prior to her request.
6. At the rehearing, the Petitioner testified that after receiving the documents, she realized bank statements had been sent to Associa’s central office in Richardson, Texas, starting in August 2019. This demonstrated that the records were in the management company’s possession when she made her request.
7. Associa’s representative testified that bank statements went to a central office in Texas and were not forwarded to the local office because financial packets could not be prepared without starting balances from the previous management company. Regarding the contracts, Associa claimed that the Board of Directors members who signed them had not provided the contracts to Associa.
8. The final outcome of the rehearing was a ruling in favor of the Petitioner. The judge found that evidence presented at the rehearing directly contradicted the Respondent’s earlier claims, establishing that the Respondent did possess bank statements and contracts and had violated A.R.S. § 33-1258(A).
9. In the final order, the Respondent was ordered to pay the Petitioner’s filing fee of $500.00. Additionally, the Respondent was ordered to pay a civil penalty of $2,500.00 to the Arizona Department of Real Estate.
10. The Respondent argued that a civil penalty was not appropriate because the Petitioner did not specifically request one by checking the box on the petition form. The judge rejected this, stating that the plain language of A.R.S. § 32-2199.02 allows the judge to levy a civil penalty for established violations, and this authority is not limited by the remedies requested by a petitioner.
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Essay Questions
The following questions are designed for analytical and in-depth responses. Answers are not provided.
1. Analyze the concept of “possession” of records as it evolved from the first hearing to the second. How did the Respondent’s initial interpretation of “immediate possession” differ from the Administrative Law Judge’s final conclusion regarding the records held by Associa’s Texas office?
2. Discuss the significance of the “preponderance of the evidence” standard in this case. Explain specifically how the Petitioner failed to meet this standard in the first hearing but succeeded in the second, citing the key pieces of evidence that shifted the outcome.
3. Evaluate the role and responsibilities of the management company, Associa Arizona, in this dispute. To what extent were its internal procedures and actions (or inactions) the primary cause of the Respondent’s violation of A.R.S. § 33-1258?
4. Trace the timeline of communication between Nancy Babington and Associa Arizona from April 29, 2020, to May 15, 2020. Analyze how the responses from Associa may have contributed to the perception that the Respondent was refusing to provide information, ultimately leading to the petition being filed.
5. The Administrative Law Judge has the statutory authority to levy a civil penalty for each violation found. Based on the facts of this case, including the Respondent’s representations at the first hearing and the contradictory evidence presented at the second, construct an argument justifying the imposition of the $2,500 civil penalty.
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Glossary of Key Terms
Term / Entity
Definition
A.R.S. § 32-2199 et seq.
The Arizona Revised Statute cited as giving the Arizona Department of Real Estate jurisdiction to hear disputes between a property owner and a condominium owners association.
A.R.S. § 33-1258
The Arizona Revised Statute at the core of the dispute. It requires that an association’s financial and other records be made “reasonably available” for examination and that the association has ten business days to fulfill a request for examination or to provide copies.
Administrative Law Judge (ALJ)
The official from the Office of Administrative Hearings (Tammy L. Eigenheer in this case) responsible for conducting the hearings, weighing evidence, and issuing a legally binding decision and order.
Associa Arizona
The management company hired by the Respondent to handle its operations after the termination of the previous management agreement. It was the primary point of contact for the Petitioner’s records request.
Civil Penalty
A monetary fine levied by the Administrative Law Judge for a violation of the law. In this case, a $2,500 penalty was ordered to be paid to the Department of Real Estate.
Community Management & Consulting, LLC (CMC)
The Respondent’s former management company. CMC terminated its agreement with the Respondent and was withholding association records due to a financial disagreement, which was a key part of the Respondent’s defense in the initial hearing.
Department of Real Estate (Department)
The Arizona state agency with which the Petitioner filed her petition and which has jurisdiction over such disputes.
A legal argument made by the Respondent’s counsel during the rehearing. Counsel asserted that the matter was moot (no longer relevant or in dispute) because, by the time of the rehearing, the Petitioner had received all the documents she requested.
Newly Discovered Material Evidence
The legal basis upon which the Petitioner was granted a rehearing. It refers to significant evidence that was not available at the time of the original hearing despite reasonable diligence.
Petitioner
The party who initiates a legal action or petition. In this case, Nancy L. Babington, a condominium owner.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win her case. It is defined as evidence that is more convincing and shows that the fact sought to be proved is “more probable than not.”
Rehearing
A second hearing granted by the Commissioner of the Department of Real Estate to re-examine a case, which was held on March 4, 2021, after the Petitioner presented newly discovered evidence.
Respondent
The party against whom a petition is filed. In this case, Park Scottsdale II Townhouse Corporation, the condominium owners association.
Blog Post – 20F-H2020064-REL
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These two sources are Administrative Law Judge Decisions concerning a dispute between Nancy L. Babington, a homeowner, and the Park Scottsdale II Townhouse Corporation, her condominium owners association, regarding the provision of association records under Arizona statute A.R.S. § 33-1258. The first document details the initial hearing, held in August 2020, where the judge ruled in favor of the association, concluding that the association was not in violation because it lacked possession of the requested documents due to issues with its former management company. The second document outlines the rehearing, granted due to newly discovered evidence suggesting the association or its new management company, Associa Arizona, actually possessed some records, such as bank statements and contracts, despite earlier claims. Based on the rehearing’s findings, the judge determined the association violated the statute by not providing the records within the ten-day requirement and ordered the association to reimburse the petitioner’s filing fee and pay a civil penalty.
How did newly discovered evidence lead to reversal of the initial legal decision?
What were the specific consequences for the respondent following the administrative rehearing?
How did the interpretation of statutory record possession requirements change between hearings?
Based on 2 sources
Case Participants
Petitioner Side
Nancy L. Babington(petitioner)
Respondent Side
Lydia A. Peirce Linsmeier(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent at initial hearing
Mark K. Sahl(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent at rehearing
Scott B. Carpenter(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent at rehearing
Debbie Schumacher(board member) Park Scottsdale II Townhouse Corporation
Marty Shuford(board member) Park Scottsdale II Townhouse Corporation
Joseph Silberschlag(board member) Park Scottsdale II Townhouse Corporation Secretary; testified
Angelina Rajenovich(board member) Park Scottsdale II Townhouse Corporation
Dermot Brown(board member) Park Scottsdale II Townhouse Corporation
Lori Nusbaum(board member) Park Scottsdale II Townhouse Corporation
Linda Parker(HOA staff) Associa Arizona Director of Client Services for property manager
Evelyn Shanley(HOA staff) Associa Arizona Community Director for property manager; testified at rehearing
Laura Smith(HOA staff) Associa Arizona
Neutral Parties
Tammy L. Eigenheer(ALJ) OAH
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(ADRE staff) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate
djones(ADRE staff) Arizona Department of Real Estate
DGardner(ADRE staff) Arizona Department of Real Estate
ncano(ADRE staff) Arizona Department of Real Estate
c. serrano(staff) Signed order transmission
Other Participants
Stephen Silberschlag(unknown) Subject of Petitioner's record request
The Administrative Law Judge ruled that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1, concluding that the Board is the 'sole judge' regarding appropriate maintenance of AREAS. The Petitioner failed to meet the burden of proof, and the Rehearing Petition was dismissed.
Why this result: Petitioner failed to sustain her burden to establish a violation. The governing documents grant the Board 'the sole judge' authority over maintenance, and Petitioner did not provide legal support requiring the HOA to meet the homeowner maintenance standard.
Key Issues & Findings
Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times
Petitioner alleged that Solera failed to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times, arguing that the same strict maintenance standard applied to homeowners (CC&R 7.2) should apply to the HOA (CC&R 7.1). The issue was heard on rehearing after the initial decision dismissed the petition.
Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents and was the prevailing party. Petitioner's appeal (Rehearing Petition) was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. § 32-2199.05
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Analytics Highlights
Topics: HOA Dispute, CC&R Violation, Maintenance Standard, Areas of Association Responsibility, Rehearing, Sole Judge
The Administrative Law Judge ruled that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1, concluding that the Board is the 'sole judge' regarding appropriate maintenance of AREAS. The Petitioner failed to meet the burden of proof, and the Rehearing Petition was dismissed.
Why this result: Petitioner failed to sustain her burden to establish a violation. The governing documents grant the Board 'the sole judge' authority over maintenance, and Petitioner did not provide legal support requiring the HOA to meet the homeowner maintenance standard.
Key Issues & Findings
Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times
Petitioner alleged that Solera failed to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times, arguing that the same strict maintenance standard applied to homeowners (CC&R 7.2) should apply to the HOA (CC&R 7.1). The issue was heard on rehearing after the initial decision dismissed the petition.
Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents and was the prevailing party. Petitioner's appeal (Rehearing Petition) was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. § 32-2199.05
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Analytics Highlights
Topics: HOA Dispute, CC&R Violation, Maintenance Standard, Areas of Association Responsibility, Rehearing, Sole Judge
Additional Citations:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. § 32-2199.05
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Video Overview
Audio Overview
Decision Documents
20F-H2020051-REL Decision – 816310.pdf
Uploaded 2025-12-09T10:05:44 (199.6 KB)
20F-H2020051-REL Decision – 847175.pdf
Uploaded 2025-10-09T03:35:07 (246.5 KB)
Briefing Doc – 20F-H2020051-REL
Briefing Document: Morin v. Solera Chandler Homeowners’ Association
Executive Summary
This document synthesizes the findings from the Administrative Law Judge Rehearing Decision in the case of Debra K. Morin versus the Solera Chandler Homeowners’ Association, Inc. (Solera), dated January 8, 2021. The central dispute involved a homeowner’s allegation that the association failed to maintain its common areas in good condition and repair.
The Administrative Law Judge (ALJ) ultimately dismissed the petitioner’s case, finding conclusively in favor of the Solera HOA. The decision rested on a critical provision within the association’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which designates the Solera Board as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas. This clause grants the Board exclusive discretion, superseding an individual homeowner’s opinion on the timing or quality of maintenance.
Despite the petitioner presenting extensive photographic evidence documenting various maintenance issues, the ALJ concluded that this evidence failed to prove a violation of the governing documents. The petitioner did not meet her burden of proving by a preponderance of the evidence that the Board had acted outside its granted authority. The ruling affirms that the authority of the Board is explicitly elevated above that of an individual homeowner in matters of common area maintenance under the controlling legal documents.
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I. Case Background and Procedural History
The case originates from a petition filed by Debra K. Morin, a four-year resident of the Solera community, against the Solera Chandler Homeowners’ Association. The matter was adjudicated by the Arizona Office of Administrative Hearings (Tribunal).
A. Initial Petition
On March 12, 2020, Ms. Morin filed a two-issue petition with the Arizona Department of Real Estate, alleging that Solera, its Board of Directors, and its management company (Premier) had violated numerous governing documents, including the Articles of Incorporation, By-Laws, CC&Rs, and Rules & Regulations (R&Rs).
• Issue #1: Alleged that Solera did not permit “direct communication from homeowners” and sought to have this “policy” rescinded.
• Issue #2: Alleged that Solera was not providing oversight to the General Manager in maintaining the “Areas of Association Responsibility” (AREAS) in “good condition and repair at all times.” Specific complaints included uncontrolled weeds and poor maintenance of the Community Center and other common areas.
B. Procedural Developments
• Motion to Dismiss: Solera filed a Motion to Dismiss, arguing the issues were outside the Department of Real Estate’s jurisdiction.
• Withdrawal of Issue #1: At a May 20, 2020 hearing, the Tribunal noted its jurisdiction did not extend to non-governing documents like the Board’s Code of Ethics. Consequently, Ms. Morin withdrew Issue #1. The Tribunal denied the Motion to Dismiss for the remaining “bare-bones” maintenance allegation in Issue #2.
• Initial Decision (August 19, 2020): Following the original hearing, the ALJ issued a decision concluding that Solera was the “sole judge” regarding maintenance of the AREAS and had not violated its governing documents. The petition was dismissed.
• Rehearing Request (September 24, 2020): Ms. Morin filed a request for rehearing, citing irregularities in the proceedings, misconduct by the prevailing party, and arguing the decision was arbitrary and capricious, particularly in its interpretation of CC&R Article 7, Section 7.1.
• Rehearing Granted and Conducted: The Commissioner of the Arizona Department of Real Estate granted the rehearing, which was conducted telephonically on December 16, 2020.
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II. Core Arguments of the Parties
The fundamental conflict centered on the interpretation of the maintenance standards outlined in the community’s CC&Rs.
A. Petitioner’s Position (Debra K. Morin)
Ms. Morin’s case was built on the principle of equal application of maintenance standards.
• Central Argument: The same maintenance standard requiring homeowners to keep their lots “in good condition and repair at all times” (per CC&R Article 7, Section 7.2) must be applied equally to Solera’s responsibility for the common AREAS (per CC&R Article 7, Section 7.1).
• Core Belief: Because homeowners are given no discretion regarding delays in maintenance, Solera should not be able to take months to address reported issues.
• Evidence Presented: The petitioner submitted extensive documentation, including over 80 photographs (referenced in the rehearing as “310 pictures”), emails, and other documents. This evidence was intended to show persistent maintenance failures, including:
◦ Uncontrolled weeds in granite rock locations
◦ Poor exterior condition of the Community Center
◦ Deficiencies in street asphalt, storm drains, sidewalks, and curbing
◦ Water pooling and intrusion issues
◦ Exposed landscaping lights and irrigation lines
◦ Unremoved tree stumps
B. Respondent’s Position (Solera HOA)
Solera’s defense relied entirely on the specific authority granted to its Board by the governing documents.
• Central Argument: The association met its responsibilities, and the petitioner’s subjective opinions about what, when, or how maintenance should be done are irrelevant.
• Dispositive Legal Provision: Solera consistently cited CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].”
• Interpretation: This provision grants the Board exclusive discretion and authority to determine the nature and timing of maintenance, insulating its decisions from a single homeowner’s critique.
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III. Analysis and Key Findings of the Administrative Law Judge
The Rehearing Decision provided a thorough review of the evidence and legal arguments, ultimately reinforcing the original ruling in favor of Solera.
A. The “Sole Judge” Clause and Board Authority
The ALJ’s conclusion hinged on the unambiguous language of the CC&Rs, which establishes a clear hierarchy of authority.
• CC&R Article 7, Section 7.1: This article was identified as the dispositive text. It states, in pertinent part: “the Board ‘shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS], but all [AREAS], and the Improvements located thereon, shall be maintained in good condition and repair at all times.'” The ALJ found that the “sole judge” provision grants the Board exclusive authority to determine how the “good condition and repair” standard is met.
• CC&R Article 9, Section 9.5: This section further strengthens the Board’s position by granting Solera the “exclusive right to construe and interpret the provisions of the [CC&Rs],” with its interpretation being “final, conclusive and binding.”
• Conclusion on Authority: The ALJ concluded that these provisions clearly lift the Board’s authority above that of an individual homeowner in determining appropriate maintenance.
B. Rejection of the “Equal Standard” Argument
The petitioner’s primary argument for an equal, non-discretionary standard for both the HOA and homeowners was explicitly rejected.
• The ALJ found that the petitioner “failed to provide legal support for her argument that the same maintenance standard is required to be applied to the Board as it is applied to a homeowner.”
• The governing documents themselves create different levels of authority and obligation for the Board versus individual owners.
C. Evaluation of Evidence and Burden of Proof
• Burden of Proof: The decision reiterates that the petitioner bears the burden of proving a violation by a “preponderance of the evidence.”
• Photographic Evidence: The ALJ acknowledged reviewing all photographs from both hearings. The decision states that this evidence successfully documented “the existence, at those dates embedded in the photographs, of items that deal with maintenance and repairs in various locations of Solera AREAS.”
• Failure to Prove a Violation: Crucially, while the photos proved maintenance issues existed, they did not prove a violation of the CC&Rs. Because the Board is the “sole judge,” the existence of a weed or a cracked curb does not automatically constitute a breach of its duties, as the Board retains discretion over the timeline and method of repair.
D. Jurisdictional Limitations
The decision affirmed the Tribunal’s limited jurisdiction, noting that many of the petitioner’s underlying frustrations were not legally actionable in this venue.
• Not Actionable: A homeowner’s dissatisfaction with the Board, its management company, or the General Manager is “not within the purview of this process or the jurisdiction of the Tribunal.”
• Irrelevant Documents: Arguments based on City of Chandler standards, the landscaping contract with Integrated Landscape Management (ILM), or Premier’s General Manager job description were deemed irrelevant, as the Tribunal’s review is limited to the association’s governing documents and applicable state statutes.
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IV. Final Order and Conclusion
Based on an exhaustive review of the record from both the original hearing and the rehearing, the Administrative Law Judge reached a definitive conclusion.
• Final Finding: The petitioner failed to sustain her burden of proof to establish a violation by Solera of the governing documents. The ALJ concluded that Solera is in compliance with its governing documents, including CC&R Article 7, Section 7.1.
• Order:
◦ IT IS ORDERED that Solera is the prevailing party with regard to the Rehearing, and Petitioner’s appeal is dismissed.
◦ The order was issued on January 8, 2021.
◦ As a decision issued after a rehearing, the order is binding on the parties. Any further appeal must be filed with the Superior Court within 35 days from the date of service.
Study Guide – 20F-H2020051-REL
Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.
This guide provides a comprehensive review of the administrative rehearing case No. 20F-H2020051-REL-RHG, between Petitioner Debra K. Morin and Respondent Solera Chandler Homeowners’ Association, Inc. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms derived from the case documents.
Short-Answer Quiz
Answer each of the following questions in 2-3 sentences based on the information provided in the case decision.
1. Who were the primary parties in this case, and who represented them at the telephonic hearing on December 16, 2020?
2. What were the two initial issues Petitioner Debra K. Morin raised in her petition filed on March 12, 2020?
3. Why did the Petitioner withdraw Issue #1 from her petition during the May 20, 2020 hearing?
4. What was the Petitioner’s central argument regarding the maintenance standard that Solera should be held to?
5. What type of evidence did the Petitioner primarily present to document the alleged maintenance failures in the Areas of Association Responsibility (AREAS)?
6. What specific clause in the CC&Rs did Solera (the Respondent) rely on to defend its actions and decisions regarding maintenance?
7. What were the primary reasons the Commissioner of the Arizona Department of Real Estate granted the Petitioner’s request for a rehearing?
8. How did the Administrative Law Judge rule on the relevance of non-governing documents, such as the City of Chandler ordinances and the Premier Management Company job description?
9. What is the legal standard of proof that a petitioner must meet in these proceedings, and how is it defined in the decision?
10. What was the final conclusion and order of the Administrative Law Judge in the Rehearing Decision issued on January 8, 2021?
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Answer Key
1. The primary parties were the Petitioner, Debra K. Morin, who represented herself, and the Respondent, Solera Chandler Homeowners’ Association (Solera). Solera was represented by Lydia Linsmeier, Esq.
2. Issue #1 alleged that Solera did not allow direct communication from homeowners. Issue #2 alleged that Solera, its Board, and its management company were not providing proper oversight to maintain the Areas of Association Responsibility (AREAS) in good condition and repair.
3. The Petitioner withdrew Issue #1 after the Tribunal ruled that the statutory parameters of its jurisdiction did not include the interpretation or application of a non-governing document like the Board’s Code of Ethics. The allegations regarding ethics and mismanagement based on this code were therefore removed from consideration.
4. The Petitioner’s central argument was that the same maintenance standard must be applied to Solera as is applied to homeowners. She contended that just as homeowners are required by CC&R Article 7, Section 7.2 to maintain their lots in good condition at all times, Solera must be held to the same standard for common AREAS under CC&R Article 7, Section 7.1.
5. The Petitioner presented an “enormity” of photographic evidence to document the maintenance issues. The decision notes she presented over eighty photographs at the original hearing and an additional “310 pictures” were mentioned in the rehearing, showing weeds, debris, exposed wiring, and other issues at various dates.
6. Solera relied on CC&R Article 7, Section 7.1, which states that the Solera Board of Directors “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].” Solera argued that the Petitioner’s subjective opinions on maintenance were therefore not relevant.
7. The rehearing was granted for reasons outlined in the Petitioner’s request, which claimed: irregularities in the proceedings, misconduct by the prevailing party, and that the original decision was arbitrary, capricious, an abuse of discretion, not supported by evidence, or contrary to law.
8. The Judge ruled that such documents were not relevant or justiciable. City standards were not under review, and the management company’s job description and landscape contract were not Solera governing documents, so they could not be used to prove a violation of the association’s governing documents.
9. The petitioner bears the burden of proving their case by a “preponderance of the evidence.” This is defined as proof that convinces the trier of fact that the contention is more probably true than not, and it represents the greater weight of evidence.
10. The Administrative Law Judge concluded that the Petitioner failed to sustain her burden to establish a violation by Solera of the governing documents. The Judge found Solera to be the prevailing party, in compliance with CC&R Article 7, Section 7.1, and ordered that the Petitioner’s appeal be dismissed.
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Suggested Essay Questions
The following questions are designed to encourage deeper analysis of the case. No answers are provided.
1. Analyze the balance of power between a homeowner and an HOA as depicted in this case. Discuss how specific clauses in the CC&Rs, particularly Article 7 (Section 7.1) and Article 9 (Sections 9.5 and 9.9), grant authority to the Board and limit the recourse available to an individual owner within the association’s own framework.
2. Examine the role and limitations of evidence in this administrative hearing. Why was the Petitioner’s photographic evidence, despite its volume, ultimately insufficient to meet the burden of proof? Discuss the distinction made by the Tribunal between evidence of a maintenance issue and evidence of a violation of the governing documents.
3. The Petitioner argued for an equal application of the “maintenance standard” to both homeowners and the HOA, stating “[t]here must be equal consideration to have a valid contract.” Evaluate this argument in the context of the specific language found in the Solera CC&Rs. Is the concept of “equal consideration” legally applicable in the way the Petitioner suggests?
4. Discuss the jurisdiction of the Arizona Office of Administrative Hearings (the Tribunal) in HOA disputes as described in the decision. Explain why the Tribunal could rule on the maintenance of common areas but had to dismiss claims related to the Solera Code of Ethics, City of Chandler ordinances, and Premier Management’s internal documents.
5. Based on the findings of fact, trace the procedural journey of this case from the initial petition to the final rehearing order. Identify the key turning points, such as the Motion to Dismiss and the Order Granting Rehearing, and explain their impact on the scope and outcome of the dispute.
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Glossary of Key Terms
Definition from Source Context
Administrative Law Judge (ALJ)
The judicial authority, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings, makes findings of fact, issues decisions, and conducts rehearings.
Areas of Association Responsibility (AREAS)
The common areas within the Solera community that the homeowners’ association is responsible for managing and maintaining. This includes landscaping, the Community Center exterior, street conditions, storm drains, sidewalks, walls, and curbing.
Articles of Incorporation
One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit A.
By-Laws
One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit B.
CC&Rs (Declaration of Covenants, Conditions, and Restrictions)
A primary governing document for the Solera at Springfield Lakes community. It outlines the rights and responsibilities of both the homeowners and the association.
Maintenance Standard
Defined in CC&R Article 1, Section 1.30 as “the standard of maintenance of Improvements established from time to time by the Board and/or the Architectural Review Committee in the Design Guidelines, or in the absence of any such standards, the standards of maintenance of Improvements generally prevailing through the Project.”
Motion to Dismiss
A formal request filed by a party (in this case, Solera) asking for a petition or case to be dismissed on the grounds that the issues are outside the Department’s jurisdiction or that the requested relief cannot be granted as a matter of law.
Petitioner
The party who initiates a legal action or petition. In this case, Debra K. Morin, a homeowner in the Solera community.
Preponderance of the Evidence
The standard of proof required for a petitioner to win in these proceedings. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Premier Management Company (Premier)
The management company hired by the Solera Board of Directors to handle duties including the oversight of a General Manager.
Project Documents
Defined in CC&R Article 1, Section 1.37 as the CC&Rs, any supplements to the CC&Rs, the By-Laws, the Rules and Regulations (R&Rs), and the Design Guidelines.
Respondent
The party against whom a petition is filed. In this case, the Solera Chandler Homeowners’ Association, Inc.
R&Rs (Rules and Regulations)
One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit D.
Tribunal
A term used to refer to the Arizona Office of Administrative Hearings (OAH), the body responsible for conducting administrative hearings for disputes referred by the Arizona Department of Real Estate.
Blog Post – 20F-H2020051-REL
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20F-H2020051-REL-RHG
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This document presents an Administrative Law Judge Rehearing Decision regarding a dispute between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent). The Petitioner initially filed a two-issue complaint with the Arizona Department of Real Estate alleging that the HOA had violated various governing documents, primarily concerning lack of direct homeowner communication and a failure to maintain Association Responsibility Areas (AREAS) in good condition. After the first issue was withdrawn due to jurisdictional limitations, the initial decision dismissed the petition, finding the HOA was the sole judge of appropriate maintenance under the Covenants, Conditions, and Restrictions (CC&Rs). This rehearing decision, granted due to claims of procedural irregularities and arbitrary findings, ultimately reaffirms the original dismissal, concluding that the Petitioner failed to meet the burden of proof to establish a violation of the governing documents.
Case Participants
Petitioner Side
Debra K. Morin(petitioner) Represented herself
Respondent Side
Lydia A. Perce Linsmeier(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Solera Chandler Homeowners' Association
Denise Frazier(general manager/witness) Premier Management Company / Solera Chandler Homeowners' Association Solera's onsite general manager who testified
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings Administrative Law Judge for both original and rehearing decisions
Judy Lowe(Commissioner) Arizona Department of Real Estate Commissioner of the Arizona Department of Real Estate
Felicia Del Sol(administrative) Transmitted the original August 19, 2020 Decision
Petitioner MacLeod's challenge to the HOA's Amendment (Petition #19) was dismissed. The HOA's cross-petition (Petition #34) was partially affirmed, finding MacLeod in violation of the Amendment by living full-time in his hangar/home. The HOA (Mogollon Airpark, Inc.) was deemed the prevailing party in the cross-petitions, and each party was ordered to bear its own filing fee.
Why this result: Petitioner MacLeod failed to prove the Amendment was improperly adopted, and the HOA successfully proved MacLeod was in violation of the Amendment regarding full-time residency.
Key Issues & Findings
Challenge to the proper adoption of the October 18, 2018 Amendment to the Declaration (Petition #19)
Petitioner MacLeod alleged that the Amendment substantially altering residential usage in Tract Hangar/Homes was improperly adopted because it applied to fewer than all lots and thus required unanimous approval under A.R.S. § 33-1817(A)(2).
Orders: Petition #19 was dismissed because the Amendment was found to be properly adopted requiring 75% approval pursuant to the Declaration and A.R.S. § 33-1817(A)(1) [40, 44a].
Administrative Law Judge Decision: MacLeod v. Mogollon Airpark, Inc.
Executive Summary
This briefing document outlines the findings and decision of an Administrative Law Judge (ALJ) in the cross-petitions between Magnus L.D. MacLeod and Mogollon Airpark, Inc. (MAP). The central dispute revolves around the validity of a 2018 Amendment to the community’s Declaration and MacLeod’s alleged violation of this Amendment by residing full-time in an aircraft hangar.
MacLeod (Petition #19) contended that the Amendment was invalid because it was not unanimously approved by all lot owners, as he argued was required by Arizona statute A.R.S. § 33-1817(A)(2) since it applied to fewer than all properties. MAP (Petition #34) argued the Amendment was properly adopted with the required 75% approval and that MacLeod was in violation by living in his Tract G hangar, which also allegedly failed to meet the minimum living space requirement.
The ALJ ruled decisively in favor of Mogollon Airpark, Inc., deeming it the prevailing party. The judge concluded that the Amendment was properly adopted under the 75% approval threshold outlined in the community’s Declaration and A.R.S. § 33-1817(A)(1), thereby dismissing MacLeod’s petition. On MAP’s petition, the ALJ found that MacLeod had indeed violated the Amendment by living full-time in the hangar, affirming that part of the petition. However, the ALJ dismissed MAP’s claim regarding the hangar’s living space size due to insufficient evidence. The final order dismisses Petition #19, partially affirms and partially dismisses Petition #34, and orders each party to bear their own filing fees.
Case Overview
Case Numbers
No. 20F-H2019019-REL (Root), No. 20F-H2019034-REL
Parties
Petitioner: Magnus L.D. MacLeod Respondent: Mogollon Airpark, Inc. (MAP)
Jurisdiction
Arizona Department of Real Estate, Office of Administrative Hearings
Administrative Law Judge
Kay Abramsohn
Hearing Date
June 19, 2020
Decision Date
July 28, 2020
The Cross-Petitions
The legal conflict originated from two separate petitions filed with the Arizona Department of Real Estate.
Petition #19: Filed by Magnus L.D. MacLeod
• Filing Date: On or about October 15, 2019.
• Core Allegation: MAP violated Arizona statute A.R.S. § 33-1817(A)(1), (A)(2)(a), and (A)(2)(b) in its adoption of the October 18, 2018 “Amendment to Declaration of Establishment of Conditions, Reservations and Restrictions…”
• MacLeod’s Argument: The Amendment could not be enforced because it lacked the affirmative vote or written consent of all owners of the property to which it applied. He specifically noted that three of the nine Real Property Tracts (Tract G, Tract H, and Tract M) did not provide an affirmative vote and that he personally did not sign it. He argued the amendment required unanimous approval.
Petition #34: Filed by Mogollon Airpark, Inc. (MAP)
• Filing Date: On or about December 16, 2019.
• Core Allegations:
1. Violation of the Amendment: MacLeod was in continued violation of the properly adopted Amendment by living full-time in his Tract G aircraft storage hangar.
2. Violation of Square Footage Requirement: MAP alleged, upon information and belief, that the living space in the hangar was “only 549 square feet,” which violated the Declaration’s requirement that structures for living purposes contain no less than 1,200 square feet.
• Requested Relief: MAP sought enforcement of the Declaration and Amendment, including injunctive relief to compel MacLeod’s compliance, and an award of its attorney’s fees and costs.
Analysis of the Disputed Amendment
The conflict centers on an amendment recorded on October 18, 2018. This amendment introduced several significant changes to the community’s governing documents.
Key Provisions of the Amendment
• Creates Two Lot Categories: The Amendment establishes “Residential lots” (lots #178 through #213) and “Hangar Tracts” (Tracts E through M).
• Regulates Hangar Use: It designates Tracts E through M for the purpose of “aircraft storage only.”
• Restricts Occupancy: While guest quarters may be constructed within a hangar, they are for “temporary living only.” “Temporary” is explicitly defined as “not longer than four months per calendar year.” An owner can request an extension in special circumstances.
• Maintains Living Space Requirement: It affirms that any single-family structure or combination hangar/house must have a living area of “not less than 1,200 square feet.”
• Adds Taxiway Access: The Amendment adds Lot 213 to the list of properties authorized to use the aircraft taxiway. This change was necessitated by a fence MacLeod had erected that blocked the Lot 213 owner’s access.
MacLeod’s Objections to the Amendment
In his petition, MacLeod argued the Amendment fundamentally and unreasonably altered the original covenants:
• It “substantially alters” the covenants for Tract Hangar/Homes by imposing the new four-month temporary living limit where unrestricted usage was previously allowed.
• It replaced the allowance for “Guest Homes with Kitchens” with “Guest Quarters without Kitchens,” impacting Tract G.
• It created a “large burden upon me to buy or build an additional home that I do not want and do not need.”
Background and History of the Dispute
• Property Acquisition: MacLeod purchased Tract G from his brother, Pat MacLeod, in February 2017 with the stated expectation of living in the hangar/home full-time.
• Occupancy: After acquiring the property, MacLeod made interior improvements and began living full-time in the aircraft hangar.
• Conflict Origin: The issue of MacLeod’s full-time residency first arose in May 2017 when he requested to build a group home for disabled veterans, a request that drew opposition from other lot owners.
• Initial Violation Notice: On September 18, 2017, MAP’s Architectural Committee sent MacLeod a letter notifying him that living full-time in a hangar intended for aircraft storage was a violation and requested he vacate within 60 days.
• Formal Non-Compliance Notices & Fines:
◦ December 29, 2018: MAP issued a “First Notice of Non-Compliance,” imposing a $100 fine.
◦ April 29, 2019: MAP issued a “Second Notice: Non-Compliance,” imposing an additional $200 fine if the violation was not remedied.
Legal Framework and Adjudicated Issues
The central legal question was the standard of approval required to pass the Amendment. The parties stipulated that the core dispute was whether a 75% approval or a unanimous approval was necessary.
Stipulated Fact #11
The parties agreed to the following crucial point, which narrowed the scope of the legal argument:
“The AMENDMENT contains at least the required minimum signatures and authorizations from the Lot Owners in Unit IVB to adopt the AMENDMENT, provided that unanimous approval of all affected property owners was not required.”
Conflicting Legal Standards
• Declaration Requirement (75% Rule): The original Declaration states it can be amended “by an instrument in writing, executed and acknowledged by the owners of not less than three-fourths of the lots in said subdivision…”
• Arizona Statute (Unanimous Rule): A.R.S. § 33-1817(A)(2) requires unanimous “affirmative vote or written consent of all of the owners of the lots or property to which the amendment applies” if the amendment “apply to fewer than all of the lots or less than all of the property that is bound by the Declaration.”
Parties’ Core Arguments
• MacLeod’s Position: The Amendment required unanimous approval under A.R.S. § 33-1817(A)(2) because it applied to “fewer than all the lots,” specifically pointing out that Tract B (a common area) was not included.
• MAP’s Position: The 75% rule under A.R.S. § 33-1817(A)(1) was the applicable standard. MAP argued that Tract B was a common area not subject to the Declaration’s conditions, so its exclusion from an amendment concerning residential use was irrelevant and did not trigger the unanimity requirement.
Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions systematically addressed each petition.
Ruling on Petition #19 (Amendment Validity)
• Conclusion: The Amendment was properly adopted.
• Rationale: The ALJ concluded that the 75% approval threshold, as specified in the Declaration and permitted by A.R.S. § 33-1817(A)(1), was the correct standard. Because the parties stipulated that the 75% threshold had been met, MAP was not in violation of the statute.
• Outcome: Petition #19 was dismissed.
Ruling on Petition #34 (MacLeod’s Violations)
• Conclusion on Full-Time Occupancy: MacLeod was in violation of the Amendment by living full-time in the Tract G Hangar/Home.
• Rationale: MacLeod acknowledged living there full-time. His testimony regarding when he ceased this practice was found to be “widely inconsistent,” and the ALJ could not conclude that the violation had stopped by the time MAP filed its petition.
• Outcome: This allegation in Petition #34 was affirmed.
• Conclusion on Living Space Requirement: MAP failed to prove its allegation that the living space was less than the required 1,200 square feet.
• Rationale: MAP did not clearly document or otherwise prove its claim that the living space was only 549 square feet. MacLeod, in contrast, cited a 2007 architectural committee sign-off indicating 1,656 square feet.
• Outcome: This allegation in Petition #34 was dismissed.
• Conclusion on Injunctive Relief: The Tribunal lacked the authority to grant the requested relief.
• Rationale: MAP “cited no statutory authority of this Tribunal with regard to ‘enforcement’ of a homeowner’s association governing documents or with regard to any injunctive relief.”
Final Order
1. Prevailing Party: Mogollon Airpark, Inc. (MAP) is deemed the prevailing party in the cross-petitions.
2. Petition #19 (MacLeod v. MAP): Dismissed.
3. Petition #34 (MAP v. MacLeod):
◦ Partially affirmed as to the allegation of MacLeod living full-time in the Tract G Hangar/Home in violation of the Amendment.
◦ Partially dismissed as to the allegation regarding the amount of living space within the hangar.
4. Filing Fees: Each party shall bear their own filing fee.
Study Guide – 20F-H2019019-REL
Study Guide: MacLeod v. Mogollon Airpark, Inc.
Short-Answer Quiz
1. What were the two primary allegations made by Mogollon Airpark, Inc. (MAP) in its petition (Petition #34) against Magnus L.D. MacLeod?
2. What was the core argument presented by Magnus L.D. MacLeod in his petition (Petition #19) regarding the October 18, 2018 Amendment?
3. According to the original Declaration, what was the minimum approval threshold required to amend it?
4. How did the Amendment of October 18, 2018 change the rules regarding residency in Hangar Tracts like Tract G?
5. What was the central legal question that the parties stipulated to regarding the adoption of the Amendment?
6. Describe the two notices that MAP issued to MacLeod prior to filing its petition.
7. What argument did MacLeod make regarding A.R.S. § 33-1817(A)(2) and why he believed the Amendment required unanimous approval?
8. Why was MAP’s allegation regarding the living space in MacLeod’s Tract G hangar (that it was only 549 sq. ft.) dismissed by the Administrative Law Judge?
9. What was MacLeod’s testimony regarding his occupancy of the Tract G hangar, and how did the Administrative Law Judge view this testimony?
10. What was the final order of the Administrative Law Judge regarding Petition #19 and Petition #34, and which party was deemed the prevailing party?
Answer Key
1. In Petition #34, MAP first alleged that MacLeod was in continued violation of the Amendment by living full-time in his Tract G aircraft storage hangar. Second, MAP requested enforcement of the Declaration and Amendment, seeking injunctive relief and an award of its attorney’s fees and costs.
2. MacLeod’s petition alleged that the Amendment was unenforceable because it was not properly adopted pursuant to A.R.S. § 33-1817. He argued it did not receive the affirmative vote or written consent of all owners of the property to which the amendment applied, specifically noting that owners of three of the nine affected tracts (G, H, and M) did not consent.
3. The original Declaration stipulated that it could be amended by “an instrument in writing, executed and acknowledged by the owners of not less than three-fourths of the lots in said subdivision.” This represents a 75% approval threshold.
4. The Amendment established that guest quarters in aircraft storage hangars (Tracts E through M) were for “temporary living only,” which was defined as “not longer than four months per calendar year.” It also specified that such quarters could not be used as a permanent residence.
5. The parties stipulated that the central dispute was whether the Amendment required 75% approval from lot owners as specified in the Declaration, or if it required unanimous approval from all affected property owners pursuant to A.R.S. § 33-1817(A)(2).
6. On December 29, 2018, MAP issued a “First Notice of Non-Compliance” with a $100 fine for living full-time in the hangar. On April 29, 2019, MAP issued a “Second Notice: Non-Compliance,” imposing an additional $200 fine if the violation was not remedied.
7. MacLeod argued that pursuant to A.R.S. § 33-1817(A)(2), unanimous approval was required because the Amendment applied to fewer than all the lots bound by the Declaration. He specifically pointed out that Tract B, a common area, was not included in the Amendment.
8. The Administrative Law Judge dismissed this part of MAP’s petition because MAP failed to clearly document or prove its allegation. The judge concluded that MAP did not sufficiently demonstrate that the living space within the Tract G Hangar/Home was less than the required 1,200 square feet.
9. MacLeod gave widely inconsistent dates for his full-time occupancy of the hangar and testified that he had moved to Concho in January 2019. The Administrative Law Judge found his testimony inconsistent and could not conclude that MacLeod had stopped living in the hangar at the time Petition #34 was filed.
10. The judge ordered that MacLeod’s Petition #19 be dismissed entirely. The judge partially dismissed MAP’s Petition #34 regarding the living space allegation but affirmed the allegation that MacLeod was living in the hangar in violation of the Amendment. MAP was deemed the prevailing party in the cross-petitions.
Essay Questions
1. Analyze the conflicting interpretations of A.R.S. § 33-1817 presented by Magnus L.D. MacLeod and Mogollon Airpark, Inc. Explain why the Administrative Law Judge ultimately sided with MAP’s interpretation that A.R.S. § 33-1817(A)(1) was the applicable statute.
2. Trace the timeline of the dispute, starting with MacLeod’s purchase of Tract G and his proposal for a group home. Discuss how the actions and reactions of both parties escalated the conflict, leading to the filing of cross-petitions with the Department of Real Estate.
3. Evaluate the evidence presented by both parties. How did the parties’ joint stipulation of facts narrow the central legal issue? Discuss the impact of MacLeod’s inconsistent testimony on the judge’s final decision regarding his residency.
4. MacLeod argued that MAP had waived its right to enforce the Amendment due to “longstanding and widespread utilization of Tract Hanger/Homes as full-time residences.” Although the Judge did not address this argument due to jurisdictional limits, construct an argument for or against this claim based on the facts available in the decision.
5. Discuss the scope and limitations of the Administrative Law Judge’s authority in this case. Why was the Judge able to rule on the validity of the Amendment’s adoption and MacLeod’s violation, but not grant MAP’s request for injunctive relief and enforcement?
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judicial authority, Kay Abramsohn, who presided over the hearing and issued the decision in this case.
A.R.S. § 33-1817
Arizona Revised Statute governing the amendment of a planned community’s Declaration. Subsection (A)(1) allows amendment by the vote specified in the Declaration, while (A)(2) requires unanimous consent of affected owners if the amendment applies to fewer than all lots.
Amendment
The “Amendment to Declaration of Establishment of Conditions, Reservations and Restrictions…” recorded on October 18, 2018. It created categories for Residential and Hangar lots and restricted hangar occupancy to temporary living of no more than four months per year.
A colloquial acronym used by the Petitioner to refer to the original “Declaration of Establishment of Conditions, Reservations and Restrictions and Mutual and Reciprocal Covenants and Liens Running with the Land.”
Declaration
The original governing document for Mogollon Airpark, Inc., establishing conditions, reservations, and restrictions for the properties. It required a three-fourths (75%) vote of lot owners to be amended.
Hangar Tracts
Tracts E through M, inclusive, as designated by the Amendment for the primary purpose of aircraft storage, though guest quarters for temporary living are permitted.
Magnus L.D. MacLeod
The Petitioner in Petition #19 and Respondent in Petition #34. He is the owner of Tract G and resided in the hangar on that property.
Mogollon Airpark, Inc. (MAP)
The Respondent in Petition #19 and Petitioner in Petition #34. It is the planned community association responsible for administering the Declaration.
Petition #19
The petition filed by Magnus L.D. MacLeod on October 15, 2019, alleging MAP improperly adopted the Amendment in violation of Arizona statute.
Petition #34
The petition filed by Mogollon Airpark, Inc. on December 16, 2019, alleging MacLeod was violating the Amendment by living full-time in his hangar.
Preponderance of the evidence
The standard of proof required in the hearing, defined as evidence that is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Residential Lots
Lots numbered 178 through 213, inclusive, as categorized by the Amendment.
Tract G
An aircraft storage hangar lot in Unit 4B owned by Magnus L.D. MacLeod, which was the central property in the dispute.
Unit 4B
The specific subdivision within Mogollon Airpark subject to the Declaration and Amendment. It includes Lots 178-213 and Tracts B, E, F, G, H, I, J, K, L, and M.
Blog Post – 20F-H2019019-REL
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This administrative law judge decision concerns cross-petitions filed by Magnus L.D. MacLeod and Mogollon Airpark, Inc. (MAP) regarding disputes within a planned community association in Arizona. MacLeod’s petition challenged the validity of an amendment to the community’s governing documents (CC&Rs), arguing it was improperly adopted and unreasonably altered prior usage rights for hangar/homes, specifically his Tract G property. MAP’s petition alleged that MacLeod was in continued violation of the amendment by living full-time in his aircraft storage hangar and requested injunctive relief to compel compliance. The judge ruled to dismiss MacLeod’s petition, finding the amendment was properly adopted, and partially affirmed MAP’s petition, concluding that MacLeod had violated the amendment by residing full-time in the hangar. Ultimately, MAP was deemed the prevailing party in the proceedings.
What were the central legal issues and findings in this property dispute case?
How did the contested amendment change the community’s declaration and rules?
What were the core arguments and outcomes for each party involved in this hearing?
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Case Participants
Petitioner Side
Jeffrey M. Proper(attorney) JEFFREY M. PROPER, PLLC Counsel for Magnus L.D. MacLeod
Respondent Side
Gregory A. Stein(attorney) Carpenter, Hazlewood, Delgado & Bolen LLP Counsel for Mogollon Airpark, Inc.
Craig Albright(board member) MAP Board of Directors Then President of the MAP Board of Directors
Neutral Parties
Kay Abramsohn(ALJ)
Judy Lowe(commissioner) Arizona Department of Real Estate
Other Participants
Magnus L.D. MacLeod(party) Petitioner in 20F-H2019019-REL and Respondent in 20F-H2019034-REL
Pat MacLeod(HOA president) HOA Brother of Petitioner; previous owner of Tract G; appeared to be HOA President around 2017
Petitioner MacLeod's challenge to the HOA's Amendment (Petition #19) was dismissed. The HOA's cross-petition (Petition #34) was partially affirmed, finding MacLeod in violation of the Amendment by living full-time in his hangar/home. The HOA (Mogollon Airpark, Inc.) was deemed the prevailing party in the cross-petitions, and each party was ordered to bear its own filing fee.
Why this result: Petitioner MacLeod failed to prove the Amendment was improperly adopted, and the HOA successfully proved MacLeod was in violation of the Amendment regarding full-time residency.
Key Issues & Findings
Challenge to the proper adoption of the October 18, 2018 Amendment to the Declaration (Petition #19)
Petitioner MacLeod alleged that the Amendment substantially altering residential usage in Tract Hangar/Homes was improperly adopted because it applied to fewer than all lots and thus required unanimous approval under A.R.S. § 33-1817(A)(2).
Orders: Petition #19 was dismissed because the Amendment was found to be properly adopted requiring 75% approval pursuant to the Declaration and A.R.S. § 33-1817(A)(1) [40, 44a].
The Petitioner's petition alleging violations of statute and community documents was denied in its entirety. Two issues were found moot because the prohibited action had already concluded, and the other two issues failed because the Petitioner did not meet the burden of proof to establish a violation.
Why this result: Issues 2 and 3 were moot. Issues 1 and 4 failed on the merits because the evidence did not prove the HOA violated the cited statute or rule.
Key Issues & Findings
Board conducted interviews of candidates in closed executive session.
Petitioner alleged the Board improperly conducted interviews for Board vacancies in closed sessions. The Board admitted to the practice but asserted they did so to elicit personal, health, or financial information, which is a statutory exception to the open meeting law.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1804
Discriminately penalized homeowners/members (Italian American Club).
Petitioner alleged the HOA wrongfully penalized and denied use of facilities to the Italian American Club (IAC). This issue was based on a specific one-year prohibition on facility use imposed after the IAC violated rules regarding moving furniture.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Article V, Section C of the CC&Rs
Article IV.E.8 of the Bylaws
Ventana Lakes Rules 8.4.A
Refusal of homeowners' use of facilities without authorization by rule.
Petitioner alleged the HOA wrongfully denied the Italian American Club use of facilities following an incident where club members moved tables against HOA rules, resulting in a one-year ban on facility use.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Article III, Section A of the CC&Rs
Article IV, Section C.23 of the CC&Rs
Article IV.E.8 of the Bylaws
Ventana Lakes Rules 8.4.A
Refusal to place written requests for Board action on the agenda.
Petitioner argued that Ventana Lakes Rule 8.3.B.1.b required the Board president to include every single written request from members on the next upcoming Board meeting agenda, which the Board had failed to do.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Ventana Lakes Rule 8.3.B.1.b
Analytics Highlights
Topics: HOA Open Meetings, Executive Session, Mootness, Facility Use Suspension, Agenda Setting
Additional Citations:
A.R.S. § 33-1804
Article IV, Section E of the Bylaws
Article 5, Section C of the CC&Rs
Article IV, Section C(23) of the CC&Rs
Article XII, Section B of the CC&Rs
Article III, Section A of the CC&Rs
Ventana Lake Rules 8.3.B
Ventana Lake Rules 8.4.A
A.R.S. § 32-2199
A.R.S. § 32-2199.02
Video Overview
Audio Overview
Decision Documents
20F-H2020046-REL Decision – 809207.pdf
Uploaded 2026-01-23T17:31:55 (157.4 KB)
Briefing Doc – 20F-H2020046-REL
Administrative Law Judge Decision: Alandar vs. Ventana Lakes POA
Executive Summary
This briefing document analyzes the Administrative Law Judge (ALJ) decision in case number 20F-H2020046-REL, involving a dispute between Petitioner Susan L. Alandar and the Ventana Lakes Property Owners’ Association (the “Respondent” or “Board”). The petition, filed with the Arizona Department of Real Estate, alleged multiple violations of state statutes and the Association’s governing documents. The ALJ ultimately denied the petition in its entirety, finding that the Petitioner failed to meet the burden of proof by a preponderance of the evidence for any of her claims.
The key takeaways from the decision are as follows:
• Board Candidate Interviews: The Board’s practice of interviewing candidates for board vacancies in closed executive sessions was deemed permissible. The ALJ found that these sessions were appropriately used to elicit personal, health, or financial information relevant to a candidate’s ability to serve, which is an exception to Arizona’s open meeting law (A.R.S. § 33-1804).
• Sanctions Against a Club: The Petitioner’s challenge to a one-year ban on facility use imposed upon the Italian American Club (IAC) was dismissed as moot. Because the one-year penalty had expired before the hearing date, the ALJ concluded there was no active issue to rule on or remedy to order.
• Agenda Setting Authority: The ALJ determined that the Board president possesses broad, inherent authority in setting the agenda for Board meetings. The governing rules do not require the president to place every written request from an Association member onto the agenda for the next meeting.
• Burden of Proof: Across all issues, the Petitioner failed to provide sufficient evidence to convince the judge that her contentions were “more probably true than not.” The decision repeatedly highlights the lack of evidence to support the claims of improper conduct.
Case Overview
On February 3, 2020, Petitioner Susan L. Alandar filed a petition alleging that the Ventana Lakes Property Owners’ Association violated Arizona state law and several provisions of its own Covenants, Conditions & Restrictions (CC&Rs), Bylaws, and Rules. After paying an additional filing fee, the Petitioner presented four distinct issues for the hearing held on June 11, 2020. The final decision was issued on July 23, 2020.
Case Detail
Information
Case Number
20F-H2020046-REL
Petitioner
Susan L. Alandar
Respondent
Ventana Lakes Property Owners’ Association
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
Hearing Date
June 11, 2020
Decision Date
July 23, 2020
Final Disposition
Petitioner’s petition is denied.
Detailed Analysis of Allegations and Rulings
Issue 1: Board Candidate Interviews in Executive Session
• Allegation: The Petitioner contended that the Board of Directors violated A.R.S. § 33-1804 (Arizona’s open meeting law for HOAs) by interviewing candidates for Board appointments in closed executive sessions.
• Factual Background: The Respondent acknowledged that prior to June 2019, its practice was to conduct interviews, discussions, and votes to fill Board vacancies entirely within executive session, announcing the result in an open meeting. After this practice was questioned, the Board changed its procedure. Since June 2019, the Board has conducted candidate interviews in executive session specifically to “elicit private information that may impact the candidate’s ability to perform the duties of a Board member.” An example provided was a candidate who revealed his wife’s dementia diagnosis, which would take priority over Board duties. Under this revised process, the final vote on candidates is cast in an open session, and candidates also participate in an open forum where members can ask questions.
• Conclusion of Law: The ALJ found that the uncontroverted evidence showed the executive sessions were used for the purpose of discussing “personal, health, or financial information,” which is a specific exception allowed under A.R.S. § 33-1804. The decision states, “While Petitioner may believe the interviews were being conducted in executive session for nefarious purposes, no evidence was presented to establish such motives existed.” Consequently, the Petitioner failed to establish a violation.
Issues 2 & 3: Penalties and Facility Use Denial for the Italian American Club
• Allegation: The Petitioner argued that the Respondent wrongfully penalized the Italian American Club (IAC) and denied its members use of facilities, asserting that this action was discriminatory and not authorized by rule, in violation of CC&R’s Article V Section C and other community documents.
• Factual Background:
◦ In January 2018, the Board met with the IAC regarding non-compliance with rules and warned that failure to comply could result in the loss of privileges to use the Yacht Club.
◦ On April 4, 2019, an incident occurred where IAC members, after their last-minute request for more tables and chairs was denied, were observed on security cameras moving furniture from a storage area themselves. This was against Association rules, reportedly due to insurance policy limitations on volunteers moving tables.
◦ The situation escalated into a verbal altercation. Even after staff agreed to set up the requested tables, IAC members were again seen moving more furniture.
◦ On April 17, 2019, after reviewing video and audio recordings of the incident, the Board revoked the IAC’s right to use all Association facilities for a one-year period, from May 1, 2019, to April 30, 2020.
• Conclusion of Law: The ALJ found that the one-year prohibition on the IAC’s use of facilities had expired on April 30, 2020, prior to the June 11, 2020 hearing. As no evidence was presented that the revocation was still in effect, the matter was declared moot. The decision notes that even if the judge had found the revocation improper, she could not order any action because the penalty was no longer active. The ALJ did not rule on the merits of whether the Board’s action was initially justified.
Issue 4: Refusal to Place Member Items on Board Meeting Agenda
• Allegation: The Petitioner claimed the Board violated Ventana Lakes Rule 8.3.B.1.b by refusing to place homeowners’ written requests for Board action on the agenda for upcoming Board meetings. The Petitioner’s position was that the rule required the Board president to place any such item on the agenda.
• Factual Background: Both parties agreed that the Board president had received written requests from members that were not subsequently included on a meeting agenda. The Petitioner herself acknowledged during the hearing that it would be impractical for the president to include every single request if, for example, hundreds were received for a single meeting.
• Conclusion of Law: The ALJ determined that the “plain language” of the rule does not mandate that all requests must be placed on the agenda. The judge used the Petitioner’s own hypothetical concession to demonstrate that the Board president must have “inherent authority to limit the number of items to be included.” The ruling concluded that the president’s authority in setting the agenda is “broad” and that the Petitioner failed to prove a violation of the rule.
Key Referenced Authority
The decision was based on an interpretation of the following Arizona statutes and Ventana Lakes governing documents:
Document
Provision
Relevance to the Case
Arizona Revised Statutes
A.R.S. § 33-1804
Open Meetings: Allows meetings to be closed for specific reasons, including discussion of “Personal, health or financial information about an individual member.”
Article III, Section A
Easements of Enjoyment: Gives the Board the right to suspend any Resident from using Common Areas and to regulate their use through rules.
Article IV, Section C
Health, Safety and Welfare: Allows the Board to make rules restricting activities deemed a nuisance or to adversely affect the health, safety, or welfare of residents.
Article V, Section C
Ventana Lakes Rules: Grants the Association power to adopt and repeal rules governing the use of Common Areas, provided they are not discriminatory or inconsistent.
Bylaws
Article IV.E.8
Board Powers: Grants the Board the power to adopt, amend, and enforce rules covering the operation and use of all property.
Ventana Lakes Rules
Rule 8.3.B
Board President Duties: States the president shall prepare agendas and “ensure that written requests for Board action…are placed on the agenda.” (Interpreted by ALJ).
Final Order
The Administrative Law Judge concluded the hearing with a definitive ruling:
“IT IS ORDERED that Petitioner’s petition is denied.”
This order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2020046-REL
Study Guide: Alandar v. Ventana Lakes Property Owners’ Association
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2020046-REL, concerning a dispute between Petitioner Susan L. Alandar and Respondent Ventana Lakes Property Owners’ Association. The guide includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the case’s facts, arguments, and legal conclusions.
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Short-Answer Quiz
Answer the following questions in 2-3 sentences each, based on the information provided in the case document.
1. What were the initial steps Susan L. Alandar took to begin the HOA dispute process, and when did she file her petition?
2. What was the Ventana Lakes Board’s practice regarding interviewing candidates for Board vacancies both before and after June 2019?
3. What was the core of the dispute regarding the Italian American Club (IAC), and what specific action by the club led to the conflict on April 4, 2019?
4. What penalty did the Board of Directors impose on the Italian American Club, and for what duration?
5. Why did the Administrative Law Judge ultimately dismiss Issues 2 and 3 (concerning the IAC) as moot?
6. What was the Petitioner’s argument regarding the Board President’s responsibility for setting the meeting agenda under Ventana Lakes Rule 8.3.B.1.b?
7. How did the Administrative Law Judge interpret the Board President’s authority and discretion in setting the agenda?
8. Which party bears the “burden of proof” in this type of hearing, and what is the standard of proof required?
9. According to Arizona statute A.R.S. § 33-1804, when is it permissible for a Board of Directors to hold a closed or executive session?
10. What was the final order issued by the Administrative Law Judge in this case?
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Answer Key
1. On or about February 3, 2020, Susan L. Alandar filed a Homeowners Association (HOA) Dispute Process Petition with the Arizona Department of Real Estate. She initially indicated two issues would be presented and paid a $1000.00 filing fee.
2. Prior to June 2019, the Board conducted candidate interviews, discussions, and votes in closed executive sessions. After June 2019, the Board conducted interviews in executive session to elicit private information but held the final vote in an open session.
3. The dispute centered on the IAC’s non-compliance with association rules. The conflict on April 4, 2019, was triggered when IAC members were observed on security cameras moving tables and chairs from a storage area against the instructions of the facilities manager.
4. In an executive session on April 17, 2019, the Board revoked the Italian American Club’s ability to use all of the association’s facilities. The penalty was for a period of one year, from May 1, 2019, to April 30, 2020.
5. The Judge dismissed these issues as moot because the one-year prohibition on the IAC’s use of facilities had already expired at the time of the hearing. Since the penalty was no longer in effect, the Judge could not order the Respondent to take any corrective action.
6. The Petitioner argued that Rule 8.3.B.1.b required the Board president to place any written request for Board action from an association member onto the agenda for the next meeting. She contended this was a mandatory duty, regardless of the nature or number of requests.
7. The Judge concluded that the rule’s plain language does not require every request to be placed on the agenda. Citing the impracticality of including hundreds of hypothetical requests, the Judge found that the Board President has broad, inherent authority to limit the items on the agenda.
8. The Petitioner bears the burden of proof to establish that the Respondent committed the alleged violations. The required standard of proof is a “preponderance of the evidence.”
9. A.R.S. § 33-1804 allows a portion of a meeting to be closed to consider specific matters, including personal, health, or financial information about an individual member or employee of the association. The Board used this exception to justify holding candidate interviews in executive session.
10. The final order issued on July 23, 2020, was that the Petitioner’s petition is denied.
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Essay Questions
The following questions are designed for deeper analysis and discussion. Formulate comprehensive answers based on the facts and legal reasoning presented in the decision.
1. Analyze the Board of Directors’ evolving practice for interviewing candidates for board vacancies (Issue 1). Discuss how their pre- and post-June 2019 methods relate to the specific language and exceptions outlined in A.R.S. § 33-1804.
2. Explain the legal concept of “mootness” as it was applied to the sanctions against the Italian American Club (Issues 2 and 3). Why was the Administrative Law Judge unable to rule on the propriety of the Board’s actions, and what does this imply about the timing of legal challenges in HOA disputes?
3. Compare and contrast the Petitioner’s interpretation of Ventana Lakes Rule 8.3.B.1.b with the Administrative Law Judge’s final interpretation (Issue 4). Discuss the Judge’s reasoning for concluding that the Board President has “inherent authority” to limit agenda items.
4. Define the “preponderance of the evidence” standard. Using examples from at least two of the four issues raised in the petition, explain how the Petitioner failed to meet this burden of proof.
5. Based on the referenced community documents (CC&Rs and Bylaws), describe the scope of the Ventana Lakes Board of Directors’ power to regulate Common Areas, suspend resident privileges, and enforce rules. How do these documents grant authority that was relevant to the Board’s actions against the Italian American Club?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, makes findings of fact, and issues decisions based on the evidence and applicable law. In this case, the ALJ was Tammy L. Eigenheer.
A.R.S.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Bylaws
A set of rules adopted by an organization, such as an HOA, to govern its internal management and operations. Article IV, Section E of the Bylaws addresses the Board’s powers and duties.
Covenants, Conditions & Restrictions. These are legally binding rules recorded with the property deeds in a planned community, governing property use and the rights and obligations of the homeowners and the HOA.
Common Areas
Property within a planned community owned by the HOA for the common use and enjoyment of all residents, such as the Yacht Club and recreational facilities mentioned in the case.
Executive Session
A closed portion of a meeting of a deliberative body, such as an HOA board, which is not open to the general membership. A.R.S. § 33-1804 specifies the limited circumstances under which such a session can be held.
HOA (Homeowners Association)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents. In this case, the Ventana Lakes Property Owners’ Association.
A legal term for a matter that is no longer in controversy or has become irrelevant. The ALJ declared the issues regarding the Italian American Club moot because the one-year penalty had already expired.
Petitioner
The party who files a petition initiating a legal action or administrative proceeding. In this case, Susan L. Alandar.
Preponderance of the Evidence
The standard of proof in most civil cases, which requires the trier of fact (the judge) to be convinced that a contention is more probably true than not. The Petitioner had the burden to meet this standard.
Respondent
The party against whom a petition is filed or an appeal is brought. In this case, the Ventana Lakes Property Owners’ Association.
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20F-H2020046-REL
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The provided text is an Administrative Law Judge Decision concerning a dispute between Susan L. Alandar, the Petitioner, and the Ventana Lakes Property Owners’ Association, the Respondent. The Petitioner filed a Homeowners Association (HOA) Dispute Process Petition alleging four violations of statute and community documents by the HOA, requiring her to pay additional filing fees to pursue all four issues. The judge systematically addressed each of the four allegations, which included improper closed-door interviews for board candidates, discriminatory penalizing and facility denial against an Italian American Club, and the refusal to place all member-requested items on the board agenda. Ultimately, the Administrative Law Judge denied the Petitioner’s petition, finding that she failed to establish the alleged violations by a preponderance of the evidence, and further determined that the facilities denial issue was moot as the one-year prohibition had expired.
What were the specific allegations and outcomes across the four distinct issues presented?
How did the Administrative Law Judge interpret governing documents regarding Board authority and rules?
What legal standards and statutes primarily governed the resolution of this HOA dispute petition?
Based on 1 source
Case Participants
Petitioner Side
Susan L. Alandar(petitioner) Appeared on her own behalf.
The Petitioner's petition alleging violations of statute and community documents was denied in its entirety. Two issues were found moot because the prohibited action had already concluded, and the other two issues failed because the Petitioner did not meet the burden of proof to establish a violation.
Why this result: Issues 2 and 3 were moot. Issues 1 and 4 failed on the merits because the evidence did not prove the HOA violated the cited statute or rule.
Key Issues & Findings
Board conducted interviews of candidates in closed executive session.
Petitioner alleged the Board improperly conducted interviews for Board vacancies in closed sessions. The Board admitted to the practice but asserted they did so to elicit personal, health, or financial information, which is a statutory exception to the open meeting law.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1804
Discriminately penalized homeowners/members (Italian American Club).
Petitioner alleged the HOA wrongfully penalized and denied use of facilities to the Italian American Club (IAC). This issue was based on a specific one-year prohibition on facility use imposed after the IAC violated rules regarding moving furniture.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Article V, Section C of the CC&Rs
Article IV.E.8 of the Bylaws
Ventana Lakes Rules 8.4.A
Refusal of homeowners' use of facilities without authorization by rule.
Petitioner alleged the HOA wrongfully denied the Italian American Club use of facilities following an incident where club members moved tables against HOA rules, resulting in a one-year ban on facility use.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Article III, Section A of the CC&Rs
Article IV, Section C.23 of the CC&Rs
Article IV.E.8 of the Bylaws
Ventana Lakes Rules 8.4.A
Refusal to place written requests for Board action on the agenda.
Petitioner argued that Ventana Lakes Rule 8.3.B.1.b required the Board president to include every single written request from members on the next upcoming Board meeting agenda, which the Board had failed to do.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Ventana Lakes Rule 8.3.B.1.b
Analytics Highlights
Topics: HOA Open Meetings, Executive Session, Mootness, Facility Use Suspension, Agenda Setting
Additional Citations:
A.R.S. § 33-1804
Article IV, Section E of the Bylaws
Article 5, Section C of the CC&Rs
Article IV, Section C(23) of the CC&Rs
Article XII, Section B of the CC&Rs
Article III, Section A of the CC&Rs
Ventana Lake Rules 8.3.B
Ventana Lake Rules 8.4.A
A.R.S. § 32-2199
A.R.S. § 32-2199.02
Video Overview
Audio Overview
Decision Documents
20F-H2020046-REL Decision – 809207.pdf
Uploaded 2025-10-09T03:34:59 (157.4 KB)
Briefing Doc – 20F-H2020046-REL
Administrative Law Judge Decision: Alandar vs. Ventana Lakes POA
Executive Summary
This briefing document analyzes the Administrative Law Judge (ALJ) decision in case number 20F-H2020046-REL, involving a dispute between Petitioner Susan L. Alandar and the Ventana Lakes Property Owners’ Association (the “Respondent” or “Board”). The petition, filed with the Arizona Department of Real Estate, alleged multiple violations of state statutes and the Association’s governing documents. The ALJ ultimately denied the petition in its entirety, finding that the Petitioner failed to meet the burden of proof by a preponderance of the evidence for any of her claims.
The key takeaways from the decision are as follows:
• Board Candidate Interviews: The Board’s practice of interviewing candidates for board vacancies in closed executive sessions was deemed permissible. The ALJ found that these sessions were appropriately used to elicit personal, health, or financial information relevant to a candidate’s ability to serve, which is an exception to Arizona’s open meeting law (A.R.S. § 33-1804).
• Sanctions Against a Club: The Petitioner’s challenge to a one-year ban on facility use imposed upon the Italian American Club (IAC) was dismissed as moot. Because the one-year penalty had expired before the hearing date, the ALJ concluded there was no active issue to rule on or remedy to order.
• Agenda Setting Authority: The ALJ determined that the Board president possesses broad, inherent authority in setting the agenda for Board meetings. The governing rules do not require the president to place every written request from an Association member onto the agenda for the next meeting.
• Burden of Proof: Across all issues, the Petitioner failed to provide sufficient evidence to convince the judge that her contentions were “more probably true than not.” The decision repeatedly highlights the lack of evidence to support the claims of improper conduct.
Case Overview
On February 3, 2020, Petitioner Susan L. Alandar filed a petition alleging that the Ventana Lakes Property Owners’ Association violated Arizona state law and several provisions of its own Covenants, Conditions & Restrictions (CC&Rs), Bylaws, and Rules. After paying an additional filing fee, the Petitioner presented four distinct issues for the hearing held on June 11, 2020. The final decision was issued on July 23, 2020.
Case Detail
Information
Case Number
20F-H2020046-REL
Petitioner
Susan L. Alandar
Respondent
Ventana Lakes Property Owners’ Association
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
Hearing Date
June 11, 2020
Decision Date
July 23, 2020
Final Disposition
Petitioner’s petition is denied.
Detailed Analysis of Allegations and Rulings
Issue 1: Board Candidate Interviews in Executive Session
• Allegation: The Petitioner contended that the Board of Directors violated A.R.S. § 33-1804 (Arizona’s open meeting law for HOAs) by interviewing candidates for Board appointments in closed executive sessions.
• Factual Background: The Respondent acknowledged that prior to June 2019, its practice was to conduct interviews, discussions, and votes to fill Board vacancies entirely within executive session, announcing the result in an open meeting. After this practice was questioned, the Board changed its procedure. Since June 2019, the Board has conducted candidate interviews in executive session specifically to “elicit private information that may impact the candidate’s ability to perform the duties of a Board member.” An example provided was a candidate who revealed his wife’s dementia diagnosis, which would take priority over Board duties. Under this revised process, the final vote on candidates is cast in an open session, and candidates also participate in an open forum where members can ask questions.
• Conclusion of Law: The ALJ found that the uncontroverted evidence showed the executive sessions were used for the purpose of discussing “personal, health, or financial information,” which is a specific exception allowed under A.R.S. § 33-1804. The decision states, “While Petitioner may believe the interviews were being conducted in executive session for nefarious purposes, no evidence was presented to establish such motives existed.” Consequently, the Petitioner failed to establish a violation.
Issues 2 & 3: Penalties and Facility Use Denial for the Italian American Club
• Allegation: The Petitioner argued that the Respondent wrongfully penalized the Italian American Club (IAC) and denied its members use of facilities, asserting that this action was discriminatory and not authorized by rule, in violation of CC&R’s Article V Section C and other community documents.
• Factual Background:
◦ In January 2018, the Board met with the IAC regarding non-compliance with rules and warned that failure to comply could result in the loss of privileges to use the Yacht Club.
◦ On April 4, 2019, an incident occurred where IAC members, after their last-minute request for more tables and chairs was denied, were observed on security cameras moving furniture from a storage area themselves. This was against Association rules, reportedly due to insurance policy limitations on volunteers moving tables.
◦ The situation escalated into a verbal altercation. Even after staff agreed to set up the requested tables, IAC members were again seen moving more furniture.
◦ On April 17, 2019, after reviewing video and audio recordings of the incident, the Board revoked the IAC’s right to use all Association facilities for a one-year period, from May 1, 2019, to April 30, 2020.
• Conclusion of Law: The ALJ found that the one-year prohibition on the IAC’s use of facilities had expired on April 30, 2020, prior to the June 11, 2020 hearing. As no evidence was presented that the revocation was still in effect, the matter was declared moot. The decision notes that even if the judge had found the revocation improper, she could not order any action because the penalty was no longer active. The ALJ did not rule on the merits of whether the Board’s action was initially justified.
Issue 4: Refusal to Place Member Items on Board Meeting Agenda
• Allegation: The Petitioner claimed the Board violated Ventana Lakes Rule 8.3.B.1.b by refusing to place homeowners’ written requests for Board action on the agenda for upcoming Board meetings. The Petitioner’s position was that the rule required the Board president to place any such item on the agenda.
• Factual Background: Both parties agreed that the Board president had received written requests from members that were not subsequently included on a meeting agenda. The Petitioner herself acknowledged during the hearing that it would be impractical for the president to include every single request if, for example, hundreds were received for a single meeting.
• Conclusion of Law: The ALJ determined that the “plain language” of the rule does not mandate that all requests must be placed on the agenda. The judge used the Petitioner’s own hypothetical concession to demonstrate that the Board president must have “inherent authority to limit the number of items to be included.” The ruling concluded that the president’s authority in setting the agenda is “broad” and that the Petitioner failed to prove a violation of the rule.
Key Referenced Authority
The decision was based on an interpretation of the following Arizona statutes and Ventana Lakes governing documents:
Document
Provision
Relevance to the Case
Arizona Revised Statutes
A.R.S. § 33-1804
Open Meetings: Allows meetings to be closed for specific reasons, including discussion of “Personal, health or financial information about an individual member.”
Article III, Section A
Easements of Enjoyment: Gives the Board the right to suspend any Resident from using Common Areas and to regulate their use through rules.
Article IV, Section C
Health, Safety and Welfare: Allows the Board to make rules restricting activities deemed a nuisance or to adversely affect the health, safety, or welfare of residents.
Article V, Section C
Ventana Lakes Rules: Grants the Association power to adopt and repeal rules governing the use of Common Areas, provided they are not discriminatory or inconsistent.
Bylaws
Article IV.E.8
Board Powers: Grants the Board the power to adopt, amend, and enforce rules covering the operation and use of all property.
Ventana Lakes Rules
Rule 8.3.B
Board President Duties: States the president shall prepare agendas and “ensure that written requests for Board action…are placed on the agenda.” (Interpreted by ALJ).
Final Order
The Administrative Law Judge concluded the hearing with a definitive ruling:
“IT IS ORDERED that Petitioner’s petition is denied.”
This order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2020046-REL
Study Guide: Alandar v. Ventana Lakes Property Owners’ Association
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2020046-REL, concerning a dispute between Petitioner Susan L. Alandar and Respondent Ventana Lakes Property Owners’ Association. The guide includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the case’s facts, arguments, and legal conclusions.
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Short-Answer Quiz
Answer the following questions in 2-3 sentences each, based on the information provided in the case document.
1. What were the initial steps Susan L. Alandar took to begin the HOA dispute process, and when did she file her petition?
2. What was the Ventana Lakes Board’s practice regarding interviewing candidates for Board vacancies both before and after June 2019?
3. What was the core of the dispute regarding the Italian American Club (IAC), and what specific action by the club led to the conflict on April 4, 2019?
4. What penalty did the Board of Directors impose on the Italian American Club, and for what duration?
5. Why did the Administrative Law Judge ultimately dismiss Issues 2 and 3 (concerning the IAC) as moot?
6. What was the Petitioner’s argument regarding the Board President’s responsibility for setting the meeting agenda under Ventana Lakes Rule 8.3.B.1.b?
7. How did the Administrative Law Judge interpret the Board President’s authority and discretion in setting the agenda?
8. Which party bears the “burden of proof” in this type of hearing, and what is the standard of proof required?
9. According to Arizona statute A.R.S. § 33-1804, when is it permissible for a Board of Directors to hold a closed or executive session?
10. What was the final order issued by the Administrative Law Judge in this case?
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Answer Key
1. On or about February 3, 2020, Susan L. Alandar filed a Homeowners Association (HOA) Dispute Process Petition with the Arizona Department of Real Estate. She initially indicated two issues would be presented and paid a $1000.00 filing fee.
2. Prior to June 2019, the Board conducted candidate interviews, discussions, and votes in closed executive sessions. After June 2019, the Board conducted interviews in executive session to elicit private information but held the final vote in an open session.
3. The dispute centered on the IAC’s non-compliance with association rules. The conflict on April 4, 2019, was triggered when IAC members were observed on security cameras moving tables and chairs from a storage area against the instructions of the facilities manager.
4. In an executive session on April 17, 2019, the Board revoked the Italian American Club’s ability to use all of the association’s facilities. The penalty was for a period of one year, from May 1, 2019, to April 30, 2020.
5. The Judge dismissed these issues as moot because the one-year prohibition on the IAC’s use of facilities had already expired at the time of the hearing. Since the penalty was no longer in effect, the Judge could not order the Respondent to take any corrective action.
6. The Petitioner argued that Rule 8.3.B.1.b required the Board president to place any written request for Board action from an association member onto the agenda for the next meeting. She contended this was a mandatory duty, regardless of the nature or number of requests.
7. The Judge concluded that the rule’s plain language does not require every request to be placed on the agenda. Citing the impracticality of including hundreds of hypothetical requests, the Judge found that the Board President has broad, inherent authority to limit the items on the agenda.
8. The Petitioner bears the burden of proof to establish that the Respondent committed the alleged violations. The required standard of proof is a “preponderance of the evidence.”
9. A.R.S. § 33-1804 allows a portion of a meeting to be closed to consider specific matters, including personal, health, or financial information about an individual member or employee of the association. The Board used this exception to justify holding candidate interviews in executive session.
10. The final order issued on July 23, 2020, was that the Petitioner’s petition is denied.
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Essay Questions
The following questions are designed for deeper analysis and discussion. Formulate comprehensive answers based on the facts and legal reasoning presented in the decision.
1. Analyze the Board of Directors’ evolving practice for interviewing candidates for board vacancies (Issue 1). Discuss how their pre- and post-June 2019 methods relate to the specific language and exceptions outlined in A.R.S. § 33-1804.
2. Explain the legal concept of “mootness” as it was applied to the sanctions against the Italian American Club (Issues 2 and 3). Why was the Administrative Law Judge unable to rule on the propriety of the Board’s actions, and what does this imply about the timing of legal challenges in HOA disputes?
3. Compare and contrast the Petitioner’s interpretation of Ventana Lakes Rule 8.3.B.1.b with the Administrative Law Judge’s final interpretation (Issue 4). Discuss the Judge’s reasoning for concluding that the Board President has “inherent authority” to limit agenda items.
4. Define the “preponderance of the evidence” standard. Using examples from at least two of the four issues raised in the petition, explain how the Petitioner failed to meet this burden of proof.
5. Based on the referenced community documents (CC&Rs and Bylaws), describe the scope of the Ventana Lakes Board of Directors’ power to regulate Common Areas, suspend resident privileges, and enforce rules. How do these documents grant authority that was relevant to the Board’s actions against the Italian American Club?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, makes findings of fact, and issues decisions based on the evidence and applicable law. In this case, the ALJ was Tammy L. Eigenheer.
A.R.S.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Bylaws
A set of rules adopted by an organization, such as an HOA, to govern its internal management and operations. Article IV, Section E of the Bylaws addresses the Board’s powers and duties.
Covenants, Conditions & Restrictions. These are legally binding rules recorded with the property deeds in a planned community, governing property use and the rights and obligations of the homeowners and the HOA.
Common Areas
Property within a planned community owned by the HOA for the common use and enjoyment of all residents, such as the Yacht Club and recreational facilities mentioned in the case.
Executive Session
A closed portion of a meeting of a deliberative body, such as an HOA board, which is not open to the general membership. A.R.S. § 33-1804 specifies the limited circumstances under which such a session can be held.
HOA (Homeowners Association)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents. In this case, the Ventana Lakes Property Owners’ Association.
A legal term for a matter that is no longer in controversy or has become irrelevant. The ALJ declared the issues regarding the Italian American Club moot because the one-year penalty had already expired.
Petitioner
The party who files a petition initiating a legal action or administrative proceeding. In this case, Susan L. Alandar.
Preponderance of the Evidence
The standard of proof in most civil cases, which requires the trier of fact (the judge) to be convinced that a contention is more probably true than not. The Petitioner had the burden to meet this standard.
Respondent
The party against whom a petition is filed or an appeal is brought. In this case, the Ventana Lakes Property Owners’ Association.
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20F-H2020046-REL
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The provided text is an Administrative Law Judge Decision concerning a dispute between Susan L. Alandar, the Petitioner, and the Ventana Lakes Property Owners’ Association, the Respondent. The Petitioner filed a Homeowners Association (HOA) Dispute Process Petition alleging four violations of statute and community documents by the HOA, requiring her to pay additional filing fees to pursue all four issues. The judge systematically addressed each of the four allegations, which included improper closed-door interviews for board candidates, discriminatory penalizing and facility denial against an Italian American Club, and the refusal to place all member-requested items on the board agenda. Ultimately, the Administrative Law Judge denied the Petitioner’s petition, finding that she failed to establish the alleged violations by a preponderance of the evidence, and further determined that the facilities denial issue was moot as the one-year prohibition had expired.
What were the specific allegations and outcomes across the four distinct issues presented?
How did the Administrative Law Judge interpret governing documents regarding Board authority and rules?
What legal standards and statutes primarily governed the resolution of this HOA dispute petition?
Based on 1 source
Case Participants
Petitioner Side
Susan L. Alandar(petitioner) Appeared on her own behalf.
