Tag Archives: ARIZ. REV. STAT. § 32-2102

John J Balaco v. Sun City Oro Valley Community Association, Inc.

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Case Summary

Case ID 22F-H2221011-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-03-21
Administrative Law Judge Jenna Clark
Outcome The Petitioner's claim was denied because the ALJ concluded that the alleged violation of the 5th Amended Master Declaration Article 6.7 was not proven by a preponderance of the evidence; the argument was premature as the action (substantial change in use) had not yet come to fruition.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John J Balaco Counsel —
Respondent Sun City Oro Valley Community Association, Inc. Counsel Nicholas Nogami, Esq. & Sami Farhat, Esq.

Alleged Violations

5th Amended Master Declaration Article 6.7

Outcome Summary

The Petitioner's claim was denied because the ALJ concluded that the alleged violation of the 5th Amended Master Declaration Article 6.7 was not proven by a preponderance of the evidence; the argument was premature as the action (substantial change in use) had not yet come to fruition.

Why this result: Petitioner failed to meet the burden of proof; the argument was not ripe and predicated on actions that have yet to occur.

Key Issues & Findings

Change in Use of Common Area

Petitioner alleged that the Association violated Article 6.7 by modifying renovation plans for the Activity Center's coffee bar to include the sale of alcoholic beverages (cafe wine bar) without the requisite 60% membership vote, arguing this converted common area into a restricted commercial bar.

Orders: Petitioners' petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09
  • 5th Amended Master Declaration Article 6.7

Analytics Highlights

Topics: HOA, Master Declaration, Change of Use, Common Area, Liquor License, Renovation, Ripeness, Cafe Wine Bar
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

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Decision Documents

22F-H2221011-REL Decision – 935334.pdf

Uploaded 2026-04-24T11:39:39 (49.3 KB)

22F-H2221011-REL Decision – 956246.pdf

Uploaded 2026-04-24T11:39:42 (138.2 KB)

22F-H2221011-REL Decision – 935334.pdf

Uploaded 2026-01-23T17:40:43 (49.3 KB)

22F-H2221011-REL Decision – 956246.pdf

Uploaded 2026-01-23T17:40:48 (138.2 KB)

The legal case involved Petitioner John J Balaco challenging the Sun City Oro Valley Community Association, Inc. (Respondent). The hearing took place over two sessions, on December 29, 2021, and a further hearing on March 1, 2022, presided over by Administrative Law Judge Jenna Clark.

Key Facts and Main Issues

The central legal issue was whether the Association violated Article 6.7 of the 5th Amended Master Declaration for substantially changing the use of a portion of the Common Area without approval of at least 60% of Members voting on the matter.

The specific action challenged was the modification of plans to renovate the 34-year-old Activity Center's coffee bar (approximately 1,400 square feet) to include the sale of alcoholic beverages, creating a café wine bar component.

Hearing Proceedings and Key Arguments

  1. Association's (Respondent's) Position:
  • The Association argued that offering wine sales was a minor component of the overall renovation of the approximately 22,000 square foot Activity Center and did not constitute a substantial change in use.
  • Association witnesses (including General Manager Mark Wade and Controller/Liquor License Agent Randy Trenary) testified that information regarding the renovation, including the wine bar component, was presented to members via multiple forums, presentations, and weekly newsletters.
  • Crucially, the membership voted on the renovation project, including the wine bar, on March 23, 2021. The vote passed with 1,121 votes (65%) in favor (only 859 votes were required to pass), thereby satisfying and exceeding the 60% requirement stipulated in Article 6.7.
  1. Petitioner's Position:
  • Petitioner Balaco argued that adding an Arizona liquor license to any portion of the common area significantly changes the character and nature of its use.
  • He contended that the license imposes restrictions, such as prohibiting the consumption of personal alcohol (BYOB) in the designated area and restricting access for minors unless accompanied by an adult 21 or older, thus restricting use residents had previously enjoyed.
  • Petitioner also argued that the board made a mistake, asserting that the area was covered by an existing license when, in fact, the Department of Liquor License and Control later confirmed no part of the activity center was currently covered. Petitioner requested an order requiring a specific resident vote prior to the board applying for any liquor license extension.

Final Decision and Legal Points

The Administrative Law Judge (ALJ) concluded that the Petitioner did not sustain his burden of proving a violation of Article 6.7 by a preponderance of the evidence.

The ALJ emphasized the following legal points:

  • The Petitioner’s argument was not ripe.
  • As of the hearing date, no construction or structural modification of the coffee bar had taken place, and the Association had not submitted a new application to the DLLC to extend its liquor service area.
  • The ALJ found that the crux of the Petitioner’s grievance was "theoretical and predicated on action(s) that have yet to occur".
  • Therefore, the ALJ could not reasonably conclude that the Association had "substantially changed the use of a portion of a common area".

Outcome: The Petitioner’s petition was denied. The matter was taken under advisement on March 1, 2022, and the decision was issued on March 21, 2022.

Questions

Question

Who is responsible for proving that the HOA violated the community documents?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner filing the petition to prove that a violation occurred. The HOA does not have to disprove the claim; the petitioner must provide sufficient evidence to support their allegations.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

How much evidence is required to win a case against an HOA?

Short Answer

A preponderance of the evidence.

Detailed Answer

The standard of proof is 'preponderance of the evidence,' which means the evidence must show that the homeowner's claim is more likely true than not. It is based on the convincing force of the evidence rather than the quantity 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

Topic Tags

  • evidence
  • legal standards

Question

Can I file a petition against my HOA for a violation that hasn't happened yet but is planned?

Short Answer

Generally, no. The dispute must be 'ripe' and not theoretical.

Detailed Answer

Administrative Law Judges generally cannot rule on grievances that are theoretical or based on actions that have not yet occurred. If a construction project or change has not physically started, a claim that it 'will' cause a violation may be dismissed as not ripe.

Alj Quote

The crux of Petitioner’s is theoretical and predicated on action(s) that have yet to occur… Therefore, it cannot reasonably be concluded that the Association substantially changed the use of a portion of a common area.

Legal Basis

Ripeness Doctrine

Topic Tags

  • ripeness
  • future violations
  • construction

Question

Can the Administrative Law Judge order an injunction to stop the HOA from doing something?

Short Answer

No, injunctive relief is unavailable in this administrative process.

Detailed Answer

The administrative hearing process in Arizona for HOA disputes does not grant the ALJ the authority to issue injunctions (orders to stop an action) or declaratory relief. The ALJ determines if a violation occurred based on past or present facts.

Alj Quote

Based on Petitioner’s arguments in closing, it is apparent that he is seeking injunctive and/or declaratory relief that is unavailable for litigants in the administrative hearing process in the State of Arizona.

Legal Basis

Administrative Hearing Limits

Topic Tags

  • injunctions
  • remedies
  • legal relief

Question

Does a renovation of a common area facility automatically count as a 'substantial change in use'?

Short Answer

Not necessarily, especially if the change hasn't occurred yet or doesn't alter the character of the area.

Detailed Answer

Whether a renovation is a 'substantial change in use' (which often requires a member vote) depends on if it changes the character and nature of the area. However, if the project is not yet built, an ALJ may be unable to determine if the change is substantial.

Alj Quote

Notably, the undersigned cannot make any determinations about whether the Association’s proposed voter-approved construction would alter the character and nature of the common area to such an extent that it would create a “substantial change of use” to the area.

Legal Basis

Master Declaration Article 6.7 (cited in decision)

Topic Tags

  • common areas
  • renovations
  • change of use

Question

Is the decision made by the Administrative Law Judge final and binding?

Short Answer

Yes, unless a rehearing is granted.

Detailed Answer

The ALJ's order is binding on both the homeowner and the HOA unless one party successfully files for a rehearing within 30 days of service of the order.

Alj Quote

Pursuant to ARIZ. REV. STAT. § 32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to ARIZ. REV. STAT. § 32-2199.04.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(B)

Topic Tags

  • appeals
  • binding order
  • procedure

Case

Docket No
22F-H2221011-REL
Case Title
John J Balaco vs. Sun City Oro Valley Community Association, Inc.
Decision Date
2022-03-21
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Who is responsible for proving that the HOA violated the community documents?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner filing the petition to prove that a violation occurred. The HOA does not have to disprove the claim; the petitioner must provide sufficient evidence to support their allegations.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

How much evidence is required to win a case against an HOA?

Short Answer

A preponderance of the evidence.

Detailed Answer

The standard of proof is 'preponderance of the evidence,' which means the evidence must show that the homeowner's claim is more likely true than not. It is based on the convincing force of the evidence rather than the quantity 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

Topic Tags

  • evidence
  • legal standards

Question

Can I file a petition against my HOA for a violation that hasn't happened yet but is planned?

Short Answer

Generally, no. The dispute must be 'ripe' and not theoretical.

Detailed Answer

Administrative Law Judges generally cannot rule on grievances that are theoretical or based on actions that have not yet occurred. If a construction project or change has not physically started, a claim that it 'will' cause a violation may be dismissed as not ripe.

Alj Quote

The crux of Petitioner’s is theoretical and predicated on action(s) that have yet to occur… Therefore, it cannot reasonably be concluded that the Association substantially changed the use of a portion of a common area.

Legal Basis

Ripeness Doctrine

Topic Tags

  • ripeness
  • future violations
  • construction

Question

Can the Administrative Law Judge order an injunction to stop the HOA from doing something?

Short Answer

No, injunctive relief is unavailable in this administrative process.

Detailed Answer

The administrative hearing process in Arizona for HOA disputes does not grant the ALJ the authority to issue injunctions (orders to stop an action) or declaratory relief. The ALJ determines if a violation occurred based on past or present facts.

Alj Quote

Based on Petitioner’s arguments in closing, it is apparent that he is seeking injunctive and/or declaratory relief that is unavailable for litigants in the administrative hearing process in the State of Arizona.

Legal Basis

Administrative Hearing Limits

Topic Tags

  • injunctions
  • remedies
  • legal relief

Question

Does a renovation of a common area facility automatically count as a 'substantial change in use'?

Short Answer

Not necessarily, especially if the change hasn't occurred yet or doesn't alter the character of the area.

Detailed Answer

Whether a renovation is a 'substantial change in use' (which often requires a member vote) depends on if it changes the character and nature of the area. However, if the project is not yet built, an ALJ may be unable to determine if the change is substantial.

Alj Quote

Notably, the undersigned cannot make any determinations about whether the Association’s proposed voter-approved construction would alter the character and nature of the common area to such an extent that it would create a “substantial change of use” to the area.

Legal Basis

Master Declaration Article 6.7 (cited in decision)

Topic Tags

  • common areas
  • renovations
  • change of use

Question

Is the decision made by the Administrative Law Judge final and binding?

Short Answer

Yes, unless a rehearing is granted.

Detailed Answer

The ALJ's order is binding on both the homeowner and the HOA unless one party successfully files for a rehearing within 30 days of service of the order.

Alj Quote

Pursuant to ARIZ. REV. STAT. § 32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to ARIZ. REV. STAT. § 32-2199.04.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(B)

Topic Tags

  • appeals
  • binding order
  • procedure

Case

Docket No
22F-H2221011-REL
Case Title
John J Balaco vs. Sun City Oro Valley Community Association, Inc.
Decision Date
2022-03-21
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • John J Balaco (petitioner)
  • Diane Paton (witness)
  • James Gearhart (helper / observer)
    Assisted Petitioner with documents; observed hearing

Respondent Side

  • Nicholas Nogami (attorney)
    Carpenter Hazlewood Delgado & Bolen LLP
    Counsel for Respondent
  • Sami Farhat (attorney)
    Carpenter Hazlewood Delgado & Bolen LLP
    Counsel for Respondent
  • Mark Wade (general manager / witness)
  • Randall Jean Trenary (controller / witness)
    Liquor license agent
  • James Henry Mitchell (witness)
    Also referred to as Jim Mitchell or Randall James Mitchell

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Contact for appeal procedure
  • c. serrano (OAH staff)
    OAH
    Transmitter of Minute Entry
  • Miranda Alvarez (OAH staff)
    OAH
    Transmitter of ALJ Decision

Other Participants

  • Marla Balaco (observer)
  • Janet Ambrosio (observer)
  • Sheila Helmuth (observer)
  • Sherokee Ilse (observer)
  • Edward Zwerling (observer)
  • Robin Coulter (observer)
  • Rocky Gedrose (observer)
  • Thelma LaFleur (observer)
  • Tim Kelley (observer)
  • Vicki McFadden (observer)
  • Allan Mashburn (observer)
  • Cathy Winje (observer)
  • Chris Ludwig (observer)
  • Dan Edward (observer)
  • Dibri Ruiz (observer)
  • Donna Harting (observer)
  • Eric Meyers (observer)
  • Anthony Denaro (observer)
  • Melanie Stenson (observer)
  • Bertha Medina (observer)
  • Carol Johnson (observer)
  • Rita Petterson (observer)
  • David Sullivan (observer)
  • Gary Lurch (observer)
  • Janet Keller (observer)
  • Joanne Keck (observer)
  • Kaaren Brent (observer)
  • Karen Roche (observer)
  • Ken Sandrick (observer)
  • Kristi Halverson (observer)
  • Lindsay Welbers (observer)
  • Marie Scarpulla (observer)
  • Maxine Yunker (observer)
  • Pamela Sarpalius (observer)
  • Phyliss Austin (observer)
  • Robert Watson (observer)
  • Sandra Fischer (observer)
  • Sharon Kennedy (observer)
  • Vicki McFadin (observer)
  • William Whitney (observer)

Nancy L Pope v. La Vida Homeowners Association

Posted on by

Case Summary

Case ID 22F-H2221013-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-03-02
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge granted Petitioner's request, finding that the HOA violated its community documents regarding common area maintenance because a bottle tree in the common area caused damage to Petitioner's property. The ALJ ordered the HOA to comply with the relevant community document provisions and refund the Petitioner's $500.00 filing fee. The ALJ noted she lacked statutory authority to award the approximately $28,486.00 in monetary damages requested by Petitioner.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Nancy L Pope Counsel —
Respondent La Vida Homeowners Association Counsel Erik J. Stone

Alleged Violations

CC&Rs Article V Section 1, CC&Rs Article VI Section 1a, and Bylaws Article IV Section 2c

Outcome Summary

The Administrative Law Judge granted Petitioner's request, finding that the HOA violated its community documents regarding common area maintenance because a bottle tree in the common area caused damage to Petitioner's property. The ALJ ordered the HOA to comply with the relevant community document provisions and refund the Petitioner's $500.00 filing fee. The ALJ noted she lacked statutory authority to award the approximately $28,486.00 in monetary damages requested by Petitioner.

Key Issues & Findings

HOA failure to maintain common area landscaping resulting in root damage to homeowner property.

The Respondent HOA violated its community document obligations for common area maintenance (including landscaping) because a bottle tree located in the common area caused substantial root intrusion damage (lifting and heaving) to the Petitioner's patio and concrete slab.

Orders: Petition granted. Respondent ordered to abide by CC&Rs Article V Section 1, CC&Rs Article VI Section 1a, and Bylaws Article IV Section 2c. Respondent ordered to pay Petitioner the filing fee of $500.00 within thirty (30) days. No civil penalty imposed.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY 1220

Analytics Highlights

Topics: homeowner rights, maintenance violation, root damage, planned community, bottle tree, CC&Rs
Additional Citations:

  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY 1220

Video Overview

Audio Overview

Decision Documents

22F-H2221013-REL Decision – 932121.pdf

Uploaded 2026-04-30T09:52:28 (43.6 KB)

22F-H2221013-REL Decision – 932140.pdf

Uploaded 2026-04-30T09:52:34 (5.8 KB)

22F-H2221013-REL Decision – 951381.pdf

Uploaded 2026-04-30T09:52:42 (122.2 KB)

22F-H2221013-REL Decision – 954163.pdf

Uploaded 2026-04-30T09:52:48 (46.1 KB)

22F-H2221013-REL Decision – 932121.pdf

Uploaded 2026-01-23T17:41:00 (43.6 KB)

22F-H2221013-REL Decision – 932140.pdf

Uploaded 2026-01-23T17:41:05 (5.8 KB)

22F-H2221013-REL Decision – 951381.pdf

Uploaded 2026-01-23T17:41:08 (122.2 KB)

22F-H2221013-REL Decision – 954163.pdf

Uploaded 2026-01-23T17:41:10 (46.1 KB)

This summary details the hearing proceedings, key arguments, and final decision in the case of Nancy L. Pope v. La Vida Homeowners Association (No. 22F-H2221013-REL).

Key Facts and Issues

Petitioner Nancy L. Pope, a homeowner in the La Vida subdivision, filed a petition against the La Vida Homeowners Association (HOA), alleging violations of the HOA's Bylaws (Article IV, Section 2c) and CC&Rs (Article V, Section 1; Article VI, Section 1a). The central dispute stemmed from the HOA’s alleged failure to maintain or remove a bottle tree located on the Common Area adjacent to Petitioner’s property, resulting in root intrusion that caused heaving and cracking of Petitioner’s concrete slab and patio.

The damage was discovered in June 2021 during a home remodel, when Petitioner’s contractor tore up the concrete slab and found a substantial web of roots from the bottle tree. Petitioner sought total damages of $28,487, covering floor repair, patio replacement, grinding, and the $550.00 cost Petitioner incurred to remove the bottle tree.

Key Arguments

  1. Petitioner's Argument (Negligence and Maintenance Duty): Petitioner argued the HOA was negligent in its maintenance duty. Testimony established that bottle trees are known for their aggressive root systems, which can spread up to 100 feet, and should generally be planted at least 25 to 30 feet from structures. Petitioner argued that the HOA, responsible for common area maintenance, should have been aware of the risks posed by the bottle tree planted close to her home. Petitioner also cited the delay of several months in authorizing the removal of the tree as contributing to increased damages.
  2. Respondent's Argument (Lack of Knowledge and Origin): The HOA denied negligence, arguing they had fulfilled their duty by trimming the trees. Respondent asserted that the trees were planted by a predecessor homeowner, not the HOA or developer, and that Petitioner's own irrigation system had watered them. Crucially, the HOA argued that it was not negligent because it "did not know or have reason to know" of the subterranean root intrusion prior to the damage discovery in June 2021, and proactive root maintenance was not an industry standard.

Outcome and Legal Decision

The Administrative Law Judge (ALJ) found that the Petitioner sustained her burden of proving a community document violation by a preponderance of the evidence.

The ALJ granted Petitioner’s petition, concluding that the Respondent violated CC&Rs Article V section 1, Article VI section 1a, and Bylaws Article IV, Section 2c. The ALJ held that the HOA's duty to maintain the Common Area did not end at the boundary line. The core legal finding was that "But for the bottle tree being situated where it was and in the state it was in, there would not be roots coming onto Petitioner’s property to such an extent that caused any amount of damage or harm".

However, in a subsequent order clarifying the scope of authority, the ALJ noted that the statutes governing these disputes (A.R.S. § 32-2199 et seq.) do not grant the Administrative Law Judge authority to award compensatory damages, injunctive relief, or declaratory judgments.

The final *Order* required the Respondent to abide by the community documents and statutes specified. Specifically, the Respondent was ordered to pay Petitioner her filing fee of $500.00.

Questions

Question

If a tree in the HOA common area damages my home, is the HOA responsible even if the tree was planted by a previous homeowner?

Short Answer

Yes. The HOA's duty to maintain the common area applies regardless of who originally planted the tree.

Detailed Answer

The ALJ determined that even though the parties presumed the trees were planted by an original homeowner decades ago, the HOA still had an obligation to maintain the common area. The HOA was found in violation of the CC&Rs because the tree located in the common area caused damage to the homeowner's property.

Alj Quote

Respondent’s duty to maintain the Common Area did not end at the boundary line of the Common Area. A tree in Respondent’s Common Area caused damage to Petitioner’s property.

Legal Basis

CC&Rs Article V Section 1; Article VI Section 1a

Topic Tags

  • common area maintenance
  • property damage
  • landscaping
  • liability

Question

Can the Administrative Law Judge award me money (damages) to cover the cost of repairs to my home?

Short Answer

No. The ALJ does not have the statutory authority to award monetary damages or injunctive relief.

Detailed Answer

While the ALJ can determine that a violation occurred and order the HOA to abide by the community documents, they cannot order the HOA to pay for the repairs (damages). The homeowner may need to pursue a separate civil action for monetary compensation beyond the filing fee.

Alj Quote

Nothing in the statutes applicable to these disputes provides the Administrative Law Judge with any additional authority to award damages, injunction relief, or declaratory judgments.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • damages
  • remedies
  • jurisdiction
  • repairs

Question

If I win my hearing against the HOA, will I get my filing fee back?

Short Answer

Yes. If the petitioner prevails, the ALJ is required to order the respondent to pay the filing fee.

Detailed Answer

The decision explicitly ordered the HOA to reimburse the homeowner for the $500 filing fee because the petition was granted. This is a statutory requirement when the petitioner wins.

Alj Quote

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

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • filing fees
  • reimbursement
  • costs

Question

Does the HOA's duty to 'maintain' landscaping include preventing root damage, or just trimming trees?

Short Answer

The duty to maintain includes preventing damage. Regular trimming is not sufficient if the roots are causing damage.

Detailed Answer

The HOA argued that they fulfilled their duty by having a landscaper trim the trees. However, the ALJ found that despite this regular maintenance, the HOA violated the CC&Rs because the tree's existence and condition caused damage to the adjacent property.

Alj Quote

Despite Respondent’s contract with CityScape for regular arbor maintenance, the bottle tree’s roots caused lifting and heaving of Petitioner’s patio and concrete slab.

Legal Basis

CC&Rs Article V Section 1

Topic Tags

  • maintenance definition
  • landscaping
  • negligence defense

Question

What is the standard of proof I need to meet to win a hearing against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence'.

Detailed Answer

The homeowner bears the burden of proof. This standard means you must show that your claim is 'more probably true than not' or carries the greater weight of the evidence.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

A.R.S. § 41-1092.07

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

Is the HOA liable if they claim they didn't know the roots were causing problems?

Short Answer

Yes. Lack of knowledge or 'negligence' is not necessarily the standard for a CC&R violation in this context.

Detailed Answer

The HOA argued they were not negligent because they did not know about the root intrusion. The ALJ ruled against them anyway, basing the decision on the strict violation of the duty to maintain the common area which resulted in damage, effectively setting aside the 'we didn't know' defense.

Alj Quote

Respondent further argued that because it did not know or have reason to know of the root intrusion, Respondent was not negligent… [However,] the undersigned Administrative Law Judge concludes that… Petitioner established a violation… her petition must be granted.

Legal Basis

CC&Rs Article V Section 1

Topic Tags

  • negligence
  • liability
  • defense arguments

Case

Docket No
22F-H2221013-REL
Case Title
Nancy L. Pope vs. La Vida Homeowners Association
Decision Date
2022-03-02
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

If a tree in the HOA common area damages my home, is the HOA responsible even if the tree was planted by a previous homeowner?

Short Answer

Yes. The HOA's duty to maintain the common area applies regardless of who originally planted the tree.

Detailed Answer

The ALJ determined that even though the parties presumed the trees were planted by an original homeowner decades ago, the HOA still had an obligation to maintain the common area. The HOA was found in violation of the CC&Rs because the tree located in the common area caused damage to the homeowner's property.

Alj Quote

Respondent’s duty to maintain the Common Area did not end at the boundary line of the Common Area. A tree in Respondent’s Common Area caused damage to Petitioner’s property.

Legal Basis

CC&Rs Article V Section 1; Article VI Section 1a

Topic Tags

  • common area maintenance
  • property damage
  • landscaping
  • liability

Question

Can the Administrative Law Judge award me money (damages) to cover the cost of repairs to my home?

Short Answer

No. The ALJ does not have the statutory authority to award monetary damages or injunctive relief.

Detailed Answer

While the ALJ can determine that a violation occurred and order the HOA to abide by the community documents, they cannot order the HOA to pay for the repairs (damages). The homeowner may need to pursue a separate civil action for monetary compensation beyond the filing fee.

Alj Quote

Nothing in the statutes applicable to these disputes provides the Administrative Law Judge with any additional authority to award damages, injunction relief, or declaratory judgments.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • damages
  • remedies
  • jurisdiction
  • repairs

Question

If I win my hearing against the HOA, will I get my filing fee back?

Short Answer

Yes. If the petitioner prevails, the ALJ is required to order the respondent to pay the filing fee.

Detailed Answer

The decision explicitly ordered the HOA to reimburse the homeowner for the $500 filing fee because the petition was granted. This is a statutory requirement when the petitioner wins.

Alj Quote

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

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • filing fees
  • reimbursement
  • costs

Question

Does the HOA's duty to 'maintain' landscaping include preventing root damage, or just trimming trees?

Short Answer

The duty to maintain includes preventing damage. Regular trimming is not sufficient if the roots are causing damage.

Detailed Answer

The HOA argued that they fulfilled their duty by having a landscaper trim the trees. However, the ALJ found that despite this regular maintenance, the HOA violated the CC&Rs because the tree's existence and condition caused damage to the adjacent property.

Alj Quote

Despite Respondent’s contract with CityScape for regular arbor maintenance, the bottle tree’s roots caused lifting and heaving of Petitioner’s patio and concrete slab.

Legal Basis

CC&Rs Article V Section 1

Topic Tags

  • maintenance definition
  • landscaping
  • negligence defense

Question

What is the standard of proof I need to meet to win a hearing against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence'.

Detailed Answer

The homeowner bears the burden of proof. This standard means you must show that your claim is 'more probably true than not' or carries the greater weight of the evidence.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

A.R.S. § 41-1092.07

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

Is the HOA liable if they claim they didn't know the roots were causing problems?

Short Answer

Yes. Lack of knowledge or 'negligence' is not necessarily the standard for a CC&R violation in this context.

Detailed Answer

The HOA argued they were not negligent because they did not know about the root intrusion. The ALJ ruled against them anyway, basing the decision on the strict violation of the duty to maintain the common area which resulted in damage, effectively setting aside the 'we didn't know' defense.

Alj Quote

Respondent further argued that because it did not know or have reason to know of the root intrusion, Respondent was not negligent… [However,] the undersigned Administrative Law Judge concludes that… Petitioner established a violation… her petition must be granted.

Legal Basis

CC&Rs Article V Section 1

Topic Tags

  • negligence
  • liability
  • defense arguments

Case

Docket No
22F-H2221013-REL
Case Title
Nancy L. Pope vs. La Vida Homeowners Association
Decision Date
2022-03-02
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Nancy L Pope (petitioner)
  • Ed Humston (witness)
    H&H Enterprises of Arizona
    Petitioner's Contractor

Respondent Side

  • Erik J. Stone (HOA attorney)
    Jones, Skelton & Hochuli, P.L.C.
  • Gabrielle Sherwood (property manager)
    City Property Management
    Community Manager for La Vida HOA
  • Debbie Duffy (board member)
    La Vida Homeowners Association
    Board Secretary
  • Lawrence Oliva (board member)
    La Vida Homeowners Association
    Board President
  • Barbara (board member)
    La Vida Homeowners Association
    Mentioned in email correspondence

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    ADRE
  • Santos Diaz (witness)
    CareScape
    Area Manager for CareScape, Respondent's landscaper
  • c. serrano (unknown)
    Transmitted documents
  • Miranda Alvarez (unknown)
    Transmitted documents
  • AHansen (unknown)
    ADRE staff
    Recipient of transmission
  • djones (unknown)
    ADRE staff
    Recipient of transmission
  • DGardner (unknown)
    ADRE staff
    Recipient of transmission
  • vnunez (unknown)
    ADRE staff
    Recipient of transmission
  • tandert (unknown)
    ADRE staff
    Recipient of transmission

Dean A Yelenik v. Meridian Condominiums Homeowners Association

Posted on by

Case Summary

Case ID 22F-H2221021-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-02-18
Administrative Law Judge Jenna Clark
Outcome The ALJ found the Board acted within its lawful authority because the governing documents and statute cited did not explicitly prohibit a Board Member from resigning and immediately being appointed to fill an unexpired term to elongate their service, and Petitioner failed to meet the burden of proof.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Dean A Yelenik Counsel —
Respondent Meridian Condominiums Homeowners Association Counsel Nick Eicher, Esq.

Alleged Violations

ARIZ. REV. STAT. §§ 33-1243(B) and Community Bylaws 3.1 and 3.6

Outcome Summary

The ALJ found the Board acted within its lawful authority because the governing documents and statute cited did not explicitly prohibit a Board Member from resigning and immediately being appointed to fill an unexpired term to elongate their service, and Petitioner failed to meet the burden of proof.

Why this result: Petitioner failed to prove by a preponderance of the evidence that the Association violated ARS § 33-1243(B) and Bylaws 3.1 and 3.6. The Tribunal found the Board’s action, though potentially questionable, was not unlawful.

Key Issues & Findings

Whether the Association violated ARS § 33-1243(B) and Bylaws 3.1 and 3.6 by appointing an existing board member to fill a vacancy, effectively extending her term.

The Board appointed existing Board member Joan Robley to fill the unexpired term of Board Member Gallu (expiring Jan 2023) immediately after she resigned her own seat (expiring Jan 2021), which Petitioner alleged violated governing documents by extending her term and not genuinely filling a vacancy.

Orders: Petitioner's petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1243(B)
  • Community Bylaws 3.1
  • Community Bylaws 3.6
  • ARIZ. REV. STAT. § 32-2199.05

Analytics Highlights

Topics: Board Vacancy, Term Extension, Bylaw Interpretation, Resignation and Reappointment, ARS 33-1243(B)
Additional Citations:

  • ARIZ. REV. STAT. § 33-1243(B)
  • Community Bylaws 3.1
  • Community Bylaws 3.6
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

22F-H2221021-REL Decision – 948752.pdf

Uploaded 2026-04-24T11:41:34 (130.2 KB)

22F-H2221021-REL Decision – 948752.pdf

Uploaded 2026-01-23T17:42:33 (130.2 KB)

This matter was an administrative hearing held on February 1, 2022, before Administrative Law Judge (ALJ) Jenna Clark, regarding a dispute between Petitioner Arthur Dean Yelenik and Respondent Meridian Condominiums Homeowners Association (the Association). Petitioner alleged the Association violated Arizona Revised Statute (ARS) § 33-1243(B) and Community Bylaws Sections 3.1 and 3.6.

Key Facts

The dispute centered on the Board of Directors' actions following the resignation of Board Member Chris Gallu in September 2020, whose term had approximately two years and three months remaining. At an October 2020 Board meeting, the Board filled this vacancy by appointing existing Board Member Joan Robley. To facilitate this, Ms. Robley resigned from her existing seat (which had only three months remaining before the January 2021 election) and was immediately appointed to Mr. Gallu’s unexpired term, effectively extending her service by two years and avoiding scheduled re-election by the homeowners. The Board operated with four members for approximately three months until the subsequent annual meeting.

Main Issues and Legal Arguments

The crux of the inquiry was whether a Board Member may resign and be immediately appointed to fill a Board vacancy on the same day, thereby elongating their term of service.

Petitioner's Argument:

The Petitioner argued that the Board's action was an illegitimate "board term swap," not a valid process for filling a vacancy.

  1. Bylaw 3.1 Violation: Bylaw 3.1 requires the Board to be an odd number (historically five members). Petitioner argued that since Ms. Robley was already a member, her reappointment did not increase the total number of board members, thus failing to “fill a vacancy in the board” and rendering Bylaw 3.1 meaningless.
  2. ARS § 33-1243(B) Violation: This statute prohibits the Board from electing members or "determin[ing] the terms of office of the board of director members". Petitioner argued the Board violated this by determining Ms. Robley's term of office (changing it from 3 months to over 2 years).

Respondent's Argument:

The Association argued it acted within its lawful authority, prioritizing the Association's best interest by retaining Ms. Robley's 15 years of continuous experience, particularly since three members were "freshmen".

  1. Bylaw 3.6 Authority: Bylaw 3.6 grants the board the authority to fill vacancies. Neither the Bylaws nor the statute explicitly prohibit appointing a former or existing board member to fill a vacancy. The sole requisite for service is unit ownership, which Ms. Robley met.
  2. Quorum Maintained: The Board maintained a quorum (three members out of five positions) at all relevant times.
  3. Statute Compliance: The Board did not violate ARS § 33-1243(B) because the terms of office (three-year staggered terms) were set by the membership in 2005, not by the Board as a matter of general policy. The statute allows the board to "fill vacancies in its membership for the unexpired portion of any term".

Outcome and Final Decision

The ALJ found that the Petitioner did not sustain his burden of proof by a preponderance of the evidence. The Tribunal concluded that the Board acted within its lawful authority. The decision stated that neither Bylaw Section 3.6 nor ARS § 33-1243(B) implicitly or explicitly prohibit the occurrence. The ALJ also rejected the argument that there is a presumption of "new blood" required for appointments. Petitioner's petition was therefore denied.

Questions

Question

Can a board member resign and immediately be appointed to a different vacancy to get a longer term?

Short Answer

Yes, unless the governing documents specifically prohibit it.

Detailed Answer

The ALJ ruled that a board member can resign their current seat and be appointed to a vacancy with a longer unexpired term. As long as the member is eligible (e.g., a unit owner) and the bylaws or statutes do not explicitly forbid this practice, it is considered a lawful exercise of the board's authority to fill vacancies.

Alj Quote

Neither Bylaws Section 3.6 nor ARIZ. REV. STAT. §§ 33-1243(B) implicitly or explicitly prohibit what occurred.

Legal Basis

A.R.S. § 33-1243(B); Bylaws Section 3.6

Topic Tags

  • Board Vacancies
  • Term Limits
  • Board Appointments

Question

Does the HOA board have to choose a new person ('new blood') when filling a vacancy?

Short Answer

No, the board is not required to select a new person.

Detailed Answer

There is no legal requirement for a board to seek out new candidates or 'new blood' when filling a vacancy. The board may appoint a former or resigning director to a vacant seat as long as they meet the basic qualifications, such as being a unit owner.

Alj Quote

There is no presumption of 'new blood' as Petitioner argued. The sole requisite to fill the vacancy was that the choice be limited to unit owners, which Ms. Robley is.

Legal Basis

Bylaws Interpretation

Topic Tags

  • Board Qualifications
  • Vacancies

Question

Does the board have the authority to fill vacancies without holding a general membership election?

Short Answer

Yes, the board generally has the statutory authority to appoint members to fill vacancies.

Detailed Answer

Arizona statute allows the board of directors to fill vacancies in its membership for the remainder of an unexpired term without holding a full election, provided the bylaws align with this authority.

Alj Quote

The statute does note, however, that the board of directors may 'fill vacancies in its membership for the unexpired portion of any term.'

Legal Basis

A.R.S. § 33-1243(B)

Topic Tags

  • Elections
  • Board Authority

Question

Is a board decision illegal just because it is 'questionable' or unpopular?

Short Answer

No, a questionable choice is not necessarily unlawful.

Detailed Answer

The ALJ clarified that even if a board makes a decision that is questionable or if they could have made a different determination, the decision is not unlawful unless it specifically violates the statutes or governing documents.

Alj Quote

Just because the Association could have made any number of different determinations after Mr. Gallu resigned, does not mean that its questionable choice to appoint Ms. Robley to his seat was unlawful.

Legal Basis

Board Discretion

Topic Tags

  • Board Conduct
  • Decision Making

Question

What burden of proof does a homeowner have when challenging an HOA in a hearing?

Short Answer

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

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to convince the judge that their claim is more likely true than not. If they fail to meet this standard, the petition will be denied.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Standards
  • Hearings

Question

Does the Administrative Law Judge have the power to interpret the HOA's CC&Rs and Bylaws?

Short Answer

Yes, the OAH tribunal can interpret the contract between the parties.

Detailed Answer

The Office of Administrative Hearings (OAH) has the specific authority to hear contested cases and interpret the contract (the CC&Rs and Bylaws) that exists between the homeowner and the association.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Jurisdiction
  • Contract Interpretation

Question

If I pay for a single-issue petition, can the judge rule on other related issues?

Short Answer

No, the tribunal is limited to the specific issue paid for.

Detailed Answer

The tribunal's scope is limited to the specific issue(s) for which the filing fee was paid. They cannot adjudicate outside that scope even if related violations are alleged.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may only determine whether Respondent committed a violation… based on the same event or series of alleged conduct.

Legal Basis

A.R.S. § 32-2199.05

Topic Tags

  • Procedure
  • Fees

Case

Docket No
22F-H2221021-REL
Case Title
Dean A Yelenik vs. Meridian Condominiums Homeowners Association
Decision Date
2022-02-18
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Can a board member resign and immediately be appointed to a different vacancy to get a longer term?

Short Answer

Yes, unless the governing documents specifically prohibit it.

Detailed Answer

The ALJ ruled that a board member can resign their current seat and be appointed to a vacancy with a longer unexpired term. As long as the member is eligible (e.g., a unit owner) and the bylaws or statutes do not explicitly forbid this practice, it is considered a lawful exercise of the board's authority to fill vacancies.

Alj Quote

Neither Bylaws Section 3.6 nor ARIZ. REV. STAT. §§ 33-1243(B) implicitly or explicitly prohibit what occurred.

Legal Basis

A.R.S. § 33-1243(B); Bylaws Section 3.6

Topic Tags

  • Board Vacancies
  • Term Limits
  • Board Appointments

Question

Does the HOA board have to choose a new person ('new blood') when filling a vacancy?

Short Answer

No, the board is not required to select a new person.

Detailed Answer

There is no legal requirement for a board to seek out new candidates or 'new blood' when filling a vacancy. The board may appoint a former or resigning director to a vacant seat as long as they meet the basic qualifications, such as being a unit owner.

Alj Quote

There is no presumption of 'new blood' as Petitioner argued. The sole requisite to fill the vacancy was that the choice be limited to unit owners, which Ms. Robley is.

Legal Basis

Bylaws Interpretation

Topic Tags

  • Board Qualifications
  • Vacancies

Question

Does the board have the authority to fill vacancies without holding a general membership election?

Short Answer

Yes, the board generally has the statutory authority to appoint members to fill vacancies.

Detailed Answer

Arizona statute allows the board of directors to fill vacancies in its membership for the remainder of an unexpired term without holding a full election, provided the bylaws align with this authority.

Alj Quote

The statute does note, however, that the board of directors may 'fill vacancies in its membership for the unexpired portion of any term.'

Legal Basis

A.R.S. § 33-1243(B)

Topic Tags

  • Elections
  • Board Authority

Question

Is a board decision illegal just because it is 'questionable' or unpopular?

Short Answer

No, a questionable choice is not necessarily unlawful.

Detailed Answer

The ALJ clarified that even if a board makes a decision that is questionable or if they could have made a different determination, the decision is not unlawful unless it specifically violates the statutes or governing documents.

Alj Quote

Just because the Association could have made any number of different determinations after Mr. Gallu resigned, does not mean that its questionable choice to appoint Ms. Robley to his seat was unlawful.

Legal Basis

Board Discretion

Topic Tags

  • Board Conduct
  • Decision Making

Question

What burden of proof does a homeowner have when challenging an HOA in a hearing?

Short Answer

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

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to convince the judge that their claim is more likely true than not. If they fail to meet this standard, the petition will be denied.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Standards
  • Hearings

Question

Does the Administrative Law Judge have the power to interpret the HOA's CC&Rs and Bylaws?

Short Answer

Yes, the OAH tribunal can interpret the contract between the parties.

Detailed Answer

The Office of Administrative Hearings (OAH) has the specific authority to hear contested cases and interpret the contract (the CC&Rs and Bylaws) that exists between the homeowner and the association.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Jurisdiction
  • Contract Interpretation

Question

If I pay for a single-issue petition, can the judge rule on other related issues?

Short Answer

No, the tribunal is limited to the specific issue paid for.

Detailed Answer

The tribunal's scope is limited to the specific issue(s) for which the filing fee was paid. They cannot adjudicate outside that scope even if related violations are alleged.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may only determine whether Respondent committed a violation… based on the same event or series of alleged conduct.

Legal Basis

A.R.S. § 32-2199.05

Topic Tags

  • Procedure
  • Fees

Case

Docket No
22F-H2221021-REL
Case Title
Dean A Yelenik vs. Meridian Condominiums Homeowners Association
Decision Date
2022-02-18
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Arthur Dean Yelenik (petitioner)
    Also goes by Dean Yelenik
  • Kristen Terry Beloo (homeowner/past board president)
    Part of petitioner's working group; Past president (6 years)
  • Kathleen Moles (homeowner/past board president)
    Part of petitioner's working group; Past president (3 years)
  • David Moles (homeowner)
    Part of petitioner's working group

Respondent Side

  • Eadie Rudder (respondent attorney)
  • Nick Eicher (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
  • Margo McInnis (board president/witness)
    Meridian Condominiums Homeowners Association
    Testified for Respondent
  • Joan Robley (board member)
    Meridian Condominiums Homeowners Association
    Appointment subject of dispute
  • Annette (property manager)
    Century Management
    Referred to as Community Manager
  • Quinton Phillips (HOA attorney)
    Attorney for the Association

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Dan Gardner (HOA Coordinator)
    Arizona Department of Real Estate

Other Participants

  • Chris Gallu (former board member)
    Meridian Condominiums Homeowners Association
    Resignation created the contested vacancy; referred to as Mr. Beloo/Blue in transcript
  • Fran McGovern (board member)
    Meridian Condominiums Homeowners Association
    Elected to Robley's former seat in Jan 2021

Rodney F Kirby v. Dove Cove Estates Homeowners Association

Posted on by

Case Summary

Case ID 21F-H2121049-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-10-12
Administrative Law Judge Jenna Clark
Outcome total
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rodney & Patricia Kirby Counsel —
Respondent Dove Cove Estates Homeowners Association Counsel Lydia Peirce Linsmeier and Kaylee Ivy

Alleged Violations

CC&Rs Article IV, Section 4.1.1

Outcome Summary

The ALJ granted the Petitioners' petition, finding that the HOA violated CC&Rs Article IV section 4.1.1 by failing its duty to maintain common area landscaping (sissoo trees) in a state that did not cause damage or undue financial/health burden to the Petitioners' property. The HOA was ordered to refund the Petitioners' $500.00 filing fee.

Key Issues & Findings

Whether Dove Cove Estates Homeowners Association (Respondent) are in violation of CC&Rs Article IV, Sections 4.1, 4.1.1, 4.1.2, and 4.1.3 for failing to remove two (2) trees on community property, at the rear of Petitioners’ retaining wall, which have caused damage to Petitioners’ pool and patio slab.

Petitioners filed a single-issue petition alleging the Association violated CC&Rs Article IV sections 4.1, 4.1.1, 4.1.2, and 4.1.3 by refusing to remove two sissoo trees located on community property behind Petitioners’ residence, which caused debris, clogged pool pump, and caused complications with their retaining wall and back patio. The ALJ concluded the Association violated Article IV section 4.1.1 because the trees' condition caused damage and financial/health burden to Petitioners.

Orders: Petitioners' petition is granted. Respondent is ordered to pay Petitioners their filing fee of $500.00 within thirty (30) days. The Respondent is ordered to abide by the specified section of the planned community (Article IV section 4.1.1). No civil penalty shall be imposed.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA maintenance duty, CC&R violation, sissoo trees, filing fee refund, common area landscaping, pool damage
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

21F-H2121049-REL Decision – 940829.pdf

Uploaded 2026-04-24T11:35:22 (47.0 KB)

21F-H2121049-REL Decision – 950132.pdf

Uploaded 2026-04-24T11:35:29 (41.0 KB)

21F-H2121049-REL Decision – 916848.pdf

Uploaded 2026-04-24T11:35:33 (118.5 KB)

21F-H2121049-REL Decision – 917026.pdf

Uploaded 2026-04-24T11:35:36 (124.9 KB)

21F-H2121049-REL Decision – 916848.pdf

Uploaded 2026-01-23T17:37:48 (118.5 KB)

21F-H2121049-REL Decision – 917026.pdf

Uploaded 2026-01-23T17:37:51 (124.9 KB)

This summary details the hearing before Administrative Law Judge Jenna Clark at the Office of Administrative Hearings (OAH) on September 22, 2021, concerning a dispute between homeowners and their association.

Key Facts and Parties

The Petitioners, Rodney and Patricia Kirby, are property owners and members of the Dove Cove Estates Homeowners Association (HOA/Respondent). The Petitioners, who are retired and use their pool daily for exercise, filed a petition alleging the Association violated its Covenants, Conditions, and Restrictions (CC&Rs). The dispute centered on the Association's refusal to remove two sissoo trees, approximately 35 feet high, located on Common Area property just behind the Petitioners’ residence.

The Petitioners testified that since around 2017, the trees caused substantial problems: debris, including leaves and small dead animals, fell into their pool, clogging the pump, which had to be replaced multiple times. Furthermore, roots from the trees caused damage to their retaining wall and back patio slab.

Main Issue and Arguments

The core issue was whether the Association was in violation of CC&Rs Article IV, Sections 4.1 and 4.1.1 for failing to remove the two sissoo trees. CC&R Article IV required the Association to maintain and keep in good condition and repair the Common Area, including the maintenance, repair, and replacement of all landscaping and structures situated upon it.

The Respondent (HOA) denied the complaint, arguing that its duty of maintenance was fulfilled through its landscaping contractor, ProQual Landscaping. The HOA contended that it reasonably relied on ProQual's expert advice; ProQual had inspected the trees in April 2021 and advised that removal was unnecessary, instead leaving them on a regular trimming schedule.

The Petitioners argued that the Association’s inadequate maintenance endangered their health and welfare due to the debris and financial burdens incurred from pool and pump repairs and increased cleaning costs. They asserted that the Association had not given their request proper consideration.

Legal Points and Outcome

The OAH determined it had jurisdiction to hear the dispute and interpret the CC&Rs, which form an enforceable contract between the Association and property owners. Petitioners bore the burden of proof by a preponderance of the evidence.

The ALJ concluded that Petitioners sustained their burden of proof. The decision emphasized that the Association's duty to maintain the Common Area does not end at the boundary line. The evidence established that *but for* the sissoo trees being situated and maintained in their current state, the degree of debris causing damage or harm to Petitioners’ property would not exist.

Final Decision

The ALJ concluded that the Association had violated Article IV section 4.1.1 of the CC&Rs.

IT IS ORDERED that Petitioners’ petition is granted. The Respondent was FURTHER ORDERED to pay Petitioners their filing fee of $500.00 within thirty days. The OAH clarified that while it lacked statutory authority to grant declaratory or injunctive relief, the decision acts to "Order Respondent to abide by the section of the planned community specified".

Questions

Question

Does the HOA's duty to maintain common areas end strictly at the property line?

Short Answer

No. The HOA is responsible if common area elements (like trees) cause damage to adjacent private property.

Detailed Answer

The ALJ determined that the Association's responsibility for maintenance extends beyond the physical boundary if conditions on the common area negatively impact a homeowner's property. In this case, debris from common area trees caused damage to a private pool and patio.

Alj Quote

The Association’s duty to maintain the Common Area does not end at the boundary line of the Common Area.

Legal Basis

CC&Rs Article IV

Topic Tags

  • maintenance
  • common_area
  • liability

Question

Can the HOA avoid liability for damage by claiming they relied on a professional landscaping company's advice?

Short Answer

Not necessarily. Even if the HOA pays for regular maintenance and follows vendor advice, they may still be in violation if damage persists.

Detailed Answer

The HOA argued it was not in violation because it relied on its landscaper's (arborist's) recommendation not to remove the trees. The ALJ rejected this, ruling that despite the payments and advice, the damage caused to the homeowner proved a failure to maintain the common area properly under the CC&Rs.

Alj Quote

Despite the Association’s payment to ProQual for regular arbor maintenance, the sissoo trees still caused debris of all kinds to fill Petitioners’ pool and backyard… Petitioners established a violation of Article IV section 4.1.1 of the CC&Rs

Legal Basis

Contract Law / CC&Rs

Topic Tags

  • vendor_reliance
  • negligence
  • defenses

Question

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

Short Answer

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

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to show that their claim is more likely true than not. It is not based on the number of witnesses, but the convincing force of the evidence.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden_of_proof
  • evidence
  • procedure

Question

Can the Administrative Law Judge order the HOA to perform a specific act, like cutting down a tree?

Short Answer

Generally, no. The Tribunal lacks statutory authority to grant injunctive relief.

Detailed Answer

The ALJ cannot issue an injunction or declaratory relief (specific orders to do or not do a specific act). Instead, the order generally directs the HOA to 'abide by' the specific section of the community documents, leaving the specific method of compliance somewhat open.

Alj Quote

Because this Tribunal has no statutory authority to grant Petitioners’ declaratory or injunctive relief, this decision is expressly issued to 'Order Respondent to abide by the section of the planned community specified.'

Legal Basis

Statutory Authority

Topic Tags

  • remedies
  • injunctive_relief
  • alj_powers

Question

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

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this decision, the ALJ ordered the Association to pay the $500.00 filing fee directly to the Petitioners within 30 days.

Alj Quote

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

Legal Basis

Administrative Order

Topic Tags

  • fees
  • reimbursement
  • costs

Question

What kind of damage is required to prove the HOA failed to maintain the common area?

Short Answer

The homeowner must show actual damage, harm, or financial burden caused by the condition.

Detailed Answer

The decision noted that the debris caused a financial burden (cleaning costs, pump replacement) and potential health risks. The mere presence of trees wasn't the issue; it was the specific damage and harm resulting from them.

Alj Quote

The record does reflect that, but for the sissoo trees being situated where they are and in the state they are in, there would not be debris to a degree on Petitioners’ property that caused any amount of damage or harm.

Legal Basis

Evidence of Damages

Topic Tags

  • damages
  • nuisance
  • evidence

Question

Who has the authority to hear disputes between a homeowner and an HOA?

Short Answer

The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).

Detailed Answer

Statutes authorize the Department to receive petitions regarding violations of community documents or statutes regulating planned communities.

Alj Quote

The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

Legal Basis

ARIZ. REV. STAT. §§ 32-2102

Topic Tags

  • jurisdiction
  • adre
  • oah

Case

Docket No
21F-H2121049-REL
Case Title
Rodney & Patricia Kirby vs. Dove Cove Estates Homeowners Association
Decision Date
2021-10-12
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Does the HOA's duty to maintain common areas end strictly at the property line?

Short Answer

No. The HOA is responsible if common area elements (like trees) cause damage to adjacent private property.

Detailed Answer

The ALJ determined that the Association's responsibility for maintenance extends beyond the physical boundary if conditions on the common area negatively impact a homeowner's property. In this case, debris from common area trees caused damage to a private pool and patio.

Alj Quote

The Association’s duty to maintain the Common Area does not end at the boundary line of the Common Area.

Legal Basis

CC&Rs Article IV

Topic Tags

  • maintenance
  • common_area
  • liability

Question

Can the HOA avoid liability for damage by claiming they relied on a professional landscaping company's advice?

Short Answer

Not necessarily. Even if the HOA pays for regular maintenance and follows vendor advice, they may still be in violation if damage persists.

Detailed Answer

The HOA argued it was not in violation because it relied on its landscaper's (arborist's) recommendation not to remove the trees. The ALJ rejected this, ruling that despite the payments and advice, the damage caused to the homeowner proved a failure to maintain the common area properly under the CC&Rs.

Alj Quote

Despite the Association’s payment to ProQual for regular arbor maintenance, the sissoo trees still caused debris of all kinds to fill Petitioners’ pool and backyard… Petitioners established a violation of Article IV section 4.1.1 of the CC&Rs

Legal Basis

Contract Law / CC&Rs

Topic Tags

  • vendor_reliance
  • negligence
  • defenses

Question

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

Short Answer

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

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to show that their claim is more likely true than not. It is not based on the number of witnesses, but the convincing force of the evidence.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden_of_proof
  • evidence
  • procedure

Question

Can the Administrative Law Judge order the HOA to perform a specific act, like cutting down a tree?

Short Answer

Generally, no. The Tribunal lacks statutory authority to grant injunctive relief.

Detailed Answer

The ALJ cannot issue an injunction or declaratory relief (specific orders to do or not do a specific act). Instead, the order generally directs the HOA to 'abide by' the specific section of the community documents, leaving the specific method of compliance somewhat open.

Alj Quote

Because this Tribunal has no statutory authority to grant Petitioners’ declaratory or injunctive relief, this decision is expressly issued to 'Order Respondent to abide by the section of the planned community specified.'

Legal Basis

Statutory Authority

Topic Tags

  • remedies
  • injunctive_relief
  • alj_powers

Question

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

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this decision, the ALJ ordered the Association to pay the $500.00 filing fee directly to the Petitioners within 30 days.

Alj Quote

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

Legal Basis

Administrative Order

Topic Tags

  • fees
  • reimbursement
  • costs

Question

What kind of damage is required to prove the HOA failed to maintain the common area?

Short Answer

The homeowner must show actual damage, harm, or financial burden caused by the condition.

Detailed Answer

The decision noted that the debris caused a financial burden (cleaning costs, pump replacement) and potential health risks. The mere presence of trees wasn't the issue; it was the specific damage and harm resulting from them.

Alj Quote

The record does reflect that, but for the sissoo trees being situated where they are and in the state they are in, there would not be debris to a degree on Petitioners’ property that caused any amount of damage or harm.

Legal Basis

Evidence of Damages

Topic Tags

  • damages
  • nuisance
  • evidence

Question

Who has the authority to hear disputes between a homeowner and an HOA?

Short Answer

The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).

Detailed Answer

Statutes authorize the Department to receive petitions regarding violations of community documents or statutes regulating planned communities.

Alj Quote

The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

Legal Basis

ARIZ. REV. STAT. §§ 32-2102

Topic Tags

  • jurisdiction
  • adre
  • oah

Case

Docket No
21F-H2121049-REL
Case Title
Rodney & Patricia Kirby vs. Dove Cove Estates Homeowners Association
Decision Date
2021-10-12
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Rodney Kirby (petitioner)
  • Patricia Kirby (petitioner)

Respondent Side

  • Lydia Peirce Linsmeier (HOA attorney)
    Carpenter, Hazelwood, Delgado & Bolen LLP
  • Kaylee Ivy (HOA attorney)
    Carpenter, Hazelwood, Delgado & Bolen LLP
  • Regis Salazar (witness)

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Arthur Fisenko & Viktoriya Tkach-Fisenko v. Bellvue Homeowners

Posted on by

Case Summary

Case ID 21F-H2121046-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-09-20
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied the Petition, finding that Petitioners failed to sustain their burden of proof that the Association violated state statute or community documents. The Association's Architectural Review Committee (ARC) refusal to approve the wall modification request was deemed reasonable because Petitioners failed to provide the supplemental information requested by the ARC.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Arthur Fisenko & Viktoriya Tkach-Fisenko Counsel Laurence Stevens, Esq.
Respondent Bellvue Homeowners Association Counsel Jamie B. Palfai, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1817(B)(3) and CC&Rs Article VII, Section 2

Outcome Summary

The Administrative Law Judge denied the Petition, finding that Petitioners failed to sustain their burden of proof that the Association violated state statute or community documents. The Association's Architectural Review Committee (ARC) refusal to approve the wall modification request was deemed reasonable because Petitioners failed to provide the supplemental information requested by the ARC.

Why this result: The record did not establish violation(s) of ARIZ. REV. STAT. § 33-1817(B)(3) or CC&Rs Article VII, Section 2 by a preponderance of the evidence. Petitioners did not provide sufficient and/or requisite information necessary for the ARC to make a reasonably objective determination, nor did they attempt to cure the deficient application.

Key Issues & Findings

Arbitrary and capricious denial of architectural request to move garage-side yard block wall and install a double-wide gate.

Petitioners alleged the Association (ARC) arbitrarily and capriciously rejected their request to move their garage-side yard wall eight (8) feet forward on their property, using the same materials as the existing wall, except replacing the single-wide gate with a double-wide gate previously approved by Respondent.

Orders: Petitioners’ petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1817(B)(3)
  • CC&Rs Article VII, Section 2

Analytics Highlights

Topics: HOA, Architectural Request, Block Wall, Architectural Review Committee (ARC), A.R.S. 33-1817
Additional Citations:

  • ARIZ. REV. STAT. § 33-1817(B)(3)
  • CC&Rs Article VII, Section 2
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. §§ 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Video Overview

Audio Overview

Decision Documents

21F-H2121046-REL Decision – 912007.pdf

Uploaded 2026-04-24T11:35:00 (138.0 KB)

21F-H2121046-REL Decision – 912007.pdf

Uploaded 2026-01-23T17:37:39 (138.0 KB)

This is a summary of the Administrative Law Judge Decision in *Arthur Fisenko & Viktoriya Tkach-Fisenko vs. Bellvue Homeowners Association* (No. 21F-H2121046-REL), heard on August 30, 2021.

Key Facts and Proceedings

The dispute involved Arthur Fisenko and Viktoriya Tkach-Fisenko (Petitioners), property owners in the Bellvue subdivision, and the Bellvue Homeowners Association (Respondent). The case was heard by the Office of Administrative Hearings (OAH) pursuant to Arizona statutes governing disputes between owners and planned community associations.

Petitioners initially filed a two-issue petition with the Arizona Department of Real Estate alleging that the Association's Architectural Review Committee (ARC) arbitrarily and capriciously rejected landscaping modification requests. By July 30, 2021, the issue concerning the installation of pavers and artificial grass became moot when the Respondent reversed its initial denial.

The main issue for the hearing was whether the Association violated ARIZ. REV. STAT. § 33-1817(B)(3) and/or CC&Rs Article VII, Section 2, by denying Petitioners’ request to move their garage-side yard wall eight (8) feet forward on their property. The proposal included using the same materials and replacing an existing single-wide gate with a previously approved double-wide gate.

Key Arguments

  1. Petitioners’ Argument: Petitioners asserted that the Association's denial was arbitrary and capricious, noting that the ARC had approved the paver/artificial grass portion of their request without requiring supplemental information. They argued that their initial Architectural Request Form, filled out without counsel, should have been approved despite any technical omissions.
  2. Respondent’s Argument: The Association contended that the Petitioners' Architectural Request Form was deficient and incomplete because crucial and relevant information was missing. Specifically, after the initial denial in February 2021 (citing concerns over length and neighbor impact), Petitioners were instructed in March 2021 to submit a complete form, a plot plan, elevation plans, and specifications. Respondent argued that because Petitioners failed to provide this specific supplemental information, the ARC was unable to make a reasonably objective determination necessary for approval.

Legal Points and Outcome

The Petitioners bore the burden of proving, by a preponderance of the evidence, that the Association violated ARIZ. REV. STAT. § 33-1817(B)(3) (which mandates that architectural approval "shall not unreasonably be withheld") or CC&Rs Article VII, Section 2.

The Administrative Law Judge concluded that Petitioners failed to sustain their burden of proof. The decision rested on the finding that the Petitioners did not provide sufficient and/or requisite information necessary for the ARC to reasonably evaluate the wall modification request. Furthermore, the record established that Petitioners were specifically advised what supplemental information was required but failed to cure their application deficiencies.

The final decision held that the Respondent’s refusal to grant the Architectural Request was neither arbitrary nor capricious. Therefore, the Petitioners’ petition was denied.

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21F-H2121046-REL

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This administrative law decision outlines a legal dispute between homeowners Arthur and Viktoriya Fisenko and the Bellvue Homeowners Association regarding property modifications. The petitioners alleged that the association’s Architectural Committee unfairly rejected their request to extend a boundary wall and install a double-wide gate. While the parties resolved disagreements over landscaping materials like artificial grass and pavers before the hearing, the conflict regarding the wall remained. The Administrative Law Judge ultimately ruled in favor of the Homeowners Association, finding that the residents failed to provide the specific plans and technical data required for approval. Consequently, the court determined the association did not act arbitrarily or capriciously in its refusal, leading to the formal denial of the petition.

What was the core legal dispute between the Fisenkos and the HOA?
Why did the Administrative Law Judge ultimately rule against the homeowners?
How do Arizona statutes regulate the architectural approval process for HOAs?

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21F-H2121046-REL

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This administrative law decision outlines a legal dispute between homeowners Arthur and Viktoriya Fisenko and the Bellvue Homeowners Association regarding property modifications. The petitioners alleged that the association’s Architectural Committee unfairly rejected their request to extend a boundary wall and install a double-wide gate. While the parties resolved disagreements over landscaping materials like artificial grass and pavers before the hearing, the conflict regarding the wall remained. The Administrative Law Judge ultimately ruled in favor of the Homeowners Association, finding that the residents failed to provide the specific plans and technical data required for approval. Consequently, the court determined the association did not act arbitrarily or capriciously in its refusal, leading to the formal denial of the petition.

What was the core legal dispute between the Fisenkos and the HOA?
Why did the Administrative Law Judge ultimately rule against the homeowners?
How do Arizona statutes regulate the architectural approval process for HOAs?

Thursday, February 12

Save to note

Today • 11:01 AM

1 source

Video Overview

Mind Map

Reports

Flashcards

Quiz

Infographic

Slide Deck

Data Table

NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Arthur Fisenko (petitioner)
    Testified on behalf of Petitioners
  • Viktoriya Tkach-Fisenko (petitioner)
  • Laurence Stevens (petitioner attorney)
    Stevens & Van Cott, PLLC

Respondent Side

  • Jamie Palfai (HOA attorney)
    O’Hagan Meyer LLC
  • Samuel Truett (witness)
    Bellvue Homeowners Association
    Witness for Bellvue Homeowners Association

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate

Nancy Bender v. Foothills Townhomes Association, Inc.

Posted on by

Case Summary

Case ID 21F-H2121048-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-08-23
Administrative Law Judge Jenna Clark
Outcome The petition was denied because Petitioner failed to sustain her burden of proof that the Association violated Community Bylaws 3.03, as the issue regarding a special meeting was found to be unripe. Other alleged statutory violations were inapplicable.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Nancy Bender Counsel —
Respondent Foothills Townhomes Association, Inc. Counsel Jason Smith, Esq.

Alleged Violations

Community Bylaws 3.03

Outcome Summary

The petition was denied because Petitioner failed to sustain her burden of proof that the Association violated Community Bylaws 3.03, as the issue regarding a special meeting was found to be unripe. Other alleged statutory violations were inapplicable.

Why this result: Petitioner did not sustain the burden of proof (preponderance of the evidence) on the Bylaws violation because the condition precedent (requesting or holding a special meeting) had not occurred, rendering the issue unripe. The statutory violations cited were inapplicable to the Association.

Key Issues & Findings

Whether Foothills Townhomes Association, Inc. violated Community Bylaws 3.03 and ARIZ. REV. STAT. §§ 33-1248(A), 33-1248(B), and 33-1261(D).

Petitioner alleged the Association violated Community Bylaws 3.03 when it drafted and posted a letter directed to Petitioner on its online platform, in response to private correspondence (a draft special meeting request) that had not yet been submitted to the Board, which Petitioner perceived as an attempt to dismantle a platform for discussion and retaliate against her.

Orders: Petitioner’s petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Community Bylaws 3.03
  • ARIZ. REV. STAT. §§ 33-1248(A)
  • ARIZ. REV. STAT. §§ 33-1248(B)
  • ARIZ. REV. STAT. §§ 33-1261(D)

Analytics Highlights

Topics: HOA Dispute, Planned Community, Bylaws Violation, Jurisdiction, Unripe Issue, Special Meeting, Filing Fee Paid
Additional Citations:

  • ARIZ. REV. STAT. §§ 33-1248(A)
  • ARIZ. REV. STAT. §§ 33-1248(B)
  • ARIZ. REV. STAT. §§ 33-1261(D)
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. §§ 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov
  • Community Bylaws 3.03

Video Overview

Audio Overview

Decision Documents

21F-H2121048-REL Decision – 906190.pdf

Uploaded 2026-01-23T17:37:43 (117.4 KB)

This is a concise summary of the Administrative Law Judge Decision in the case of Nancy Bender v. Foothills Townhomes Association, Inc. (No. 21F-H2121048-REL), heard on August 2, 2021, by Administrative Law Judge Jenna Clark.

Key Facts and Background

The Petitioner, Nancy Bender, is an owner and member of the Foothills Townhomes Association, Inc. (Respondent), a planned community association in Arizona. The Association is governed by its Covenants, Conditions, and Restrictions (CC&Rs) and Bylaws, which form an enforceable contract between the Association and its members.

The dispute arose after the Petitioner drafted a letter, along with other homeowners, intended to request a special meeting to discuss issues such as meeting minutes, water bills, financial statements, and due increases. Although this draft letter was never formally submitted to the Board to schedule a special meeting, the Association came into possession of the draft. On February 15, 2021, the Board posted the Petitioner’s draft letter on the HOA’s online platform, along with a written response directed to the Petitioner by the Association’s attorney. Petitioner alleged that this conduct was an act of retaliation intended to dismantle a platform for discussion and that the Association breached its fiduciary duty.

Main Issues and Legal Arguments

Petitioner filed an amended single-issue petition alleging the Association violated Community Bylaws 3.03 and specific Arizona statutes: ARIZ. REV. STAT. §§ 33-1248(A), 33-1248(B), and 33-1261(D). The Administrative Law Judge (ALJ) had jurisdiction over disputes between owners and planned community associations regarding violations of community documents or regulating statutes. The Petitioner bore the burden of proving the violation by a preponderance of the evidence.

Key Legal Points and Findings

  1. Statutory Claims Dismissed as Inapplicable: The Tribunal found that the alleged statutory violations (ARIZ. REV. STAT. §§ 33-1248(A), 33-1248(B), and 33-1261(D)) were inapplicable because the Respondent Association is not subject to governance or regulation by those statutes, thus rendering those concerns moot.
  2. Focus on Bylaws 3.03: Because the statutory claims were moot and Petitioner paid for adjudication of only one issue, the ALJ focused solely on whether the Association violated Community Bylaws Section 3.03. Bylaws Section 3.03 governs the procedure for calling a special meeting of homeowners.
  3. Issue Found Unripe: The ALJ determined that no violation of Bylaws Section 3.03 existed because the issue was unripe. The record showed that a special meeting was *not* held, nor had the Petitioner formally requested one prior to filing her petition. The Petitioner’s actual grievance—the Association’s public dissemination and address of her private correspondence—was determined *not* to be a violation of Bylaws Section 3.03.

Outcome and Decision

The Administrative Law Judge concluded that the Petitioner failed to sustain her burden of proof by a preponderance of the evidence that the Association violated Bylaws Section 3.03. Therefore, the Petitioner's petition was denied.

Questions

Question

If I pay for a single-issue petition, can the judge rule on other grievances I mention during the hearing?

Short Answer

No. The tribunal is limited to the specific issue paid for and filed.

Detailed Answer

If a petitioner only pays the filing fee for the adjudication of one issue, the Administrative Law Judge cannot address other issues raised in the petition or during testimony.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the issues Petitioner raised in her petition or during her testimony.

Legal Basis

ARIZ. REV. STAT. § 32-2199.05

Topic Tags

  • procedure
  • jurisdiction
  • filing fees

Question

What happens if I cite Condominium statutes in a dispute regarding a Planned Community?

Short Answer

The claims will likely be dismissed as moot or inapplicable.

Detailed Answer

Different statutes regulate Condominiums (Title 33, Chapter 9) and Planned Communities (Title 33, Chapter 16). If a homeowner alleges violations of statutes that do not govern their specific type of association, the burden of proof is not met and the concerns are rendered moot.

Alj Quote

However, because Petitioner’s amended petition specifically alleges violations of ARIZ. REV. STAT. § 33-1248(A), 33-1248(B) and 33-1261(D), which are inapplicable as the Association is not subject to governance or regulation by these statutes, the concerns are rendered moot.

Legal Basis

ARIZ. REV. STAT. Title 33, Chapter 9 vs. Chapter 16

Topic Tags

  • legal standards
  • statutes
  • planned communities

Question

Does the HOA posting my private correspondence on the community website violate bylaws regarding special meetings?

Short Answer

No. Public dissemination of private letters does not violate bylaws strictly governing the calling of meetings.

Detailed Answer

While a homeowner may feel that publishing private correspondence is retaliatory or malicious, it does not constitute a violation of bylaws specifically designed to regulate the calling and holding of special meetings.

Alj Quote

Instead, Petitioner’s grievance is the Association’s public dissemination and address of her private correspondence; which is not a violation of Bylaws Section 3.03.

Legal Basis

Bylaws Section 3.03

Topic Tags

  • privacy
  • bylaws
  • communications

Question

Can the ADRE hear claims regarding my constitutional rights or general 'rights as a homeowner'?

Short Answer

No. The Department's jurisdiction is limited to violations of community documents and specific statutes.

Detailed Answer

The Department lacks jurisdiction over broad claims such as constitutional rights, general homeowner rights, or fiduciary responsibilities unless they are framed as specific violations of the community documents or relevant statutes.

Alj Quote

Petitioner also alleged no less than four (4) additional violations in her Amended Petition that the Department has no jurisdiction over or she lacked standing to bring, such as (1) 'my rights as a homeowner,' (2) 'my constitutional rights as an American citizen'…

Legal Basis

ARIZ. REV. STAT. §§ 32-2102, 32-2199

Topic Tags

  • jurisdiction
  • constitutional rights
  • adre authority

Question

Can I claim the HOA violated the rules for calling a special meeting if I never formally requested one?

Short Answer

No. The issue is considered 'unripe' if no meeting was actually requested or held.

Detailed Answer

A violation regarding the calling of a special meeting cannot be established if the homeowner never submitted the request for the meeting prior to filing the petition. The tribunal cannot rule on a hypothetical refusal.

Alj Quote

No violation of Bylaws Section 3.03 exists because the issue is unripe. Here, the record reflects that a special meeting was not held, nor had Petitioner requested one prior to the filing of her petition in this matter.

Legal Basis

ripeness doctrine

Topic Tags

  • meetings
  • procedural requirements
  • violations

Question

What is the standard of proof required for a homeowner to win an administrative hearing?

Short Answer

Preponderance of the evidence.

Detailed Answer

The petitioner must provide enough evidence to convince the judge that their contention is 'more probably true than not.' It requires superior evidentiary weight, not necessarily 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

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

Are the CC&Rs considered a legal contract between me and the HOA?

Short Answer

Yes. CC&Rs form an enforceable contract that binds the owner upon purchase.

Detailed Answer

When a party purchases a property within the development, they agree to be bound by the terms of the CC&Rs and Bylaws, creating a contractual relationship.

Alj Quote

Thus, the CC&Rs form an enforceable contract between the Association and each property owner, and the Bylaws outline how the Association is permitted to operate.

Legal Basis

Contract Law Principles

Topic Tags

  • CC&Rs
  • contracts
  • enforcement

Case

Docket No
21F-H2121048-REL
Case Title
Nancy Bender vs. Foothills Townhomes Association, Inc.
Decision Date
2021-08-23
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

If I pay for a single-issue petition, can the judge rule on other grievances I mention during the hearing?

Short Answer

No. The tribunal is limited to the specific issue paid for and filed.

Detailed Answer

If a petitioner only pays the filing fee for the adjudication of one issue, the Administrative Law Judge cannot address other issues raised in the petition or during testimony.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the issues Petitioner raised in her petition or during her testimony.

Legal Basis

ARIZ. REV. STAT. § 32-2199.05

Topic Tags

  • procedure
  • jurisdiction
  • filing fees

Question

What happens if I cite Condominium statutes in a dispute regarding a Planned Community?

Short Answer

The claims will likely be dismissed as moot or inapplicable.

Detailed Answer

Different statutes regulate Condominiums (Title 33, Chapter 9) and Planned Communities (Title 33, Chapter 16). If a homeowner alleges violations of statutes that do not govern their specific type of association, the burden of proof is not met and the concerns are rendered moot.

Alj Quote

However, because Petitioner’s amended petition specifically alleges violations of ARIZ. REV. STAT. § 33-1248(A), 33-1248(B) and 33-1261(D), which are inapplicable as the Association is not subject to governance or regulation by these statutes, the concerns are rendered moot.

Legal Basis

ARIZ. REV. STAT. Title 33, Chapter 9 vs. Chapter 16

Topic Tags

  • legal standards
  • statutes
  • planned communities

Question

Does the HOA posting my private correspondence on the community website violate bylaws regarding special meetings?

Short Answer

No. Public dissemination of private letters does not violate bylaws strictly governing the calling of meetings.

Detailed Answer

While a homeowner may feel that publishing private correspondence is retaliatory or malicious, it does not constitute a violation of bylaws specifically designed to regulate the calling and holding of special meetings.

Alj Quote

Instead, Petitioner’s grievance is the Association’s public dissemination and address of her private correspondence; which is not a violation of Bylaws Section 3.03.

Legal Basis

Bylaws Section 3.03

Topic Tags

  • privacy
  • bylaws
  • communications

Question

Can the ADRE hear claims regarding my constitutional rights or general 'rights as a homeowner'?

Short Answer

No. The Department's jurisdiction is limited to violations of community documents and specific statutes.

Detailed Answer

The Department lacks jurisdiction over broad claims such as constitutional rights, general homeowner rights, or fiduciary responsibilities unless they are framed as specific violations of the community documents or relevant statutes.

Alj Quote

Petitioner also alleged no less than four (4) additional violations in her Amended Petition that the Department has no jurisdiction over or she lacked standing to bring, such as (1) 'my rights as a homeowner,' (2) 'my constitutional rights as an American citizen'…

Legal Basis

ARIZ. REV. STAT. §§ 32-2102, 32-2199

Topic Tags

  • jurisdiction
  • constitutional rights
  • adre authority

Question

Can I claim the HOA violated the rules for calling a special meeting if I never formally requested one?

Short Answer

No. The issue is considered 'unripe' if no meeting was actually requested or held.

Detailed Answer

A violation regarding the calling of a special meeting cannot be established if the homeowner never submitted the request for the meeting prior to filing the petition. The tribunal cannot rule on a hypothetical refusal.

Alj Quote

No violation of Bylaws Section 3.03 exists because the issue is unripe. Here, the record reflects that a special meeting was not held, nor had Petitioner requested one prior to the filing of her petition in this matter.

Legal Basis

ripeness doctrine

Topic Tags

  • meetings
  • procedural requirements
  • violations

Question

What is the standard of proof required for a homeowner to win an administrative hearing?

Short Answer

Preponderance of the evidence.

Detailed Answer

The petitioner must provide enough evidence to convince the judge that their contention is 'more probably true than not.' It requires superior evidentiary weight, not necessarily 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

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

Are the CC&Rs considered a legal contract between me and the HOA?

Short Answer

Yes. CC&Rs form an enforceable contract that binds the owner upon purchase.

Detailed Answer

When a party purchases a property within the development, they agree to be bound by the terms of the CC&Rs and Bylaws, creating a contractual relationship.

Alj Quote

Thus, the CC&Rs form an enforceable contract between the Association and each property owner, and the Bylaws outline how the Association is permitted to operate.

Legal Basis

Contract Law Principles

Topic Tags

  • CC&Rs
  • contracts
  • enforcement

Case

Docket No
21F-H2121048-REL
Case Title
Nancy Bender vs. Foothills Townhomes Association, Inc.
Decision Date
2021-08-23
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Nancy Bender (petitioner)
    Foothills Townhomes owner/member

Respondent Side

  • Jason Smith (respondent attorney)
    Goodman Holmgren Smith

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Dan Gardener (Constituent Services Manager)
    Arizona Department of Real Estate

Michael E Palacios v. El Rio Community Association

Posted on by

Case Summary

Case ID 21F-H2121053-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-08-13
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge denied the petition in its entirety, concluding that the Petitioner failed to meet the burden of proof required to show that the El Rio Community Association violated statutory or community document requirements regarding access to records.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael E Palacios Counsel —
Respondent El Rio Community Association Counsel Quinten T. Cupps

Alleged Violations

ARIZ. REV. STAT. § 33-1805; Association Bylaws Article 11.3

Outcome Summary

The Administrative Law Judge denied the petition in its entirety, concluding that the Petitioner failed to meet the burden of proof required to show that the El Rio Community Association violated statutory or community document requirements regarding access to records.

Why this result: Petitioner failed to prove the alleged violations by a preponderance of the evidence.

Key Issues & Findings

Failure to fulfill a records request

Petitioner, a member and Board Director, requested to inspect Association books and records on March 30, 2021. Petitioner alleged the Association failed to completely fulfill the request. The ALJ determined that Petitioner failed to meet the burden of proof to demonstrate a violation of the governing statute or bylaws.

Orders: Petitioner's petition and request to levy a civil penalty against Respondent were denied. Respondent was not ordered to reimburse Petitioner's filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • Association Bylaws Article 11.3

Analytics Highlights

Topics: Records Request, HOA Bylaws, A.R.S. 33-1805
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • Association Bylaws Article 11.3
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. §§ 41-1092
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

21F-H2121053-REL Decision – 904187.pdf

Uploaded 2026-01-23T17:38:10 (114.1 KB)

This summary details the Administrative Law Judge (ALJ) Decision in the case of Michael E Palacios v. El Rio Community Association, No. 21F-H2121053-REL. The hearing took place on August 4, 2021, before Administrative Law Judge Adam D. Stone.

Key Facts and Proceedings

The Petitioner, Michael E. Palacios, is a property owner and member of the El Rio Community Association (Association). After being appointed to the Board on March 24, 2021, the Petitioner filed a single-issue petition with the Department of Real Estate on May 10, 2021, asserting that the Association failed to fulfill a records request made on March 30, 2021. The Respondent Association denied all claims. The Department referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing. OAH has the authority to hear contested cases concerning disputes between an owner and a planned community association regarding violations of community documents or statutes.

Main Issue and Legal Points

The central issue addressed was whether the Association violated A.R.S. § 33-1805 and the Association Bylaws Article 11.3 by failing to fulfill the records request. Under the relevant statute, associations must make financial and other records reasonably available to members, typically within ten business days. The Association Bylaws Article 11.3 further grants every Director (which the Petitioner was) an absolute right to inspect all books and records. Petitioner bore the burden of proving the violation by a preponderance of the evidence.

Key Arguments

  1. Petitioner’s Arguments: Petitioner Palacios testified that the Association failed to completely fulfill his March 30 request, alleging he received only about 5% of the documents initially. Specifically, he claimed he did not receive the property management contract (D & E Management), attorney contracts, landscaper contracts, Board minutes, cancelled checks, and ledgers. He also asserted that some provided documents might be false or forged because they contained the incorrect association name ("El Rio Estates Homeowners Association").
  1. Respondent’s Arguments: Denise Ferreira, the manager for the Association's management company (D & E), testified that the Association fully complied with the request, though the compliance was untimely regarding copies of checks due to the bank needing time to prepare the large request. Ferreira explained that there were no ongoing contracts with attorneys or landscapers, and payments related to these services were disclosed through the checks and ledgers provided. Regarding the incorrect name, Ferreira attributed it to an ongoing controversy where some Board members attempted to change the name, but instructions were given to cease using the incorrect name until it was formally modified.

Outcome and Final Decision

The Administrative Law Judge determined that the material facts were not in dispute. The ALJ found that the Petitioner had made a proper request, and the Respondent timely responded, informing the Petitioner of potential delays. Crucially, the ALJ concluded that Petitioner presented no credible evidence that documents existed which were not disclosed.

Therefore, the Petitioner failed to meet the burden of proof required to demonstrate that the Association violated ARIZ. REV. STAT. § 33-1805 or Article 11.3 of the Bylaws.

The final order denied the Petitioner’s petition and his request to levy a civil penalty against the Respondent. Furthermore, the Respondent was not required to reimburse the Petitioner’s filing fee. The decision was transmitted on August 13, 2021.

Questions

Question

How long does my HOA have to fulfill a request to examine records?

Short Answer

The HOA has ten business days to fulfill a request for examination.

Detailed Answer

According to Arizona statute, an association is granted a period of ten business days to comply with a member's request to examine financial and other records.

Alj Quote

The association shall have ten business days to fulfill a request for examination.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • timelines
  • HOA obligations

Question

Can the HOA charge me a fee to simply look at the books and records?

Short Answer

No, the HOA cannot charge a member for making material available for review.

Detailed Answer

State law prohibits the association from charging a member (or their designated representative) any fee for the act of making records available for inspection.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • fees
  • homeowner rights

Question

How much can the HOA charge me if I want copies of the records?

Short Answer

The HOA may charge up to fifteen cents per page for copies.

Detailed Answer

While review is free, if a member requests physical copies of records, the association is legally permitted to charge a fee, capped at fifteen cents per page.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • fees
  • copies

Question

Is the HOA allowed to withhold certain records from me?

Short Answer

Yes, specific categories of records, such as privileged attorney communications or employee records, can be withheld.

Detailed Answer

The law provides exceptions to disclosure for sensitive information, including privileged attorney-client communications, pending litigation, closed session minutes, and personal or financial records of individual members or employees.

Alj Quote

Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to… Privileged communication between an attorney for the association and the association.

Legal Basis

A.R.S. § 33-1805(B)

Topic Tags

  • records request
  • exclusions
  • privacy

Question

Can I see records regarding complaints against specific HOA employees?

Short Answer

No, records regarding specific complaints against individual employees can be withheld.

Detailed Answer

The HOA is not required to disclose records that relate to specific complaints against an individual employee of the association or a contractor.

Alj Quote

Records relating to… specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association [may be withheld].

Legal Basis

A.R.S. § 33-1805(B)(5)

Topic Tags

  • records request
  • employees
  • privacy

Question

What standard of proof do I need to meet to win a dispute hearing against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence.'

Detailed Answer

The petitioner (homeowner) bears the burden of proof. This means you must provide enough evidence to convince the judge that your claim is more probably true than not.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.

Legal Basis

Conclusion of Law 3

Topic Tags

  • hearing procedure
  • burden of proof
  • legal standards

Question

If I believe documents are missing from my request, is my belief enough to prove a violation?

Short Answer

No, you must present credible evidence that the specific undisclosed documents actually exist.

Detailed Answer

Merely alleging that documents are missing is insufficient. The homeowner must provide credible evidence demonstrating that the documents requested actually exist and were withheld.

Alj Quote

Petitioner presented no credible evidence that documents existed which were not disclosed.

Legal Basis

Findings of Fact 18

Topic Tags

  • evidence
  • records request
  • burden of proof

Question

Does an HOA Director have different inspection rights than a regular homeowner?

Short Answer

Yes, Directors generally have an absolute right to inspect all books and records at any reasonable time.

Detailed Answer

Association bylaws often grant Directors broader access than general members, allowing them the absolute right to inspect all documents and physical properties at reasonable times.

Alj Quote

Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.

Legal Basis

Association Bylaws Article 11.3

Topic Tags

  • board members
  • directors
  • inspection rights

Case

Docket No
21F-H2121053-REL
Case Title
Michael E Palacios vs. El Rio Community Association
Decision Date
2021-08-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

How long does my HOA have to fulfill a request to examine records?

Short Answer

The HOA has ten business days to fulfill a request for examination.

Detailed Answer

According to Arizona statute, an association is granted a period of ten business days to comply with a member's request to examine financial and other records.

Alj Quote

The association shall have ten business days to fulfill a request for examination.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • timelines
  • HOA obligations

Question

Can the HOA charge me a fee to simply look at the books and records?

Short Answer

No, the HOA cannot charge a member for making material available for review.

Detailed Answer

State law prohibits the association from charging a member (or their designated representative) any fee for the act of making records available for inspection.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • fees
  • homeowner rights

Question

How much can the HOA charge me if I want copies of the records?

Short Answer

The HOA may charge up to fifteen cents per page for copies.

Detailed Answer

While review is free, if a member requests physical copies of records, the association is legally permitted to charge a fee, capped at fifteen cents per page.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • fees
  • copies

Question

Is the HOA allowed to withhold certain records from me?

Short Answer

Yes, specific categories of records, such as privileged attorney communications or employee records, can be withheld.

Detailed Answer

The law provides exceptions to disclosure for sensitive information, including privileged attorney-client communications, pending litigation, closed session minutes, and personal or financial records of individual members or employees.

Alj Quote

Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to… Privileged communication between an attorney for the association and the association.

Legal Basis

A.R.S. § 33-1805(B)

Topic Tags

  • records request
  • exclusions
  • privacy

Question

Can I see records regarding complaints against specific HOA employees?

Short Answer

No, records regarding specific complaints against individual employees can be withheld.

Detailed Answer

The HOA is not required to disclose records that relate to specific complaints against an individual employee of the association or a contractor.

Alj Quote

Records relating to… specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association [may be withheld].

Legal Basis

A.R.S. § 33-1805(B)(5)

Topic Tags

  • records request
  • employees
  • privacy

Question

What standard of proof do I need to meet to win a dispute hearing against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence.'

Detailed Answer

The petitioner (homeowner) bears the burden of proof. This means you must provide enough evidence to convince the judge that your claim is more probably true than not.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.

Legal Basis

Conclusion of Law 3

Topic Tags

  • hearing procedure
  • burden of proof
  • legal standards

Question

If I believe documents are missing from my request, is my belief enough to prove a violation?

Short Answer

No, you must present credible evidence that the specific undisclosed documents actually exist.

Detailed Answer

Merely alleging that documents are missing is insufficient. The homeowner must provide credible evidence demonstrating that the documents requested actually exist and were withheld.

Alj Quote

Petitioner presented no credible evidence that documents existed which were not disclosed.

Legal Basis

Findings of Fact 18

Topic Tags

  • evidence
  • records request
  • burden of proof

Question

Does an HOA Director have different inspection rights than a regular homeowner?

Short Answer

Yes, Directors generally have an absolute right to inspect all books and records at any reasonable time.

Detailed Answer

Association bylaws often grant Directors broader access than general members, allowing them the absolute right to inspect all documents and physical properties at reasonable times.

Alj Quote

Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.

Legal Basis

Association Bylaws Article 11.3

Topic Tags

  • board members
  • directors
  • inspection rights

Case

Docket No
21F-H2121053-REL
Case Title
Michael E Palacios vs. El Rio Community Association
Decision Date
2021-08-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Michael E Palacios (petitioner)
    Property owner and member of the Association; was appointed to the Board,

Respondent Side

  • Quinten T. Cupps (HOA attorney)
    Represented El Rio Community Association
  • Denise Ferreira (property manager, witness)
    D & E Management
    Owns D & E Management and was the manager for the Association

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Thomas A & Jade Bossert v. Silverbell West Association, Inc.

Posted on by

Case Summary

Case ID 21F-H2120011-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-04-16
Administrative Law Judge Adam D. Stone
Outcome Petitioner was deemed the prevailing party after Respondent was found in violation of A.R.S. § 33-1258(A) for failing to provide specific financial records (bank statements, check copies) and A.R.S. § 33-1243(J) for failing to complete the 2019 financial compilation. The ALJ declined to impose a civil penalty but ordered Respondent to reimburse the Petitioner's filing fees of $1,000.00.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Thomas A & Jade Bossert Counsel Anthony Tsontakis
Respondent Silverbell West Association, Inc. Counsel Nicholas C Nogami & Timothy D Butterfield

Alleged Violations

ARIZ. REV. STAT. § 33-1258(A) & ARIZ. REV. STAT. § 33-1243(J)

Outcome Summary

Petitioner was deemed the prevailing party after Respondent was found in violation of A.R.S. § 33-1258(A) for failing to provide specific financial records (bank statements, check copies) and A.R.S. § 33-1243(J) for failing to complete the 2019 financial compilation. The ALJ declined to impose a civil penalty but ordered Respondent to reimburse the Petitioner's filing fees of $1,000.00.

Key Issues & Findings

Failure to disclose records and complete annual financial compilation

Respondent violated A.R.S. § 33-1258(A) by failing to provide bank account statements and check copies, and violated A.R.S. § 33-1243(J) by failing to complete the 2019 financial compilation. Petitioner did not meet the burden regarding the 2018 financial report.

Orders: Respondent was ordered to reimburse Petitioner's filing fees of $1,000.00 within 30 days.

Filing fee: $1,000.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1258(A)
  • ARIZ. REV. STAT. § 33-1243(J)

Analytics Highlights

Topics: Homeowners Association, Records Access, Financial Compilation, Statutory Violation, Condominium Association
Additional Citations:

  • ARIZ. REV. STAT. § 33-1258(A)
  • ARIZ. REV. STAT. § 33-1243(J)
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 32-2199.05
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

21F-H2120011-REL Decision – 865401.pdf

Uploaded 2026-04-27T09:41:32 (42.0 KB)

21F-H2120011-REL Decision – 872606.pdf

Uploaded 2026-04-27T09:41:35 (153.6 KB)

21F-H2120011-REL Decision – 865401.pdf

Uploaded 2026-01-23T17:35:06 (42.0 KB)

21F-H2120011-REL Decision – 872606.pdf

Uploaded 2026-01-23T17:35:09 (153.6 KB)

This summary details the administrative hearing proceedings in the matter of *Thomas A & Jade Bossert vs. Silverbell West Association, Inc.*

Case Summary: Bossert v. Silverbell West Association, Inc.

Key Facts and Parties

The Petitioner, Thomas A. and Jade Bossert, are owners of a condominium unit and members of the Silverbell West Association, Inc. (Respondent). The dispute was heard by Administrative Law Judge Adam D. Stone in the Office of Administrative Hearings (OAH). The evidentiary hearing took place on March 18, 2021.

Main Issues

The Petitioner filed a two-issue petition alleging the Association committed statutory violations:

  1. Failure to Disclose Records: Violating ARIZ. REV. STAT. § 33-1258(A) by failing to make financial and other records reasonably available for examination.
  2. Failure to Complete Financials: Violating ARIZ. REV. STAT. § 33-1243(J) by failing to complete an annual financial audit, review, or compilation within 180 days after the end of the 2018 and 2019 fiscal years.

Hearing Proceedings and Key Arguments

Petitioner testified that initial documents received following a June 2020 request were disorganized and incomplete. A subsequent request in July 2020 for specific missing items, including bank statements and cash journals, was never fulfilled. A bookkeeping expert testified that the records presented were disorganized, likely missing documents, and insufficient for making accurate 2018 and 2019 reports.

The Board President testified that they believed the initial request was met based on records held by the former Treasurer, Mr. Molley, but admitted the follow-up request was likely ignored. The tribunal found that Mr. Molley was "largely the one to blame" for unacceptable record-keeping, but also criticized the current Board President for failing to take a more active role in obtaining easily available bank statements.

Legal Conclusions and Outcome

The Administrative Law Judge found that the Petitioner had sustained the burden of proving that the Association committed two specific violations:

  1. Violation of ARIZ. REV. STAT. § 33-1258(A) (Records Disclosure): The Respondent violated the statute insofar as they failed to produce bank account statements and check copies. The fact that these records had still not been turned over was deemed "inexcusable".
  2. Violation of ARIZ. REV. STAT. § 33-1243(J) (Financial Compilation): The Respondent violated the statute by failing to complete the 2019 financial compilation.
  • *Note:* The tribunal found Petitioner did *not* meet the burden of proof regarding the 2018 financial report, as Petitioner (who was Board President at the time) could have taken more aggressive measures to secure the necessary documentation.

Final Decision

The Administrative Law Judge declined to impose a civil penalty, noting that the Board had subsequently taken steps to ensure better future record keeping.

The Petitioner was deemed the prevailing party and the Association (Respondent) was ordered to reimburse the Petitioner's filing fees of $1,000.00 within 30 days.

Questions

Question

Can my HOA refuse to provide bank statements by claiming the Treasurer kept poor records?

Short Answer

No. The Board has a duty to obtain readily available records like bank statements directly from the bank if necessary.

Detailed Answer

The Board cannot excuse a failure to provide records by blaming a specific officer's poor record-keeping. If records like bank statements are missing from the files, the Board President or other officers should go to the bank to obtain copies.

Alj Quote

Mr. Warnix, as President of the Board, should have taken a more active role in at least obtaining all bank account records and copies of checks given his knowledge of Mr. Molley’s actions… he could have requested copies of the same in person at the bank. The fact that these records still have not been turned over is inexcusable.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • records request
  • board duties
  • bank statements

Question

What is the deadline for the HOA to complete its annual financial compilation?

Short Answer

The compilation must be completed within 180 days after the fiscal year ends.

Detailed Answer

Unless the governing documents require an audit, the Board must provide for an annual financial audit, review, or compilation to be finished no later than 180 days after the fiscal year ends. It must be made available to owners within 30 days of completion.

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

Legal Basis

ARIZ. REV. STAT. § 33-1243(J)

Topic Tags

  • financials
  • deadlines
  • compilation

Question

Will the judge always fine the HOA if they violate record-keeping laws?

Short Answer

Not necessarily. If the HOA fixes the issue and ensures future compliance, the judge may decline to issue a civil penalty.

Detailed Answer

Even if violations are found, the ALJ has discretion regarding civil penalties. If the HOA has hired a professional manager or taken steps to ensure better record-keeping moving forward, the judge might decide a penalty is not required.

Alj Quote

That being said, the tribunal believes that Board took the appropriate steps to ensure better record keeping in the future… Thus, the Administrative Law Judge declines to impose a civil penalty.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • civil penalty
  • fines
  • enforcement

Question

What happens if I request specific accounting records (like ledgers) that the HOA simply never created?

Short Answer

The HOA cannot produce what doesn't exist, so they may not be penalized for failing to produce them, though the lack of records is a governance issue.

Detailed Answer

If there is no evidence that specific documents (like check registers or dues reports) were ever created due to poor management, the judge may find it impossible to rule that the HOA failed to provide existing records.

Alj Quote

With regards to the other records (check registers, cash receipt journals, dues reports, etc.), it is unclear from Mr. Bossert’s testimony, if those even existed… Thus, it is impossible to know if they even exist, as there was no evidence from Mr. Bossert that they do in fact exist.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • missing records
  • record keeping

Question

If I win my case against the HOA regarding records, can I get my filing fees back?

Short Answer

Yes, the prevailing party is typically entitled to reimbursement of filing fees.

Detailed Answer

If the homeowner sustains their burden of proof and is deemed the prevailing party, the ALJ can order the HOA to reimburse the filing fees.

Alj Quote

IT IS ORDERED that Petitioner is deemed the prevailing party and is entitled to his filing fees of $1,000.00, and Respondent must reimburse this within 30 days.

Legal Basis

Order based on prevailing party status

Topic Tags

  • reimbursement
  • fees
  • prevailing party

Question

Does a former Board President have a claim regarding missing financials from their own term?

Short Answer

It may be difficult to prove if the President had the authority to fix the issue at the time but didn't.

Detailed Answer

If a petitioner was the Board President during the time the violation occurred and had the power to remedy the situation (e.g., by taking over responsibility from a non-compliant Treasurer) but failed to do so, the tribunal may find they did not meet their burden of proof for that specific violation.

Alj Quote

Mr. Bossert, while acting as President, could have taken more aggressive measures with Mr. Molley to get him to provide the same… Therefore, Petitioner has not met his burden as to the 2018 financial report.

Legal Basis

Burden of proof standard

Topic Tags

  • board member rights
  • fiduciary duty

Case

Docket No
21F-H2120011-REL
Case Title
Thomas A & Jade Bossert vs. Silverbell West Association, Inc.
Decision Date
2021-04-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA refuse to provide bank statements by claiming the Treasurer kept poor records?

Short Answer

No. The Board has a duty to obtain readily available records like bank statements directly from the bank if necessary.

Detailed Answer

The Board cannot excuse a failure to provide records by blaming a specific officer's poor record-keeping. If records like bank statements are missing from the files, the Board President or other officers should go to the bank to obtain copies.

Alj Quote

Mr. Warnix, as President of the Board, should have taken a more active role in at least obtaining all bank account records and copies of checks given his knowledge of Mr. Molley’s actions… he could have requested copies of the same in person at the bank. The fact that these records still have not been turned over is inexcusable.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • records request
  • board duties
  • bank statements

Question

What is the deadline for the HOA to complete its annual financial compilation?

Short Answer

The compilation must be completed within 180 days after the fiscal year ends.

Detailed Answer

Unless the governing documents require an audit, the Board must provide for an annual financial audit, review, or compilation to be finished no later than 180 days after the fiscal year ends. It must be made available to owners within 30 days of completion.

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

Legal Basis

ARIZ. REV. STAT. § 33-1243(J)

Topic Tags

  • financials
  • deadlines
  • compilation

Question

Will the judge always fine the HOA if they violate record-keeping laws?

Short Answer

Not necessarily. If the HOA fixes the issue and ensures future compliance, the judge may decline to issue a civil penalty.

Detailed Answer

Even if violations are found, the ALJ has discretion regarding civil penalties. If the HOA has hired a professional manager or taken steps to ensure better record-keeping moving forward, the judge might decide a penalty is not required.

Alj Quote

That being said, the tribunal believes that Board took the appropriate steps to ensure better record keeping in the future… Thus, the Administrative Law Judge declines to impose a civil penalty.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • civil penalty
  • fines
  • enforcement

Question

What happens if I request specific accounting records (like ledgers) that the HOA simply never created?

Short Answer

The HOA cannot produce what doesn't exist, so they may not be penalized for failing to produce them, though the lack of records is a governance issue.

Detailed Answer

If there is no evidence that specific documents (like check registers or dues reports) were ever created due to poor management, the judge may find it impossible to rule that the HOA failed to provide existing records.

Alj Quote

With regards to the other records (check registers, cash receipt journals, dues reports, etc.), it is unclear from Mr. Bossert’s testimony, if those even existed… Thus, it is impossible to know if they even exist, as there was no evidence from Mr. Bossert that they do in fact exist.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • missing records
  • record keeping

Question

If I win my case against the HOA regarding records, can I get my filing fees back?

Short Answer

Yes, the prevailing party is typically entitled to reimbursement of filing fees.

Detailed Answer

If the homeowner sustains their burden of proof and is deemed the prevailing party, the ALJ can order the HOA to reimburse the filing fees.

Alj Quote

IT IS ORDERED that Petitioner is deemed the prevailing party and is entitled to his filing fees of $1,000.00, and Respondent must reimburse this within 30 days.

Legal Basis

Order based on prevailing party status

Topic Tags

  • reimbursement
  • fees
  • prevailing party

Question

Does a former Board President have a claim regarding missing financials from their own term?

Short Answer

It may be difficult to prove if the President had the authority to fix the issue at the time but didn't.

Detailed Answer

If a petitioner was the Board President during the time the violation occurred and had the power to remedy the situation (e.g., by taking over responsibility from a non-compliant Treasurer) but failed to do so, the tribunal may find they did not meet their burden of proof for that specific violation.

Alj Quote

Mr. Bossert, while acting as President, could have taken more aggressive measures with Mr. Molley to get him to provide the same… Therefore, Petitioner has not met his burden as to the 2018 financial report.

Legal Basis

Burden of proof standard

Topic Tags

  • board member rights
  • fiduciary duty

Case

Docket No
21F-H2120011-REL
Case Title
Thomas A & Jade Bossert vs. Silverbell West Association, Inc.
Decision Date
2021-04-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Thomas A Bossert (petitioner)
    Former Board President; testified on own behalf
  • Jade Bossert (petitioner)
  • Anthony Tsontakis (petitioner attorney)
    Tsontakis Law
  • Barbara Schoneck (witness)
    Digit & Docs LLC
    Called by Petitioner

Respondent Side

  • Nicholas C Nogami (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
  • Timothy D Butterfield (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
  • Rex Warnix, III (board member; witness)
    Silverbell West Association, Inc.
    Current Board President; testified for Respondent/Association
  • Linda Garner (property manager; witness)
    Adam LLC
    Property manager for the Association
  • Donald Molley (board member; treasurer)
    Silverbell West Association, Inc.
    Board Treasurer responsible for financial records

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Lynda Meadows (accountant)
    Prepared 2018 financial compilation
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Email recipient

Other Participants

  • c. serrano (ADRE staff)
    Individual listed on transmission details

Clifford (Norm) S. Burnes v. Saguaro Crest Homeowners Association,

Posted on by

Case Summary

Case ID 21F-H2120002-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-08-09
Administrative Law Judge Jenna Clark
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford Burnes and Maria Burnes Counsel Cynthia F. Burnes, Esq.
Respondent Saguaro Crest Homeowners Association, Inc. Counsel John Crotty, Esq.

Alleged Violations

CC&Rs Section 5
Architectural Design Guidelines Section 4.0
ARIZ. REV. STAT. § 33-1804(A), (D), and (E)
ARIZ. REV. STAT. § 33-1805

Outcome Summary

The final decision affirmed the denial of Issues 1, 2, and 3, and the granting of Issue 4. The Association was found to have violated ARIZ. REV. STAT. § 33-1805 for failing to provide complete records in a timely manner, resulting in the reimbursement of 1/4 of the filing fee.

Why this result: Petitioners failed to sustain the burden of proof regarding alleged violations of CC&Rs Section 5, Architectural Design Guidelines Section 4.0, and A.R.S. § 33-1804(A), (D), and (E).

Key Issues & Findings

Alleged violation of CC&Rs Section 5

Petitioners alleged that the HOA violated the Covenants, Conditions and Restrictions (CC&Rs), Section 5, by allowing construction on Lot 7 without prior ARC approval of required documents.

Orders: Petition denied.

Filing fee: $125.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • CC&Rs Section 5

Alleged violation of Community Agricultural Design Guidelines Section 4.0

Petitioners alleged that the HOA violated the Architectural Design Guidelines, Section 4.0, by failing to require the required $5,000.00 Construction Compliance Deposit for Lot 7.

Orders: Petition denied.

Filing fee: $125.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Architectural Design Guidelines Section 4.0
  • ARIZ. REV. STAT. § 10-3821

Alleged violation of A.R.S. § 33-1804(A), (D), and (E)

Petitioners alleged that the Board conducted an unnoticed closed meeting in violation of Arizona open meeting statutes.

Orders: Petition denied.

Filing fee: $125.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804(A)
  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 33-1804(E)
  • ARIZ. REV. STAT § 10-3821

Alleged violation of A.R.S. § 33-1805

Petitioners alleged that the HOA failed to timely and completely fulfill a records request submitted on June 04, 2020, specifically by failing to provide missing email attachments.

Orders: Respondent must reimburse 1/4 of Petitioners' filing fee ($125.00). Respondent must henceforth comply with A.R.S. § 33-1805 and provide the missing email attachments within 10-business days.

Filing fee: $125.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805

Analytics Highlights

Topics: HOA Statute Violation, Records Request, Filing Fee Refund, Architectural Review, Open Meetings
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 33-1804(A)
  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 33-1804(E)
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 10-3821
  • CC&Rs Section 5
  • Architectural Design Guidelines Section 4.0

Video Overview

Audio Overview

Decision Documents

21F-H2120002-REL Decision – 902726.pdf

Uploaded 2026-04-24T11:28:59 (239.9 KB)

21F-H2120002-REL Decision – 866263.pdf

Uploaded 2026-04-24T11:29:03 (268.5 KB)

Briefing Document: Burnes v. Saguaro Crest Homeowners Association, Final Decision

Executive Summary

This document synthesizes the Final Administrative Law Judge Decision in the case of Clifford and Maria Burnes (“Petitioners”) versus the Saguaro Crest Homeowners Association (“Respondent”), case number 21F-H2120002-REL-RHG. The dispute centered on a four-issue petition alleging violations by the Association related to new construction on a neighboring property (Lot 7), an unnoticed Board meeting, and the fulfillment of a records request.

Following an initial hearing and a subsequent rehearing, the Administrative Law Judge (ALJ) largely affirmed the original decision. The Petitioners failed to meet their burden of proof on three of the four issues, with the judge finding no violations by the Association regarding architectural controls, the waiver of a construction deposit, or the conduct of a Board meeting.

However, the Petitioners successfully proved that the Association violated Arizona Revised Statute § 33-1805 by failing to timely and completely fulfill a comprehensive records request. The final order requires the Association to reimburse the Petitioners for a portion of their filing fee ($500), comply with the records statute moving forward, and provide the specific missing documents (email attachments) from the original request. The rehearing was granted on the basis of “newly discovered evidence,” but the Petitioners conceded during the proceeding that they possessed no new evidence, leading the ALJ to rely solely on the record from the first hearing.

I. Background and Procedural History

The case involves a dispute between property owners Clifford and Maria Burnes and their homeowners’ association, Saguaro Crest, located in Tucson, Arizona. The Association is governed by Covenants, Conditions, and Restrictions (CC&Rs) recorded in 2006 and Architectural Design Guidelines adopted in 2018.

Procedural Timeline

July 17, 2020

Petitioners file a 4-issue petition with the Arizona Department of Real Estate.

August 11, 2020

Respondent (HOA) denies all claims in its answer.

Dec 11, 2020 & Mar 1-2, 2021

An evidentiary hearing is held before the Office of Administrative Hearings (OAH).

March 22, 2021

The Administrative Law Judge (ALJ) issues the initial decision.

April 28, 2021

Petitioners file a dispute rehearing request, alleging newly discovered evidence.

May 21, 2021

The Commissioner of the Department of Real Estate grants the rehearing request.

July 20, 2021

The rehearing is held. Petitioners concede they have no “new” evidence.

August 09, 2021

The Final Administrative Law Judge Decision is issued, affirming the initial ruling.

Key Parties

Name / Entity

Clifford & Maria Burnes

Petitioners; owners of Lot 6.

Cynthia F. Burnes, Esq.

Counsel for Petitioners.

Saguaro Crest HOA, Inc.

Respondent.

John Crotty, Esq.

Counsel for Respondent.

Norm Burnes

Petitioner; appointed to the Architectural Review Committee (ARC) in 2017.

Raul & Ramona Martinez

Owners of Lot 7, the property under construction.

Jenna Clark

Administrative Law Judge (ALJ).

II. Analysis of Allegations and Findings

The petition presented four distinct issues for adjudication. The Petitioners bore the burden of proving each violation by a preponderance of the evidence.

Issue 1: Alleged Violation of CC&Rs Section 5 (Architectural Control)

• Petitioners’ Allegation: The Association improperly allowed construction on Lot 7 to proceed without required documents being submitted to the Architectural Review Committee (ARC) for approval.

• Factual Record:

◦ The ARC, which included Petitioner Norm Burnes, unanimously approved construction plans for Lot 7 on January 3, 2018.

◦ Construction began sometime in 2018. Pima County approved the plans on May 4, 2018.

◦ On April 14, 2020, Petitioner Burnes sent a formal letter of concern to the Board, stating the placement of the home on Lot 7 was not per the approved plan and had destroyed their view and privacy. The letter included the following statement:

• Conclusion of Law: No violation found. The ALJ determined that while the construction on Lot 7 was not per the plans the ARC approved on January 3, 2018, no subsequent or modified plans were ever submitted to the ARC for review. The decision states, “The ARC cannot approve or deny proposed plans unless they are submitted for review.” Furthermore, the record shows the construction complies with the local government’s building authority.

Issue 2: Alleged Violation of Design Guidelines Section 4.0 (Construction Deposit)

• Petitioners’ Allegation: The Association allowed construction on Lot 7 without collecting the required $5,000.00 Construction Compliance Deposit.

• Factual Record:

◦ On May 3, 2020, the Board of Directors decided to honor a Construction Compliance Deposit waiver that had been previously granted to the Martinez family.

◦ This discretionary waiver was reportedly granted during an economic downturn to incentivize property purchases.

◦ Critically, the Association “does not possess a corporate record that any such Construction Compliance Deposit Waiver was previously granted to the Martinez family.”

• Conclusion of Law: No violation found. The ALJ concluded it was “clear that Lot 7 was granted a construction compliance deposit waiver.” The lack of a documented record was noted, but the inquiry was deemed moot as it was not a noticed issue in the petition.

Issue 3: Alleged Violation of A.R.S. § 33-1804 (Unnoticed Meeting)

• Petitioners’ Allegation: The Board of Directors conducted an unnoticed meeting on or about May 20, 2020, to consider matters relevant to Petitioner Norm Burnes.

• Factual Record:

◦ On April 18, 2020, Petitioner requested an urgent meeting with the Board, which was held the next day.

◦ On May 20, 2020, the Board acted with unanimous consent (obtained via individual signatures) to restrict Petitioner Burnes’s participation as an ARC member “regarding all issued related to the construction of Lot 7.”

◦ The Board’s notes state: “[T]he Board of Directors hereby unanimously agree that [Petitioner] be removed as an ARC Member for all ARC related matters concerning Lot 7.”

• Conclusion of Law: No violation found. The judge ruled that the Board’s failure to notice the April 19 meeting was excused as an exception because the Petitioner himself had requested it on an urgent basis. Regarding the May 20 action, the record shows Mr. Burnes was not removed from the ARC entirely, but only recused from matters concerning the Lot 7 dispute in which he had a direct conflict of interest.

Issue 4: Alleged Violation of A.R.S. § 33-1805 (Records Request)

• Petitioners’ Allegation: The Association failed to properly fulfill a records request.

• Factual Record:

◦ On June 4, 2020, Petitioners submitted a comprehensive, 17-point records request and demanded fulfillment within the statutory 10-day period.

◦ On June 16, 2020, the Association made 342 pages of documents available for in-person review but prohibited Petitioners from using their own scanning equipment.

◦ The statutory deadline for compliance was June 18, 2020.

◦ On June 24, 2020, after Petitioners paid a $51.30 fee, the Association provided copies of the documents.

◦ Later that day, Petitioners notified the Association that the document package was incomplete, as “attachments for some emails are not included.”

• Conclusion of Law: Violation established. The ALJ found that the Association failed to comply with the statute. The documents were made available for review within the 10-day window, but the copies were not provided until June 24, after the deadline. More importantly, the copies provided were incomplete. The judge rejected the Association’s argument that a clarification from the Petitioner reset the statutory clock.

III. Final Order and Directives

The Final Administrative Law Judge Decision, issued after the rehearing, affirmed the conclusions of the initial March 22, 2021 decision.

• Petition Status: The petition was granted in part (on Issue 4) and denied in part (on Issues 1, 2, and 3).

• Financial Reimbursement: The Respondent (Saguaro Crest HOA) is ordered to reimburse the Petitioners for one-quarter of their filing fee, amounting to $500.00.

• Statutory Compliance: The Respondent is ordered to henceforth comply with the requirements of A.R.S. § 33-1805 regarding records requests.

• Document Production: The Respondent is ordered to provide the Petitioners with the missing email attachments related to the June 4, 2020 records request within 10 business days of the final order’s effective date.

Study Guide: Burnes v. Saguaro Crest Homeowners Association, Inc.

This study guide provides a detailed review of the Final Administrative Law Judge Decision in the case of Clifford and Maria Burnes versus the Saguaro Crest Homeowners Association, Inc. (No. 21F-H2120002-REL-RHG). The guide includes a short-answer quiz with an answer key, a set of essay questions for deeper analysis, and a comprehensive glossary of key terms used in the legal proceedings.

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case document.

1. Who are the Petitioners and the Respondent in this case, and what is their fundamental relationship?

2. List the four distinct issues the Petitioners alleged against the Respondent in their initial petition.

3. On what grounds did the Petitioners request and receive a rehearing after the initial decision was issued on March 22, 2021?

4. What was the outcome of the Petitioners’ attempt to present new witnesses and exhibits during the rehearing on July 20, 2021?

5. Why did the Administrative Law Judge conclude that the Respondent had not violated Section 5 of the CC&Rs regarding the construction on Lot 7?

6. Explain the controversy surrounding the $5,000 Construction Compliance Deposit and the court’s ultimate finding on the matter.

7. What action did the Board of Directors take against Petitioner Norm Burnes on May 20, 2020, and why was this action not considered a violation of A.R.S. § 33-1804?

8. Which of the four allegations was ultimately successful for the Petitioners, and what specific failures by the Respondent led to this finding?

9. What were the four key orders issued by the Administrative Law Judge in the Final Order?

10. What was Petitioner Norm Burnes’s official role within the Saguaro Crest community, and how did this position create a conflict of interest in the dispute?

——————————————————————————–

Quiz Answer Key

1. The Petitioners are Clifford and Maria Burnes, who are property owners in the Saguaro Crest subdivision and members of the homeowners’ association. The Respondent is the Saguaro Crest Homeowners Association, Inc. (HOA), which is the governing body for the subdivision.

2. The four issues were: (1) The HOA allowed construction on Lot 7 without required ARC document submission in violation of CC&Rs Section 5; (2) The HOA allowed construction without a required Construction Compliance Deposit; (3) The Board conducted an unnoticed meeting in violation of A.R.S. § 33-1804; (4) The HOA failed to fulfill a records request in violation of A.R.S. § 33-1805.

3. The Petitioners requested a rehearing on the grounds of having “Newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” They also alleged that the original decision was “arbitrary, capricious, or an abuse of discretion.”

4. At the rehearing, the Petitioners conceded they possessed no “newly discovered” evidence, but rather evidence they had strategically chosen not to present previously. Because they did not provide a satisfactory offer of proof for new evidence, they were precluded from recalling witnesses or offering additional exhibits.

5. The Judge found that while the construction on Lot 7 was not per the plans approved by the ARC on January 3, 2018, no additional plans had been submitted for the ARC’s consideration. The Judge reasoned that the ARC cannot approve or deny plans that are not submitted, and the build complied with the local government’s building authority.

6. The Architectural Design Guidelines required a $5,000 deposit, but the owners of Lot 7 had been granted a waiver. Although the HOA did not possess a corporate record of the waiver, the Board voted to honor it. The court found no violation because the waiver had been granted, and the lack of documentation was not the specific issue being litigated.

7. On May 20, 2020, the Board held an unnoticed meeting and, via unanimous consent, restricted Petitioner Burnes’s participation as an ARC member for all matters related to Lot 7. This was not a violation because the failure to notice was excused as an exception, and the Board only removed him from matters concerning Lot 7, not from the ARC entirely.

8. Issue #4, the records request violation, was successful for the Petitioners. The Respondent failed to provide copies of the requested documents within the statutory 10-day deadline, providing them on June 24, 2020, when the deadline was June 18, 2020. Furthermore, the documents provided were incomplete, as they were missing email attachments.

9. The Final Order affirmed the previous decision, ordered the Respondent to reimburse the Petitioners for 1/4 of their filing fee ($500.00), ordered the Respondent to comply with A.R.S. § 33-1805 going forward, and ordered the Respondent to provide the missing email attachments within 10 business days.

10. Petitioner Norm Burnes was a member of the Association’s Architectural Review Committee (ARC). This created a conflict of interest because he was part of the committee that initially approved the Lot 7 construction plans, but he later raised formal complaints against that same construction project due to its impact on his own property (Lot 6).

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. No answers are provided.

1. Analyze the concept of “burden of proof” by a “preponderance of the evidence” as it applies to this case. How did the Petitioners succeed in meeting this burden for Issue #4 but fail for the other three issues?

2. Discuss the powers and limitations of a Homeowners’ Association Board and its Architectural Review Committee as illustrated in this case, specifically concerning construction approval, enforcement authority, and the management of member conflicts of interest.

3. The Petitioners’ request for a rehearing was based on “newly discovered material evidence.” Explain why this request ultimately failed to change the outcome and discuss the strategic decisions made by the Petitioners regarding the presentation of evidence.

4. Examine the conflict between a homeowner’s desire for privacy and unobstructed views (as expressed by the Petitioners) and the rights of a neighboring property owner to develop their land. How did the community’s governing documents and the final legal decision address this conflict?

5. Trace the timeline of the records request dispute (Issue #4). What were the specific actions and inactions by the Respondent that led to a finding of a statutory violation, and what does this illustrate about an HOA’s administrative and statutory responsibilities to its members?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, the ALJ was Jenna Clark.

Architectural Review Committee (ARC)

A committee charged by an HOA’s CC&Rs with implementing architectural guidelines to maintain aesthetic standards and preserve property values. Petitioner Norm Burnes was a member of this committee.

Arizona Department of Real Estate (Department)

The state agency authorized to receive and decide petitions for hearings from members of homeowners’ associations in Arizona.

Arizona Revised Statute (ARIZ. REV. STAT. or A.R.S.)

The codified laws of the State of Arizona. Specific statutes cited include § 33-1804 (regarding open meetings) and § 33-1805 (regarding association records).

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioners bore the burden of proving their claims by a preponderance of the evidence.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the rules for a planned community. They form an enforceable contract between the HOA and each property owner.

Homeowners’ Association (HOA)

The organization that makes and enforces rules for a subdivision or planned community. In this case, the Saguaro Crest Homeowners Association, Inc. is the Respondent.

Offer of Proof

A presentation of evidence made to a judge to demonstrate the substance and relevance of evidence that a party seeks to introduce. The Petitioners’ offer of proof regarding new evidence was found to be unsatisfactory.

Office of Administrative Hearings (OAH)

An independent state agency that conducts evidentiary hearings for other state agencies. This matter was referred to the OAH by the Department of Real Estate.

Petitioners

The party that initiates a legal action or petition. In this case, Clifford and Maria Burnes are the Petitioners.

Preponderance of the Evidence

The standard of proof in most civil cases. It means that the evidence presented is sufficient to convince the trier of fact that a contention is more probably true than not.

Respondent

The party against whom a petition is filed. In this case, the Saguaro Crest Homeowners Association, Inc. is the Respondent.

🧑‍⚖️

21F-H2120002-REL-RHG

1 source

The provided text is a Final Administrative Law Judge Decision from the Office of Administrative Hearings in Arizona, detailing a dispute between petitioners Clifford and Maria Burnes and the Saguaro Crest Homeowners Association, Inc. The case involved four specific allegations of violations by the Association, including allowing unapproved construction on Lot 7, failing to collect a required construction deposit, conducting an unnoticed meeting, and failing to fulfill a records request. This document affirms an earlier decision, concluding that the Petitioners failed to sustain the burden of proof for the first three issues but succeeded on the fourth issue regarding the violation of Arizona law concerning records requests. Consequently, the Association was ordered to comply with the relevant statute, provide missing email attachments, and reimburse a portion of the Petitioners’ filing fee.

Case Participants

Petitioner Side

  • Clifford (Norm) S. Burnes (petitioner)
    Saguaro Crest subdivision property owner; ARC Member
  • Maria Burnes (petitioner)
    Saguaro Crest subdivision property owner
  • Jacob A. Kubert (attorney)
  • Cynthia F. Burnes (attorney)
  • Debora Brown (witness)

Respondent Side

  • John Crotty (attorney)
    Law Offices of Farley, Choate & Wood
  • Kelsea Dressen (attorney)
    Law Offices of Farley, Choate & Wood
  • Esmerelda Martinez (board president; witness)
    Saguaro Crest HOA Board of Directors
    President of the Board
  • Dave Madill (board member)
    Saguaro Crest HOA Board of Directors
    Vice President of the Board
  • Julie Stevens (board member)
    Saguaro Crest HOA Board of Directors
    Treasurer of the Board
  • Raul Martinez (property owner)
    Owner of Lot 7 and 13
    Construction on his property (Lot 7) is subject of the dispute
  • Ramona Martinez (property owner)
    Owner of Lot 7

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Sadot Negreté (observer)
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
  • Dan Gardener (ADRE contact)
    Arizona Department of Real Estate
    Also listed as DGardner
  • c. serrano (administrative staff)
    Office of Administrative Hearings

Other Participants

  • Jamie Argueta (ARC member; property seller)
    Saguaro Crest HOA Architectural Review Committee
    Sold Lots 7 and 13 to Martinez family
  • Joseph Martinez (ARC member)
    Saguaro Crest HOA Architectural Review Committee
  • Jesus Carranza (substitute ARC member)
    Saguaro Crest HOA Architectural Review Committee
    Substitute for Petitioner during Lot 7 discussion