Tag Archives: A.R.S. § 41-1092.09

Keystone Owners Association V. Bernadette M. Bennett

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Case Summary

Case ID 24F-H031-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-12-09
Administrative Law Judge Velva Moses-Thompson
Outcome The Petitioner (HOA) prevailed. The Respondent (Homeowner) was found in violation of Governing Documents for installing an unapproved driveway extension that exceeded 35% of the total yard frontage area. Respondent was ordered to pay the Petitioner the $1,500.00 filing fee and comply with all Governing Documents henceforth. No civil penalty was levied.
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Keystone Owners Association Counsel Erica L. Mortenson
Respondent Bernadette M. Bennett Counsel Thomas A. Walcott

Alleged Violations

Mountain Park Association CC&Rs Art. IV, Sec. 2; Keystone CC&Rs Art. V, Sec. 5.19; Rules (35% Frontage Limit)

Outcome Summary

The Petitioner (HOA) prevailed. The Respondent (Homeowner) was found in violation of Governing Documents for installing an unapproved driveway extension that exceeded 35% of the total yard frontage area. Respondent was ordered to pay the Petitioner the $1,500.00 filing fee and comply with all Governing Documents henceforth. No civil penalty was levied.

Why this result: Respondent failed to obtain prior written approval for the driveway alteration and failed to prove the affirmative defense of laches.

Key Issues & Findings

Unauthorized Driveway Extension Exceeding 35% of Total Yard Frontage Area

Petitioner alleged Respondent violated CC&Rs by installing a driveway extension exceeding 35% of the total yard frontage area without prior written approval. The ALJ found by a preponderance of the evidence that the violation occurred and the Respondent failed to establish the affirmative defense of laches.

Orders: Respondent ordered to pay Petitioner $1,500.00 for the filing fee and comply henceforth with the Governing Documents.

Filing fee: $1,500.00, Fee refunded: No

Disposition: petitioner_win

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092.09
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Westburne Supply, Inc. v. Diversified Design and Construction, Inc., 170 Ariz. 598, 600, 826 P.2d 1224, 1226 (Ct. App. 1992)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)
  • Flynn v. Rogers, 172 Ariz. 62 (1992)

Analytics Highlights

Topics: HOA, ARC, Driveway, Frontage Area, CC&Rs, Laches
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092.09
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Westburne Supply, Inc. v. Diversified Design and Construction, Inc., 170 Ariz. 598, 600, 826 P.2d 1224, 1226 (Ct. App. 1992)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)
  • Flynn v. Rogers, 172 Ariz. 62 (1992)

Video Overview

Audio Overview

Decision Documents

24F-H031-REL Decision – 1159036.pdf

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24F-H031-REL Decision – 1180542.pdf

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24F-H031-REL Decision – 1180545.pdf

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24F-H031-REL Decision – 1198622.pdf

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24F-H031-REL Decision – 1198623.pdf

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24F-H031-REL Decision – 1225107.pdf

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24F-H031-REL Decision – 1227639.pdf

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24F-H031-REL Decision – 1227642.pdf

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24F-H031-REL Decision – 1230660.pdf

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24F-H031-REL Decision – 1241815.pdf

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24F-H031-REL Decision – 1250037.pdf

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24F-H031-REL Decision – 1159036.pdf

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24F-H031-REL Decision – 1180542.pdf

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24F-H031-REL Decision – 1180545.pdf

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24F-H031-REL Decision – 1198622.pdf

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24F-H031-REL Decision – 1198623.pdf

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24F-H031-REL Decision – 1225107.pdf

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24F-H031-REL Decision – 1227639.pdf

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24F-H031-REL Decision – 1227642.pdf

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24F-H031-REL Decision – 1230660.pdf

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24F-H031-REL Decision – 1241815.pdf

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24F-H031-REL Decision – 1250037.pdf

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This summary focuses on the hearing held on November 19, 2024 before Administrative Law Judge (ALJ) Velva Moses-Thompson, concerning the dispute between Keystone Owners Association (Petitioner) and Bernadette M. Bennett (Respondent).

Key Facts and Main Issues

The core issue was Petitioner's allegation that Respondent violated the Governing Documents by installing a driveway extension that exceeds 35% of the total yard frontage area. This included allegations of violating Article IV, Section 2 of the Mountain Park Association Covenants, Conditions, and Restrictions (CC&Rs) and Article V, Section 5.19 of Petitioner’s CC&Rs.

Key Facts Presented:

  • Respondent owns a home within Keystone, a subassociation of Mountain Park Ranch. Both associations' Governing Documents required Respondent to obtain prior written approval for any alteration to the exterior appearance.
  • Mountain Park Ranch Rules, which Keystone relied upon for enforcement, state that the parking surface shall not exceed 35 percent of the total yard frontage area.
  • Petitioner asserted that the Respondent installed the cement driveway extension without obtaining mandatory written approval.
  • An on-site inspection conducted in May 2024 determined that the driveway slabs (original 16 ft + unapproved 8 ft modification) measured 24 ft wide. Based on the lot frontage measurement of approximately 60 ft, the driveway covered 40% of the yard frontage, exceeding the 35% limit.
  • The Petitioner's right to enforce the Master Association’s rules was formalized by an Assignment Agreement signed on August 16, 2023.

Key Arguments and Proceedings

The Petitioner presented testimony from Harry Whitesell, a board member and former property appraiser, who detailed the measurements and the history of the Respondent's failed architectural requests (2015, 2017) to add parking. Petitioner argued that the Respondent ignored denial notices and that the modification was installed without approval and remains out of compliance.

The Respondent's legal strategy focused entirely on the affirmative defense of laches. Respondent's counsel argued that the condition had existed, open and obvious, since late 2017/early 2018 without enforcement. Respondent argued the HOA's delay was unreasonable, causing prejudice, and that the motivation to pursue the violation only arose after securing the enforcement authority from Mountain Park Ranch in 2023. Respondent also questioned the interpretation of "yard frontage area" used for the calculation, arguing it was ambiguous. Respondent did not present witness testimony at the hearing.

Petitioner countered the laches argument by citing a provision in the Keystone CC&Rs stating that failure to enforce a restriction "shall in no event be deemed a waiver of the right to do so thereafter".

Legal Points and Outcome

The ALJ admitted Petitioner’s Exhibits A through M and Respondent’s Exhibit 1 into evidence.

The ALJ made the following legal conclusions:

  1. Petitioner bore the burden of proof to establish the violation by a preponderance of the evidence.
  2. The preponderance of the evidence showed that Respondent erected a cement driveway extension that exceeds 35 percent of the total yard frontage area, without obtaining prior approval.
  3. Respondent failed to meet the burden of establishing the affirmative defense of laches. The ALJ found that Respondent had not established sufficient "unreasonable delay that has resulted in prejudice" to deny the relief sought by Petitioner.

Final Decision and Order:

  • Petitioner was deemed the prevailing party.
  • Respondent was ordered to pay Petitioner its filing fee of $1,500.00 within thirty days.
  • Respondent was ordered to henceforth comply with the provisions of the Governing Documents.
  • No Civil Penalty was found to be appropriate.

Questions

Question

Can a sub-association enforce the rules and CC&Rs of the master association?

Short Answer

Yes, if the master association has assigned those enforcement rights to the sub-association.

Detailed Answer

A sub-association (like a specific neighborhood HOA within a larger master planned community) generally enforces its own documents. However, this decision clarifies that a sub-association may be authorized to enforce the master association's governing documents if there is a specific assignment agreement executing that transfer of authority.

Alj Quote

The Governing Documents authorize Petitioner to enforce the Governing Documents, as further memorialized by an executed Assignment Agreement by and between Mountain Park Association and Keystone Owners Association signed on August 16, 2023.

Legal Basis

Assignment Agreement / Governing Documents

Topic Tags

  • jurisdiction
  • sub-associations
  • master association
  • enforcement authority

Question

If I extend my driveway without approval, does the HOA have to prove I didn't get permission, or do I have to prove I did?

Short Answer

The absence of written evidence granting approval can be used to establish a violation.

Detailed Answer

While the HOA bears the initial burden of proof for the violation, the lack of testimonial or written evidence showing that the homeowner received approval helps establish that the modification was unauthorized.

Alj Quote

However, there was no testimonial or written evidence presented to establish that Respondent was granted approval to install a driveway that exceeded 35% of the total yard frontage area.

Legal Basis

Burden of Proof

Topic Tags

  • architectural approval
  • evidence
  • driveways
  • modifications

Question

What is the 'burden of proof' for an HOA to win a violation hearing?

Short Answer

The HOA must prove the violation by a 'preponderance of the evidence'.

Detailed Answer

The HOA does not need to prove a violation 'beyond a reasonable doubt' (the criminal standard). They must only show that their contention is 'more probably true than not' or carries superior evidentiary weight.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated CC&R § 7.9 by a preponderance of the evidence… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'

Legal Basis

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

Topic Tags

  • legal standards
  • evidence
  • hearing procedures

Question

Can I use the defense that the HOA waited too long to enforce the rule (laches)?

Short Answer

Yes, but you bear the burden of proving that the delay was unreasonable and caused you prejudice.

Detailed Answer

Laches is an affirmative defense. It is not enough to simply show a delay; the homeowner must prove by a preponderance of the evidence that the delay was unreasonable and that it resulted in sufficient prejudice to deny the HOA's relief.

Alj Quote

Laches is an affirmative defense, and Respondent bears the burden of establishing the defense by a preponderance of the evidence… Respondent has not established by a preponderance of the evidence that there was unreasonable delay that has resulted in prejudice to Respondent sufficient to deny the relief Petitioner seeks…

Legal Basis

A.C.C. R2-19-119(B)(2); Flynn v. Rogers

Topic Tags

  • defenses
  • laches
  • enforcement delay

Question

If I lose the hearing, can the judge make me pay the HOA's filing fees?

Short Answer

Yes, the Administrative Law Judge can order the losing homeowner to reimburse the HOA's filing fee.

Detailed Answer

In this decision, the judge ordered the Respondent (homeowner) to pay the Petitioner's (HOA) filing fee of $1,500.00 directly to the Petitioner within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner its filing fee of $1,500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • costs
  • penalties

Question

How do judges interpret the meaning of restrictive covenants (CC&Rs)?

Short Answer

They are interpreted as a whole, looking at the underlying purpose of the document.

Detailed Answer

Legal interpretation does not isolate single phrases but looks at the document in its entirety to understand the intent of the parties and the purpose of the restrictions.

Alj Quote

Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.

Legal Basis

Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Topic Tags

  • legal interpretation
  • CC&Rs
  • covenants

Question

Can the judge issue a civil penalty (fine) in addition to ordering me to fix the violation?

Short Answer

Yes, the judge has the authority to levy a civil penalty, though they may choose not to.

Detailed Answer

Under Arizona statute A.R.S. § 32-2199.02, the administrative law judge has the discretion to order compliance and also levy a civil penalty for each violation. In this specific case, the judge found no civil penalty was appropriate, but the authority exists.

Alj Quote

The administrative law judge may order any party to abide by the statute, condominium documents, community documents or contract provision at issue and may levy a civil penalty on the basis of each violation.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • civil penalties
  • fines
  • statutory authority

Case

Docket No
24F-H031-REL
Case Title
Keystone Owners Association vs. Bernadette M. Bennett
Decision Date
2024-12-09
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can a sub-association enforce the rules and CC&Rs of the master association?

Short Answer

Yes, if the master association has assigned those enforcement rights to the sub-association.

Detailed Answer

A sub-association (like a specific neighborhood HOA within a larger master planned community) generally enforces its own documents. However, this decision clarifies that a sub-association may be authorized to enforce the master association's governing documents if there is a specific assignment agreement executing that transfer of authority.

Alj Quote

The Governing Documents authorize Petitioner to enforce the Governing Documents, as further memorialized by an executed Assignment Agreement by and between Mountain Park Association and Keystone Owners Association signed on August 16, 2023.

Legal Basis

Assignment Agreement / Governing Documents

Topic Tags

  • jurisdiction
  • sub-associations
  • master association
  • enforcement authority

Question

If I extend my driveway without approval, does the HOA have to prove I didn't get permission, or do I have to prove I did?

Short Answer

The absence of written evidence granting approval can be used to establish a violation.

Detailed Answer

While the HOA bears the initial burden of proof for the violation, the lack of testimonial or written evidence showing that the homeowner received approval helps establish that the modification was unauthorized.

Alj Quote

However, there was no testimonial or written evidence presented to establish that Respondent was granted approval to install a driveway that exceeded 35% of the total yard frontage area.

Legal Basis

Burden of Proof

Topic Tags

  • architectural approval
  • evidence
  • driveways
  • modifications

Question

What is the 'burden of proof' for an HOA to win a violation hearing?

Short Answer

The HOA must prove the violation by a 'preponderance of the evidence'.

Detailed Answer

The HOA does not need to prove a violation 'beyond a reasonable doubt' (the criminal standard). They must only show that their contention is 'more probably true than not' or carries superior evidentiary weight.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated CC&R § 7.9 by a preponderance of the evidence… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'

Legal Basis

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

Topic Tags

  • legal standards
  • evidence
  • hearing procedures

Question

Can I use the defense that the HOA waited too long to enforce the rule (laches)?

Short Answer

Yes, but you bear the burden of proving that the delay was unreasonable and caused you prejudice.

Detailed Answer

Laches is an affirmative defense. It is not enough to simply show a delay; the homeowner must prove by a preponderance of the evidence that the delay was unreasonable and that it resulted in sufficient prejudice to deny the HOA's relief.

Alj Quote

Laches is an affirmative defense, and Respondent bears the burden of establishing the defense by a preponderance of the evidence… Respondent has not established by a preponderance of the evidence that there was unreasonable delay that has resulted in prejudice to Respondent sufficient to deny the relief Petitioner seeks…

Legal Basis

A.C.C. R2-19-119(B)(2); Flynn v. Rogers

Topic Tags

  • defenses
  • laches
  • enforcement delay

Question

If I lose the hearing, can the judge make me pay the HOA's filing fees?

Short Answer

Yes, the Administrative Law Judge can order the losing homeowner to reimburse the HOA's filing fee.

Detailed Answer

In this decision, the judge ordered the Respondent (homeowner) to pay the Petitioner's (HOA) filing fee of $1,500.00 directly to the Petitioner within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner its filing fee of $1,500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • costs
  • penalties

Question

How do judges interpret the meaning of restrictive covenants (CC&Rs)?

Short Answer

They are interpreted as a whole, looking at the underlying purpose of the document.

Detailed Answer

Legal interpretation does not isolate single phrases but looks at the document in its entirety to understand the intent of the parties and the purpose of the restrictions.

Alj Quote

Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.

Legal Basis

Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Topic Tags

  • legal interpretation
  • CC&Rs
  • covenants

Question

Can the judge issue a civil penalty (fine) in addition to ordering me to fix the violation?

Short Answer

Yes, the judge has the authority to levy a civil penalty, though they may choose not to.

Detailed Answer

Under Arizona statute A.R.S. § 32-2199.02, the administrative law judge has the discretion to order compliance and also levy a civil penalty for each violation. In this specific case, the judge found no civil penalty was appropriate, but the authority exists.

Alj Quote

The administrative law judge may order any party to abide by the statute, condominium documents, community documents or contract provision at issue and may levy a civil penalty on the basis of each violation.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • civil penalties
  • fines
  • statutory authority

Case

Docket No
24F-H031-REL
Case Title
Keystone Owners Association vs. Bernadette M. Bennett
Decision Date
2024-12-09
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Erica L. Mortenson (attorney)
    Goodman Law Group
    HOA attorney
  • Harry Whitel (board member/witness)
    Keystone Owners Association
    Secretary of the Board
  • Tim Seyfarth (board member/president)
    Keystone Owners Association
    Board President
  • Glenn Steinman (board member)
    Keystone Owners Association
    Board Vice President
  • Debbie Burch (board member)
    Keystone Owners Association
    Board Treasurer
  • Cherry Collins (board member)
    Keystone Owners Association
    Member at large; Architectural Advisory Committee member
  • Joe Getti (ARC member/former board member)
    Keystone Owners Association
    Architectural Advisory Committee member
  • Mary Hamilton (ARC member)
    Keystone Owners Association
    Architectural Advisory Committee member
  • Dan (attorney/staff)
    Goodman Law Group

Respondent Side

  • Bernadette M. Bennett (respondent)
    Lot Owner
  • Thomas A. Walcott (attorney)
    Provident Lawyers
    Respondent attorney
  • Noah Alvarado (staff)
    Staff/assistant for Respondent's Counsel
  • Christopher J. Charles (attorney/staff)
    Provident Lawyers

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
    Administrative Law Judge
  • Amy Haley (ALJ)
    OAH
    Administrative Law Judge (prior to VMT)
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Isabella (property manager)
    Vision Management
    Keystone Property Manager who was asked for documents
  • Annette Wthbon (property management agent)
    City Management
    Former Property Management Agent
  • Carla Garvin (property management agent)
    City Management
    Former Property Management Agent

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

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Case Summary

Case ID 24F-H023-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-05-16
Administrative Law Judge Sondra J. Vanella
Outcome Petitioners failed to establish by a preponderance of the evidence that Respondent violated CC&R Article II Section 1(c). The cited provision was inapplicable because the security gate installation did not involve transferring common area to a public agency or increasing the density of residences (the clause was read conjunctively).
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

Article II Section 1(c)

Outcome Summary

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

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

Key Issues & Findings

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

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

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

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

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Video Overview

Audio Overview

Decision Documents

24F-H023-REL Decision – 1133251.pdf

Uploaded 2026-04-24T12:16:36 (51.2 KB)

24F-H023-REL Decision – 1135497.pdf

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24F-H023-REL Decision – 1168799.pdf

Uploaded 2026-04-24T12:16:43 (47.6 KB)

24F-H023-REL Decision – 1178674.pdf

Uploaded 2026-04-24T12:16:48 (136.5 KB)

24F-H023-REL Decision – 1133251.pdf

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

24F-H023-REL Decision – 1135497.pdf

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

24F-H023-REL Decision – 1168799.pdf

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

24F-H023-REL Decision – 1178674.pdf

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

This summary addresses the hearing proceedings, key arguments, and final decision in the matter of Robert P. Fink and Brittany L. Oleson (Petitioners) versus Casas Arroyo Association, Inc. (Respondent), Docket No. 24F-H023-REL, heard before Administrative Law Judge (ALJ) Sondra J. Vanella of the Arizona Office of Administrative Hearings (OAH). The hearing spanned two dates: January 18, 2024, and April 18, 2024.

Key Facts and Main Issue

The core dispute was whether the Respondent Association violated Article II Section 1(c) of the community's CC&Rs when it installed a security gate at the community entrance. The gate measure passed with 27 "yes" votes and 10 "no" votes, equating to 69% of the 39 eligible votes in the association. The Board, citing security concerns related to criminal activity including human trafficking and drug smuggling, moved forward with the installation, funding the $2,650 gate through general assessment funds without a special assessment.

Petitioner's Argument

Petitioners argued that the security gate constitutes an "improvement placed upon the common area". They asserted that Article II Section 1(c) unequivocally requires approval by "not less than three quarters (3/4) of the eligible votes of the Association" (30 votes out of 39) for such improvements. Petitioners contended the Board improperly utilized an arbitrary standard of two-thirds (2/3) of those who voted, and that the 2/3 standard found in Article IV Section 4 applies only to authorizing a *special assessment* for a capital improvement, not the installation itself.

Respondent's Argument

The Respondent argued that Article II Section 1(c) was inapplicable. They contended that the provision primarily governs the dedication or transfer of common area property to a public utility or agency, and also applies to improvements that "would increase the density of residences on the Properties". Since the gate neither transferred land nor increased density, the 3/4 voting requirement was unnecessary. Respondent further argued that Article IV Section 2 grants the board authority to use general assessment funds to promote the "health, safety, and welfare of the residents," justifying the gate installation for crime deterrence.

Outcome and Legal Rationale

The ALJ determined that Petitioners failed to meet their burden of proof. The ALJ's interpretation centered on the structure and applicability of Article II Section 1(c).

  1. Inapplicable CC&R: The ALJ concluded that Article II Section 1(c) is written in the conjunctive. Therefore, the 3/4 vote is required only when improvements are placed upon the common area and those improvements increase the density of residences.
  2. Gate Does Not Increase Density: Since the security gate did not dedicate or transfer common area property to an outside entity, nor did it increase the density of residences, the ALJ ruled that the 3/4 voting requirement under Article II Section 1(c) was inapplicable to the instant matter.
  3. Authority Found in Article IV: The ALJ noted that Article IV Section 2 grants the Association authority to use general assessment funds to promote the "recreation, health, safety and welfare of the residents".

The ALJ issued a decision dismissing the Petition and ordering no action be required of the Respondent. The record formally closed on May 7, 2024, with the decision issuing on May 16, 2024.

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • burden of proof
  • procedural requirements
  • evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • legal standards
  • evidence
  • definitions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Contract Interpretation Principles

Topic Tags

  • CC&R interpretation
  • legal standards
  • context

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Grammatical Interpretation of Contracts

Topic Tags

  • contract interpretation
  • grammar
  • legal standards

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&R Article IV Section 2

Topic Tags

  • assessments
  • HOA powers
  • safety improvements

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&R Article II Section 1(c)

Topic Tags

  • voting requirements
  • common area
  • improvements

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&R Article II Section 1(c)

Topic Tags

  • density
  • improvements
  • voting requirements

Case

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • burden of proof
  • procedural requirements
  • evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • legal standards
  • evidence
  • definitions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Contract Interpretation Principles

Topic Tags

  • CC&R interpretation
  • legal standards
  • context

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Grammatical Interpretation of Contracts

Topic Tags

  • contract interpretation
  • grammar
  • legal standards

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&R Article IV Section 2

Topic Tags

  • assessments
  • HOA powers
  • safety improvements

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&R Article II Section 1(c)

Topic Tags

  • voting requirements
  • common area
  • improvements

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&R Article II Section 1(c)

Topic Tags

  • density
  • improvements
  • voting requirements

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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

David Y. Samuels v. The Concorde Condominium Home Owners Association

Posted on by

Case Summary

Case ID 24F-H025-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-04-18
Administrative Law Judge Amy M. Haley
Outcome The petition filed by David Y. Samuels against The Concorde Condominium Home Owners Association was dismissed. The Tribunal found that Samuels lacked standing to bring the action as an individual, and the cited statute, A.R.S. § 33-1803 (Planned Community Act), was improper for this condominium dispute.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner David Y. Samuels Counsel —
Respondent The Concorde Condominium Home Owners Association Counsel Ashley N. Turner

Alleged Violations

A.R.S. § 33-1803

Outcome Summary

The petition filed by David Y. Samuels against The Concorde Condominium Home Owners Association was dismissed. The Tribunal found that Samuels lacked standing to bring the action as an individual, and the cited statute, A.R.S. § 33-1803 (Planned Community Act), was improper for this condominium dispute.

Why this result: Petitioner lacked standing because the property was owned by Daso Properties, LLC, not by David Y. Samuels individually. Additionally, the Petitioner brought the action under the incorrect statute, A.R.S. § 33-1803, which governs planned communities, not condominiums.

Key Issues & Findings

Alleged violation concerning late fees, collection fees, and attorney fees for delinquent assessment payments

Petitioner alleged Respondent violated A.R.S. § 33-1803 by charging unwarranted late fees, collection fees, and attorney fees for delinquent assessments.

Orders: Petitioner's petition is dismissed because Petitioner lacked standing as an individual owner, and the cause of action was brought under the improper statute (Planned Community Act) for a condominium property.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1803
  • A.R.S. § 32-2199.01(A)
  • A.R.S. § 33-1801(A)
  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 41-1092.09

Analytics Highlights

Topics: standing, condominium, planned community act, statutory violation, late fees, collection fees, attorney fees, jurisdiction, dismissal
Additional Citations:

  • A.R.S. § 33-1803
  • A.R.S. § 32-2199.01(A)
  • A.R.S. § 33-1801(A)
  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 41-1092.09
  • A.A.C. R2-19-106(D)

Video Overview

Audio Overview

Decision Documents

24F-H025-REL Decision – 1124651.pdf

Uploaded 2026-04-24T12:17:37 (48.4 KB)

24F-H025-REL Decision – 1133120.pdf

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24F-H025-REL Decision – 1134423.pdf

Uploaded 2026-04-24T12:17:45 (48.2 KB)

24F-H025-REL Decision – 1139633.pdf

Uploaded 2026-04-24T12:17:49 (55.7 KB)

24F-H025-REL Decision – 1139646.pdf

Uploaded 2026-04-24T12:17:53 (7.6 KB)

24F-H025-REL Decision – 1157271.pdf

Uploaded 2026-04-24T12:18:00 (47.1 KB)

24F-H025-REL Decision – 1168680.pdf

Uploaded 2026-04-24T12:18:06 (86.1 KB)

24F-H025-REL Decision – 1124651.pdf

Uploaded 2026-01-23T18:03:59 (48.4 KB)

24F-H025-REL Decision – 1133120.pdf

Uploaded 2026-01-23T18:04:01 (39.9 KB)

24F-H025-REL Decision – 1134423.pdf

Uploaded 2026-01-23T18:04:05 (48.2 KB)

24F-H025-REL Decision – 1139633.pdf

Uploaded 2026-01-23T18:04:08 (55.7 KB)

24F-H025-REL Decision – 1139646.pdf

Uploaded 2026-01-23T18:04:12 (7.6 KB)

24F-H025-REL Decision – 1157271.pdf

Uploaded 2026-01-23T18:04:17 (47.1 KB)

24F-H025-REL Decision – 1168680.pdf

Uploaded 2026-01-23T18:04:22 (86.1 KB)

This summary outlines the proceedings, arguments, and final decision in the matter of *David Y. Samuels vs The Concorde Condominium Home Owners Association*, Case No. 24F-H025-REL, heard before Administrative Law Judge (ALJ) Amy M. Haley of the Office of Administrative Hearings (OAH).

Key Facts and Background

The case concerned a dispute over fees, fines, and assessments related to a condominium unit located in Mesa, Arizona. The property owner is Daso Properties, LLC, and the Petitioner, David Y. Samuels, is the managing member who filed the petition on his own behalf. The Respondent is The Concorde Condominium Home Owners Association (HOA). Samuels filed the petition with the Arizona Department of Real Estate (Department) around November 1, 2023, alleging the HOA violated A.R.S. § 33-1803 by charging late fees, collection fees, and attorney fees without documentation demonstrating they were warranted.

Hearing Proceedings and Key Arguments (April 3, 2024)

The hearing focused heavily on the status of the homeowner ledger and procedural issues.

Petitioner's Argument: Mr. Samuels argued that the HOA’s collection efforts were unethical or illegal. He contended that many of the late fees, collection fees, and attorney fees stemmed from a prior balance of $931.95 that was later forgiven or waived because the HOA or prior management companies could not provide documentation to support the charge. He argued that if the unsupported prior balance was removed, he was current (or even ahead) on assessments until 2024, rendering the substantial collection fees unreasonable. Additionally, fines totaling $1,645 were waved, which Samuels asserted was due to the charges being erroneous, not a "good faith gesture".

Respondent's Argument: The HOA, represented by counsel Ashley Turner, denied any statutory violation and asserted that the association was authorized to collect late fees and collection charges due to a delinquency that existed when the matter was referred for collections. More critically, the HOA raised two procedural arguments:

  1. Improper Statute: The HOA is a condominium association, governed by A.R.S. Title 33, Chapter 9, yet the petition was brought under A.R.S. § 33-1803, which governs planned communities.
  2. Lack of Standing: Mr. Samuels, as an individual, was not the legal "owner" of the unit (Daso Properties, LLC), and therefore lacked standing to bring the petition under A.R.S. § 32-2199.01(A).

Legal Outcome and Final Decision

The ALJ issued a decision on April 18, 2024, finding that the Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1803.

The petition was dismissed based on two fundamental legal flaws:

  1. Lack of Standing: The Tribunal found that David Y. Samuels, as an individual and not the property owner (Daso Properties, LLC), did not have standing to bring the action under A.R.S. § 32-2199.01(A).
  2. Improper Cause of Action: The Tribunal found that the statute cited, A.R.S. § 33-1803, was improper because the property is a condominium, not a planned community, meaning the Respondent was not subject to that chapter. Consequently, Petitioner stated no claim upon which relief could be granted under the cited statute.

The petition was ordered dismissed.

Questions

Question

If my property is owned by an LLC, can I file a petition against the HOA in my own name as the managing member?

Short Answer

No. The petition must be filed by the legal owner (the LLC), not an individual member, or it will be dismissed for lack of standing.

Detailed Answer

The ALJ determined that an individual managing member of an LLC does not have standing to bring an action on behalf of the property owned by the LLC. The dispute statute specifically applies to 'owners' and 'associations'.

Alj Quote

The Tribunal finds that, after taking testimony, Petitioner, as an individual, did not have standing to bring this action… The proper party to bring the action would have been Daso Properties, LLC.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • standing
  • LLC ownership
  • procedural requirements

Question

Can I use laws meant for Planned Communities (A.R.S. § 33-1803) to dispute charges if I live in a Condominium?

Short Answer

No. Condominiums are governed by a different set of statutes (Chapter 9) than Planned Communities (Chapter 16).

Detailed Answer

The ALJ dismissed the claim because the homeowner cited the Planned Community Act (A.R.S. § 33-1803) while the property was legally a condominium. Condominiums are not subject to the Planned Community Act.

Alj Quote

However, the Property is a condominium; therefore, Respondent is not subject to the Planned Community Act. … Chapter 9 governs condominiums.

Legal Basis

A.R.S. § 33-1801(A)

Topic Tags

  • jurisdiction
  • condominium vs planned community
  • statutory application

Question

Does the Department of Real Estate have jurisdiction to hear a dispute if I am not the legal owner of the property?

Short Answer

No. The Department's jurisdiction is limited to disputes specifically between an owner and an association.

Detailed Answer

The decision clarifies that the administrative hearing process is strictly for disputes involving an 'owner' or 'association'. If the petitioner is not the legal owner (even if they manage the LLC that owns it), the Department lacks jurisdiction.

Alj Quote

The department does not have jurisdiction to hear a dispute that does not involve an owner or an association.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • jurisdiction
  • standing
  • homeowner rights

Question

Who has the burden of proof when a homeowner claims an HOA violated state laws?

Short Answer

The homeowner (Petitioner) has the burden of proving the violation by a preponderance of the evidence.

Detailed Answer

In these administrative hearings, it is the responsibility of the person bringing the complaint to provide sufficient evidence to prove their claims.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1803 as alleged in his petition.

Legal Basis

Preponderance of Evidence

Topic Tags

  • burden of proof
  • evidence
  • legal standards

Question

What happens if I base my entire petition on a statute that doesn't apply to my type of property?

Short Answer

The petition will be dismissed because you have stated no claim upon which relief can be granted.

Detailed Answer

Because the petitioner cited the wrong statute (Planned Community Act for a Condominium), the judge ruled that there was no valid legal claim to rule on, resulting in dismissal.

Alj Quote

As such, Petitioner has stated no claim upon which relief can be granted under A.R.S. § 33-1801.

Legal Basis

A.R.S. § 33-1801

Topic Tags

  • dismissal
  • legal procedure
  • condominium act

Case

Docket No
24F-H025-REL
Case Title
David Y. Samuels vs The Concorde Condominium Home Owners Association
Decision Date
2024-04-18
Alj Name
Amy M. Haley
Tribunal
OAH
Agency
ADRE

Questions

Question

If my property is owned by an LLC, can I file a petition against the HOA in my own name as the managing member?

Short Answer

No. The petition must be filed by the legal owner (the LLC), not an individual member, or it will be dismissed for lack of standing.

Detailed Answer

The ALJ determined that an individual managing member of an LLC does not have standing to bring an action on behalf of the property owned by the LLC. The dispute statute specifically applies to 'owners' and 'associations'.

Alj Quote

The Tribunal finds that, after taking testimony, Petitioner, as an individual, did not have standing to bring this action… The proper party to bring the action would have been Daso Properties, LLC.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • standing
  • LLC ownership
  • procedural requirements

Question

Can I use laws meant for Planned Communities (A.R.S. § 33-1803) to dispute charges if I live in a Condominium?

Short Answer

No. Condominiums are governed by a different set of statutes (Chapter 9) than Planned Communities (Chapter 16).

Detailed Answer

The ALJ dismissed the claim because the homeowner cited the Planned Community Act (A.R.S. § 33-1803) while the property was legally a condominium. Condominiums are not subject to the Planned Community Act.

Alj Quote

However, the Property is a condominium; therefore, Respondent is not subject to the Planned Community Act. … Chapter 9 governs condominiums.

Legal Basis

A.R.S. § 33-1801(A)

Topic Tags

  • jurisdiction
  • condominium vs planned community
  • statutory application

Question

Does the Department of Real Estate have jurisdiction to hear a dispute if I am not the legal owner of the property?

Short Answer

No. The Department's jurisdiction is limited to disputes specifically between an owner and an association.

Detailed Answer

The decision clarifies that the administrative hearing process is strictly for disputes involving an 'owner' or 'association'. If the petitioner is not the legal owner (even if they manage the LLC that owns it), the Department lacks jurisdiction.

Alj Quote

The department does not have jurisdiction to hear a dispute that does not involve an owner or an association.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • jurisdiction
  • standing
  • homeowner rights

Question

Who has the burden of proof when a homeowner claims an HOA violated state laws?

Short Answer

The homeowner (Petitioner) has the burden of proving the violation by a preponderance of the evidence.

Detailed Answer

In these administrative hearings, it is the responsibility of the person bringing the complaint to provide sufficient evidence to prove their claims.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1803 as alleged in his petition.

Legal Basis

Preponderance of Evidence

Topic Tags

  • burden of proof
  • evidence
  • legal standards

Question

What happens if I base my entire petition on a statute that doesn't apply to my type of property?

Short Answer

The petition will be dismissed because you have stated no claim upon which relief can be granted.

Detailed Answer

Because the petitioner cited the wrong statute (Planned Community Act for a Condominium), the judge ruled that there was no valid legal claim to rule on, resulting in dismissal.

Alj Quote

As such, Petitioner has stated no claim upon which relief can be granted under A.R.S. § 33-1801.

Legal Basis

A.R.S. § 33-1801

Topic Tags

  • dismissal
  • legal procedure
  • condominium act

Case

Docket No
24F-H025-REL
Case Title
David Y. Samuels vs The Concorde Condominium Home Owners Association
Decision Date
2024-04-18
Alj Name
Amy M. Haley
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • David Y. Samuels (petitioner)
    Daso Properties, LLC
    Managing member of the property owner (Daso Properties, LLC); Appeared on his own behalf.

Respondent Side

  • Ashley N. Turner (HOA attorney)
    Goodman Law Group
    Council for respondent; Also appeared as Ashley N. Moscarello in earlier filings.
  • Alyssa Butler (community manager)
    The Management Trust (TMT)
    Witness for the association.
  • Stephanie Beck (HOA staff)
    Involved in prior HOA correspondence regarding fines.
  • Catherine Green (HOA staff)
    Involved in prior HOA correspondence regarding fines.

Neutral Parties

  • Amy M. Haley (ALJ)
    OAH
    Conducted the hearing and issued the final decision.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Tammy L. Eigenheer (ALJ)
    OAH
    Issued an order on March 19, 2024.
  • A. Hansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].
  • V. Nunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].
  • D. Jones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].
  • L. Abril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].
  • M. Neat (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].
  • A. Kowaleski (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].
  • G. Osborn (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].

Thomas P. Hommrich v. The Lakewood Community Association

Posted on by

Case Summary

Case ID 23F-H048-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-05-19
Administrative Law Judge Velva Moses-Thompson
Outcome Order Granting Respondent’s Motion to Dismiss the Petition on jurisdictional grounds.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Thomas P. Hommrich Counsel —
Respondent The Lakewood Community Association Counsel Quinten Cupps, Esq.

Alleged Violations

Article lV, Section 4.2(t) of the CC&R's

Outcome Summary

Order Granting Respondent’s Motion to Dismiss the Petition on jurisdictional grounds.

Why this result: The Administrative Law Judge ruled that the Office of Administrative Hearings (OAH) lacked jurisdiction to hear the case because the petition challenged the Association’s power to act (A.R.S. § 10-3304), which requires injunctive relief in a court of law, and did not concern a violation of community documents or statute (A.R.S. § 32-2199.01(A)).

Key Issues & Findings

Authority to enforce parking rule on residential public streets

Petitioner sought an order prohibiting the Respondent from restricting parking access on public residential streets, alleging the Association breached the CC&Rs by misapplying Article IV, Section 4.2(t).

Orders: The petition was dismissed because OAH lacked jurisdiction as the case challenged the Association's power to act under A.R.S. § 10-3304, rather than alleging a violation of community documents or statute under A.R.S. § 32-2199.01(A).

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199.01(A)
  • A.R.S. § 10-3304
  • A.R.S. § 10-3304(B)(2)

Analytics Highlights

Topics: Parking Restrictions, Jurisdiction, Motion to Dismiss, CC&Rs
Additional Citations:

  • A.R.S. § 32-2199.01(A)
  • A.R.S. § 10-3304
  • A.R.S. § 10-3304(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

23F-H048-REL Decision – 1057905.pdf

Uploaded 2026-04-24T12:08:54 (71.7 KB)

23F-H048-REL Decision – 1059621.pdf

Uploaded 2026-04-24T12:08:57 (44.2 KB)

23F-H048-REL Decision – 1057905.pdf

Uploaded 2026-01-23T17:57:20 (71.7 KB)

23F-H048-REL Decision – 1059621.pdf

Uploaded 2026-01-23T17:57:22 (44.2 KB)

The matter of *Thomas P. Hommrich vs. The Lakewood Community Association* (No. 23F-H048-REL) was heard in the Office of Administrative Hearings (OAH).

Key Facts and Issues

Petitioner Thomas P. Hommrich filed a single-issue petition on March 9, 2023, alleging the Respondent Association lacked the authority to enforce a parking restriction. Specifically, the Petitioner claimed the Association improperly relied upon Article IV, Section 4.2(t) of the CC&Rs, which, in the Petitioner's view, does not prohibit parking on public residential streets. The Petitioner sought an order from the OAH prohibiting the Respondent from restricting parking access on such streets.

Article IV, Section 4.2(t) of the CC&Rs indicates the Declarant's intent is to "eliminate on-street parking at Lakewood as much as possible," requiring vehicles to be kept in garages, driveways, or designated areas. It further states that "No parking is permitted on any street within Lakewood" designated on the Map of Dedication, and allows the Association to adopt additional parking rules.

Hearing Proceedings and Main Arguments

The Association filed a Motion to Dismiss on May 8, 2023. The Respondent argued that the OAH lacked jurisdiction because the petition did not concern a violation of community documents or any statute, as required by A.R.S. § 32-2199.01(A). Furthermore, the Association contended that the OAH lacked the authority to grant the specific injunctive relief requested by the Petitioner.

The Petitioner responded, asserting he was alleging that the Association breached the CC&Rs.

Legal Points and Final Decision

The Administrative Law Judge granted the Respondent's Motion to Dismiss the Petition on May 19, 2023.

The OAH determined that the petition did not concern a violation of community documents or any statute. The most important legal point focused on jurisdiction: the OAH found that the Petitioner was essentially attempting to challenge the Association’s power to act (authority to restrict parking on public streets). Under A.R.S. § 10-3304, the Petitioner is not permitted to challenge the Association’s power to act in the OAH tribunal. The appropriate venue for seeking injunctive relief regarding an association’s power to act is a court of law (A.R.S. § 10-3304(B)(2)).

Outcome

The petition was dismissed. Following the dismissal, the OAH received a Motion to Amend the Petition, which it could not consider because a decision had already been rendered. However, the Petitioner’s request for a rehearing was forwarded to the Arizona Department of Real Estate (ADRE), as the ADRE, not the OAH, handles rehearing requests pursuant to A.R.S. § 33-2199.04(A).

Questions

Question

Can I use the administrative hearing process to challenge my HOA's legal authority or power to enforce a specific rule?

Short Answer

No. Challenges to an Association's corporate power to act must be brought in a court of law, not the administrative tribunal.

Detailed Answer

The Administrative Law Judge ruled that the tribunal does not have jurisdiction to hear challenges regarding the Association's 'power to act' (such as whether they have the authority to restrict parking). Under Arizona statute A.R.S. § 10-3304, these specific legal challenges regarding corporate authority must be addressed in a court of law.

Alj Quote

Petitioner may not challenge the Association’s power to act in this tribunal under A.R.S. § 10-3304. Petitioner may seek injunctive relief regarding the Association’s power to act in a court of law.

Legal Basis

A.R.S. § 10-3304

Topic Tags

  • jurisdiction
  • corporate power
  • HOA authority

Question

If I disagree with a decision, can I file a motion to amend my petition after the order has been issued?

Short Answer

No. Once a decision is rendered, the Office of Administrative Hearings cannot consider motions to amend.

Detailed Answer

The ALJ clarified that once a decision is finalized, the OAH loses the ability to take further action on the matter, meaning a Motion to Amend filed after the decision cannot be considered.

Alj Quote

The Motion to Amend the Petition cannot not be considered by the Office of Administrative Hearings (OAH) as this tribunal’s decision has already been rendered and, because of that, OAH can take no further action on the matter.

Legal Basis

Procedural Rule

Topic Tags

  • procedure
  • appeals
  • amendments

Question

Where must I file a request for a rehearing if I lose my case?

Short Answer

You must file the request with the Commissioner of the Department of Real Estate (ADRE), not the hearing office.

Detailed Answer

While the hearing takes place at the Office of Administrative Hearings (OAH), a request for a rehearing must be directed to the Arizona Department of Real Estate within 30 days of the order.

Alj Quote

Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

  • rehearing
  • procedure
  • ADRE

Question

Can the administrative tribunal issue an injunction preventing the HOA from enforcing parking restrictions on public streets?

Short Answer

Likely no, if the claim is based on the HOA lacking the 'power to act'.

Detailed Answer

The petitioner sought an order prohibiting the HOA from restricting parking on public streets. The ALJ dismissed this because the claim was fundamentally about the Association's authority (power to act), which falls outside the tribunal's jurisdiction.

Alj Quote

Petitioner asks this Court to issue an order that prohibits the Respondent from restricting parking access on public residential streets… Petitioner may seek injunctive relief regarding the Association’s power to act in a court of law.

Legal Basis

A.R.S. § 10-3304

Topic Tags

  • parking
  • injunctions
  • jurisdiction

Question

Does a petition challenging an HOA rule have to allege a specific violation of the community documents or statutes?

Short Answer

Yes. If the petition does not concern a violation of documents or statutes, it may be dismissed.

Detailed Answer

The HOA successfully argued that the petition should be dismissed because it did not allege that the HOA violated community documents or statutes, but rather challenged the HOA's authority to make rules.

Alj Quote

Therefore, the petition does not concern a violation of community documents or of any statute… IT IS ORDERED that the petition is dismissed.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • petition requirements
  • dismissal
  • violations

Case

Docket No
23F-H048-REL
Case Title
Thomas P. Hommrich vs. The Lakewood Community Association
Decision Date
2023-05-19
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I use the administrative hearing process to challenge my HOA's legal authority or power to enforce a specific rule?

Short Answer

No. Challenges to an Association's corporate power to act must be brought in a court of law, not the administrative tribunal.

Detailed Answer

The Administrative Law Judge ruled that the tribunal does not have jurisdiction to hear challenges regarding the Association's 'power to act' (such as whether they have the authority to restrict parking). Under Arizona statute A.R.S. § 10-3304, these specific legal challenges regarding corporate authority must be addressed in a court of law.

Alj Quote

Petitioner may not challenge the Association’s power to act in this tribunal under A.R.S. § 10-3304. Petitioner may seek injunctive relief regarding the Association’s power to act in a court of law.

Legal Basis

A.R.S. § 10-3304

Topic Tags

  • jurisdiction
  • corporate power
  • HOA authority

Question

If I disagree with a decision, can I file a motion to amend my petition after the order has been issued?

Short Answer

No. Once a decision is rendered, the Office of Administrative Hearings cannot consider motions to amend.

Detailed Answer

The ALJ clarified that once a decision is finalized, the OAH loses the ability to take further action on the matter, meaning a Motion to Amend filed after the decision cannot be considered.

Alj Quote

The Motion to Amend the Petition cannot not be considered by the Office of Administrative Hearings (OAH) as this tribunal’s decision has already been rendered and, because of that, OAH can take no further action on the matter.

Legal Basis

Procedural Rule

Topic Tags

  • procedure
  • appeals
  • amendments

Question

Where must I file a request for a rehearing if I lose my case?

Short Answer

You must file the request with the Commissioner of the Department of Real Estate (ADRE), not the hearing office.

Detailed Answer

While the hearing takes place at the Office of Administrative Hearings (OAH), a request for a rehearing must be directed to the Arizona Department of Real Estate within 30 days of the order.

Alj Quote

Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

  • rehearing
  • procedure
  • ADRE

Question

Can the administrative tribunal issue an injunction preventing the HOA from enforcing parking restrictions on public streets?

Short Answer

Likely no, if the claim is based on the HOA lacking the 'power to act'.

Detailed Answer

The petitioner sought an order prohibiting the HOA from restricting parking on public streets. The ALJ dismissed this because the claim was fundamentally about the Association's authority (power to act), which falls outside the tribunal's jurisdiction.

Alj Quote

Petitioner asks this Court to issue an order that prohibits the Respondent from restricting parking access on public residential streets… Petitioner may seek injunctive relief regarding the Association’s power to act in a court of law.

Legal Basis

A.R.S. § 10-3304

Topic Tags

  • parking
  • injunctions
  • jurisdiction

Question

Does a petition challenging an HOA rule have to allege a specific violation of the community documents or statutes?

Short Answer

Yes. If the petition does not concern a violation of documents or statutes, it may be dismissed.

Detailed Answer

The HOA successfully argued that the petition should be dismissed because it did not allege that the HOA violated community documents or statutes, but rather challenged the HOA's authority to make rules.

Alj Quote

Therefore, the petition does not concern a violation of community documents or of any statute… IT IS ORDERED that the petition is dismissed.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • petition requirements
  • dismissal
  • violations

Case

Docket No
23F-H048-REL
Case Title
Thomas P. Hommrich vs. The Lakewood Community Association
Decision Date
2023-05-19
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Thomas P. Hommrich (petitioner)

Respondent Side

  • Quinten Cupps (respondent attorney)
    vf-law.com
    Esq.

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal

Barbara J. Ryan v. Dragoon Mountain Ranch Phase I Meadows Property

Posted on by

Case Summary

Case ID 23F-H035-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-04-17
Administrative Law Judge Velva Moses-Thompson
Outcome The Petitioner was deemed the prevailing party. The ALJ found the Respondent violated Bylaw section 7.1 by failing to hold an annual members meeting in 2021 and 2022. Respondent was ordered to refund the $500 filing fee and ensure future compliance with Bylaw section 7.1. No civil penalty was imposed.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Barbara J. Ryan Counsel —
Respondent Dragoon Mountain Ranch Phase I Meadows Property Owners Association Counsel Jody Corrales, Esq.

Alleged Violations

A.R.S. § 33-1804, A.R.S. § 33-1318, Respondent’s Bylaws sections 7.1, 7.2, 12.1 – 12.3

Outcome Summary

The Petitioner was deemed the prevailing party. The ALJ found the Respondent violated Bylaw section 7.1 by failing to hold an annual members meeting in 2021 and 2022. Respondent was ordered to refund the $500 filing fee and ensure future compliance with Bylaw section 7.1. No civil penalty was imposed.

Why this result: The violation (failure to hold an annual member meeting) was undisputed by the Respondent, and Respondent's counsel conceded there were no legal defenses to this fact.

Key Issues & Findings

Failure to hold an annual members meeting in two years and ignoring members written petitions and requests for a meeting

It was undisputed that the Respondent HOA failed to hold an annual meeting of the members from March 2020 to the time of the hearing. The ALJ found by a preponderance of the evidence that the Respondent violated section 7.1 of its Bylaws.

Orders: Respondent must pay the Petitioner's filing fee of $500.00 within thirty days and is directed to comply with section 7.1 of its Bylaws going forward. No civil penalty was found appropriate.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1804
  • A.R.S. § 33-1318
  • Respondent’s Bylaws sections 7.1
  • Respondent’s Bylaws sections 7.2
  • Respondent’s Bylaws sections 12.1 – 12.3
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. §32-2199.02(B)
  • A.R.S. § 41-1092.09

Analytics Highlights

Topics: HOA Annual Meeting, Bylaws Violation, Filing Fee Refund, Administrative Hearing, Planned Community
Additional Citations:

  • A.R.S. § 33-1804
  • A.R.S. § 33-1318
  • Respondent’s Bylaws sections 7.1
  • Respondent’s Bylaws sections 7.2
  • Respondent’s Bylaws sections 12.1 – 12.3
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. §32-2199.02(B)
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

23F-H035-REL Decision – 1043132.pdf

Uploaded 2026-04-24T12:02:56 (55.9 KB)

23F-H035-REL Decision – 1048244.pdf

Uploaded 2026-04-24T12:03:02 (37.7 KB)

23F-H035-REL Decision – 1049662.pdf

Uploaded 2026-04-24T12:03:16 (18.7 KB)

23F-H035-REL Decision – 1049665.pdf

Uploaded 2026-04-24T12:03:31 (23.9 KB)

23F-H035-REL Decision – 1049666.pdf

Uploaded 2026-04-24T12:03:40 (87.4 KB)

23F-H035-REL Decision – 1043132.pdf

Uploaded 2026-01-23T17:54:21 (55.9 KB)

23F-H035-REL Decision – 1048244.pdf

Uploaded 2026-01-23T17:54:24 (37.7 KB)

23F-H035-REL Decision – 1049662.pdf

Uploaded 2026-01-23T17:54:28 (18.7 KB)

23F-H035-REL Decision – 1049665.pdf

Uploaded 2026-01-23T17:54:31 (23.9 KB)

23F-H035-REL Decision – 1049666.pdf

Uploaded 2026-01-23T17:54:36 (87.4 KB)

This is a summary of the administrative hearing held on March 27, 2023, before Administrative Law Judge (ALJ) Velva Moses-Thompson at the Office of Administrative Hearings (OAH).

Key Facts and Parties

The case, *In the Matter of Barbara J. Ryan vs. Dragoon Mountain Ranch Phase I Meadows Property Owners Association*, Docket No. 23F-H035-REL, involved Petitioner Barbara J. Ryan (Petitioner) and the Respondent Homeowners Association (HOA). The Petitioner paid $500.00 to file the dispute. The Respondent was represented by attorney Jody Corrales.

Main Issue and Core Dispute

The issue set for determination was whether the Respondent HOA violated Arizona Revised Statutes (A.R.S. § 33-1804 and § 33-1318) and the HOA’s Bylaws (specifically Article 7.1) by failing to hold an annual member meeting in two years.

Key Arguments and Proceedings

  1. Petitioner’s Position: The Petitioner argued that the Respondent's Board of Directors had failed to hold an annual member meeting since February 2020, a period exceeding three years. This failure violated both the association's bylaws and Arizona statutes, despite multiple requests from members.
  2. Undisputed Fact: The Respondent's counsel stipulated and confirmed that there had been no annual members meeting held since February 2020.
  3. Respondent’s Defense: The Respondent's primary defense for the lack of meetings was attributed to ongoing legal turbulence, including contentious state court litigation (initiated around September 2021) and a subsequent Chapter 11 bankruptcy filing (August 25, 2022). The HOA argued that this reorganization process justified the delay. The Respondent also asserted that a vote by written ballot for directors in February 2021 served the same function as an annual meeting for that year.
  4. ALJ Determination on Jurisdiction: The ALJ strictly limited the hearing's scope to the single paid issue concerning the failure to hold the required annual meeting, explicitly rejecting discussion on related issues such as board elections, removal proceedings, or the details of the bankruptcy, stating these matters were outside the ALJ's jurisdiction.
  5. Legal Concession: Ultimately, the Respondent's counsel conceded that they had no legal defenses to the fact that they failed to hold the annual meeting.

Outcome and Final Decision

The Administrative Law Judge issued the decision on April 17, 2023:

  1. Violation Found: The ALJ concluded that the preponderance of the evidence established that the Respondent violated section 7.1 of its Bylaws by failing to hold an annual meeting of the members in 2021 and 2022.
  2. Prevailing Party: Petitioner Barbara J. Ryan was deemed the prevailing party.
  3. Remedy: The Respondent was ordered to pay the Petitioner’s filing fee of $500.00 within thirty days.
  4. Compliance Order: The Respondent was further directed to comply with the requirements of section 7.1 of its Bylaws going forward.
  5. Penalty: No civil penalty was found appropriate in this matter.

Questions

Question

Can an HOA skip annual member meetings due to ongoing litigation or bankruptcy proceedings?

Short Answer

No. Legal defenses based on external issues like litigation or bankruptcy may not validate the failure to hold meetings required by bylaws.

Detailed Answer

In this case, the HOA attempted to argue that bankruptcy and litigation prevented them from holding meetings. However, the ALJ noted that the Respondent's own counsel eventually admitted there were no legal defenses for failing to hold the meeting, and the failure was ruled a violation.

Alj Quote

Respondent’s counsel stated that there were no legal defenses to Respondent’s failure to hold a board meeting.

Legal Basis

Bylaws Section 7.1

Topic Tags

  • annual meetings
  • HOA defenses
  • bankruptcy

Question

If I include multiple complaints in my petition but only pay the fee for one, will the judge hear all of them?

Short Answer

No. The Administrative Law Judge will likely only address the specific issue for which the filing fee was paid.

Detailed Answer

The petitioner included allegations regarding failure to respond to requests for special meetings and removal of directors, but because she only paid the $500 fee for one issue (failure to hold annual meetings), the other allegations were not addressed in the decision.

Alj Quote

The petition included other allegations including, but not limited to, the Board failure to respond to requests for a special meeting of members and/or a meeting to remove directors from the Board. However, Petitioner has paid for only one issue.

Legal Basis

Procedural Rule

Topic Tags

  • filing fees
  • petition scope
  • administrative procedure

Question

Does the failure to hold an annual meeting automatically invalidate the HOA's corporate actions?

Short Answer

Not necessarily. Bylaws often contain specific provisions stating that the failure to hold a meeting does not affect the validity of corporate actions.

Detailed Answer

The decision cites a specific section of the HOA's bylaws which explicitly states that missing the fixed time for an annual meeting does not invalidate corporate actions.

Alj Quote

The failure to hold an annual or regular meeting at a time stated in or fixed in accordance with the Bylaws does not affect the validity of any corporate action.

Legal Basis

Bylaws Section 7.1

Topic Tags

  • corporate actions
  • validity
  • bylaws

Question

What standard of proof must a homeowner meet to win a hearing against their HOA?

Short Answer

The homeowner must prove the violation by a 'preponderance of the evidence'.

Detailed Answer

The burden is on the petitioner to show that their contention is 'more probably true than not.' It is not based on the number of witnesses but on the convincing force of the evidence.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated on its CC&Rs by a preponderance of the evidence.

Legal Basis

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

Topic Tags

  • burden of proof
  • legal standard
  • evidence

Question

Can I be reimbursed for my filing fee if I win my case against the HOA?

Short Answer

Yes. The ALJ has the authority to order the HOA to pay the filing fee back to the prevailing homeowner.

Detailed Answer

After ruling in favor of the petitioner regarding the failure to hold meetings, the judge ordered the HOA to pay the petitioner the $500 filing fee within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent Dragoon Mountain Ranch Phase I Meadows Property Owners Association must pay to Petitioner her filing fee of $500.00 within thirty days of receipt of this Order.

Legal Basis

Order of the ALJ

Topic Tags

  • reimbursement
  • filing fees
  • penalties

Question

Will the HOA always be fined a civil penalty if they are found to have violated the bylaws?

Short Answer

No. The judge may decide that a civil penalty is not appropriate even if a violation is found.

Detailed Answer

Although the HOA was found to have violated the bylaws by not holding meetings for two years, the judge explicitly declined to assess a civil penalty in this specific matter.

Alj Quote

No Civil Penalty is found to be appropriate in this matter.

Legal Basis

Judicial Discretion

Topic Tags

  • civil penalty
  • fines
  • enforcement

Case

Docket No
23F-H035-REL
Case Title
Barbara J. Ryan vs Dragoon Mountain Ranch Phase I Meadows Property Owners Association
Decision Date
2023-04-17
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can an HOA skip annual member meetings due to ongoing litigation or bankruptcy proceedings?

Short Answer

No. Legal defenses based on external issues like litigation or bankruptcy may not validate the failure to hold meetings required by bylaws.

Detailed Answer

In this case, the HOA attempted to argue that bankruptcy and litigation prevented them from holding meetings. However, the ALJ noted that the Respondent's own counsel eventually admitted there were no legal defenses for failing to hold the meeting, and the failure was ruled a violation.

Alj Quote

Respondent’s counsel stated that there were no legal defenses to Respondent’s failure to hold a board meeting.

Legal Basis

Bylaws Section 7.1

Topic Tags

  • annual meetings
  • HOA defenses
  • bankruptcy

Question

If I include multiple complaints in my petition but only pay the fee for one, will the judge hear all of them?

Short Answer

No. The Administrative Law Judge will likely only address the specific issue for which the filing fee was paid.

Detailed Answer

The petitioner included allegations regarding failure to respond to requests for special meetings and removal of directors, but because she only paid the $500 fee for one issue (failure to hold annual meetings), the other allegations were not addressed in the decision.

Alj Quote

The petition included other allegations including, but not limited to, the Board failure to respond to requests for a special meeting of members and/or a meeting to remove directors from the Board. However, Petitioner has paid for only one issue.

Legal Basis

Procedural Rule

Topic Tags

  • filing fees
  • petition scope
  • administrative procedure

Question

Does the failure to hold an annual meeting automatically invalidate the HOA's corporate actions?

Short Answer

Not necessarily. Bylaws often contain specific provisions stating that the failure to hold a meeting does not affect the validity of corporate actions.

Detailed Answer

The decision cites a specific section of the HOA's bylaws which explicitly states that missing the fixed time for an annual meeting does not invalidate corporate actions.

Alj Quote

The failure to hold an annual or regular meeting at a time stated in or fixed in accordance with the Bylaws does not affect the validity of any corporate action.

Legal Basis

Bylaws Section 7.1

Topic Tags

  • corporate actions
  • validity
  • bylaws

Question

What standard of proof must a homeowner meet to win a hearing against their HOA?

Short Answer

The homeowner must prove the violation by a 'preponderance of the evidence'.

Detailed Answer

The burden is on the petitioner to show that their contention is 'more probably true than not.' It is not based on the number of witnesses but on the convincing force of the evidence.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated on its CC&Rs by a preponderance of the evidence.

Legal Basis

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

Topic Tags

  • burden of proof
  • legal standard
  • evidence

Question

Can I be reimbursed for my filing fee if I win my case against the HOA?

Short Answer

Yes. The ALJ has the authority to order the HOA to pay the filing fee back to the prevailing homeowner.

Detailed Answer

After ruling in favor of the petitioner regarding the failure to hold meetings, the judge ordered the HOA to pay the petitioner the $500 filing fee within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent Dragoon Mountain Ranch Phase I Meadows Property Owners Association must pay to Petitioner her filing fee of $500.00 within thirty days of receipt of this Order.

Legal Basis

Order of the ALJ

Topic Tags

  • reimbursement
  • filing fees
  • penalties

Question

Will the HOA always be fined a civil penalty if they are found to have violated the bylaws?

Short Answer

No. The judge may decide that a civil penalty is not appropriate even if a violation is found.

Detailed Answer

Although the HOA was found to have violated the bylaws by not holding meetings for two years, the judge explicitly declined to assess a civil penalty in this specific matter.

Alj Quote

No Civil Penalty is found to be appropriate in this matter.

Legal Basis

Judicial Discretion

Topic Tags

  • civil penalty
  • fines
  • enforcement

Case

Docket No
23F-H035-REL
Case Title
Barbara J. Ryan vs Dragoon Mountain Ranch Phase I Meadows Property Owners Association
Decision Date
2023-04-17
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Barbara J. Ryan (petitioner)
    Appeared on behalf of herself
  • Bill Nethery (witness)
    Meadows Property Association member
    Listed as a witness on Petitioner's petition
  • Damon Rosen (applicant for board vacancy)
    Dragoon Mountain Ranch Phase I Meadows Property Owners Association member
    Individual who submitted a resume to serve on the board

Respondent Side

  • Jody A. Corrales (HOA attorney)
    DeConcini McDonald Yetwin & Lacy
    Represented the Respondent, Dragoon Mountain Ranch Phase I Meadows Property Owners Association
  • Dorothy Marine (board member/witness)
    Dragoon Mountain Ranch Phase I Meadows Property Owners Association
    Director and President of the board; testified at hearing
  • Cindy Celeste (board member)
    Dragoon Mountain Ranch Phase I Meadows Property Owners Association
    Director
  • Jim Kasa (board member)
    Dragoon Mountain Ranch Phase I Meadows Property Owners Association
    Director

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
    Also introduced herself as Sales Thompson
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • labril (ADRE staff)
    Arizona Department of Real Estate

Other Participants

  • Gail Olia (former board member)
    Dragoon Mountain Ranch Phase I Meadows Property Owners Association
    Director who resigned; also referred to as Jill Olia
  • Sorl Tate (homeowner)
    Dragoon Mountain Ranch Phase I Meadows Property Owners Association member
    Individual whose prior contentious state court proceeding against the HOA contributed to the bankruptcy

Daniel Mayer v. Scottsdale North Homeowners Association, Inc.

Posted on by

Case Summary

Case ID 23F-H020-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-02-17
Administrative Law Judge Adam D. Stone
Outcome The Petitioner was deemed the prevailing party after establishing that the Respondent HOA violated A.R.S. § 33-1812 by improperly combining two separate expenditure proposals (roadway preservation and gate replacement) into a single vote on a ballot, failing to provide an opportunity to vote on each action separately. Respondent was ordered to refund the $500.00 filing fee and pay a $500.00 civil penalty.
Filing Fees Refunded $500.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Daniel Mayer Counsel —
Respondent Scottsdale North Homeowners Association, Inc. Counsel —

Alleged Violations

A.R.S. § 33-1812

Outcome Summary

The Petitioner was deemed the prevailing party after establishing that the Respondent HOA violated A.R.S. § 33-1812 by improperly combining two separate expenditure proposals (roadway preservation and gate replacement) into a single vote on a ballot, failing to provide an opportunity to vote on each action separately. Respondent was ordered to refund the $500.00 filing fee and pay a $500.00 civil penalty.

Key Issues & Findings

Combining two separate proposed actions into a single vote action on a ballot.

The Respondent HOA combined two separate proposed expenditures ($30,000 total for roadway asset preservation and common area gate replacement) into one vote on a ballot sent to homeowners, violating statutory requirements that each proposed action must be voted upon separately.

Orders: Respondent must abide by A.R.S. § 33-1812; Respondent must refund the Petitioner's $500.00 filing fee; Respondent must pay a $500.00 civil penalty to the Department of Real Estate.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1812
  • A.R.S. § 10-3708
  • A.R.S. § 33-1812(A)(1)

Analytics Highlights

Topics: HOA Ballot, Combined Vote, Reserve Funds Access, Statutory Violation
Additional Citations:

  • A.R.S. § 33-1812
  • A.R.S. § 10-3708
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092.07
  • A.R.S. § 41-1092.09
  • A.A.C. R2-19-119

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

23F-H020-REL Decision – 1031122.pdf

Uploaded 2026-04-24T11:59:44 (100.0 KB)

23F-H020-REL Decision – 1038504.pdf

Uploaded 2026-04-24T11:59:48 (54.8 KB)

23F-H020-REL Decision – 1031122.pdf

Uploaded 2026-01-23T17:52:58 (100.0 KB)

23F-H020-REL Decision – 1038504.pdf

Uploaded 2026-01-23T17:53:01 (54.8 KB)

This administrative hearing, docket number 23F-H020-REL, addressed the petition filed by Daniel Mayor against Scottsdale North Homeowners Association, Inc. (SNHA), concerning alleged violations of community documents and Arizona Revised Statute (A.R.S.) § 33-1812. Administrative Law Judge (ALJ) Adam D. Stone presided over the hearing on February 3, 2023.

Key Facts and Main Issues

The core issue centered on a ballot sent to homeowners on May 18, 2022, seeking approval to access $30,000 from the reserve fund for two distinct capital improvement projects: roadway asset preservation/resurfacing and common area gate replacement.

  1. Violation of Separate Voting Requirement: Petitioner Daniel Mayor argued that the ballot improperly combined these two separate "proposed actions" into a single yes/no vote, failing to provide members the opportunity to vote for or against each expenditure individually. Mayor requested that the vote be recalled and recast properly.
  2. Applicability of Statute: Respondent SNHA, represented by Board President Andrew Chambers, admitted the projects were combined but argued that A.R.S. § 33-1812 (which requires separate votes for separate actions) did not apply. SNHA contended the statute only governs votes taken at formal meetings, whereas this vote was conducted via mail, email, and fax prior to the meeting where results were announced. SNHA also noted that 91% (32 of 35) of responding homeowners approved the combined expenditure, and the projects were subsequently completed.

Legal Points and Decision

The ALJ determined that the cover letter and prior discussions clearly indicated that the roadway resurfacing and gate replacement were two separate projects for which SNHA was seeking approval.

The ALJ rejected the Association's defense, concluding that the ballot was improper because it failed to allow separate votes. The decision highlighted that A.R.S. § 33-1812, even when referring to votes taken outside of a meeting, directs attention to A.R.S. § 10-3708 (Arizona Nonprofit Corporation Act). This statute mandates that written ballots must set forth each proposed action and provide an opportunity to vote for or against each.

Outcome

The ALJ found that the Petitioner established, by a preponderance of the evidence, that SNHA acted in violation of A.R.S. § 33-1812(A)(1) and the community documents.

The ALJ noted that A.R.S. § 32-2199.02 did not grant the authority to order the projects rescinded or the vote nullified, but only permitted ordering parties to abide by the statute and levying civil penalties.

  • Prevailing Party: Daniel Mayor was deemed the prevailing party.
  • Filing Fee: SNHA was ordered to pay the Petitioner his $500.00 filing fee.
  • Civil Penalty: Due to concern that this type of improper ballot could be used in the future, the ALJ levied a $500.00 Civil Penalty. (A subsequent correction order specified that this civil penalty must be paid to the Department of Real Estate).

Questions

Question

Can my HOA combine multiple capital improvement projects into a single 'Yes' or 'No' vote?

Short Answer

No. The HOA must allow homeowners to vote for or against each proposed action separately.

Detailed Answer

Even if the projects are related or presented in the same letter, the ballot itself must provide an opportunity to vote on each specific expenditure or project individually. Combining them into one vote violates Arizona statutes.

Alj Quote

Thus, the tribunal finds the ballot improper because it did not contain the opportunity to vote on each separate proposal.

Legal Basis

A.R.S. § 33-1812(A)(1)-(2)

Topic Tags

  • voting
  • ballots
  • assessments

Question

If the HOA conducts a vote by mail or email rather than at a live meeting, do they still have to list voting items separately?

Short Answer

Yes. The requirement to list each proposed action separately applies to absentee ballots and written ballots used without a meeting.

Detailed Answer

The ALJ rejected the argument that voting requirements only apply to in-person meetings. Statutes governing both planned communities and nonprofit corporations require that written ballots set forth each proposed action.

Alj Quote

According to that statute, the ballots still must set for each action and provide an opportunity to vote for or against each action. … Therefore, this ballot runs afoul of A.R.S. § 33-1812.

Legal Basis

A.R.S. § 33-1812; A.R.S. § 10-3708

Topic Tags

  • absentee ballots
  • voting
  • mail-in voting

Question

Can the Administrative Law Judge force the HOA to undo a project (like a road repair) if the vote was illegal?

Short Answer

Generally, no. The ALJ lacks the statutory authority to order projects rescinded once completed.

Detailed Answer

While the ALJ can determine that a violation occurred and levy penalties, they cannot order the association to 'un-do' the physical work or rescind the project.

Alj Quote

The Administrative Law Judge does not have the authority under the A.R.S. § 32-2199.02 to order the projects rescinded…

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • remedies
  • powers of ALJ
  • construction

Question

What is the standard of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (Petitioner) must prove that their contention is 'more probably true than not.'

Alj Quote

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

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • legal standards
  • burden of proof
  • evidence

Question

Can the HOA claim that their specific bylaws or CC&Rs override state laws regarding ballot formats?

Short Answer

No. The relevant state statute explicitly overrides community documents regarding absentee ballot requirements.

Detailed Answer

The statute begins with 'Notwithstanding any provision in the community documents,' meaning the state law requirements for ballots take precedence over the HOA's internal rules.

Alj Quote

A.R.S. § 33-1812 provides… 'Notwithstanding any provision in the community documents… any action taken… shall comply with all of the following…'

Legal Basis

A.R.S. § 33-1812(A)

Topic Tags

  • governing documents
  • statutory interpretation
  • supremacy of law

Question

If I win my case against the HOA, can I get my filing fee back?

Short Answer

Yes. The ALJ can order the HOA to reimburse the homeowner for the filing fee.

Detailed Answer

In this decision, the HOA was ordered to pay the $500 filing fee directly to the Petitioner.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Order of the ALJ

Topic Tags

  • remedies
  • fees
  • penalties

Question

Does a majority vote of the homeowners cure a defective ballot?

Short Answer

No. Even if the vast majority of homeowners approved the spending, the ballot can still be ruled a violation.

Detailed Answer

The ALJ noted that although most homeowners approved the proposal, the violation still stood because allowing such ballots would leave 'virtually no remedy' for future procedural violations.

Alj Quote

In this case, although the vast majority of homeowners approved the proposals, the Administrative Law Judge is concerned that this type of ballot could be used in the future, leaving virtually no remedy.

Legal Basis

A.R.S. § 33-1812

Topic Tags

  • voting results
  • procedural violations
  • compliance

Case

Docket No
23F-H020-REL
Case Title
Daniel Mayer vs Scottsdale North Homeowners Association, Inc.
Decision Date
2023-02-17
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA combine multiple capital improvement projects into a single 'Yes' or 'No' vote?

Short Answer

No. The HOA must allow homeowners to vote for or against each proposed action separately.

Detailed Answer

Even if the projects are related or presented in the same letter, the ballot itself must provide an opportunity to vote on each specific expenditure or project individually. Combining them into one vote violates Arizona statutes.

Alj Quote

Thus, the tribunal finds the ballot improper because it did not contain the opportunity to vote on each separate proposal.

Legal Basis

A.R.S. § 33-1812(A)(1)-(2)

Topic Tags

  • voting
  • ballots
  • assessments

Question

If the HOA conducts a vote by mail or email rather than at a live meeting, do they still have to list voting items separately?

Short Answer

Yes. The requirement to list each proposed action separately applies to absentee ballots and written ballots used without a meeting.

Detailed Answer

The ALJ rejected the argument that voting requirements only apply to in-person meetings. Statutes governing both planned communities and nonprofit corporations require that written ballots set forth each proposed action.

Alj Quote

According to that statute, the ballots still must set for each action and provide an opportunity to vote for or against each action. … Therefore, this ballot runs afoul of A.R.S. § 33-1812.

Legal Basis

A.R.S. § 33-1812; A.R.S. § 10-3708

Topic Tags

  • absentee ballots
  • voting
  • mail-in voting

Question

Can the Administrative Law Judge force the HOA to undo a project (like a road repair) if the vote was illegal?

Short Answer

Generally, no. The ALJ lacks the statutory authority to order projects rescinded once completed.

Detailed Answer

While the ALJ can determine that a violation occurred and levy penalties, they cannot order the association to 'un-do' the physical work or rescind the project.

Alj Quote

The Administrative Law Judge does not have the authority under the A.R.S. § 32-2199.02 to order the projects rescinded…

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • remedies
  • powers of ALJ
  • construction

Question

What is the standard of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (Petitioner) must prove that their contention is 'more probably true than not.'

Alj Quote

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

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • legal standards
  • burden of proof
  • evidence

Question

Can the HOA claim that their specific bylaws or CC&Rs override state laws regarding ballot formats?

Short Answer

No. The relevant state statute explicitly overrides community documents regarding absentee ballot requirements.

Detailed Answer

The statute begins with 'Notwithstanding any provision in the community documents,' meaning the state law requirements for ballots take precedence over the HOA's internal rules.

Alj Quote

A.R.S. § 33-1812 provides… 'Notwithstanding any provision in the community documents… any action taken… shall comply with all of the following…'

Legal Basis

A.R.S. § 33-1812(A)

Topic Tags

  • governing documents
  • statutory interpretation
  • supremacy of law

Question

If I win my case against the HOA, can I get my filing fee back?

Short Answer

Yes. The ALJ can order the HOA to reimburse the homeowner for the filing fee.

Detailed Answer

In this decision, the HOA was ordered to pay the $500 filing fee directly to the Petitioner.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Order of the ALJ

Topic Tags

  • remedies
  • fees
  • penalties

Question

Does a majority vote of the homeowners cure a defective ballot?

Short Answer

No. Even if the vast majority of homeowners approved the spending, the ballot can still be ruled a violation.

Detailed Answer

The ALJ noted that although most homeowners approved the proposal, the violation still stood because allowing such ballots would leave 'virtually no remedy' for future procedural violations.

Alj Quote

In this case, although the vast majority of homeowners approved the proposals, the Administrative Law Judge is concerned that this type of ballot could be used in the future, leaving virtually no remedy.

Legal Basis

A.R.S. § 33-1812

Topic Tags

  • voting results
  • procedural violations
  • compliance

Case

Docket No
23F-H020-REL
Case Title
Daniel Mayer vs Scottsdale North Homeowners Association, Inc.
Decision Date
2023-02-17
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Daniel Mayer (petitioner)
    Appeared on his own behalf
  • Mr. D'Angelo (witness)
    Petitioner's husband

Respondent Side

  • Sandy Chambers (board president)
    Scottsdale North Homeowners Association, Inc.
    Appeared on behalf of Respondent; also referred to as 'Andrew Chambers' and 'Miss Chambers' in the transcript

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Miranda (OAH staff)
    OAH
    Front desk staff mentioned by ALJ
  • James Knupp (commissioner)
    ADRE
    Acting Commissioner listed on initial transmittal
  • Susan Nicolson (commissioner)
    ADRE
  • AHansen (ADRE staff)
    ADRE
    Transmittal recipient
  • vnunez (ADRE staff)
    ADRE
    Transmittal recipient
  • labril (ADRE staff)
    ADRE
    Transmittal recipient
  • djones (ADRE staff)
    ADRE
    Transmittal recipient

Other Participants

  • jzipprich (property manager)
    Desert Management
    Email contact for Respondent HOA

Pamela McKinney v. Valle Vista Property Owners Association

Posted on by

Case Summary

Case ID 23F-H019-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-01-31
Administrative Law Judge Sondra J. Vanella
Outcome The Administrative Law Judge dismissed the petition, finding that the Respondent HOA's Articles of Incorporation had been previously amended to be perpetual (1994, 1999) and that the CLRs automatically renew for an additional 25 years without requiring a homeowner vote, provided no modifications or changes are made.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Pamela McKinney Counsel —
Respondent Valle Vista Property Owners Association Counsel Alan Meda

Alleged Violations

Articles of Incorporation Article 8, Covenants, Limitations & Restrictions Article 19 Sec. A, Covenants, Limitations & Restrictions Article 19 Sec. B

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Respondent HOA's Articles of Incorporation had been previously amended to be perpetual (1994, 1999) and that the CLRs automatically renew for an additional 25 years without requiring a homeowner vote, provided no modifications or changes are made.

Why this result: Petitioner failed to meet the burden of proof that Respondent violated the Articles of Incorporation or the CLRs, as the evidence showed the corporation's existence was perpetual and the CLRs' automatic renewal was permissible without a vote.

Key Issues & Findings

Expiration of HOA Charter and unlawful extension of CLRs by Board resolution without member vote

Petitioner alleged the HOA's charter and CLRs expired after 50 years (2022) and that the Board unlawfully extended the CLRs for 25 years via a resolution (Resolution/Memorandum of September 27, 2022) without the required vote of the co-owners. The ALJ found that the Articles of Incorporation were perpetually extended by amendments in 1994 and 1999, and the CLRs automatically renewed without a vote because no modifications were made.

Orders: Petitioner’s Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Articles of Incorporation (1972)
  • Articles of Amendment (1994)
  • Articles of Amendment (1999)
  • CLRs Unit One (1972)
  • Resolution 092722 (Sept 27, 2022)

Analytics Highlights

Topics: HOA Charter Expiration, CLRs Renewal, Perpetual Existence, Amendment Vote, HOA Board Authority, Arizona Real Estate Statute
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.R.S. § 41-1092.09

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

23F-H019-REL Decision – 1030077.pdf

Uploaded 2026-04-24T11:59:33 (140.1 KB)

23F-H019-REL Decision – 1030077.pdf

Uploaded 2026-01-23T17:52:48 (140.1 KB)

This summary addresses the hearing proceedings, key arguments, and final decision of the legal case, drawing on the provided sources.

***

Concise Summary of Administrative Hearing: Pamela McKinney v. Valle Vista Property Owners Association

Key Facts and Proceedings

The administrative hearing was held on January 17, 2023 (Docket No. 23F-H 019- REL) before Administrative Law Judge (ALJ) Sondra J. Vanella. Petitioner Pamela McKinney appeared on her own behalf, alleging that the Valle Vista Property Owners Association (Respondent) violated community documents. The burden of proof rested upon the Petitioner to establish the alleged violations by a preponderance of the evidence.

The dispute centered on the Respondent's use of a Resolution/Memorandum of September 27, 2022 to extend the Declarations of Covenants, Limitations, and Restrictions (CLRs) for another 25 years without an approval vote from the Council of co-owners. The Petitioner, an owner in Unit One, contended that the Articles of Incorporation (the association charter) had expired after 50 years (in May 2022 for Unit One) and that the extension of the CLRs required a vote.

Main Issues and Legal Arguments

The core issue determined by the ALJ was whether the Respondent violated Article 8 of the Articles of Incorporation (AOI) and Article 19 of the CLRs by attempting to extend the CLRs via resolution without a member vote.

Petitioner's Key Arguments:

  1. AOI Expiration: Petitioner argued that the original AOI, dated 1972, specified a 25-year existence with the power of one renewal, meaning the charter expired after 50 years (in 2022). If the AOI expired, the association must form a new corporation.
  2. CLRs Require Vote for Extension: Petitioner asserted that while the CLRs provide for an automatic 25-year renewal, this renewal constitutes a change in duration, and thus requires the approval of 66 2/3% or more of the owners of record, as stated in the CLRs (Section 19(a) and (b)).
  3. Unlawful Amendments: McKinney testified she was unaware of any amendments extending the AOI and argued that even if they were recorded, they might be unlawful if done without the requisite member vote (which required 75% approval for amendments).

Respondent's Key Arguments:

  1. Perpetual Existence: Respondent successfully demonstrated that the Articles of Incorporation (AOI) had been officially amended twice—on November 18, 1994, and January 15, 1999—specifically to declare the duration of the corporation shall be perpetual.
  2. Automatic Renewal of CLRs: Respondent contended that the CLRs for all units automatically renew every 25 years without a vote. A vote is only required if the association attempts to make modifications or changes to the CLRs.
  3. Resolution Purpose: Respondent explained that the September 27, 2022 Resolution was simply recorded to reflect the automatic renewal of the CLRs and contained no amendments or modifications. Failure to renew would cause the loss of valuable common assets (valued at approximately $2.5 million).

Final Decision and Outcome

The ALJ issued the decision on January 31, 2023. The ALJ found that the Petitioner failed to meet her burden of proof by a preponderance of the evidence.

The legal conclusions were:

  1. The Respondent successfully established that the Articles of Incorporation had been amended in 1994 and 1999 to extend the duration perpetually.
  2. The automatic renewal of the CLRs does not constitute a modification/change that required a vote of the homeowners under the governing documents.

Therefore, the Respondent did not violate Article 8 of the AOI or Article 19 of the CLRs when it passed the resolution extending the CLRs.

The final order stated that the Petitioner's Petition was dismissed.

Questions

Question

If the CC&Rs (or CLRs) include an automatic renewal clause, does the HOA board require a homeowner vote to extend them?

Short Answer

No. If the documents allow for automatic renewal and no other changes are made, a vote is not required because renewal is not considered a modification.

Detailed Answer

The ALJ determined that if the governing documents provide for automatic renewal for specific periods (e.g., 25 years), the simple act of renewing does not constitute a 'change' or 'modification' that would trigger a voting requirement. A vote is generally only required if the text of the documents is actually being altered.

Alj Quote

Petitioner failed to establish by a preponderance of the evidence that any changes or modifications were made to the CLRs, and the Administrative Law Judge concludes that the automatic renewal of the CLRs does not constitute a modification/change that required a vote of the homeowners.

Legal Basis

Conclusion of Law 4

Topic Tags

  • CC&R Renewal
  • Voting Rights
  • Governing Documents

Question

Who bears the burden of proof when a homeowner files a petition against their HOA?

Short Answer

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

Detailed Answer

In an administrative hearing, the person filing the complaint must prove their case. The HOA does not initially have to prove they are innocent; the homeowner must prove the HOA committed the violation.

Alj Quote

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

Legal Basis

Conclusion of Law 2; A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • Legal Procedure
  • Burden of Proof

Question

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

Short Answer

It means the claim is 'more probably true than not.'

Detailed Answer

The standard is not 'beyond a reasonable doubt' (like in criminal court). Instead, it is based on the greater weight of the evidence, which must be sufficient to incline a fair mind to one side rather than the other.

Alj Quote

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

Legal Basis

Conclusion of Law 3

Topic Tags

  • Legal Standards
  • Evidence

Question

Can an HOA amend its Articles of Incorporation to exist perpetually if they originally had an expiration date?

Short Answer

Yes, an HOA can amend its Articles to extend its duration to be perpetual.

Detailed Answer

The decision upheld the validity of previous amendments where the HOA changed its corporate duration from a fixed term (e.g., 25 years) to 'perpetual.'

Alj Quote

Respondent amended its Articles of Incorporation, Section VIII, on November 18, 1994, and again on January 15, 1999, which extended the duration of the Articles of Incorporation perpetually.

Legal Basis

Findings of Fact 10-12; Conclusion of Law 4

Topic Tags

  • Corporate Charter
  • Amendments
  • Articles of Incorporation

Question

Where can an Arizona homeowner file a dispute regarding violations of community documents?

Short Answer

A petition can be filed with the Arizona Department of Real Estate (ADRE).

Detailed Answer

Arizona law allows homeowners or associations to file a petition with the Department regarding violations of the documents or statutes regulating planned communities. These are then heard by the Office of Administrative Hearings.

Alj Quote

Arizona statute permits an owner or a planned community organization to file a petition with the Department for a hearing concerning violations of planned community documents or violations of statutes that regulate planned communities.

Legal Basis

Conclusion of Law 1; A.R.S. § 32-2199

Topic Tags

  • Dispute Resolution
  • ADRE
  • Jurisdiction

Question

Does a lack of knowledge about old amendments invalidate them?

Short Answer

No. Even if a current homeowner was unaware of amendments filed decades ago, they are still binding if properly recorded.

Detailed Answer

In this case, the petitioner was unaware of amendments from 1994 and 1999 until the hearing, but the ALJ still relied on those documents to determine that the corporation had not expired.

Alj Quote

Petitioner was not aware of the 1994 and 1999 amendments to the Articles of Incorporation until hearing… The credible and probative evidence of record established that Respondent amended its Articles of Incorporation… which extended the duration of the Articles of Incorporation perpetually.

Legal Basis

Findings of Fact 13; Conclusion of Law 4

Topic Tags

  • Record Keeping
  • Constructive Notice
  • Amendments

Case

Docket No
23F-H019-REL
Case Title
Pamela McKinney v. Valle Vista Property Owners Association
Decision Date
2023-01-31
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

If the CC&Rs (or CLRs) include an automatic renewal clause, does the HOA board require a homeowner vote to extend them?

Short Answer

No. If the documents allow for automatic renewal and no other changes are made, a vote is not required because renewal is not considered a modification.

Detailed Answer

The ALJ determined that if the governing documents provide for automatic renewal for specific periods (e.g., 25 years), the simple act of renewing does not constitute a 'change' or 'modification' that would trigger a voting requirement. A vote is generally only required if the text of the documents is actually being altered.

Alj Quote

Petitioner failed to establish by a preponderance of the evidence that any changes or modifications were made to the CLRs, and the Administrative Law Judge concludes that the automatic renewal of the CLRs does not constitute a modification/change that required a vote of the homeowners.

Legal Basis

Conclusion of Law 4

Topic Tags

  • CC&R Renewal
  • Voting Rights
  • Governing Documents

Question

Who bears the burden of proof when a homeowner files a petition against their HOA?

Short Answer

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

Detailed Answer

In an administrative hearing, the person filing the complaint must prove their case. The HOA does not initially have to prove they are innocent; the homeowner must prove the HOA committed the violation.

Alj Quote

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

Legal Basis

Conclusion of Law 2; A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • Legal Procedure
  • Burden of Proof

Question

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

Short Answer

It means the claim is 'more probably true than not.'

Detailed Answer

The standard is not 'beyond a reasonable doubt' (like in criminal court). Instead, it is based on the greater weight of the evidence, which must be sufficient to incline a fair mind to one side rather than the other.

Alj Quote

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

Legal Basis

Conclusion of Law 3

Topic Tags

  • Legal Standards
  • Evidence

Question

Can an HOA amend its Articles of Incorporation to exist perpetually if they originally had an expiration date?

Short Answer

Yes, an HOA can amend its Articles to extend its duration to be perpetual.

Detailed Answer

The decision upheld the validity of previous amendments where the HOA changed its corporate duration from a fixed term (e.g., 25 years) to 'perpetual.'

Alj Quote

Respondent amended its Articles of Incorporation, Section VIII, on November 18, 1994, and again on January 15, 1999, which extended the duration of the Articles of Incorporation perpetually.

Legal Basis

Findings of Fact 10-12; Conclusion of Law 4

Topic Tags

  • Corporate Charter
  • Amendments
  • Articles of Incorporation

Question

Where can an Arizona homeowner file a dispute regarding violations of community documents?

Short Answer

A petition can be filed with the Arizona Department of Real Estate (ADRE).

Detailed Answer

Arizona law allows homeowners or associations to file a petition with the Department regarding violations of the documents or statutes regulating planned communities. These are then heard by the Office of Administrative Hearings.

Alj Quote

Arizona statute permits an owner or a planned community organization to file a petition with the Department for a hearing concerning violations of planned community documents or violations of statutes that regulate planned communities.

Legal Basis

Conclusion of Law 1; A.R.S. § 32-2199

Topic Tags

  • Dispute Resolution
  • ADRE
  • Jurisdiction

Question

Does a lack of knowledge about old amendments invalidate them?

Short Answer

No. Even if a current homeowner was unaware of amendments filed decades ago, they are still binding if properly recorded.

Detailed Answer

In this case, the petitioner was unaware of amendments from 1994 and 1999 until the hearing, but the ALJ still relied on those documents to determine that the corporation had not expired.

Alj Quote

Petitioner was not aware of the 1994 and 1999 amendments to the Articles of Incorporation until hearing… The credible and probative evidence of record established that Respondent amended its Articles of Incorporation… which extended the duration of the Articles of Incorporation perpetually.

Legal Basis

Findings of Fact 13; Conclusion of Law 4

Topic Tags

  • Record Keeping
  • Constructive Notice
  • Amendments

Case

Docket No
23F-H019-REL
Case Title
Pamela McKinney v. Valle Vista Property Owners Association
Decision Date
2023-01-31
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Pamela McKinney (petitioner)
    Appeared on her own behalf

Respondent Side

  • Alan A. Meda (HOA attorney)
    Burch & Cracchiolo
    Represented Respondent Valle Vista Property Owners Association
  • Sharon Grossi (board member)
    Valle Vista Property Owners Association
    President of the Board; testified as a witness for Respondent
  • Rebecca Bankov (property manager)
    Valle Vista Property Owners Association
    Also referred to as Rebecca fan
  • Amy Wood (board member)
    Valle Vista Property Owners Association
    Secretary on the board
  • Thomas Noble (board member)
    Valle Vista Property Owners Association
    Former President of the Board (mentioned in communication)
  • Stan Andrews (board member)
    Valle Vista Property Owners Association
    Mentioned by Petitioner as a board member
  • Ray Rose (board member)
    Valle Vista Property Owners Association
    Recently resigned from the board

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
    Administrative Law Judge
  • Jean Newman (CPA)
    Independent auditor who prepared financial report

Other Participants

  • Dennis Hope (Fire Chief)
    Northern Arizona Fire District
    External party cited in board communications regarding water shutoff threats

Elieen Ahearn and Robert Barfield v. High Lonesome Ranch Estates

Posted on by

Case Summary

Case ID 23F-H002-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-11-17
Administrative Law Judge Sondra J. Vanella
Outcome The Administrative Law Judge upheld the Petition, finding the Respondent HOA violated its Nominating and Elections Committee Mission and Procedures by refusing to count otherwise valid couriered ballots and subsequent in-person attempts to vote at the July 5, 2022 Special Election. Petitioners were deemed the prevailing party and awarded the $500 filing fee refund, and the HOA was assessed a $500 civil penalty.
Filing Fees Refunded $500.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Eileen Ahearn Counsel —
Respondent High Lonesome Ranch Estates Property Owners Association Counsel Jason Smith, Esq.

Alleged Violations

HLR CCR 6.2.1 and HLR Association Rules: Nominating and Election Committee Mission and Procedures (approved 19 July 2021)

Outcome Summary

The Administrative Law Judge upheld the Petition, finding the Respondent HOA violated its Nominating and Elections Committee Mission and Procedures by refusing to count otherwise valid couriered ballots and subsequent in-person attempts to vote at the July 5, 2022 Special Election. Petitioners were deemed the prevailing party and awarded the $500 filing fee refund, and the HOA was assessed a $500 civil penalty.

Key Issues & Findings

Denial of the right to vote in Removal/Recall Special Election

Petitioners alleged they were denied the right to vote in the July 5, 2022 Removal/Recall Special Election after their initial ballots (couriered prior to the meeting) were rejected for lacking a postmark, and their subsequent attempts to cast new ballots in person were rejected for reasons including 'double voting' or being 'too late.' The ALJ found the HOA violated its established election procedures.

Orders: The Petition was upheld, and Petitioners were deemed the prevailing party. Respondent was ordered to pay Petitioners their $500.00 filing fee and pay a civil penalty of $500.00 to the Department.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

  • HLR CCR 6.2.1
  • Nominating and Elections Committee Mission and Procedures

Analytics Highlights

Topics: HOA Dispute, Election Violation, Voting Rights, CCNR, Recall Election, Filing Fee Refund, Civil Penalty
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • HLR CCR 6.2.1
  • Nominating and Elections Committee Mission and Procedures

Related election workflow tool

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Video Overview

Audio Overview

Decision Documents

23F-H002-REL Decision – 1009442.pdf

Uploaded 2026-04-24T11:55:32 (60.1 KB)

23F-H002-REL Decision – 1013289.pdf

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23F-H002-REL Decision – 996298.pdf

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23F-H002-REL Decision – 996319.pdf

Uploaded 2026-04-24T11:55:43 (7.5 KB)

23F-H002-REL Decision – 1009442.pdf

Uploaded 2026-01-23T17:49:47 (60.1 KB)

23F-H002-REL Decision – 1013289.pdf

Uploaded 2026-01-23T17:49:50 (127.8 KB)

23F-H002-REL Decision – 996298.pdf

Uploaded 2026-01-23T17:49:54 (54.8 KB)

23F-H002-REL Decision – 996319.pdf

Uploaded 2026-01-23T17:49:58 (7.5 KB)

The hearing was conducted before the Office of Administrative Hearings (OAH) concerning a Homeowners Association (HOA) Dispute Petition filed by Eileen Ahearn and Robert Barfield (Petitioners) against the High Lonesome Ranch Estates Property Owners Association (Respondent). The hearing took place on November 8, 2022.

Key Facts and Main Issues

The Petitioners alleged a violation of community documents, specifically HLR CCR 6.2.1 and HLR Association Rules: Nominating and Election Committee Mission and Procedures, stemming from the denial of their right to vote at the July 5, 2022, Removal/Recall Special Election. Petitioners were only allowed to present a single issue, having paid the corresponding $500.00 filing fee.

The factual dispute centered on 19 ballots without post marks that were not considered in the election. Petitioners and several other homeowners had completed their ballots prior to the meeting and delivered them to the ballot box custodian, Claire Peachey, who placed them in the secure box. Petitioners testified this was accepted practice and the use of couriers for ballots was approved in the past.

When Petitioners learned these ballots would not be counted due to the lack of a post mark, they attempted to fill out new ballots in person at the meeting. These new ballots were rejected for various reasons, including "double voting" and being "too late" because the voting was declared "closed". Evidence showed that all homeowners whose ballots were rejected had signed the recall petition that prompted the election.

Key Arguments

  • Petitioners’ Argument: The board members running the election—who were subject to the recall—arbitrarily denied votes using unwritten or newly interpreted rules (e.g., requiring a US postmark). They argued the denial violated their right to vote (one vote per lot) and failed to follow the procedure documents.
  • Respondent’s Argument: Respondent argued that the cited CCNR 6.2.1 was irrelevant as it only established voting rights (one vote per lot), not voting processes. They maintained that the Petitioners failed to submit their ballots properly, either by mail (with postmark) or in person before the close of voting. Respondent also objected that Petitioners relied on documents (like draft procedures) that were not cited in the initial petition.

Final Decision and Legal Points

The Administrative Law Judge (ALJ), Sondra J. Vanella, issued the Decision on November 17, 2022.

The ALJ found that Petitioners established by a preponderance of the evidence that the Respondent violated its Nominating and Elections Committee Mission and Procedures.

The ALJ concluded that the Elections Committee Chair (who was subject to the recall) refused to count ballots that could not be considered ineligible under the listed criteria (such as illegibility or lack of good standing). Furthermore, the Respondent failed to abide by its own procedure stating that “Every effort will be made to count as many votes as possible assuring a fair, open and honest election”.

Outcome

The Petition was upheld. Petitioners were deemed the prevailing party.

The ALJ ordered the following relief:

  1. Respondent must pay Petitioners their $500.00 filing fee.
  2. Respondent must pay a civil penalty in the amount of $500.00 to the Arizona Department of Real Estate.

Questions

Question

Can my HOA refuse to count a ballot simply because it was delivered by a courier or neighbor rather than mailed?

Short Answer

No. If the HOA's procedures do not explicitly forbid couriers and it has been past practice, they cannot reject ballots solely for lacking a postmark.

Detailed Answer

The ALJ ruled that the HOA violated its procedures by rejecting ballots placed in the ballot box prior to the election (via courier) simply because they lacked postmarks. The judge noted that the custodian of the box did not believe it was a problem and there was no reason for homeowners to believe they couldn't do so.

Alj Quote

Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to count Petitioners’ and other homeowners’ ballots that had been placed in the ballot box prior to the election… There was also no reason for Petitioners or the other homeowners to believe that they could not place their ballots in the ballot box prior to the election and have those ballots counted.

Legal Basis

Nominating and Elections Committee Mission and Procedures

Topic Tags

  • elections
  • ballots
  • couriers
  • voting rights

Question

What are valid reasons for an HOA to consider a ballot ineligible or spoiled?

Short Answer

Valid reasons typically include incorrect vote counts, unconfirmed ownership, illegibility, unsigned envelopes, or lack of good standing.

Detailed Answer

The decision outlines specific criteria for invalidating ballots found in the HOA's procedures. Arbitrary reasons not listed in the governing documents (like lack of a postmark when not required) are not valid grounds for rejection.

Alj Quote

Reasons a ballot may not be valid include incorrect number of votes, lot ownership cannot be confirmed, ballot is illegible, ballot envelope is not signed, or a member is not in good standing.

Legal Basis

Association Election Procedures

Topic Tags

  • elections
  • ballot validity
  • rules

Question

Is the HOA obligated to try to count votes rather than looking for reasons to disqualify them?

Short Answer

Yes. If the election procedures state that every effort will be made to count votes to ensure fairness, the HOA must adhere to that standard.

Detailed Answer

The ALJ cited the HOA's own mission statement which promised to make every effort to count votes. Rejecting ballots for minor procedural issues (like lacking a postmark) when the voters are present and eligible violates this obligation.

Alj Quote

Respondent’s Nominating and Elections Committee Mission and Procedures state that 'every effort will be made to count as many votes as possible assuring a fair, open and honest election.' This was not the case at the July 5, 2022 Special Election.

Legal Basis

Nominating and Elections Committee Mission and Procedures

Topic Tags

  • elections
  • fairness
  • HOA obligations

Question

If my mailed ballot is rejected, can the HOA prevent me from voting in person at the meeting?

Short Answer

No. If you are present at the meeting and your absentee ballot is rejected, the HOA should allow you to cast a replacement ballot.

Detailed Answer

The ALJ found a violation when the HOA refused to accept in-person ballots from homeowners whose courier ballots were rejected. The decision noted that these ballots were not ineligible for any valid reason (like lack of standing).

Alj Quote

Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to accept in-person ballots at the meeting, notwithstanding that those ballots could not be considered ineligible ballots.

Legal Basis

Voting Rights / Election Procedures

Topic Tags

  • in-person voting
  • ballot rejection
  • elections

Question

Can the HOA enforce a voting deadline strictly against some owners but not others?

Short Answer

No. It is a violation to tell some owners they are 'too late' while allowing others to vote after the deadline.

Detailed Answer

The decision noted that while the Petitioners were told voting was closed at 6:00 PM and they were 'too late,' another homeowner was allowed to place a ballot in the box at 6:15 PM.

Alj Quote

Homeowner Jeffrey Knox personally handed in his ballot at the meeting by placing it in the ballot box at approximately 6:15 p.m., notwithstanding that voting supposedly closed at 6:00 p.m.

Legal Basis

Fair Election Practices

Topic Tags

  • discrimination
  • deadlines
  • fairness

Question

What penalties can an HOA face if they are found to have violated election rules?

Short Answer

The HOA may be ordered to refund the homeowner's filing fee and pay a civil penalty to the Department of Real Estate.

Detailed Answer

In this case, the ALJ ordered the HOA to pay $500 to the petitioners (reimbursement) and a $500 civil penalty to the state.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00… IT IS FURTHER ORDERED that… Respondent shall pay to the Department a civil penalty in the amount of $500.00

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • penalties
  • fines
  • reimbursement

Question

What is the 'burden of proof' for a homeowner in an administrative hearing?

Short Answer

The homeowner must prove the violation by a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.

Detailed Answer

The decision defines the evidentiary standard required for the petitioners to win their case.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent committed the alleged violation(s) by a preponderance of the evidence… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • legal standards
  • burden of proof
  • hearing process

Case

Docket No
23F-H002-REL
Case Title
Eileen Ahearn and Robert Barfield v. High Lonesome Ranch Estates Property Owners Association
Decision Date
2022-11-17
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA refuse to count a ballot simply because it was delivered by a courier or neighbor rather than mailed?

Short Answer

No. If the HOA's procedures do not explicitly forbid couriers and it has been past practice, they cannot reject ballots solely for lacking a postmark.

Detailed Answer

The ALJ ruled that the HOA violated its procedures by rejecting ballots placed in the ballot box prior to the election (via courier) simply because they lacked postmarks. The judge noted that the custodian of the box did not believe it was a problem and there was no reason for homeowners to believe they couldn't do so.

Alj Quote

Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to count Petitioners’ and other homeowners’ ballots that had been placed in the ballot box prior to the election… There was also no reason for Petitioners or the other homeowners to believe that they could not place their ballots in the ballot box prior to the election and have those ballots counted.

Legal Basis

Nominating and Elections Committee Mission and Procedures

Topic Tags

  • elections
  • ballots
  • couriers
  • voting rights

Question

What are valid reasons for an HOA to consider a ballot ineligible or spoiled?

Short Answer

Valid reasons typically include incorrect vote counts, unconfirmed ownership, illegibility, unsigned envelopes, or lack of good standing.

Detailed Answer

The decision outlines specific criteria for invalidating ballots found in the HOA's procedures. Arbitrary reasons not listed in the governing documents (like lack of a postmark when not required) are not valid grounds for rejection.

Alj Quote

Reasons a ballot may not be valid include incorrect number of votes, lot ownership cannot be confirmed, ballot is illegible, ballot envelope is not signed, or a member is not in good standing.

Legal Basis

Association Election Procedures

Topic Tags

  • elections
  • ballot validity
  • rules

Question

Is the HOA obligated to try to count votes rather than looking for reasons to disqualify them?

Short Answer

Yes. If the election procedures state that every effort will be made to count votes to ensure fairness, the HOA must adhere to that standard.

Detailed Answer

The ALJ cited the HOA's own mission statement which promised to make every effort to count votes. Rejecting ballots for minor procedural issues (like lacking a postmark) when the voters are present and eligible violates this obligation.

Alj Quote

Respondent’s Nominating and Elections Committee Mission and Procedures state that 'every effort will be made to count as many votes as possible assuring a fair, open and honest election.' This was not the case at the July 5, 2022 Special Election.

Legal Basis

Nominating and Elections Committee Mission and Procedures

Topic Tags

  • elections
  • fairness
  • HOA obligations

Question

If my mailed ballot is rejected, can the HOA prevent me from voting in person at the meeting?

Short Answer

No. If you are present at the meeting and your absentee ballot is rejected, the HOA should allow you to cast a replacement ballot.

Detailed Answer

The ALJ found a violation when the HOA refused to accept in-person ballots from homeowners whose courier ballots were rejected. The decision noted that these ballots were not ineligible for any valid reason (like lack of standing).

Alj Quote

Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to accept in-person ballots at the meeting, notwithstanding that those ballots could not be considered ineligible ballots.

Legal Basis

Voting Rights / Election Procedures

Topic Tags

  • in-person voting
  • ballot rejection
  • elections

Question

Can the HOA enforce a voting deadline strictly against some owners but not others?

Short Answer

No. It is a violation to tell some owners they are 'too late' while allowing others to vote after the deadline.

Detailed Answer

The decision noted that while the Petitioners were told voting was closed at 6:00 PM and they were 'too late,' another homeowner was allowed to place a ballot in the box at 6:15 PM.

Alj Quote

Homeowner Jeffrey Knox personally handed in his ballot at the meeting by placing it in the ballot box at approximately 6:15 p.m., notwithstanding that voting supposedly closed at 6:00 p.m.

Legal Basis

Fair Election Practices

Topic Tags

  • discrimination
  • deadlines
  • fairness

Question

What penalties can an HOA face if they are found to have violated election rules?

Short Answer

The HOA may be ordered to refund the homeowner's filing fee and pay a civil penalty to the Department of Real Estate.

Detailed Answer

In this case, the ALJ ordered the HOA to pay $500 to the petitioners (reimbursement) and a $500 civil penalty to the state.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00… IT IS FURTHER ORDERED that… Respondent shall pay to the Department a civil penalty in the amount of $500.00

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • penalties
  • fines
  • reimbursement

Question

What is the 'burden of proof' for a homeowner in an administrative hearing?

Short Answer

The homeowner must prove the violation by a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.

Detailed Answer

The decision defines the evidentiary standard required for the petitioners to win their case.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent committed the alleged violation(s) by a preponderance of the evidence… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • legal standards
  • burden of proof
  • hearing process

Case

Docket No
23F-H002-REL
Case Title
Eileen Ahearn and Robert Barfield v. High Lonesome Ranch Estates Property Owners Association
Decision Date
2022-11-17
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Eileen Ahearn (petitioner)
  • Robert Barfield (petitioner)
  • Randy Kling (witness / former board member)
    Testified for Petitioners. Also referred to as Randy Clling/Clean.
  • Claire Peachey (witness / election committee member)
    Testified for Petitioners. Custodian of the ballot box.
  • Joyce Green (witness)
    Testified for Petitioners.
  • Jeffrey Knox (witness)
    Testified for Petitioners. Property owner who received rejected ballots.

Respondent Side

  • Jason Smith (HOA attorney)
    Smith & Wamsley PLLC
  • Nancy Sakarelli (board member)
    High Lonesome Ranch Estates Property Owners Association
    Board President; appeared virtually.
  • Corinthia Pangalinan (former board president / board member)
    High Lonesome Ranch Estates Property Owners Association
    Subject of recall petition; responded to original complaint.
  • Becky Hilgart (Election Committee Chair / board member)
    High Lonesome Ranch Estates Property Owners Association
    Subject of recall petition. Also referred to as Rebecca Kilgart/Gilgart/Elart.
  • Tommy Smith (Election Committee Volunteer / property owner)
    Involved in denying votes.
  • Wally Oliday (board member)
    High Lonesome Ranch Estates Property Owners Association
    Subject of recall petition.
  • Amanda Miller (board member)
    High Lonesome Ranch Estates Property Owners Association
    Subject of recall petition.

Neutral Parties

  • Sondra J. Vanella (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Miranda Alvarez (Legal Secretary)
    OAH staff transmitting documents.
  • c. serrano (Administrative Staff)
    Staff transmitting documents.
  • AHansen (ADRE Staff)
    Arizona Department of Real Estate
  • vnunez (ADRE Staff)
    Arizona Department of Real Estate
  • djones (ADRE Staff)
    Arizona Department of Real Estate
  • labril (ADRE Staff)
    Arizona Department of Real Estate

Other Participants

  • Edna Barton (observer)
    On the line during the hearing.
  • Jill Burns (observer)
    Present in the hearing room.
  • John Kron (observer)
    Present in the hearing room.
  • Stacy (board director)
    Director mentioned in meeting agenda.
  • Deborah Bonesac (property owner)
    Referenced in testimony regarding past courier procedures.
  • Billy McFarland (board member)
    Subject of previous recall election.

Amy Hillburn v. Stetson Valley Owners Association

Posted on by

Case Summary

Case ID 23F-H008-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-11-17
Administrative Law Judge Sondra J. Vanella
Outcome The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove a violation of A.R.S. § 33-1804(A) because the Architectural Review Committee (ARC) had ceased holding regularly scheduled meetings since March 2022, thereby negating the statutory requirement that such committee meetings must be open to members.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Amy Hilburn Counsel —
Respondent Stetson Valley Owners Association Counsel Melissa Doolan, Esq.

Alleged Violations

A.R.S. § 33-1804 and Article 6.2 of the Bylaws

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove a violation of A.R.S. § 33-1804(A) because the Architectural Review Committee (ARC) had ceased holding regularly scheduled meetings since March 2022, thereby negating the statutory requirement that such committee meetings must be open to members.

Why this result: The ARC successfully argued that A.R.S. § 33-1804(A) only mandates open access for 'any regularly scheduled committee meetings.' Since they transitioned to using an online portal on an irregular schedule, they were no longer holding 'regularly scheduled meetings,' meaning the statute did not require them to be open.

Key Issues & Findings

Failure of Architectural Review Committee (ARC) to hold open meetings where members can comment prior to a vote.

Petitioner alleged the Architectural Review Committee (ARC) was violating A.R.S. § 33-1804 (open meetings statute) by failing to hold open meetings, particularly after the ARC began processing requests using an online portal which allows for discussion and voting among members outside of noticed meetings. Historically, the ARC held regularly scheduled meetings on the first Tuesday of every month until March 2022. The ALJ ultimately ruled that since March 2022, the ARC was not holding 'regularly scheduled committee meetings' as defined by the statute.

Orders: Petitioner’s Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1804(A)
  • A.R.S. § 32-2199
  • Article 6.2 of the Bylaws
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 41-1092.09
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04

Analytics Highlights

Topics: HOA Open Meeting Law, Architectural Review Committee (ARC), Regularly Scheduled Meetings, Online Portal, Statutory Interpretation
Additional Citations:

  • A.R.S. § 33-1804(A)
  • Article 6.2 of the Bylaws

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

23F-H008-REL Decision – 1005178.pdf

Uploaded 2026-04-27T09:47:07 (48.8 KB)

23F-H008-REL Decision – 1005178.pdf

Uploaded 2026-01-23T17:51:08 (48.8 KB)

23F-H008-REL Decision – 1013302.pdf

Uploaded 2026-01-23T17:51:12 (110.8 KB)

The hearing in the matter of *Amy Hilburn v. Stetson Valley Owners Association* (No. 23F-H008-REL) was held before Administrative Law Judge (ALJ) Sondra J. Vanella at the Office of Administrative Hearings on November 9, 2022.

Key Facts and Main Issue

The Petitioner, Amy Hilburn, filed a dispute petition on or about August 19, 2022, alleging that the Stetson Valley Owners Association (HOA) violated Arizona Revised Statute (A.R.S.) § 33-1804 and Article 6.2 of its Bylaws. The sole issue determined at the hearing was whether the Association's Architectural Review Committee (ARC) was failing to hold open meetings where homeowner members could comment prior to a vote of the committee.

The core legal point centered on A.R.S. § 33-1804(A), which mandates that "all meetings of the members' association and the board of directors, and any regularly scheduled committee meetings" must be open to all members, who are permitted to attend and speak.

Petitioner’s Arguments

Petitioner Hilburn argued that the ARC previously held regularly scheduled meetings on the first Tuesday of every month from 2011 until February 2022, often without proper notice. Petitioner provided evidence, including old Meeting Minutes (2017–2021) and the Respondent's Paint Architectural Change Request Form, which stated the ARC reviewed applications on the first Tuesday of every month, demonstrating the regularity of the meetings.

Petitioner acknowledged that the ARC ceased holding traditional open meetings after July 2022, choosing instead to process applications through an online portal. However, she argued that the ability for ARC members to exchange comments and make decisions via this portal constitutes "discussion" and a form of regularly occurring meeting that should be open to the community, consistent with the legislature's intent for transparency.

Respondent’s Arguments

The Respondent, represented by Melissa Doolan, Esq., contended that the Association was following state law because the ARC does not currently hold regularly scheduled meetings. Testimony from Community Manager Danielle Miglio and ARC Member Ann Renee Wilsey established that since March 2022, the ARC moved to processing requests solely through an online portal to provide faster homeowner turnaround.

Respondent witnesses testified that under the portal system, ARC members are notified via email, but they view the request documentation and vote on their own time; there is no regularly scheduled time for them to convene, comment, or vote. Because the meetings are not "regularly scheduled," the open meeting requirement of A.R.S. § 33-1804(A) does not apply. The Respondent noted that the few in-person or virtual meetings that occurred in 2022 (April, June, and July) were noticed to the members.

Final Decision and Outcome

The ALJ found that while the ARC had held regularly scheduled meetings prior to utilizing the online portal system, the credible evidence established that since March 2022, the ARC has not been holding regularly scheduled meetings.

The ALJ concluded that the Petitioner failed to sustain her burden of proof by a preponderance of the evidence to establish a violation of A.R.S. § 33-1804(A) or Article 6.2 of the Bylaws, noting that the statute does not require the ARC to hold regularly scheduled meetings.

The ALJ ORDERED that Petitioner’s Petition is dismissed.

{ “case”: { “docket_no”: “23F-H008-REL”, “case_title”: “Amy Hilburn v. Stetson Valley Owners Association”, “decision_date”: “2022-11-17”, “alj_name”: “Sondra J. Vanella”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does my HOA’s architectural committee have to hold open meetings for every decision?”, “short_answer”: “No, only “regularly scheduled” committee meetings are required to be open to members.”, “detailed_answer”: “The law specifically mandates that meetings of the members, the board of directors, and ‘regularly scheduled’ committee meetings be open. If a committee does not maintain a regular schedule, the open meeting requirement may not apply.”, “alj_quote”: “Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”, “legal_basis”: “A.R.S. § 33-1804(A)”, “topic_tags”: [ “Open Meetings”, “Committees”, “Homeowner Rights” ] }, { “question”: “Can an HOA committee conduct business through an online portal instead of meeting in person?”, “short_answer”: “Yes, utilizing an online portal to process requests is permitted and may result in the activity not being classified as a “regularly scheduled meeting.””, “detailed_answer”: “The ALJ found that moving committee business to an online portal where members review and vote on their own time effectively meant they were not holding ‘regularly scheduled meetings,’ thus bypassing the open meeting requirement.”, “alj_quote”: “Ms. Miglio testified that since August 2022, the ARC has not held regularly scheduled meetings because the ARC conducts its business through an online portal.”, “legal_basis”: “Fact Finding 3(e)”, “topic_tags”: [ “Digital Tools”, “Procedure”, “Committees” ] }, { “question”: “Is an HOA committee required by law to hold regularly scheduled meetings?”, “short_answer”: “No, there is generally no statutory requirement that committees must hold regularly scheduled meetings.”, “detailed_answer”: “The decision explicitly states that nothing in the cited statutes or bylaws required the Architectural Review Committee to adhere to a regular meeting schedule.”, “alj_quote”: “…nothing in the provisions cited by Petitioner require the ARC to hold regularly scheduled meetings.”, “legal_basis”: “Conclusion of Law 6”, “topic_tags”: [ “HOA Obligations”, “Committees”, “Scheduling” ] }, { “question”: “Do committee members have to discuss and vote on requests at the same time?”, “short_answer”: “No, committee members can review requests and vote asynchronously on their own time.”, “detailed_answer”: “The ALJ accepted testimony that committee members could view requests and vote individually whenever they chose, rather than convening at a specific time.”, “alj_quote”: “Ms. Wilsey testified that there is no regularly scheduled time to look at the requests, comment, and/or vote.”, “legal_basis”: “Fact Finding 3(h)”, “topic_tags”: [ “Voting”, “Procedure”, “Committees” ] }, { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “This legal standard means the homeowner must convince the judge that their claim is ‘more probably true than not.’ It refers to the convincing force of the evidence rather than the amount.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence… A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “Conclusion of Law 2-3”, “topic_tags”: [ “Legal Standards”, “Burden of Proof”, “Dispute Process” ] }, { “question”: “Can committee members comment to each other online without it being an open meeting?”, “short_answer”: “Yes, the ability to comment via a portal does not necessarily create a “meeting” if done asynchronously.”, “detailed_answer”: “The decision noted that members could comment to each other through the portal, but because there was no regularly scheduled time for this interaction, it did not trigger the open meeting statute.”, “alj_quote”: “Members of the ARC have the ability to comment to each other through the portal and vote on the requests through the portal.”, “legal_basis”: “Fact Finding 3(g)”, “topic_tags”: [ “Communication”, “Committees”, “Open Meetings” ] }, { “question”: “If an HOA committee previously held regular meetings, are they forced to continue doing so?”, “short_answer”: “No, past practices do not mandate future behavior if the committee changes its process.”, “detailed_answer”: “Although the committee had a history of regular monthly meetings from 2011 to 2022, the ALJ ruled based on their current practice of using a portal, finding no violation because they were not currently meeting regularly.”, “alj_quote”: “The credible and probative evidence of record established that… prior to the ARC utilizing the online portal system, the ARC was holding regularly scheduled meetings. However, since March 2022, the ARC has not been holding regularly scheduled meetings…”, “legal_basis”: “Conclusion of Law 6”, “topic_tags”: [ “Precedent”, “Procedure”, “Committees” ] } ] }

{ “case”: { “docket_no”: “23F-H008-REL”, “case_title”: “Amy Hilburn v. Stetson Valley Owners Association”, “decision_date”: “2022-11-17”, “alj_name”: “Sondra J. Vanella”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does my HOA’s architectural committee have to hold open meetings for every decision?”, “short_answer”: “No, only “regularly scheduled” committee meetings are required to be open to members.”, “detailed_answer”: “The law specifically mandates that meetings of the members, the board of directors, and ‘regularly scheduled’ committee meetings be open. If a committee does not maintain a regular schedule, the open meeting requirement may not apply.”, “alj_quote”: “Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”, “legal_basis”: “A.R.S. § 33-1804(A)”, “topic_tags”: [ “Open Meetings”, “Committees”, “Homeowner Rights” ] }, { “question”: “Can an HOA committee conduct business through an online portal instead of meeting in person?”, “short_answer”: “Yes, utilizing an online portal to process requests is permitted and may result in the activity not being classified as a “regularly scheduled meeting.””, “detailed_answer”: “The ALJ found that moving committee business to an online portal where members review and vote on their own time effectively meant they were not holding ‘regularly scheduled meetings,’ thus bypassing the open meeting requirement.”, “alj_quote”: “Ms. Miglio testified that since August 2022, the ARC has not held regularly scheduled meetings because the ARC conducts its business through an online portal.”, “legal_basis”: “Fact Finding 3(e)”, “topic_tags”: [ “Digital Tools”, “Procedure”, “Committees” ] }, { “question”: “Is an HOA committee required by law to hold regularly scheduled meetings?”, “short_answer”: “No, there is generally no statutory requirement that committees must hold regularly scheduled meetings.”, “detailed_answer”: “The decision explicitly states that nothing in the cited statutes or bylaws required the Architectural Review Committee to adhere to a regular meeting schedule.”, “alj_quote”: “…nothing in the provisions cited by Petitioner require the ARC to hold regularly scheduled meetings.”, “legal_basis”: “Conclusion of Law 6”, “topic_tags”: [ “HOA Obligations”, “Committees”, “Scheduling” ] }, { “question”: “Do committee members have to discuss and vote on requests at the same time?”, “short_answer”: “No, committee members can review requests and vote asynchronously on their own time.”, “detailed_answer”: “The ALJ accepted testimony that committee members could view requests and vote individually whenever they chose, rather than convening at a specific time.”, “alj_quote”: “Ms. Wilsey testified that there is no regularly scheduled time to look at the requests, comment, and/or vote.”, “legal_basis”: “Fact Finding 3(h)”, “topic_tags”: [ “Voting”, “Procedure”, “Committees” ] }, { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “This legal standard means the homeowner must convince the judge that their claim is ‘more probably true than not.’ It refers to the convincing force of the evidence rather than the amount.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence… A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “Conclusion of Law 2-3”, “topic_tags”: [ “Legal Standards”, “Burden of Proof”, “Dispute Process” ] }, { “question”: “Can committee members comment to each other online without it being an open meeting?”, “short_answer”: “Yes, the ability to comment via a portal does not necessarily create a “meeting” if done asynchronously.”, “detailed_answer”: “The decision noted that members could comment to each other through the portal, but because there was no regularly scheduled time for this interaction, it did not trigger the open meeting statute.”, “alj_quote”: “Members of the ARC have the ability to comment to each other through the portal and vote on the requests through the portal.”, “legal_basis”: “Fact Finding 3(g)”, “topic_tags”: [ “Communication”, “Committees”, “Open Meetings” ] }, { “question”: “If an HOA committee previously held regular meetings, are they forced to continue doing so?”, “short_answer”: “No, past practices do not mandate future behavior if the committee changes its process.”, “detailed_answer”: “Although the committee had a history of regular monthly meetings from 2011 to 2022, the ALJ ruled based on their current practice of using a portal, finding no violation because they were not currently meeting regularly.”, “alj_quote”: “The credible and probative evidence of record established that… prior to the ARC utilizing the online portal system, the ARC was holding regularly scheduled meetings. However, since March 2022, the ARC has not been holding regularly scheduled meetings…”, “legal_basis”: “Conclusion of Law 6”, “topic_tags”: [ “Precedent”, “Procedure”, “Committees” ] } ] }

Case Participants

Petitioner Side

  • Amy Hilburn (petitioner)
    Stetson Valley Owners Association member
    Appeared pro se; former Board President

Respondent Side

  • Melissa Doolan (HOA attorney)
    Travis Law Firm
  • Danielle Miglio (community manager, witness)
    Oasis Community Management
  • Ann Renee Wilsey (ARC member, witness)
    Stetson Valley Owners Association ARC
  • Nichollet Widner (board member, witness)
    Stetson Valley Owners Association Board President
  • Tom Young (board member, observer)
    Stetson Valley Owners Association Board
  • Pam Weller (ARC member, observer)
    Stetson Valley Owners Association ARC
  • Omar Chavez (board member, observer)
    Stetson Valley Owners Association Board
  • Miranda Alvarez (legal secretary)
    Travis Law Firm
    Transmitting staff
  • Elizabeth Franco (community manager staff)
    Oasis Community Management
    Referenced in Petitioner's Exhibit 6 testimony
  • Benjamin Butler (ARC chairperson)
    Stetson Valley Owners Association ARC
    Referenced in Petitioner's Exhibit 6 testimony

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
  • Louis Dettorre (commissioner)
    ADRE
  • AHansen (ADRE staff)
    ADRE
  • vnunez (ADRE staff)
    ADRE
  • djones (ADRE staff)
    ADRE
  • labril (ADRE staff)
    ADRE
  • c. serrano (OAH staff)
    OAH
    Transmitting staff

Other Participants

  • Amanda McGawan (observer)
  • Lisa Vargas (observer)
  • Nick Jackson (observer)

Deborah Masear v. Paradise Park Condominiums Phase II Homeowners

Posted on by

Case Summary

Case ID 22F-H2222057-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-10-05
Administrative Law Judge Velva Moses-Thompson
Outcome The petition filed by the homeowner against the HOA was dismissed because the homeowner failed to prove the HOA violated A.R.S. § 33-1243(J) regarding financial reporting.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deborah Mesear Counsel —
Respondent Paradise Park Condominiums Phase II Homeowners Association Counsel Ashley N. Moscarello, Esq.

Alleged Violations

A.R.S. § 33-1243(J)

Outcome Summary

The petition filed by the homeowner against the HOA was dismissed because the homeowner failed to prove the HOA violated A.R.S. § 33-1243(J) regarding financial reporting.

Why this result: The Petitioner failed to establish that the Association violated the applicable statute by a preponderance of the evidence, resulting in the dismissal of the petition.

Key Issues & Findings

Violation of HOA statutory duty to provide annual financial reports (audit, review, or compilation)

Petitioner alleged the HOA failed to share an annual audit/compilation for 2017-2021. The ALJ found the HOA provided financial compilations for 2017-2020 after the petition was filed. The claim regarding 2021 was found to be premature because the financial compilation was not yet due when the petition was filed on May 29, 2022.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1243(J)
  • A.R.S. § 33-1810

Analytics Highlights

Topics: Condominium Act, Financial Records, Compilation, Statutory Compliance, HOA Management
Additional Citations:

  • A.R.S. § 33-1243(J)
  • A.R.S. § 33-1810
  • A.R.S. § 32-2199(1)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

22F-H2222057-REL Decision – 1003891.pdf

Uploaded 2026-04-24T11:53:40 (95.1 KB)

22F-H2222057-REL Decision – 988206.pdf

Uploaded 2026-04-24T11:53:44 (57.1 KB)

22F-H2222057-REL Decision – 989133.pdf

Uploaded 2026-04-24T11:53:48 (50.1 KB)

22F-H2222057-REL Decision – 994978.pdf

Uploaded 2026-04-24T11:53:51 (50.8 KB)

22F-H2222057-REL Decision – 1003891.pdf

Uploaded 2026-01-23T17:48:33 (95.1 KB)

22F-H2222057-REL Decision – 988206.pdf

Uploaded 2026-01-23T17:48:37 (57.1 KB)

22F-H2222057-REL Decision – 989133.pdf

Uploaded 2026-01-23T17:48:39 (50.1 KB)

22F-H2222057-REL Decision – 994978.pdf

Uploaded 2026-01-23T17:48:42 (50.8 KB)

This decision, issued by Administrative Law Judge Velva Moses-Thompson on October 5, 2022, dismissed the petition brought by Deborah Mesear, a condominium unit owner, against the Paradise Park Condominiums Phase II Homeowners Association (the Association).

Key Facts and Legal Issue:

The dispute centered on the Association's compliance with Arizona financial reporting laws for condominiums. The core issue set for determination was whether the Association violated Arizona Revised Statutes (A.R.S.) § 33-1243(J) (the applicable statute for condominiums) by failing to share annual financial reports for the years 2017 through 2021.

Petitioner Deborah Mesear filed her petition on May 29, 2022, alleging the Association failed to provide annual audits despite multiple requests, stating she could find no evidence that audits had been completed.

Legal Framework and Arguments:

  1. Statutory Requirement: A.R.S. § 33-1243(J) mandates that the board provide for an annual financial audit, review or compilation of the association. This report must be completed no later than 180 days after the fiscal year ends and made available to unit owners within 30 days of completion.
  2. Association's Defense (Compilations vs. Audits): The Association confirmed through the testimony of its community manager, Carl Westlund, that it did not prepare full audits for the relevant years, but rather financial compilations, which are substantially more limited in scope and less expensive than an audit. The Association argued that choosing a compilation complies fully with A.R.S. § 33-1243(J), as the statute permits any one of the three report types.
  3. Sharing of Reports (2017–2020): After the petition was filed, the Association provided Mesear with the financial compilations for 2017 through 2020. Mesear received these reports but argued that compilations were incomplete financial reports.
  4. 2021 Report Issue: Mesear emphasized that the 2021 report had not been provided. The Association testified that a compilation for 2021 had been ordered from a new accountant but was not yet completed as of the September 15, 2022, hearing date. The Association argued that Mesear's petition, filed May 29, 2022, regarding the 2021 compilation was not yet ripe because the 180-day deadline for its completion had likely not yet passed.

Outcome and Legal Decision:

The Administrative Law Judge determined that the Petitioner bore the burden of proving a violation by a preponderance of the evidence.

The ALJ concluded that:

  • The Association was not required to prepare annual audits; selecting annual financial compilations satisfies A.R.S. § 33-1243(J).
  • The Association shared the compilations for 2017 through 2020 with Mesear.
  • The issue concerning the 2021 compilation was not ripe when the May 29, 2022, petition was filed.

Ms. Mesear failed to establish that the Association violated A.R.S. § 33-1243. The petition was ordered dismissed.

Questions

Question

Is my condo HOA legally required to perform a full financial audit every year?

Short Answer

Not necessarily; a review or compilation is often sufficient unless the governing documents specifically require an audit.

Detailed Answer

Under Arizona law for condominiums, an association is not required to perform a full audit unless the specific condominium documents demand it. The law allows for an audit, a review, or a compilation.

Alj Quote

Unless any provision in the condominium documents requires an annual audit by a certified public accountant, the board of directors shall provide for an annual financial audit, review or compilation of the association.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Financial Reports
  • Audits
  • HOA Obligations

Question

What is the deadline for the HOA to complete the annual financial report?

Short Answer

The report must be completed no later than 180 days after the end of the fiscal year.

Detailed Answer

The association has a statutory window of 180 days following the close of the fiscal year to complete the required financial audit, review, or compilation.

Alj Quote

The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Deadlines
  • Financial Reports
  • Procedural Requirements

Question

Once the financial report is finished, how soon must the HOA provide it to me?

Short Answer

The HOA must make it available within 30 days of its completion upon request.

Detailed Answer

After the financial document (audit, review, or compilation) is completed, the association is legally obligated to make it available to unit owners who request it within a 30-day window.

Alj Quote

and shall be made available on request to the unit owners within thirty days after its completion.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Homeowner Rights
  • Transparency
  • Financial Reports

Question

Can I file a complaint against my HOA for failing to provide a financial report before the 180-day deadline has passed?

Short Answer

No, a complaint filed before the deadline is considered premature (not ripe).

Detailed Answer

If a homeowner files a petition regarding a missing financial report before the statutory 180-day period has elapsed, the issue is not yet ripe for adjudication because the obligation is not yet due.

Alj Quote

Moreover, the issue of whether the Association complied with A.R.S. section 33-1243 for year 2021 was not yet ripe at the time that Ms. Mesear filed her May 29, 2022 petition, because a financial compilation was not yet due.

Legal Basis

Ripeness Doctrine

Topic Tags

  • Legal Procedures
  • Filing Disputes
  • Deadlines

Question

Who is responsible for proving that the HOA violated the law in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding HOA disputes, the petitioner must prove their case by a preponderance of the evidence.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. section 33-1243(J) by a preponderance of the evidence.

Legal Basis

Burden of Proof

Topic Tags

  • Legal Standards
  • Hearing Procedures

Question

What standard of proof is used in these administrative hearings?

Short Answer

Preponderance of the evidence.

Detailed Answer

This standard requires evidence that is sufficient to incline a fair and impartial mind to one side rather than the other, making the contention more probably true than not.

Alj Quote

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

Legal Basis

Evidentiary Standard

Topic Tags

  • Legal Standards
  • Evidence

Question

If I live in a condominium, can I cite the Planned Communities statutes (A.R.S. § 33-1810) in my complaint?

Short Answer

No, condominiums are governed by the Condominium Act, specifically A.R.S. § 33-1243(J) for financials.

Detailed Answer

While the requirements may be similar, the specific statute for planned communities does not apply to condominiums. Condominium owners must cite the applicable Condominium Act statutes.

Alj Quote

A.R.S. section 33-1810 applies to planned communities and does not apply to the Association. However, A.R.S. section 33-1243(J) applies to condominiums

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Jurisdiction
  • Statutes
  • Condominiums

Case

Docket No
22F-H2222057-REL
Case Title
Deborah Mesear vs Paradise Park Condominiums Phase II Homeowners Association
Decision Date
2022-10-05
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Is my condo HOA legally required to perform a full financial audit every year?

Short Answer

Not necessarily; a review or compilation is often sufficient unless the governing documents specifically require an audit.

Detailed Answer

Under Arizona law for condominiums, an association is not required to perform a full audit unless the specific condominium documents demand it. The law allows for an audit, a review, or a compilation.

Alj Quote

Unless any provision in the condominium documents requires an annual audit by a certified public accountant, the board of directors shall provide for an annual financial audit, review or compilation of the association.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Financial Reports
  • Audits
  • HOA Obligations

Question

What is the deadline for the HOA to complete the annual financial report?

Short Answer

The report must be completed no later than 180 days after the end of the fiscal year.

Detailed Answer

The association has a statutory window of 180 days following the close of the fiscal year to complete the required financial audit, review, or compilation.

Alj Quote

The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Deadlines
  • Financial Reports
  • Procedural Requirements

Question

Once the financial report is finished, how soon must the HOA provide it to me?

Short Answer

The HOA must make it available within 30 days of its completion upon request.

Detailed Answer

After the financial document (audit, review, or compilation) is completed, the association is legally obligated to make it available to unit owners who request it within a 30-day window.

Alj Quote

and shall be made available on request to the unit owners within thirty days after its completion.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Homeowner Rights
  • Transparency
  • Financial Reports

Question

Can I file a complaint against my HOA for failing to provide a financial report before the 180-day deadline has passed?

Short Answer

No, a complaint filed before the deadline is considered premature (not ripe).

Detailed Answer

If a homeowner files a petition regarding a missing financial report before the statutory 180-day period has elapsed, the issue is not yet ripe for adjudication because the obligation is not yet due.

Alj Quote

Moreover, the issue of whether the Association complied with A.R.S. section 33-1243 for year 2021 was not yet ripe at the time that Ms. Mesear filed her May 29, 2022 petition, because a financial compilation was not yet due.

Legal Basis

Ripeness Doctrine

Topic Tags

  • Legal Procedures
  • Filing Disputes
  • Deadlines

Question

Who is responsible for proving that the HOA violated the law in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding HOA disputes, the petitioner must prove their case by a preponderance of the evidence.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. section 33-1243(J) by a preponderance of the evidence.

Legal Basis

Burden of Proof

Topic Tags

  • Legal Standards
  • Hearing Procedures

Question

What standard of proof is used in these administrative hearings?

Short Answer

Preponderance of the evidence.

Detailed Answer

This standard requires evidence that is sufficient to incline a fair and impartial mind to one side rather than the other, making the contention more probably true than not.

Alj Quote

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

Legal Basis

Evidentiary Standard

Topic Tags

  • Legal Standards
  • Evidence

Question

If I live in a condominium, can I cite the Planned Communities statutes (A.R.S. § 33-1810) in my complaint?

Short Answer

No, condominiums are governed by the Condominium Act, specifically A.R.S. § 33-1243(J) for financials.

Detailed Answer

While the requirements may be similar, the specific statute for planned communities does not apply to condominiums. Condominium owners must cite the applicable Condominium Act statutes.

Alj Quote

A.R.S. section 33-1810 applies to planned communities and does not apply to the Association. However, A.R.S. section 33-1243(J) applies to condominiums

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Jurisdiction
  • Statutes
  • Condominiums

Case

Docket No
22F-H2222057-REL
Case Title
Deborah Mesear vs Paradise Park Condominiums Phase II Homeowners Association
Decision Date
2022-10-05
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Deborah Mesear (petitioner, witness)
    Also appears as Deborah Masear and Deborah Mesier in the sources.

Respondent Side

  • Ashley N. Moscarello (HOA attorney)
    Goodman Holmgren Law Group
    Also appears as Ashley Moscarello, Esq. and Ashley Carillo.
  • Carl Westlund (property manager, witness)
    The Management Trust
    Community manager for Paradise Park Condominiums Phase II Homeowners Association.
  • Mark A. Holmgren (HOA attorney)
    Goodman Holmgren Law Group

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • A. Hansen (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).
  • V. Nunez (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).
  • D. Jones (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).
  • L. Abril (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).

Other Participants

  • Miranda Alvarez (legal secretary)
    Signed transmission notice.
  • c. serrano (legal secretary)
    Signed transmission notice.