The Administrative Law Judge dismissed the petition, finding that the March 28, 2025, 'Kick Start' meeting was not an official HOA Board meeting because no HOA business was transacted and it was arranged prior to the new management company being fully contracted. Therefore, the 48-hour advance notice requirement under A.R.S. § 33-1804(D) was not required.
Why this result: Petitioner failed to meet the burden of proving by a preponderance of the evidence that the respondent violated A.R.S. § 33-1804(D), as the meeting was concluded to be informal and not subject to the statutory notice requirements for official Board meetings.
Key Issues & Findings
HOA Board Meeting Notice Requirement
Petitioner alleged that the HOA violated A.R.S. § 33-1804(D) by holding a 'kick start' meeting on March 28, 2025, after notice was sent on March 26, 2025, failing to meet the 48-hour advance notice requirement for a Board meeting. The ALJ concluded the meeting was an informal 'meet and greet' arranged by the incoming management company and was not an official HOA Board meeting where business was transacted; thus, the statute did not apply.
Orders: Petitioner's petition in 25F-H062-REL is dismissed, and Petitioner bears the $500.00 filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
Ariz. Rev. Stat. § 33-1804(D)
Ariz. Rev. Stat. § 32-2102
Ariz. Rev. Stat. § 32-2199
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
Analytics Highlights
Topics: HOA Governance, Board Meeting Notice, Open Meeting Law, Planned Communities Statute, Management Company Transition
Additional Citations:
Ariz. Rev. Stat. § 33-1804(D)
Ariz. Rev. Stat. § 32-2102
Ariz. Rev. Stat. § 32-2199
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
Audio Overview
Decision Documents
25F-H062-REL Decision – 1341648.pdf
Uploaded 2026-01-23T18:26:06 (43.0 KB)
25F-H062-REL Decision – 1341651.pdf
Uploaded 2026-01-23T18:26:10 (6.4 KB)
25F-H062-REL Decision – 1347681.pdf
Uploaded 2026-01-23T18:26:14 (59.7 KB)
25F-H062-REL Decision – 1355633.pdf
Uploaded 2026-01-23T18:26:18 (48.6 KB)
25F-H062-REL Decision – 1367124.pdf
Uploaded 2026-01-23T18:26:24 (133.4 KB)
Briefing Doc – 25F-H062-REL
Briefing Document: Wolfe v. Warner Ranch Association (Case No. 25F-H062-REL)
Executive Summary
This document synthesizes the key proceedings, arguments, and final judgment in the administrative case of Robert E. Wolfe v. Warner Ranch Association, Case No. 25F-H062-REL, adjudicated by the Arizona Office of Administrative Hearings. The petitioner, Robert E. Wolfe, alleged that the Warner Ranch Association (HOA) violated Arizona’s open meeting law (A.R.S. § 33-1804(D)) by failing to provide the requisite 48-hour advance notice for a “kickstart meeting” held on March 28, 2025.
The Administrative Law Judge (ALJ) ultimately dismissed the petition. The central finding of the decision was that the event in question was not a formal HOA Board meeting at which official business was transacted. Instead, it was characterized as an informal “meet and greet” arranged by the incoming management company, Spectrum, prior to its official contract start date. Consequently, the 48-hour notice requirement for Board meetings was deemed not applicable. The ALJ concluded that the petitioner failed to meet his burden of proof, and he was ordered to bear the $500 filing fee.
Case Overview
• Parties:
◦ Petitioner: Robert E. Wolfe, a resident and member of the Warner Ranch Association.
◦ Respondent: Warner Ranch Association (HOA), represented by board members and its management company, Spectrum Association Management.
• Case Number: 25F-H062-REL
• Adjudicating Body: Arizona Office of Administrative Hearings (OAH), following a referral from the Arizona Department of Real Estate.
• Presiding Judge: Kay A. Abramsohn, Administrative Law Judge.
• Core Dispute: Whether the “kickstart meeting” held on March 28, 2025, constituted an official Board of Directors meeting subject to the 48-hour advance notice requirement under A.R.S. § 33-1804(D).
Procedural History
The case involved several procedural adjustments regarding the hearing format and date, primarily initiated by the petitioner. Notably, several of the petitioner’s requests were made without copying the respondent, a point of order noted by the ALJ.
Action
Outcome
Aug 11, 2025
Petitioner requests a continuance, citing unavailability.
Aug 21, 2025
An order is issued continuing the hearing to October 7, 2025, to be held virtually.
Aug 27, 2025
Petitioner agrees to the date but requests the hearing be conducted in-person.
Sep 7, 2025
An order is issued confirming the October 7 date and changing the format to in-person.
Sep 30, 2025
Respondent’s counsel requests a virtual option for an unavailable witness.
Sep 30, 2025
A final order is issued establishing a hybrid hearing format (in-person and virtual) for October 7, 2025.
Petitioner’s Allegations and Arguments (Robert E. Wolfe)
The petitioner’s case was singularly focused on the alleged violation of the 48-hour notice rule for Board meetings.
• Core Claim: The HOA held a Board meeting on Friday, March 28, 2025, at 1:00 PM but provided notice less than 48 hours in advance, in direct violation of A.R.S. § 33-1804(D).
• Evidence of Insufficient Notice:
◦ Email notifications for the meeting were sent on Wednesday, March 26, 2025.
◦ Documentary evidence showed computer-generated receipt times ranging from 1:36 PM to 1:45 PM on March 26, which is less than 48 hours before the 1:00 PM meeting on March 28.
◦ The petitioner himself did not receive the initial email notice and was forwarded a copy by the HOA President, Melanie Zimmer.
• Evidence the Event was a Board Meeting:
◦ The petitioner argued the event’s structure and attendance qualified it as a formal Board meeting. The meeting notification included a formal agenda with items such as “Call to Order,” “Establishment of a Quorum,” and “Adjournment.”
◦ He contended that the meeting minutes listed Board members as present, indicating a quorum was established.
◦ In his testimony, the petitioner stated, “when you have a quorum of board of directors, it requires notice of open meeting.”
◦ He summarized his position with an analogy:
• Requested Relief:
1. Reimbursement of the $500 filing fee.
2. An order requiring that a copy of the open meeting law be given to each board member.
Respondent’s Position and Testimony (Warner Ranch Association & Spectrum)
The respondent’s defense centered on the informal nature and purpose of the meeting, arguing it did not constitute official Board business.
• Characterization of the Meeting: The event was consistently described as an “informal kickstart meeting” and a “meet and greet,” not a formal Board meeting.
• Purpose of the Meeting:
◦ The meeting was arranged by the incoming management company, Spectrum, to introduce its team to the Board and homeowners.
◦ This was deemed necessary due to severe operational issues with the previous management company, which was described as “very, very delinquent.”
• Absence of Official Business:
◦ Testimony from multiple representatives, including HOA President Melanie Zimmer and Spectrum’s Brenda Steel, asserted that no official Board business, decision-making, motions, or votes were conducted.
◦ The meeting minutes reflected discussions about the management transition, roles, and expectations, but contained no record of official Board actions.
• Context of Management Transition:
◦ The contract with Spectrum was signed prior to the “kickstart” meeting.
◦ However, Spectrum’s official management duties were not set to begin until April 1, 2025. The March 28 meeting occurred before Spectrum formally took over management.
• Acknowledgement of Procedural Issues:
◦ A Spectrum representative testified that the meeting “could have been noticed differently” and that they did not have a complete list of homeowner email addresses from the prior company.
◦ HOA Treasurer Bonnie S. acknowledged receiving her own notice late (36 minutes after the 48-hour mark) and offered an apology:
Administrative Law Judge’s Decision and Rationale
The ALJ’s final decision, issued on November 11, 2025, sided with the respondent and dismissed the petition.
• Final Order:
◦ The petitioner’s petition in case 25F-H062-REL was ordered dismissed.
◦ The petitioner, Robert E. Wolfe, was ordered to bear the $500.00 filing fee.
• Key Finding: The ALJ concluded that the March 28, 2025 “Kick Start” meeting was not an official HOA Board meeting where business was transacted.
• Legal Rationale: Because the event was not a Board meeting as defined by statute, the 48-hour advance notice requirement stipulated in A.R.S. § 33-1804(D) did not apply.
• Evidentiary Basis for Decision:
◦ The finding was supported by testimony from the HOA and Spectrum characterizing the event as an informal “meet and greet.”
◦ A review of the meeting minutes confirmed that they “do not reflect any motions, votes, or actions taken by the Board at the meeting on behalf of the HOA.”
◦ The decision noted that Spectrum had also mailed a postcard regarding the meeting to each of the 803 HOA members.
• Conclusion on Burden of Proof: The petitioner bore the burden of proving a violation by a preponderance of the evidence. The ALJ ruled that this burden was not met.
Case Participants
Petitioner Side
Robert E. Wolfe(petitioner)
Respondent Side
Melanie Zimmer(board president) Warner Ranch Association Appeared on behalf of Respondent
Bonnie Strike(board member) Warner Ranch Association Treasurer
Brenda Steel(community manager/witness) Spectrum Association Management HOA Community Manager
Elizabeth Wicks(legal services manager/witness) Spectrum Association Management
Diana Treantos(division president/witness) Spectrum Association Management
Chandler W. Travis(HOA attorney) The Travis Law Firm PLC Counsel for Respondent
Neutral Parties
Kay Abramsohn(ALJ) OAH
Susan Nicolson(ADRE Commissioner) Arizona Department of Real Estate
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of transmission
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission
labril(ADRE staff) Arizona Department of Real Estate Recipient of transmission
mneat(ADRE staff) Arizona Department of Real Estate Recipient of transmission
lrecchia(ADRE staff) Arizona Department of Real Estate Recipient of transmission
gosborn(ADRE staff) Arizona Department of Real Estate Recipient of transmission
dmorehouse(ADRE staff) Arizona Department of Real Estate Recipient of transmission
Other Participants
Renee Malcolm(HOA member/recipient) Warner Ranch Association Referenced in testimony regarding notice delivery timing
Bill Carlson(HOA member/recipient) Warner Ranch Association Referenced in testimony regarding notice delivery timing (one of the Carlsons)
CC&Rs Article 1, Definitions, Area of Association Responsibility
Outcome Summary
The Administrative Law Judge granted the petition, concluding that the HOA CC&Rs mandate that the Association is responsible for replacing individual homeowners' roofs, if needed, primarily by interpreting the contractual term 'repair' to encompass 'replacement,' and noting that the roof is explicitly included under the HOA's maintenance and repair duties while items solely the owner's responsibility (windows, doors, interior plumbing) are specifically excluded from Areas of Association Responsibility.
Key Issues & Findings
Areas of Association Responsibility – Association responsibility for roof replacement by the association not clearly specified as to whether or not it’s an association or homeowner responsibility.
Petitioner sought clarification on whether the HOA's CC&Rs mandate roof replacement as part of 'Areas of Association Responsibility.' The ALJ concluded that the term 'repair' includes 'replacement,' and based on the CC&Rs language regarding maintenance and repair of the roof and the specific exclusion of windows and doors, the HOA is responsible for roof replacement if needed.
Orders: Respondent ordered to reimburse Petitioner’s filing fee of $500.00 in certified funds and henceforth comply with the provisions of the governing documents.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 32-2199.01
CC&Rs Article 1
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119
Merriam-Webster dictionary
Analytics Highlights
Topics: HOA Responsibility, Roof Replacement, CC&R Interpretation, Planned Community
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.02
CC&Rs Article 1
CC&Rs Article 5.18
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
In re William L., 211 Ariz. 236, 238 (App. 2005)
Audio Overview
Decision Documents
25F-H051-REL Decision – 1323178.pdf
Uploaded 2026-01-23T18:23:58 (68.2 KB)
25F-H051-REL Decision – 1328240.pdf
Uploaded 2026-01-23T18:24:04 (71.7 KB)
25F-H051-REL Decision – 1353423.pdf
Uploaded 2026-01-23T18:24:09 (167.6 KB)
Briefing Doc – 25F-H051-REL
Briefing Document: Ludden v. Mountain Gate Homeowners Association
Executive Summary
This document synthesizes the proceedings and outcome of the legal dispute between petitioner Michael D. Ludden and the Mountain Gate Homeowners Association (HOA) concerning the responsibility for roof replacement. On September 23, 2025, an Administrative Law Judge (ALJ) for the Arizona Office of Administrative Hearings issued a final decision, ruling conclusively in favor of the petitioner.
The central finding is that the Mountain Gate HOA is financially responsible for the full replacement of homeowner roofs when necessary, in addition to its acknowledged duties of maintenance and repair. The ruling was based on a close interpretation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). The ALJ determined that the CC&Rs’ definition of an “Improvement” (which includes any building or structure) combined with the Association’s explicit obligation to “maintain, repair and replace” such improvements, established the HOA’s liability for roof replacement.
The dispute arose from ambiguous language within the CC&Rs, which was compounded by conflicting verbal and written promises made by both the original and subsequent developers during home sales. The HOA argued that financial impracticality and a 2010 amendment requiring individual homeowner insurance shifted replacement liability to the owners. However, the ALJ’s decision rejected these arguments, finding the language of the governing documents to be controlling. As a direct result of the ruling, the Mountain Gate HOA must reimburse the petitioner’s $500 filing fee and is legally bound to comply with this interpretation of its responsibilities moving forward.
Case Overview
Legal Proceedings
Case Name
In the Matter of: Michael D. Ludden, Petitioner, v. Mountain Gate Homeowners Association, Respondent.
Case Number
25F-H051-REL
Tribunal
Arizona Office of Administrative Hearings (OAH)
Presiding Judge
Nicole Robinson, Administrative Law Judge
Hearing Date
September 3, 2025
Decision Date
September 23, 2025
Parties Involved
Title/Position
Petitioner
Michael D. Ludden
Homeowner and HOA President
Petitioner’s Witness
Brenda Anderson
HOA Secretary Treasurer
Respondent Representative
James “Jim” Pieper
HOA Board Member at Large
Respondent’s Witness
Pablo Martinez
HOA Director at Large
Central Issue
The core of the dispute was the interpretation of the Mountain Gate HOA’s CC&Rs to determine whether the Association is financially responsible for the full replacement of homeowner roofs at the end of their service life, or if its obligation is limited solely to maintenance and repair.
Background and Community History
The dispute is rooted in the development history of the Mountain Gate community, which consists of 42 townhome units in Lakeside, Arizona.
• 2006: The community is established and the association is incorporated as a condominium association.
• 2007: Construction begins on the first 12 units under the original developer.
• 2010: The development is re-platted from condominiums to townhomes, becoming a planned community. The CC&Rs are amended (Article 5.18) to require individual owners to obtain comprehensive insurance for the full replacement cost of their dwelling unit.
• c. 2014: The original developer goes bankrupt. Petitioner Michael Ludden purchases his unit from the developer’s sales agent, Gary Laframboise, who verbally stated that roof maintenance and replacement were the HOA’s responsibility.
• 2016: A new developer, Maebee Mountaingate LLC, purchases the remaining lots and resumes construction.
• 2018: The new developer utilizes sales brochures that explicitly promise roof replacement coverage. One document states, “Roofs last 20 years, replacement can cost $9500. In Mountain Gate part of your homeowner’s dues will be there to replace your roof if it is needed.”
• 2021: The new developer commissions a reserve study which includes line items for roof replacement.
• July 2022: With all 42 units completed, control of the HOA is transitioned from the developer to the homeowners. The Association’s reserve fund has a zero balance at the time of turnover.
• 2024: A homeowner demands the HOA replace his roof, prompting the board to seek a legal opinion and bringing the ambiguity in the CC&Rs to the forefront.
• February 28, 2025: Michael Ludden files a petition with the Arizona Department of Real Estate to seek a formal ruling on the matter.
• September 3, 2025: An evidentiary hearing is conducted by the Office of Administrative Hearings.
Arguments Presented at Hearing
Petitioner’s Position (Michael D. Ludden)
The petitioner argued that the HOA is, and has always been represented as being, responsible for roof replacement.
• Governing Documents (CC&Rs): The primary argument centered on Article 1 of the CC&Rs. It defines “Improvements” as “any building, wall or structure” and states the Association “is obligated to maintain, repair and replace” these improvements. The petitioner asserted that a dwelling unit is an “Improvement,” and therefore its roof is subject to replacement by the HOA.
• Developer Representations: Evidence was presented showing consistent promises from both developers.
◦ A text message from the original developer’s agent, Gary Laframboise, dated October 8, 2024, confirmed, “roof maintenance and replacement is HOA responsibility.”
◦ Sales brochures from the second developer, dated 2018, were used to attract buyers with the explicit promise that HOA dues would cover roof replacement.
• Practical Concerns: It was argued that HOA control over replacement is necessary to maintain aesthetic uniformity and structural standards across the community, preventing homeowners from using substandard materials or unapproved colors (a “purple shingle” scenario was cited).
Respondent’s Position (Mountain Gate HOA)
The respondent, represented by board members, argued that roof replacement is the financial responsibility of the individual homeowner.
• Governing Documents (CC&Rs): The respondent focused on a more specific clause within Article 1 that states the Areas of Association Responsibility “shall include the maintenance and repair of: all exterior walls and the roof of any Dwelling Unit.” They contended that the absence of the word “replace” in this specific clause meant the duty did not exist, superseding the more general language.
• Shift in Liability (2010 Amendment): A key argument was that the 2010 re-platting of the community from condominiums to townhomes fundamentally shifted liability. The accompanying amendment requiring owners to carry their own insurance for the “full replacement cost of the Dwelling Unit” was presented as evidence that the replacement responsibility was transferred to the homeowner and their insurer.
• Financial Impracticality: The board stressed the severe financial burden. With annual dues already at $3,318 with no amenities (e.g., pool, clubhouse), adding the cost of roof replacement would require a further increase estimated at $2,000 to $4,000 per year, which would negatively impact property values and make homes difficult to sell.
• Extraneous Documents: The respondent’s position was that sales brochures and verbal promises are not legally binding and cannot override the language of the recorded CC&Rs.
Final Decision and Legal Rationale
The Administrative Law Judge granted the petitioner’s request, finding that the HOA is responsible for replacing homeowner roofs when necessary.
Outcome:PETITION GRANTED.
Judge’s Rationale
The decision was based primarily on an interpretation of the plain language of the CC&Rs.
1. Controlling Language of the CC&Rs: The judge found the broader definition in Article 1 to be controlling. Because an “Improvement” is defined as a “building,” and the Association is obligated to “maintain, repair and replace” such Improvements, the responsibility for roof replacement was established.
2. Definition of “Repair”: The judge cited the Merriam-Webster dictionary definition of “repair” as “to restore by replacing a part or putting together what is torn or broken.” From this, she concluded that “a repair could come through replacement,” further blurring the distinction the respondent tried to make.
3. The Window Hypothetical: The judge used a hypothetical scenario to illustrate the legal reasoning. The CC&Rs state that owners are solely responsible for the “maintenance and repair” of their windows. If a window needed to be replaced, the responsibility would clearly fall on the owner, even though the word “replace” is absent. The judge reasoned the inverse is true for the roof: since the roof is explicitly listed as an Area of Association Responsibility, that responsibility logically includes replacement when a simple repair is insufficient.
4. Rejection of Respondent’s Arguments: The judge determined that the 2010 amendment requiring individual homeowner insurance “still does not relieve the HOA from repairing and maintaining the roof” and, by extension, replacing it under its CC&R-defined duties. The developer’s promises were noted as supportive but were not the primary basis for the decision.
Direct Orders Issued
Based on the findings, the Administrative Law Judge issued the following orders:
1. IT IS ORDERED that Petitioner’s petition be GRANTED.
2. IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.
3. IT IS FURTHER ORDERED that Respondent shall henceforth comply with the provisions of the governing documents as interpreted in the decision.
Case Participants
Petitioner Side
Michael D. Ludden(petitioner) Mountain Gate Homeowners Association HOA President and Property Owner
Brenda Anderson(witness) Mountain Gate Homeowners Association HOA Secretary-Treasurer
Respondent Side
James Pieper(respondent) Mountain Gate Homeowners Association HOA Director-at-Large
Pablo Martinez(witness) Mountain Gate Homeowners Association HOA Director-at-Large
The Administrative Law Judge granted both consolidated petitions (25F-H045-REL and 25F-H054-REL), finding that Respondent, The Val Vista Lakes Community Association, violated A.R.S. § 33-1805(A) by wrongfully withholding requested documents and failing to respond to records requests. Respondent was ordered to follow A.R.S. § 33-1805(A) for all pending and future requests, reimburse the Petitioner the total filing fees of $1000.00, and pay a total civil penalty of $1000.00.
Key Issues & Findings
Violation regarding failure to provide association records (Policies/Legal)
Petitioner alleged Respondent violated A.R.S. § 33-1805 by failing to provide requested records (including those regarding records policy and attorney fee information) within the ten-business-day deadline, and by conditioning production on an unenforceable ‘Records Request Form’. The tribunal found Val Vista wrongfully withheld the documents and violated the statute.
Orders: Petition granted. Respondent ordered to follow A.R.S. § 33-1805(A), reimburse the $500 filing fee, and pay a $500 civil penalty.
Violation regarding failure to provide financial records (Bank Statements)
Petitioner alleged Respondent violated A.R.S. § 33-1805(A) by failing to provide requested operating and reserve bank statements. Val Vista failed to respond to the request. The tribunal found the failure to respond unacceptable and in violation of the statute.
Orders: Petition granted. Respondent ordered to follow A.R.S. § 33-1805(A), reimburse the $500 filing fee, and pay a $500 civil penalty.
Topics: HOA Records Request, Failure to Produce Documents, Statutory Violation, Civil Penalty, Filing Fee Refund, Consolidated Cases
Additional Citations:
A.R.S. § 33-1805(A)
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02
Title 33, Chapter 16, Article 1
Video Overview
Audio Overview
Decision Documents
25F-H045-REL Decision – 1315733.pdf
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25F-H045-REL Decision – 1316066.pdf
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25F-H045-REL Decision – 1316100.pdf
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25F-H045-REL Decision – 1316101.pdf
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25F-H045-REL Decision – 1318153.pdf
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25F-H045-REL Decision – 1324339.pdf
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25F-H045-REL Decision – 1324343.pdf
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25F-H045-REL Decision – 1324372.pdf
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25F-H045-REL Decision – 1328416.pdf
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25F-H045-REL Decision – 1337742.pdf
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25F-H045-REL Decision – 1342973.pdf
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Briefing Doc – 25F-H045-REL
Briefing Document: Whittaker v. The Val Vista Lake Community Association
Executive Summary
This document summarizes the administrative legal proceedings and final judgment in the consolidated cases of Jeremy R. Whittaker v. The Val Vista Lake Community Association. The core of the dispute centered on the association’s failure to comply with member records requests, a direct violation of Arizona state law. The Office of Administrative Hearings (OAH) ruled decisively in favor of the Petitioner, Jeremy R. Whittaker, finding that The Val Vista Lake Community Association (Val Vista) wrongfully withheld documents and failed to respond to legitimate requests within the statutory timeframe.
The Administrative Law Judge (ALJ) rejected Val Vista’s defense, which included claims that the relevant statute was outdated and that the association’s internal “Records Policy” justified its non-compliance. The judge’s decision labeled the association’s failure to respond as “simply unacceptable.” Consequently, the OAH ordered Val Vista to comply with the law for all current and future requests, reimburse the Petitioner for $1,000 in filing fees, and pay an additional $1,000 in civil penalties. A subsequent clarification order explicitly extended the compliance mandate to “all pending and future requests,” solidifying the prospective impact of the ruling.
Case Overview
The matter involves two separate petitions filed by a homeowner against a homeowners’ association, which were later consolidated by the OAH for judicial economy.
Entity / Individual
Petitioner
Jeremy R. Whittaker (Appeared on his own behalf)
Respondent
The Val Vista Lake Community Association (Val Vista)
Respondent’s Counsel
Joshua M. Bolen, Esq., CHDB Law LLP
Adjudicating Body
Arizona Office of Administrative Hearings (OAH)
Presiding ALJs
Velva Moses-Thompson (pre-hearing motions), Adam D. Stone (hearing and final decision)
Overseeing Agency
Arizona Department of Real Estate
Consolidated Dockets
25F-H045-REL and 25F-H054-REL
Procedural History and Key Rulings
The case progressed through a series of motions and orders leading to a final evidentiary hearing and decision.
• Case Consolidation (June 10, 2025): Petitioner’s motion to consolidate docket No. 25F-H054-REL with No. 25F-H045-REL was granted. The hearing for the consolidated matter was scheduled for 9:00 a.m. on July 15, 2025.
• Motions Denied (June 10, 2025): In the same order, a motion for summary judgment was denied, and a motion to quash a subpoena for Bryan Patterson was denied as moot, allowing the Petitioner to file a new subpoena for the revised hearing date.
• Virtual Appearance (June 10, 2025): The Respondent’s motion for a virtual appearance at the hearing via Google Meet was granted.
• Subpoena Rulings:
◦ Bryan Patterson (June 17 & July 1, 2025): The OAH granted a subpoena requiring the appearance of Bryan Patterson but denied the request for the production of documents listed as 2a through 2d. A subsequent motion to quash a new subpoena (dated June 25, 2025) was partially granted; Patterson was still required to appear but not to produce the specified documents.
◦ Tamara Swanson (July 1, 2025): A June 5, 2025 subpoena was partially quashed. Tamara Swanson was ordered to appear at the hearing but was not required to produce documents listed as 2a through 2d.
• Disqualification of Counsel Denied (July 1, 2025): Petitioner filed a motion to disqualify CHDB Law, LLP as counsel for the Respondent, which the OAH denied.
• Evidentiary Hearing (July 15, 2025): The consolidated hearing was held before ALJ Adam D. Stone. The record was held open until July 24, 2025, to allow both parties to submit written closing arguments.
• Final Decision (August 8, 2025): ALJ Adam D. Stone issued a final decision in favor of the Petitioner.
• Order Clarification (August 26, 2025): Upon the Petitioner’s Motion for Clarification, the ALJ modified the decision’s language to ensure future compliance from the Respondent.
Analysis of Records Requests and Disputes
The dispute originated from three separate, comprehensive records requests made by the Petitioner to which the Respondent, Val Vista, failed to provide documents or a substantive response.
Case 25F-H045-REL: Records Policy and Legal Fees
This case encompassed two records requests made on February 27, 2025. The official dispute was summarized in the Notice of Hearing:
“Petitioner alleges Respondent of violating, ‘A.R.S. § 33-1805 by failing to provide the requested records with the ten-business-day statutory deadline, conditioning production on a legally unenforceable ‘Records Request Form’, and withholding critical attorney fee information-particularly troubling given its counsel’s documented disciplinary history for inflated or misleading HOA fee practices.'”
Requested Documents (February 27, 2025):
1. Records Retention and Request Policy: The final, fully executed version of the policy adopted around February 25, 2025, including all exhibits and attachments.
2. Meeting Minutes: Draft or final minutes from the February 25, 2025, Board meeting discussing the adoption of the policy.
3. Legal Services Records:
◦ Current and past legal services agreements and retainers.
◦ Attorney rate schedules and fee structures.
◦ Invoices, billing statements, and payment records (with legally permitted redactions).
◦ Board meeting minutes discussing attorney engagement or retention.
◦ RFPs or other bid solicitations related to retaining legal counsel.
◦ Conflict-of-interest disclosures or waivers concerning the law firm.
◦ Any other records detailing the contractual or advisory relationship.
Case 25F-H054-REL: Financial Records
This case stemmed from a request made on March 21, 2025. The Notice of Hearing defined the dispute:
“Petitioner alleges Respondent of violating, A.R.S. § 33-1805(A), ‘by failing to provide the requested bank statements and FSR-related communications, and is operating in ongoing breach or its statutory obligations.’”
Requested Documents (March 21, 2025):
1. Operating Bank Statements: Complete monthly statements for all operating/checking accounts from January 1, 2024, to the present.
2. Reserve Account Statements: All monthly or quarterly statements for reserve accounts from January 1, 2024, to the present.
For both cases, the final decision confirmed that “No documents have been turned over by Val Vista.”
Final Administrative Law Judge Decision
The ALJ’s final decision on August 8, 2025, provided a clear resolution to the disputes, finding definitively against Val Vista.
Summary of Arguments
• Petitioner’s Position: Argued that Val Vista failed to produce the requested records within the statutory timeline and had no authority to compel the use of a specific records request form or to ignore a request not submitted on that form.
• Respondent’s Position: Argued that A.R.S. § 33-1805 was “outdated and misunderstood” and that it only had ten days to provide copies after an examination of records occurred. Val Vista claimed it created its Records Policy to streamline previously broad requests from members and that some requested documents were privileged.
Conclusions of Law
The ALJ found that the Petitioner met the burden of proving by a preponderance of the evidence that Val Vista violated A.R.S. § 33-1805.
• Wrongful Withholding: The central conclusion was that “Val Vista wrongfully withheld the requested documents.”
• Failure to Respond: The decision stated that Val Vista’s lack of any response was unacceptable. Even if documents were privileged, they “could have properly been withheld and/or redacted.”
• Invalid Justification: The fact that the second request was not made on Val Vista’s preferred form “does not excuse Val Vista from at a minimum responding.” The Petitioner’s written request complied with the statute.
• Unacceptable Conduct: The ALJ concluded, “No response by Val Vista was simply unacceptable, and in violation of the statute.”
Final Order and Penalties
The OAH granted both of the Petitioner’s petitions and imposed the following orders and penalties:
Case Docket
Filing Fee Reimbursement
Civil Penalty
25F-H045-REL
Granted; Respondent must follow A.R.S. § 33-1805(A).
$500.00
$500.00
25F-H054-REL
Granted; Respondent must follow A.R.S. § 33-1805(A).
$500.00
$500.00
$1,000.00
$1,000.00
The total financial judgment against The Val Vista Lake Community Association was $2,000.00.
Post-Decision Clarification
On August 26, 2025, in response to a Motion for Clarification from the Petitioner, ALJ Adam D. Stone issued a modifying order. The order strengthened the original decision by stating:
“IT IS ORDERED that the Administrative Law Judge Decision shall be modified to read, ‘Respondent shall follow the A.R.S. § 33-1805(A) for all pending and future requests.'”
This clarification ensures that the ruling is not limited to the specific past violations but establishes a clear, forward-looking mandate for the association’s compliance with state law regarding member access to records.
Case Participants
Petitioner Side
Jeremy R. Whittaker(petitioner) Appeared on his own behalf
Respondent Side
Josh Bolen(attorney) CHDB Law LLP Also referred to as Joshua M. Bolen, Esq.; Represented Respondent
Vicki Goslin(staff) CHDB Law LLP Listed as a recipient for transmission
Neutral Parties
Velva Moses-Thompson(ALJ) OAH Signed orders dated June 10 and July 1
Adam D. Stone(ALJ) OAH Signed Order Holding Record Open and Administrative Law Judge Decision/Modification
Susan Nicolson(Commissioner) ADRE
vnunez(ADRE staff/recipient) ADRE
djones(ADRE staff/recipient) ADRE
labril(ADRE staff/recipient) ADRE
mneat(ADRE staff/recipient) ADRE
lrecchia(ADRE staff/recipient) ADRE
gosborn(ADRE staff/recipient) ADRE
Other Participants
Bryan Patterson(witness) Subject of motions to quash subpoena
Tamara Swanson(witness) Subject of motion to quash subpoena
CC&Rs Page 2, Section A; and Management Agreement, Pages 33-34, Clause Four, subsection a., b., and f.
Outcome Summary
The Administrative Law Judge denied the two-issue Petition, concluding that the Petitioner failed to meet the burden of proving by a preponderance of the evidence that the Tanglewood Association violated its Covenants, Conditions, and Restrictions (CC&Rs) or Management Agreement. The HOA was declared the prevailing party.
Why this result: Petitioner failed to meet the burden of proof. Regarding the plumbing maintenance (Issue #1), the HOA demonstrated they took action but were legally constrained by contract limitations requiring Board approval/owner vote for costly repairs ($5,000 threshold). Regarding the failure to hire a property manager (Issue #2), the governing documents were vague, and the violation was not proven.
Key Issues & Findings
Failure to maintain Association standards of acceptable living standards and make proper repairs to plumbing in the properties.
Petitioner filed a two-issue petition alleging HOA failed to timely fix a major plumbing issue (Issue #1) that caused flooding/sink backup, making his unit uninhabitable and resulting in lost rent. The second issue (Issue #2) alleged the HOA failed to hire a property management company, which Petitioner claimed led to the untimely handling of Issue #1. The HOA responded that repairs were delayed due to financial constraints requiring a successful special assessment vote.
Orders: The Petition was denied, and the HOA was determined to be the prevailing party. Petitioner was ordered to bear his filing fees. OAH cannot award damages, such as lost rent reimbursement.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
CC&Rs Page 2, Section A
Management Agreement, Pages 33-34, Clause Four, subsection a., b., and f.
Briefing Document: Nicholas Thomas v. Tanglewood Association (Case No. 25F-H037-REL)
Executive Summary
This briefing document synthesizes the proceedings and outcome of Case No. 25F-H037-REL, a dispute between property owner Nicholas Thomas (Petitioner) and the Tanglewood Association (HOA/Respondent). The case was adjudicated by the Arizona Office of Administrative Hearings, with a final decision issued on July 13, 2025.
The Petitioner filed a two-issue petition alleging that the HOA (1) failed in its duty to perform timely plumbing repairs, rendering his unit uninhabitable, and (2) failed to hire a professional property management company, leading to systemic financial and operational issues.
The HOA countered that the repair delays were not due to inaction but to severe financial constraints and the procedural necessity of securing a majority vote from homeowners for a special assessment. This funding was required for the extensive and costly repairs needed for the property’s aging infrastructure. The HOA highlighted that the Petitioner had never participated in these critical votes.
The Administrative Law Judge ultimately denied the petition in its entirety, finding that the Petitioner had not met his burden of proof. The decision concluded that the HOA’s actions were constrained by its financial reality and governing documents, not a breach of duty. The delays were attributed to the failed attempts to secure owner-approved funding via special assessment votes in prior years. The HOA was determined to be the prevailing party, and the Petitioner was ordered to bear his own filing fees.
I. Case Overview
• Case Number: 25F-H037-REL
• Parties:
◦ Petitioner: Nicholas Thomas, owner of Unit 141, Building 4
◦ Respondent: Tanglewood Association (HOA), represented by Co-President Hector Saavedra
• Adjudicating Body: Arizona Office of Administrative Hearings (OAH)
• Presiding Judge: Administrative Law Judge Kay A. Abramsohn
• Timeline:
◦ Petition Filed: February 7, 2025
◦ Hearing Date: May 16, 2025
◦ Decision Issued: July 13, 2025
The Petitioner filed a petition with the Arizona Department of Real Estate alleging the HOA violated its CC&Rs by failing to maintain the property and by not hiring professional management. The matter was referred to the OAH for an evidentiary hearing.
II. Complaint #1: Failure to Repair Plumbing Issue
Petitioner’s Position
The central claim was that the HOA failed to address a severe plumbing issue in a timely manner, which stemmed from common lines outside the Petitioner’s unit.
• Timeline of Events:
◦ October 2024: The Petitioner first became aware of a plumbing issue causing the kitchen sink to back up. A private plumber determined the issue was external to the unit.
◦ November 18, 2024: The HOA was formally notified of the problem.
◦ January/February 2025: Communication from the HOA ceased, prompting the Petitioner to file his complaint.
◦ February 18, 2025: The Petitioner canceled the lease with his tenants as the unit was deemed “uninhabitable” due to flooding and a non-functional sink.
• Consequences: The Petitioner cited damage to the kitchen floor and walls, the loss of rental income, and the ongoing uninhabitable state of the unit. The water line to the sink was eventually capped in February 2025 to stop the flooding, but this did not resolve the underlying issue.
• Key Quote: “The plumbing issue has been in place for 7 months. It has not been addressed. The house is currently unlivable, uninhabitable, still has damage in it. Um, and I do believe the HOA has failed in its required responsibilities to address this issue.” – Nicholas Thomas
• Requested Relief:
1. An order for the HOA to fix the plumbing with a specific timeline.
2. Reimbursement of the $500 portion of the filing fee for this complaint.
3. Reimbursement for lost rent.
Respondent’s Position (Tanglewood HOA)
The HOA argued that the delay was a direct result of financial insolvency and procedural requirements stipulated in its governing documents, not negligence.
• Systemic Problem: The plumbing issues were not isolated to the Petitioner’s unit but were part of a larger problem with the property’s aging infrastructure, dating back to 1965. A similar issue in another building cost $15,000 to repair two years prior.
• Financial & Procedural Hurdles: The estimated cost for the current repairs was initially $15,000 but rose to $50,000. The HOA stated it was “flat broke” with minimal reserves. The CC&Rs mandate a majority vote of over 50% (50.1%) of owners to approve a special assessment for such funding.
• Key Quote: “It should be noted that the board cannot increase the dues of the HOA or or ask for an special assessment unless we have a 50.01% vote from the owners. Mr. Thomas hasn’t voted in two three years and the things that he’s been asking for need their vote to make them happen.” – Hector Saavedra
• Voting History: Attempts to pass a special assessment failed in 2022 and 2023 due to a lack of owner participation. The Petitioner acknowledged he had never voted.
• Eventual Success: In 2025, after significant effort, the HOA secured a 50.35% vote to approve a $70,000 special assessment. This was structured in three phases to ease the financial burden on owners.
• Current Action Plan: At the time of the hearing, the HOA had collected approximately $40,000, made a $15,000 down payment to a plumbing contractor, and was scheduling the work. The repairs were set to begin with Building 4, which includes the Petitioner’s unit and was identified as having the most severe damage.
III. Complaint #2: Lack of Professional Management
Petitioner’s Position
This complaint asserted that the root cause of the HOA’s problems was its self-managed, volunteer-run structure, which was incapable of handling the property’s complex needs.
• Core Argument: A volunteer board lacks the time, expertise, and resources for effective financial management, enforcement of dues collection (including foreclosure on delinquent owners), and timely handling of maintenance. The Petitioner’s brother, Lucas Thomas, testified that in his 15 years as a property manager, he has consistently seen self-managed HOAs fail to operate correctly.
• Alleged Financial Mismanagement: The Petitioner argued the HOA should have been proactively increasing dues up to the 20% annual limit allowed by Arizona Revised Statutes (A.R.S. § 33-1803) without an owner vote, which would have built necessary reserves.
• Key Quote: “Every time that there is a self-managed HOA, the volunteers just don’t have the knowledge or the knowhow or the connections to locals that they need to properly facilitate a giant management especially for 42 units.” – Lucas Thomas
• Requested Relief:
1. An order for the HOA to hire a professional property management company.
2. Reimbursement of the $500 portion of the filing fee for this complaint.
Respondent’s Position (Tanglewood HOA)
The HOA acknowledged the challenges of a volunteer board but maintained that its primary obstacle was financial, not a lack of willingness to act.
• Affordability: The board had discussed hiring a professional management company but concluded it could not afford the expense. They feared that passing the cost to owners would result in even greater delinquency in dues payments.
• Volunteer Effort and Investment: The board is comprised of unpaid owner volunteers who live on the property and are personally impacted by the issues. Mr. Saavedra noted the immense personal time and stress involved, stating, “We are working we understand there’s around seven units right now that are vacant just like Mr. Thomas’s. We understand the pain of not being able to collect money from that from rent.”
• Invitation to Participate: The HOA extended an invitation to Mr. Thomas to join the board and contribute to finding solutions.
IV. Administrative Law Judge’s Decision & Rationale
The Administrative Law Judge (ALJ) denied the Petitioner’s petition on all counts, finding the evidence did not support a conclusion that the HOA had violated its duties.
• Final Order:
◦ The Petitioner’s Petition is denied.
◦ The HOA is the prevailing party.
◦ The Petitioner shall bear his own filing fees ($1,000.00).
◦ The OAH does not have the authority to award damages, such as lost rent.
• Rationale for Denying Complaint #1 (Plumbing Repair):
◦ The Petitioner failed to meet the burden of proving the HOA was not performing its duties.
◦ The evidence demonstrated that upon receiving complaints, the HOA hired a vendor and investigated the issue. The subsequent delay was a direct result of the high cost of repair and the HOA’s lack of funds.
◦ The HOA’s governing documents prevent a property manager or agent from spending more than $5,000, even in an emergency, without Board approval. Therefore, an immediate, large-scale repair was contractually and financially impossible without the owner-approved special assessment. The delay was thus a consequence of procedural and financial constraints, not a failure of duty.
• Rationale for Denying Complaint #2 (Professional Management):
◦ The ALJ found the hearing record to be “simply vague” on this issue.
◦ It could not be determined whether the HOA ever had a property manager in the past or to whom the “Management Agreement” clauses in the CC&Rs currently apply. Without a clearer record, a violation could not be established.
V. Key Participants & Testimony
Participant
Key Testimony & Contributions
Nicholas Thomas
Petitioner, Owner of Unit 141
Outlined the 7-month timeline of the plumbing failure, the resulting uninhabitability of his unit, and the financial losses incurred. Argued for professional management and acknowledged he had never voted in HOA elections or assessments.
Hector Saavedra
Respondent, Co-President of Tanglewood HOA
Explained the HOA’s financial insolvency, the procedural requirement for a majority owner vote to pass special assessments, and the history of failed votes. Detailed the successful 2025 vote and the current plan to begin repairs. Invited the Petitioner to join the board.
Carl Kesler
Petitioner’s Property Manager
Corroborated the timeline of events and communications with the HOA. Confirmed the plumbing issue was localized to the kitchen and stemmed from a mainline sewer problem. Stated he had never been to the unit in person and did not forward all HOA correspondence to the Petitioner.
Lucas Thomas
Petitioner’s Brother, Former Property Manager
Testified from his 15 years of experience that self-managed HOAs are typically ineffective. Argued that a professional firm is necessary for proper financial management and maintenance, citing a past lawsuit where he forced another HOA to hire a management company, which turned the property around.
Study Guide – 25F-H037-REL
{ “case”: { “docket_no”: “25F-H037-REL”, “case_title”: “Nicholas Thomas v. Tanglewood Association”, “decision_date”: “2025-07-13”, “alj_name”: “Kay A. Abramsohn”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can I get monetary damages (like lost rent) from my HOA through an administrative hearing?”, “short_answer”: “No, the Office of Administrative Hearings (OAH) does not have the legal authority to award damages.”, “detailed_answer”: “While the OAH can order an HOA to follow its governing documents, it cannot award financial compensation for losses such as lost rent or property damage.”, “alj_quote”: “OAH does not have authority to award damages.”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2199 et seq.”, “topic_tags”: [ “damages”, “jurisdiction”, “compensation” ] }, { “question”: “If my HOA fails to make repairs due to lack of funds, is it considered a violation?”, “short_answer”: “Not necessarily, especially if the HOA is taking steps to secure funding through a special assessment.”, “detailed_answer”: “In this case, the ALJ found that the HOA could not be held in violation for failing to make immediate repairs when it lacked the necessary funds and was actively seeking a special assessment vote from owners to cover the costs.”, “alj_quote”: “Given its financial situation, HOA determined the overall plumbing issues could not be repaired absent a special assessment to cover those specific and projected expenses… Therefore, the hearing record demonstrates that more immediate action to repair either Petitioner’s plumbing issues or the overall plumbing issues could not have been taken.”, “legal_basis”: “Governing Documents / Financial Feasibility”, “topic_tags”: [ “repairs”, “finances”, “special assessment” ] }, { “question”: “Who acts as the ‘burden of proof’ in a hearing against an HOA?”, “short_answer”: “The homeowner (Petitioner) must prove the violation occurred.”, “detailed_answer”: “The homeowner must prove by a ‘preponderance of the evidence’ that the HOA violated its community documents or relevant statutes.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent HOA violated the alleged CC&R provisions.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standard”, “procedure” ] }, { “question”: “Can I force my HOA board to hire a professional property management company?”, “short_answer”: “Likely no, unless you can prove a specific requirement in the governing documents is being violated.”, “detailed_answer”: “The ALJ ruled that the homeowner did not meet the burden of proof to show that the HOA was violating its duties by not hiring a property manager, noting the evidence regarding the requirement was vague.”, “alj_quote”: “The Tribunal concludes that Petitioner has not met his burden to demonstrate by a preponderance of the evidence that HOA was not timely performing ‘their duties outlined’ in CC&Rs Page 2, Section A; and Management Agreement… regarding property management, the hearing record is simply vague.”, “legal_basis”: “CC&Rs / Management Agreement”, “topic_tags”: [ “property management”, “board duties”, “self-management” ] }, { “question”: “Does an HOA manager have unlimited spending power for emergency repairs?”, “short_answer”: “No, governing documents often place specific dollar limits on spending without board/association approval.”, “detailed_answer”: “The decision cites a management agreement that limits emergency repair spending (e.g., to $5,000) without prior approval from the Association.”, “alj_quote”: “Agent shall not incur liabilities (direct or contingent) which will at any time exceed the aggregate of $5,000.00 … without first obtaining the approval of the Association.”, “legal_basis”: “Management Agreement Contracts”, “topic_tags”: [ “spending limits”, “emergency repairs”, “budget” ] }, { “question”: “If I lose my case against the HOA, do I get my filing fee back?”, “short_answer”: “No, if the petition is denied, the petitioner is typically responsible for their own filing fees.”, “detailed_answer”: “The ALJ ordered that the Petitioner bear his own filing fees after Tanglewood Association was determined to be the prevailing party.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner shall bear his filing fees.”, “legal_basis”: “Administrative Order”, “topic_tags”: [ “fees”, “costs”, “penalties” ] } ] }
Blog Post – 25F-H037-REL
{ “case”: { “docket_no”: “25F-H037-REL”, “case_title”: “Nicholas Thomas v. Tanglewood Association”, “decision_date”: “2025-07-13”, “alj_name”: “Kay A. Abramsohn”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can I get monetary damages (like lost rent) from my HOA through an administrative hearing?”, “short_answer”: “No, the Office of Administrative Hearings (OAH) does not have the legal authority to award damages.”, “detailed_answer”: “While the OAH can order an HOA to follow its governing documents, it cannot award financial compensation for losses such as lost rent or property damage.”, “alj_quote”: “OAH does not have authority to award damages.”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2199 et seq.”, “topic_tags”: [ “damages”, “jurisdiction”, “compensation” ] }, { “question”: “If my HOA fails to make repairs due to lack of funds, is it considered a violation?”, “short_answer”: “Not necessarily, especially if the HOA is taking steps to secure funding through a special assessment.”, “detailed_answer”: “In this case, the ALJ found that the HOA could not be held in violation for failing to make immediate repairs when it lacked the necessary funds and was actively seeking a special assessment vote from owners to cover the costs.”, “alj_quote”: “Given its financial situation, HOA determined the overall plumbing issues could not be repaired absent a special assessment to cover those specific and projected expenses… Therefore, the hearing record demonstrates that more immediate action to repair either Petitioner’s plumbing issues or the overall plumbing issues could not have been taken.”, “legal_basis”: “Governing Documents / Financial Feasibility”, “topic_tags”: [ “repairs”, “finances”, “special assessment” ] }, { “question”: “Who acts as the ‘burden of proof’ in a hearing against an HOA?”, “short_answer”: “The homeowner (Petitioner) must prove the violation occurred.”, “detailed_answer”: “The homeowner must prove by a ‘preponderance of the evidence’ that the HOA violated its community documents or relevant statutes.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent HOA violated the alleged CC&R provisions.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standard”, “procedure” ] }, { “question”: “Can I force my HOA board to hire a professional property management company?”, “short_answer”: “Likely no, unless you can prove a specific requirement in the governing documents is being violated.”, “detailed_answer”: “The ALJ ruled that the homeowner did not meet the burden of proof to show that the HOA was violating its duties by not hiring a property manager, noting the evidence regarding the requirement was vague.”, “alj_quote”: “The Tribunal concludes that Petitioner has not met his burden to demonstrate by a preponderance of the evidence that HOA was not timely performing ‘their duties outlined’ in CC&Rs Page 2, Section A; and Management Agreement… regarding property management, the hearing record is simply vague.”, “legal_basis”: “CC&Rs / Management Agreement”, “topic_tags”: [ “property management”, “board duties”, “self-management” ] }, { “question”: “Does an HOA manager have unlimited spending power for emergency repairs?”, “short_answer”: “No, governing documents often place specific dollar limits on spending without board/association approval.”, “detailed_answer”: “The decision cites a management agreement that limits emergency repair spending (e.g., to $5,000) without prior approval from the Association.”, “alj_quote”: “Agent shall not incur liabilities (direct or contingent) which will at any time exceed the aggregate of $5,000.00 … without first obtaining the approval of the Association.”, “legal_basis”: “Management Agreement Contracts”, “topic_tags”: [ “spending limits”, “emergency repairs”, “budget” ] }, { “question”: “If I lose my case against the HOA, do I get my filing fee back?”, “short_answer”: “No, if the petition is denied, the petitioner is typically responsible for their own filing fees.”, “detailed_answer”: “The ALJ ordered that the Petitioner bear his own filing fees after Tanglewood Association was determined to be the prevailing party.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner shall bear his filing fees.”, “legal_basis”: “Administrative Order”, “topic_tags”: [ “fees”, “costs”, “penalties” ] } ] }
Case Participants
Petitioner Side
Nicholas Thomas(petitioner) Represented self; Unit owner
Carl Kesler(property manager) Managed Petitioner's unit; testified as witness
Lucas Thomas(witness) Brother of Petitioner; former property manager of the unit
Respondent Side
Hector Saavedra(board member) Tanglewood Association Co-President; represented the Respondent Association
Neutral Parties
Kay A. Abramsohn(ALJ) Office of Administrative Hearings Also referred to as K. Abramson
Susan Nicolson(Commissioner) Arizona Department of Real Estate Recipient of the decision
John R. Krahn Living Trust/Janet Krahn Living Trust
Counsel
—
Respondent
Tonto Forest Estates Homeowners Association
Counsel
—
Alleged Violations
CC&R 5.3
Outcome Summary
The Administrative Law Judge granted the Petitioner’s single-issue petition because the HOA Board had not appointed a third member to the Architectural Committee (ARC) to comply with CC&R 5.3 until March 17, 2025. The HOA was ordered to reimburse the Petitioner’s $500.00 filing fee, but no civil penalty was awarded.
Key Issues & Findings
Architectural Committee Composition Requirement
Petitioner alleged violation of CC&R Article 5.3, which mandates the Architectural Committee (ARC) shall consist of three regular members, because the HOA only had two members on the ARC as of the petition date (February 5, 2025). The Tribunal found the HOA failed to appoint a third member to the ARC until March 17, 2025, granting the petition.
Orders: Petition granted; Respondent ordered to reimburse Petitioner's $500.00 filing fee. No civil penalty was awarded.
Briefing Document: Krahn Living Trust v. Tonto Forest Estates Homeowners Association (Case No. 25F-H036-REL)
Executive Summary
This document synthesizes the proceedings and outcome of the administrative case John R Krahn Living Trust/Janet Krahn Living Trust v. Tonto Forest Estates Homeowners Association, Case No. 25F-H036-REL, held before the Arizona Office of Administrative Hearings. The central dispute involved an allegation by the Petitioner that the Tonto Forest Estates Homeowners Association (HOA) violated Article 5.3 of its Covenants, Codes, and Restrictions (CC&Rs), which mandates that its Architectural Committee (ARC) “shall consist of three (3) regular members.”
The Petitioner, John R. Krahn, filed a single-issue petition on February 5, 2025, asserting that the ARC was operating with only two members, thereby violating the governing documents. The Petitioner argued that this violation had persisted for an extended period and that the HOA Board had ignored his own application to fill the vacancy, constituting punitive behavior that warranted civil penalties.
The Respondent, represented by Board President Dwight Jolivette, contended that the governing documents allow for flexibility and that no violation occurred while the Board was actively recruiting a third member. The HOA argued that its interpretation was practical, in the best interest of the homeowners, and consistent with the practices of previous boards.
The Administrative Law Judge (ALJ), Kay A. Abramsohn, ruled in favor of the Petitioner. The decision, issued on June 8, 2025, found that the HOA was in violation of CC&R 5.3 at the time the petition was filed. The ruling was narrowly focused on the number of ARC members and explicitly declined to address secondary arguments about the validity of member appointments, as those were outside the scope of the single-issue petition. Consequently, the HOA was ordered to reimburse the Petitioner’s $500 filing fee. The Petitioner’s request for a civil penalty was denied.
——————————————————————————–
Case Overview
Case Number
25F-H036-REL
Petitioner
John R Krahn Living Trust / Janet Krahn Living Trust (Represented by John R. Krahn)
Respondent
Tonto Forest Estates Homeowners Association (Represented by Dwight Jolivette, Board President)
Arizona Office of Administrative Hearings (OAH)
Presiding Judge
Administrative Law Judge Kay A. Abramsohn
Hearing Date
May 14, 2025
Decision Date
June 8, 2025
Central Dispute: Violation of CC&R Article 5.3
The core of the dispute was the interpretation and application of CC&R Article 5.3 concerning the composition of the Architectural Committee (ARC).
Relevant Text of CC&R 5.3:
“After such time as the rights of Declarant to appoint the members of the Architectural Committee expire or are relinquished by the Declarant, the Architectural Committee shall consist of three (3) regular members, each of whom shall be appointed by the Board. In the event the Board does not appoint an Architectural Committee for any reason, the Board shall exercise the authority granted to the Architectural Committee under this Declaration…”
The Petitioner filed a single-issue petition on February 5, 2025, alleging the HOA was in violation of this article by operating the ARC with only two members.
Petitioner’s Position and Key Arguments
The Petitioner, John R. Krahn, who previously served as ARC Chairman (2019-2021) and Board Secretary (2019-2021), presented the following arguments:
• Mandatory Requirement: The term “shall” in CC&R 5.3 creates a mandatory, non-discretionary obligation for the ARC to have exactly three members.
• Prolonged Non-Compliance: The ARC operated with only two members for approximately 17 months, from at least October 2023 until March 17, 2025. Krahn further argued the period of non-compliance was potentially 42 months, claiming ARC member Mike Ackerly was never lawfully appointed by a formal Board vote in an open meeting.
• Failure to Correct: The HOA Board acknowledged the vacancy at a November 19, 2024 meeting and called for volunteers. Krahn submitted his resume the next day but his application was never discussed or voted upon. He contended this was a missed opportunity to bring the ARC into compliance.
• Punitive Behavior: The Board’s failure to consider his candidacy was described as “personal retaliation” and “punitive governance,” for which a civil penalty was warranted.
• Corrective Action as Admission: The Board’s appointment of a third member on March 17, 2025—after the complaint was filed—was presented as proof of the underlying violation.
Key Testimony (Krahn):“This is not a matter of opinion or interpretation. It’s a binary question of fact and by respondent’s own admission are operating for many months with other than three members.”
Respondent’s Position and Key Arguments
The HOA, represented by Board President Dwight Jolivette, countered with the following arguments:
• Reasonable Interpretation: No board has ever interpreted CC&R 5.3 to mean the ARC is non-viable or must be dissolved if it temporarily falls below three members.
• Active Recruitment: The Board was actively recruiting for the vacant position, as evidenced by the public call for volunteers. During this recruitment period, the two-member committee’s continued function was reasonable and in the community’s best interest.
• Board Authority: The Board has the authority under CC&R 12.5 to interpret the governing documents. Its interpretation that the committee could function with two members during a vacancy was a valid exercise of that authority.
• Appointment Process: The governing documents require members to be “appointed by the Board” but do not explicitly mandate a formal vote.
• Past Precedent: Jolivette argued that the ARC had operated with fewer than three members under prior boards, including one on which Krahn himself served.
Key Testimony (Jolivette):“Our position is that two members is not not necessarily a violation of 5.3 if and when you’re actively recruiting for another member… Nothing in the governing document states that an appointment is equivalent to a vote.”
Hearing and Procedural Timeline
Nov 19, 2024
The HOA Board acknowledges an ARC vacancy and calls for volunteers.
Nov 20, 2024
Petitioner John Krahn submits his resume for the ARC position.
Jan 22, 2025
The HOA’s Community Manager confirms in an email that the ARC has two members: Steve Gauer and Mike Ackerly.
Feb 5, 2025
The Petitioner files a single-issue petition with the Arizona Department of Real Estate.
Mar 17, 2025
The HOA Board formally appoints Alan Damon to the ARC via motion and vote, bringing its membership to three.
May 14, 2025
An evidentiary administrative hearing is held virtually before ALJ Kay Abramsohn.
June 8, 2025
The Administrative Law Judge Decision is issued.
June 29, 2025
An Order Nunc Pro Tunc is issued to correct the number of admitted petitioner exhibits in the original decision.
Administrative Law Judge’s Decision and Order
The ALJ’s decision, issued on June 8, 2025, resolved the dispute by granting the petition but denying the request for a civil penalty.
• Violation Confirmed: The ALJ concluded that the Petitioner met the burden of proof to demonstrate that as of the petition’s filing date (February 5, 2025), the HOA Board had not appointed a third member to the ARC. This constituted a violation of CC&R 5.3.
• Corrective Action Timing: The decision noted that a third member was not appointed until March 17, 2025, more than a month after the petition was filed.
• Limitation of Scope: The ALJ explicitly stated that the Petitioner’s arguments regarding the validity of Mike Ackerly’s appointment process were not addressed. The ruling was confined to the single issue presented in the original petition: whether the ARC had the required number of members. The decision stated, “Petitioner’s arguments regarding the appointment process are not addressed.”
The ALJ issued a three-part order:
1. Petition Granted: The Petitioner’s petition in case 25F-H036-REL was granted on the grounds that the HOA had not appointed a third member to the ARC to comply with CC&R 5.3 until March 17, 2025.
2. Filing Fee Reimbursed: The Respondent (HOA) was ordered to reimburse the Petitioner’s $500.00 filing fee.
3. Civil Penalty Denied: No civil penalty was awarded.
An Order Nunc Pro Tunc was later issued on June 29, 2025, to correct a clerical error in the original decision, changing the record of admitted evidence from “Petitioner’s Exhibits 1 through 22” to “Petitioner’s Exhibits 1 through 26.” This correction was retroactive to the date of the original decision.
Questions
Question
If the CC&Rs state a committee 'shall' have a specific number of members, is the HOA in violation if they operate with fewer?
Short Answer
Yes. If the governing documents mandate a specific number of members (e.g., three), failing to appoint that number is a violation.
Detailed Answer
The ALJ ruled that the HOA violated the CC&Rs because the documents required the Architectural Committee to consist of three members, but the Board had failed to appoint a third member for a period of time. The use of 'shall consist' in the CC&Rs created a mandatory requirement.
Alj Quote
IT IS ORDERED that Petitioner’s petition in 25F-H036-REL be granted because the newly elected HOA Board had yet appointed a third member to the ARC in order to comply with CC&R 5.3 until March 17, 2025.
Legal Basis
CC&R 5.3
Topic Tags
CC&Rs
Committee Requirements
Governance
Question
If the HOA fixes the violation after I file my complaint, do I still win the hearing?
Short Answer
Yes. Correcting the issue after the petition is filed does not erase the fact that the violation existed at the time of filing.
Detailed Answer
The homeowner filed the petition in February. The HOA appointed the missing committee member in March (before the May hearing). The ALJ still granted the petition because the HOA was not in compliance at the time the dispute arose and the petition was filed.
Alj Quote
The Tribunal concludes that that Petitioner has met his burden to demonstrate that, as of February 5, 2025, the newly elected HOA Board had not yet appointed a third member to the ARC… IT IS ORDERED that Petitioner’s petition… be granted because the newly elected HOA Board had yet appointed a third member to the ARC… until March 17, 2025.
Legal Basis
Administrative Law Standards
Topic Tags
Procedural
Compliance
Dispute Resolution
Question
Will the HOA have to pay me back for the filing fee if I win?
Short Answer
Yes. The ALJ typically orders the HOA to reimburse the filing fee if the homeowner prevails.
Detailed Answer
Upon granting the petition and finding the HOA in violation, the judge ordered the HOA to reimburse the homeowner's $500 filing fee as required by Arizona statute.
Alj Quote
IT IS FURTHER ORDERED that Respondent shall reimburse Petitioner’s $500.00 filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.01
Topic Tags
Filing Fees
Remedies
Costs
Question
Does the law require a Board member to serve on the Architectural Committee?
Short Answer
Yes. Arizona statute mandates that at least one board member serve as the chairperson of the design review or architectural committee.
Detailed Answer
Regardless of what the specific community documents say, Arizona state law (A.R.S. § 33-1817) overrides them to require that a board member serve as the chairperson of the architectural committee.
Alj Quote
Membership on a design review committee, an architectural committee or a committee that performs similar functions, however denominated, for the planned community shall include at least one member of the board of directors who shall serve as chairperson of the committee.
Legal Basis
ARIZ. REV. STAT. § 33-1817(B)(1)
Topic Tags
Architectural Committee
Board of Directors
Statutory Requirements
Question
Will I automatically be awarded civil penalties (fines against the HOA) if I prove a violation?
Short Answer
No. Proving a violation does not guarantee that the judge will impose a civil penalty.
Detailed Answer
Although the homeowner successfully proved the HOA violated the CC&Rs regarding committee membership, the ALJ explicitly declined to award any civil penalties.
Alj Quote
IT IS FURTHER ORDERED that no civil penalty is awarded.
Legal Basis
Administrative Discretion
Topic Tags
Penalties
Remedies
Civil Penalty
Question
What is the standard of proof for a homeowner in an HOA administrative hearing?
Short Answer
Preponderance of the evidence.
Detailed Answer
The homeowner must prove that their claim is 'more probably true than not.' It is based on the convincing force and superior weight of the evidence, not just the number of witnesses.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&R 5.3… '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
How long do I have to request a rehearing if I am unhappy with the decision?
Short Answer
30 days.
Detailed Answer
Any party wishing to request a rehearing must file the request with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Alj Quote
Pursuant to ARIZ. REV. STAT. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
ARIZ. REV. STAT. § 41-1092.09
Topic Tags
Appeals
Rehearing
Procedure
Case
Docket No
25F-H036-REL
Case Title
John R. Krahn Living Trust/Janet Krahn Living Trust v. Tonto Forest Estates Homeowners Association
Decision Date
2025-06-08
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Questions
Question
If the CC&Rs state a committee 'shall' have a specific number of members, is the HOA in violation if they operate with fewer?
Short Answer
Yes. If the governing documents mandate a specific number of members (e.g., three), failing to appoint that number is a violation.
Detailed Answer
The ALJ ruled that the HOA violated the CC&Rs because the documents required the Architectural Committee to consist of three members, but the Board had failed to appoint a third member for a period of time. The use of 'shall consist' in the CC&Rs created a mandatory requirement.
Alj Quote
IT IS ORDERED that Petitioner’s petition in 25F-H036-REL be granted because the newly elected HOA Board had yet appointed a third member to the ARC in order to comply with CC&R 5.3 until March 17, 2025.
Legal Basis
CC&R 5.3
Topic Tags
CC&Rs
Committee Requirements
Governance
Question
If the HOA fixes the violation after I file my complaint, do I still win the hearing?
Short Answer
Yes. Correcting the issue after the petition is filed does not erase the fact that the violation existed at the time of filing.
Detailed Answer
The homeowner filed the petition in February. The HOA appointed the missing committee member in March (before the May hearing). The ALJ still granted the petition because the HOA was not in compliance at the time the dispute arose and the petition was filed.
Alj Quote
The Tribunal concludes that that Petitioner has met his burden to demonstrate that, as of February 5, 2025, the newly elected HOA Board had not yet appointed a third member to the ARC… IT IS ORDERED that Petitioner’s petition… be granted because the newly elected HOA Board had yet appointed a third member to the ARC… until March 17, 2025.
Legal Basis
Administrative Law Standards
Topic Tags
Procedural
Compliance
Dispute Resolution
Question
Will the HOA have to pay me back for the filing fee if I win?
Short Answer
Yes. The ALJ typically orders the HOA to reimburse the filing fee if the homeowner prevails.
Detailed Answer
Upon granting the petition and finding the HOA in violation, the judge ordered the HOA to reimburse the homeowner's $500 filing fee as required by Arizona statute.
Alj Quote
IT IS FURTHER ORDERED that Respondent shall reimburse Petitioner’s $500.00 filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.01
Topic Tags
Filing Fees
Remedies
Costs
Question
Does the law require a Board member to serve on the Architectural Committee?
Short Answer
Yes. Arizona statute mandates that at least one board member serve as the chairperson of the design review or architectural committee.
Detailed Answer
Regardless of what the specific community documents say, Arizona state law (A.R.S. § 33-1817) overrides them to require that a board member serve as the chairperson of the architectural committee.
Alj Quote
Membership on a design review committee, an architectural committee or a committee that performs similar functions, however denominated, for the planned community shall include at least one member of the board of directors who shall serve as chairperson of the committee.
Legal Basis
ARIZ. REV. STAT. § 33-1817(B)(1)
Topic Tags
Architectural Committee
Board of Directors
Statutory Requirements
Question
Will I automatically be awarded civil penalties (fines against the HOA) if I prove a violation?
Short Answer
No. Proving a violation does not guarantee that the judge will impose a civil penalty.
Detailed Answer
Although the homeowner successfully proved the HOA violated the CC&Rs regarding committee membership, the ALJ explicitly declined to award any civil penalties.
Alj Quote
IT IS FURTHER ORDERED that no civil penalty is awarded.
Legal Basis
Administrative Discretion
Topic Tags
Penalties
Remedies
Civil Penalty
Question
What is the standard of proof for a homeowner in an HOA administrative hearing?
Short Answer
Preponderance of the evidence.
Detailed Answer
The homeowner must prove that their claim is 'more probably true than not.' It is based on the convincing force and superior weight of the evidence, not just the number of witnesses.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&R 5.3… '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
How long do I have to request a rehearing if I am unhappy with the decision?
Short Answer
30 days.
Detailed Answer
Any party wishing to request a rehearing must file the request with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Alj Quote
Pursuant to ARIZ. REV. STAT. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
ARIZ. REV. STAT. § 41-1092.09
Topic Tags
Appeals
Rehearing
Procedure
Case
Docket No
25F-H036-REL
Case Title
John R. Krahn Living Trust/Janet Krahn Living Trust v. Tonto Forest Estates Homeowners Association
John R. Krahn Living Trust/Janet Krahn Living Trust
Counsel
—
Respondent
Tonto Forest Estates Homeowners Association
Counsel
—
Alleged Violations
CC&R 5.3
Outcome Summary
The Administrative Law Judge granted the Petitioner’s single-issue petition because the HOA Board had not appointed a third member to the Architectural Committee (ARC) to comply with CC&R 5.3 until March 17, 2025. The HOA was ordered to reimburse the Petitioner’s $500.00 filing fee, but no civil penalty was awarded.
Key Issues & Findings
Architectural Committee Composition Requirement
Petitioner alleged violation of CC&R Article 5.3, which mandates the Architectural Committee (ARC) shall consist of three regular members, because the HOA only had two members on the ARC as of the petition date (February 5, 2025). The Tribunal found the HOA failed to appoint a third member to the ARC until March 17, 2025, granting the petition.
Orders: Petition granted; Respondent ordered to reimburse Petitioner's $500.00 filing fee. No civil penalty was awarded.
Briefing Document: Krahn Living Trust v. Tonto Forest Estates Homeowners Association (Case No. 25F-H036-REL)
Executive Summary
This document synthesizes the proceedings and outcome of the administrative case John R Krahn Living Trust/Janet Krahn Living Trust v. Tonto Forest Estates Homeowners Association, Case No. 25F-H036-REL, held before the Arizona Office of Administrative Hearings. The central dispute involved an allegation by the Petitioner that the Tonto Forest Estates Homeowners Association (HOA) violated Article 5.3 of its Covenants, Codes, and Restrictions (CC&Rs), which mandates that its Architectural Committee (ARC) “shall consist of three (3) regular members.”
The Petitioner, John R. Krahn, filed a single-issue petition on February 5, 2025, asserting that the ARC was operating with only two members, thereby violating the governing documents. The Petitioner argued that this violation had persisted for an extended period and that the HOA Board had ignored his own application to fill the vacancy, constituting punitive behavior that warranted civil penalties.
The Respondent, represented by Board President Dwight Jolivette, contended that the governing documents allow for flexibility and that no violation occurred while the Board was actively recruiting a third member. The HOA argued that its interpretation was practical, in the best interest of the homeowners, and consistent with the practices of previous boards.
The Administrative Law Judge (ALJ), Kay A. Abramsohn, ruled in favor of the Petitioner. The decision, issued on June 8, 2025, found that the HOA was in violation of CC&R 5.3 at the time the petition was filed. The ruling was narrowly focused on the number of ARC members and explicitly declined to address secondary arguments about the validity of member appointments, as those were outside the scope of the single-issue petition. Consequently, the HOA was ordered to reimburse the Petitioner’s $500 filing fee. The Petitioner’s request for a civil penalty was denied.
——————————————————————————–
Case Overview
Case Number
25F-H036-REL
Petitioner
John R Krahn Living Trust / Janet Krahn Living Trust (Represented by John R. Krahn)
Respondent
Tonto Forest Estates Homeowners Association (Represented by Dwight Jolivette, Board President)
Arizona Office of Administrative Hearings (OAH)
Presiding Judge
Administrative Law Judge Kay A. Abramsohn
Hearing Date
May 14, 2025
Decision Date
June 8, 2025
Central Dispute: Violation of CC&R Article 5.3
The core of the dispute was the interpretation and application of CC&R Article 5.3 concerning the composition of the Architectural Committee (ARC).
Relevant Text of CC&R 5.3:
“After such time as the rights of Declarant to appoint the members of the Architectural Committee expire or are relinquished by the Declarant, the Architectural Committee shall consist of three (3) regular members, each of whom shall be appointed by the Board. In the event the Board does not appoint an Architectural Committee for any reason, the Board shall exercise the authority granted to the Architectural Committee under this Declaration…”
The Petitioner filed a single-issue petition on February 5, 2025, alleging the HOA was in violation of this article by operating the ARC with only two members.
Petitioner’s Position and Key Arguments
The Petitioner, John R. Krahn, who previously served as ARC Chairman (2019-2021) and Board Secretary (2019-2021), presented the following arguments:
• Mandatory Requirement: The term “shall” in CC&R 5.3 creates a mandatory, non-discretionary obligation for the ARC to have exactly three members.
• Prolonged Non-Compliance: The ARC operated with only two members for approximately 17 months, from at least October 2023 until March 17, 2025. Krahn further argued the period of non-compliance was potentially 42 months, claiming ARC member Mike Ackerly was never lawfully appointed by a formal Board vote in an open meeting.
• Failure to Correct: The HOA Board acknowledged the vacancy at a November 19, 2024 meeting and called for volunteers. Krahn submitted his resume the next day but his application was never discussed or voted upon. He contended this was a missed opportunity to bring the ARC into compliance.
• Punitive Behavior: The Board’s failure to consider his candidacy was described as “personal retaliation” and “punitive governance,” for which a civil penalty was warranted.
• Corrective Action as Admission: The Board’s appointment of a third member on March 17, 2025—after the complaint was filed—was presented as proof of the underlying violation.
Key Testimony (Krahn):“This is not a matter of opinion or interpretation. It’s a binary question of fact and by respondent’s own admission are operating for many months with other than three members.”
Respondent’s Position and Key Arguments
The HOA, represented by Board President Dwight Jolivette, countered with the following arguments:
• Reasonable Interpretation: No board has ever interpreted CC&R 5.3 to mean the ARC is non-viable or must be dissolved if it temporarily falls below three members.
• Active Recruitment: The Board was actively recruiting for the vacant position, as evidenced by the public call for volunteers. During this recruitment period, the two-member committee’s continued function was reasonable and in the community’s best interest.
• Board Authority: The Board has the authority under CC&R 12.5 to interpret the governing documents. Its interpretation that the committee could function with two members during a vacancy was a valid exercise of that authority.
• Appointment Process: The governing documents require members to be “appointed by the Board” but do not explicitly mandate a formal vote.
• Past Precedent: Jolivette argued that the ARC had operated with fewer than three members under prior boards, including one on which Krahn himself served.
Key Testimony (Jolivette):“Our position is that two members is not not necessarily a violation of 5.3 if and when you’re actively recruiting for another member… Nothing in the governing document states that an appointment is equivalent to a vote.”
Hearing and Procedural Timeline
Nov 19, 2024
The HOA Board acknowledges an ARC vacancy and calls for volunteers.
Nov 20, 2024
Petitioner John Krahn submits his resume for the ARC position.
Jan 22, 2025
The HOA’s Community Manager confirms in an email that the ARC has two members: Steve Gauer and Mike Ackerly.
Feb 5, 2025
The Petitioner files a single-issue petition with the Arizona Department of Real Estate.
Mar 17, 2025
The HOA Board formally appoints Alan Damon to the ARC via motion and vote, bringing its membership to three.
May 14, 2025
An evidentiary administrative hearing is held virtually before ALJ Kay Abramsohn.
June 8, 2025
The Administrative Law Judge Decision is issued.
June 29, 2025
An Order Nunc Pro Tunc is issued to correct the number of admitted petitioner exhibits in the original decision.
Administrative Law Judge’s Decision and Order
The ALJ’s decision, issued on June 8, 2025, resolved the dispute by granting the petition but denying the request for a civil penalty.
• Violation Confirmed: The ALJ concluded that the Petitioner met the burden of proof to demonstrate that as of the petition’s filing date (February 5, 2025), the HOA Board had not appointed a third member to the ARC. This constituted a violation of CC&R 5.3.
• Corrective Action Timing: The decision noted that a third member was not appointed until March 17, 2025, more than a month after the petition was filed.
• Limitation of Scope: The ALJ explicitly stated that the Petitioner’s arguments regarding the validity of Mike Ackerly’s appointment process were not addressed. The ruling was confined to the single issue presented in the original petition: whether the ARC had the required number of members. The decision stated, “Petitioner’s arguments regarding the appointment process are not addressed.”
The ALJ issued a three-part order:
1. Petition Granted: The Petitioner’s petition in case 25F-H036-REL was granted on the grounds that the HOA had not appointed a third member to the ARC to comply with CC&R 5.3 until March 17, 2025.
2. Filing Fee Reimbursed: The Respondent (HOA) was ordered to reimburse the Petitioner’s $500.00 filing fee.
3. Civil Penalty Denied: No civil penalty was awarded.
An Order Nunc Pro Tunc was later issued on June 29, 2025, to correct a clerical error in the original decision, changing the record of admitted evidence from “Petitioner’s Exhibits 1 through 22” to “Petitioner’s Exhibits 1 through 26.” This correction was retroactive to the date of the original decision.
Study Guide – 25F-H036-REL
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Blog Post – 25F-H036-REL
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The use of ‘shall consist’ in the CC&Rs created a mandatory requirement.”, “alj_quote”: “IT IS ORDERED that Petitioner’s petition in 25F-H036-REL be granted because the newly elected HOA Board had yet appointed a third member to the ARC in order to comply with CC&R 5.3 until March 17, 2025.”, “legal_basis”: “CC&R 5.3”, “topic_tags”: [ “CC&Rs”, “Committee Requirements”, “Governance” ] }, { “question”: “If the HOA fixes the violation after I file my complaint, do I still win the hearing?”, “short_answer”: “Yes. Correcting the issue after the petition is filed does not erase the fact that the violation existed at the time of filing.”, “detailed_answer”: “The homeowner filed the petition in February. The HOA appointed the missing committee member in March (before the May hearing). The ALJ still granted the petition because the HOA was not in compliance at the time the dispute arose and the petition was filed.”, “alj_quote”: “The Tribunal concludes that that Petitioner has met his burden to demonstrate that, as of February 5, 2025, the newly elected HOA Board had not yet appointed a third member to the ARC… IT IS ORDERED that Petitioner’s petition… be granted because the newly elected HOA Board had yet appointed a third member to the ARC… until March 17, 2025.”, “legal_basis”: “Administrative Law Standards”, “topic_tags”: [ “Procedural”, “Compliance”, “Dispute Resolution” ] }, { “question”: “Will the HOA have to pay me back for the filing fee if I win?”, “short_answer”: “Yes. The ALJ typically orders the HOA to reimburse the filing fee if the homeowner prevails.”, “detailed_answer”: “Upon granting the petition and finding the HOA in violation, the judge ordered the HOA to reimburse the homeowner’s $500 filing fee as required by Arizona statute.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent shall reimburse Petitioner’s $500.00 filing fee as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.01”, “topic_tags”: [ “Filing Fees”, “Remedies”, “Costs” ] }, { “question”: “Does the law require a Board member to serve on the Architectural Committee?”, “short_answer”: “Yes. Arizona statute mandates that at least one board member serve as the chairperson of the design review or architectural committee.”, “detailed_answer”: “Regardless of what the specific community documents say, Arizona state law (A.R.S. § 33-1817) overrides them to require that a board member serve as the chairperson of the architectural committee.”, “alj_quote”: “Membership on a design review committee, an architectural committee or a committee that performs similar functions, however denominated, for the planned community shall include at least one member of the board of directors who shall serve as chairperson of the committee.”, “legal_basis”: “ARIZ. REV. STAT. § 33-1817(B)(1)”, “topic_tags”: [ “Architectural Committee”, “Board of Directors”, “Statutory Requirements” ] }, { “question”: “Will I automatically be awarded civil penalties (fines against the HOA) if I prove a violation?”, “short_answer”: “No. Proving a violation does not guarantee that the judge will impose a civil penalty.”, “detailed_answer”: “Although the homeowner successfully proved the HOA violated the CC&Rs regarding committee membership, the ALJ explicitly declined to award any civil penalties.”, “alj_quote”: “IT IS FURTHER ORDERED that no civil penalty is awarded.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Civil Penalty” ] }, { “question”: “What is the standard of proof for a homeowner in an HOA administrative hearing?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The homeowner must prove that their claim is ‘more probably true than not.’ It is based on the convincing force and superior weight of the evidence, not just the number of witnesses.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&R 5.3… ‘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”: “How long do I have to request a rehearing if I am unhappy with the decision?”, “short_answer”: “30 days.”, “detailed_answer”: “Any party wishing to request a rehearing must file the request with the Commissioner of the Department of Real Estate within 30 days of the service of the order.”, “alj_quote”: “Pursuant to ARIZ. REV. STAT. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.”, “legal_basis”: “ARIZ. REV. STAT. § 41-1092.09”, “topic_tags”: [ “Appeals”, “Rehearing”, “Procedure” ] } ] }
Case Participants
Petitioner Side
John R. Krahn(petitioner/representative) John R Krahn Living Trust Appeared on Petitioners’ behalf; former ARC Chairman and Board Secretary.
Janet Krahn(petitioner) Janet Krahn Living Trust Named party in the case title.
Respondent Side
Dwight Jolivette(board president/HOA representative) Tonto Forest Estates Homeowners Association Appeared on Respondent's behalf.
Barbara Bonilla(property manager) Ogden & Company Community Manager for the HOA.
Steve Gauer(board treasurer/ARC member) Tonto Forest Estates Homeowners Association Became Board Treasurer in November 2024; served on ARC.
Mike Ackerly(ARC member) Tonto Forest Estates Homeowners Association Joined the ARC in February 2022.
Alan Damon(ARC member) Tonto Forest Estates Homeowners Association Appointed to the ARC on March 17, 2025.
Kenneth Riley(ARC member (former)) Tonto Forest Estates Homeowners Association Indicated as an ARC member between July and November 2024.
Neutral Parties
Kay A. Abramsohn(ALJ) Office of Administrative Hearings (OAH)
Susan Nicolson(commissioner) Arizona Department of Real Estate (ADRE)
Other Participants
Joe Burns(attendee) Attended the hearing virtually; did not give testimony.
John Fris(ARC member (former)) Mentioned as a former ARC member appointed in February 2021.
Brett(ARC member (former)) Mentioned as a former ARC member whom John (Fris) replaced.
The Administrative Law Judge granted the petition filed by the Cross Creek Ranch Community Association, finding that Turquoise Textures, LLC violated CC&Rs Article 3, Section 3.1.3 and Article 7, Section 7.5 by clear cutting old growth trees and vegetation in violation of approved plans. Respondent was ordered to reimburse the $500 filing fee and comply with governing documents.
Key Issues & Findings
Violation of Covenants, Conditions, and Restrictions (CC&Rs) by clear cutting old growth trees and vegetation contrary to approved plans.
Petitioner alleged Respondent clear cut approximately 30 old growth trees and native vegetation, violating approved plans and governing documents, and presenting a nuisance. The Administrative Law Judge concluded that Petitioner sustained its burden of proof that Respondent violated the Association’s governing documents, regardless of whether Respondent directed the general contractor, and granted the petition.
Orders: Respondent ordered to reimburse Petitioner's filing fee of $500.00 in certified funds and henceforth comply with the provisions of the governing documents.
Briefing Document: Cross Creek Ranch Community Association vs. Turquoise Textures, LLC
Executive Summary
This briefing document synthesizes the proceedings and outcome of the case Cross Creek Ranch Community Association vs. Turquoise Textures, LLC (No. 25F-H005-REL), heard by the Arizona Office of Administrative Hearings (OAH). The central dispute involved the unauthorized clear-cutting of approximately 30 old-growth trees and native vegetation from a lot owned by William D. Durham, principal of Turquoise Textures, LLC.
The Administrative Law Judge (ALJ), Nicole Robinson, ultimately ruled in favor of the Petitioner, the Cross Creek Ranch Community Association (HOA). The decision found that Mr. Durham violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) and Design Guidelines. While Mr. Durham’s primary defense was to blame his general contractor, the ALJ’s decision was based on credible testimony from the contractor implicating Mr. Durham, a documented pattern of non-compliance by Mr. Durham, and his own admission that the lot was cleared in violation of his approved plans.
The HOA sought a court order compelling Mr. Durham to plant 30 trees, 10-12 feet in height, by March 15, 2025. The final OAH order granted the HOA’s petition, requiring Mr. Durham to comply with the governing documents and reimburse the association’s $500 filing fee.
Case Overview
Parties Involved
Name / Entity
Key Role/Witness For
Petitioner
Cross Creek Ranch Community Association
Homeowners’ Association alleging violation of governing documents.
Respondent
Turquoise Textures, LLC (William D. Durham)
Property owner accused of violating governing documents.
Adjudicator
Nicole Robinson
Administrative Law Judge, Office of Administrative Hearings.
Witness
Greg Chambers
Petitioner; HOA Board Member.
Witness
Steve Germaine
Petitioner; Member of Architectural Review Committee (ARC), former ARC Chair.
Witness
Daniel Donahghue
Petitioner; Current ARC Chair and Board Member.
Witness
Jeffrey Penchina
Petitioner; Member of the ARC.
Witness
Timothy Smith
Petitioner; General Contractor hired by William Durham.
Core Allegation and Relief Sought
The HOA filed a petition on July 16, 2024, alleging that in September 2023, the Respondent clear-cut his lot of 20-30 old-growth trees (Junipers and Pinions) and native vegetation. This action was in direct violation of his ARC-approved plans, which were contingent on those plantings remaining in place. The HOA contended this violated:
• CC&Rs Article 3, Section 3.1.3: Pertaining to architectural approval and control.
• CC&Rs Article 7, Section 7.5: Pertaining to improper maintenance and use of lots.
The HOA argued that the clear-cutting was done to improve Mr. Durham’s view and detrimentally affected the community’s appearance and value. The specific relief requested was an order compelling Mr. Durham to plant 30 trees (10 to 12 feet in size) and replace additional vegetation by March 15, 2025.
Chronology of Key Events
• April 18, 2021: Prior to purchasing the lot, William Durham meets with ARC member Steve Germaine and is informed via a follow-up email that “The ARC does not approve the removal of trees… solely for the purpose of preserving or improving a view.”
• May 3, 2021: William Durham purchases Lot 62 in Cross Creek Ranch.
• July 7, 2022: Mr. Durham receives permission from the ARC to remove four specific dead trees.
• July 9, 2022: Mr. Germaine observes Mr. Durham removing more than the four approved dead trees and instructs him to stop.
• June 7, 2023: The ARC approves Mr. Durham’s residential and landscape plans, which show the preservation of existing trees and vegetation in the “transitional area.”
• August 29, 2023: A pre-construction meeting is held with Mr. Durham, his General Contractor (GC) Timothy Smith, and ARC members. ARC member Jeffrey Penchina testified that Mr. Durham personally assured him no trees outside the construction envelope would be removed.
• September 2023: Over approximately three days, Mr. Smith’s company clear-cuts the lot of 30+ old-growth trees and shrubs.
• October 2023: Following the discovery of the clearing, the ARC sends a letter to Mr. Durham to cease construction.
• October 6, 2023: Mr. Durham files a complaint with the Arizona Registrar of Contractors (ROC) against Tim Smith, blaming him for the tree removal.
• February 9, 2024: Mr. Durham transfers the property title to Turquoise Textures, LLC.
• July 16, 2024: The HOA files its petition with the Arizona Department of Real Estate.
• October 15, 2024: Mr. Durham submits a revised landscape plan to the HOA.
• November 4, 2024: The HOA responds to the plan, requiring 10-12 foot trees for remediation.
• November 11, 2024: Mr. Durham sends a detailed email responding to the HOA’s requirements.
• November 26, 2024: The OAH hearing is conducted virtually.
• December 16, 2024: The ALJ issues a final decision granting the HOA’s petition. A separate minute entry notes that documents filed by Mr. Durham after the hearing record closed would not be considered.
Key Testimony and Arguments
Petitioner’s Case (Cross Creek Ranch HOA)
The HOA presented a case built on documented warnings, contractual obligations, and direct eyewitness testimony.
• Established Pattern of Non-Compliance: Witness Steve Germaine testified that he warned Mr. Durham about the rules regarding tree removal for views even before the lot was purchased in April 2021. He further testified to the incident on July 9, 2022, where he witnessed Mr. Durham cutting down live trees without authorization, beyond the four dead trees he had permission for.
• Violation of Approved Plans: Daniel Donahghue and Jeffrey Penchina testified that during the pre-construction meeting on August 29, 2023, the rules were clearly explained. Mr. Penchina stated, “he assured me that nothing outside of the construction envelope would be removed.” The approved plans, entered as evidence, explicitly showed the preservation of the natural landscape in the transitional area.
• Direct Culpability via GC Testimony: The general contractor, Timothy Smith, provided critical testimony directly contradicting Mr. Durham’s defense.
◦ Mr. Smith stated that Mr. Durham directed the clear-cutting: “he started to point out at trees that were in disturbing the… surrounding views… I let him know, well, now we’re going outside of the construction envelope. And he said he doesn’t really care.”
◦ He testified that Mr. Durham was on-site during the three-day clearing process and that the business relationship fractured later over non-payment for subsequent work, not over the tree removal.
Respondent’s Defense (William D. Durham)
Mr. Durham admitted the plans were violated but placed all blame on his general contractor and portrayed the HOA as a hostile and unresponsive entity.
• Blame Assigned to General Contractor: Mr. Durham’s central argument was that his GC acted against instructions. He stated, “I was forced to have a GC that I didn’t need, and the GC insisted on doing all the initial work… He ignored all the directives from Mark and from me.” He testified that he “absolutely not” directed Mr. Smith to clear the land and claimed to be out of town for most of the clearing.
• Allegations of HOA Harassment and Inefficiency: Mr. Durham repeatedly described the HOA as slow, uncooperative, and corrupt.
◦ He claimed he was trying to remediate the issue but the HOA was “very very very slow to ever get back to me.”
◦ He accused the HOA of “moving the goalposts” by demanding 10-12 foot trees, a requirement he said was never mentioned until the hearing.
◦ He testified he was facing over “$40,000 in fines” and was being harassed by specific members. He stated, “There’s a degree of corruption and cronyism in this HOA that is deeply disturbing.”
• Proactive Remediation Efforts: Mr. Durham asserted he had been proactive, submitting a new landscape plan with 32 plants. He testified, “all I need is their input back that’s helpful to resolve everything.” He repeatedly requested a single liaison from the ARC to facilitate faster solutions.
Administrative Law Judge’s Decision
The ALJ’s decision, issued December 16, 2024, was a conclusive victory for the Petitioner.
Findings of Fact
The ALJ established a clear factual record that supported the HOA’s position, highlighting:
• The pre-purchase warning to Mr. Durham in April 2021 regarding tree removal.
• The unauthorized removal of viable trees in July 2022.
• The September 2023 clear-cutting incident, which the judge factually concluded occurred at Mr. Durham’s direction. Finding #15 states: “Mr. Smith, the general contractor, cleared Lot 64 of approximately 30 plus trees and shrubs that were not included in the approved plans per Respondent’s instruction.”
Conclusions of Law
Based on the evidence, the ALJ made the following legal conclusions:
• The Petitioner (HOA) successfully met its burden of proving by a preponderance of the evidence that the Respondent violated the governing documents.
• The ALJ identified a clear “pattern” of behavior, noting Mr. Durham began “failing to heed the ARC’s directions in July 2022.”
• Critically, the judge determined that even without the GC’s testimony, Mr. Durham’s own admission was sufficient for a finding of violation: “Respondent admitted what happened to his Lot was not a part of the approved plan and, hence, was a violation of Petitioner’s CC&Rs and Design Guidelines.”
Final Order
The OAH issued the following orders:
1. IT IS ORDERED that Petitioner’s petition be granted.
2. IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00.
3. IT IS FURTHER ORDERED that Respondent shall henceforth comply with the provisions of the governing documents.
Study Guide – 25F-H005-REL
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These sources document a legal dispute and administrative hearing between the Cross Creek Ranch Community Association and homeowner William Durham, operating as Turquoise Textures LLC. The association alleged that Durham violated community governing documents by clear-cutting approximately 30 protected old-growth trees to improve his property’s view, contradicting his approved landscape plans. While Durham blamed his general contractor for the unauthorized removal, testimony from the contractor and association members suggested Durham directed the clearing personally. The Office of Administrative Hearings ultimately ruled in favor of the association, finding Durham in violation of the CC&Rs and Design Guidelines. Consequently, the court ordered Durham to reimburse filing fees and mandated future compliance with community standards, which included a demand for the replanting of mature trees by March 2025.
What are the specific landscaping violations alleged by the Association?
How did the dispute over clear-cutting trees affect the build?
What final ruling did the Administrative Law Judge issue?
Thursday, February 12
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Today • 5:13 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Blog Post – 25F-H005-REL
Select all sources
1246254.pdf
1246768.aac
1246769.aac
1252576.pdf
1252586.pdf
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25F-H005-REL
5 sources
These sources document a legal dispute and administrative hearing between the Cross Creek Ranch Community Association and homeowner William Durham, operating as Turquoise Textures LLC. The association alleged that Durham violated community governing documents by clear-cutting approximately 30 protected old-growth trees to improve his property’s view, contradicting his approved landscape plans. While Durham blamed his general contractor for the unauthorized removal, testimony from the contractor and association members suggested Durham directed the clearing personally. The Office of Administrative Hearings ultimately ruled in favor of the association, finding Durham in violation of the CC&Rs and Design Guidelines. Consequently, the court ordered Durham to reimburse filing fees and mandated future compliance with community standards, which included a demand for the replanting of mature trees by March 2025.
What are the specific landscaping violations alleged by the Association?
How did the dispute over clear-cutting trees affect the build?
What final ruling did the Administrative Law Judge issue?
Thursday, February 12
Save to note
Today • 5:13 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
John Kalinich(representative) Cross Creek Ranch Community Association
Greg Chambers(board member / witness) Cross Creek Ranch Community Association
Daniel K. Donahghue(board member / witness) Cross Creek Ranch Community Association ARC Chair
Steven M. Germaine(ARC member / witness) Cross Creek Ranch Community Association
Jeffrey Panchina(ARC member / witness) Cross Creek Ranch Community Association
Timothy C. Smith(witness (GC)) Former General Contractor for Respondent
Respondent Side
William D. Durham(respondent (principal)) Turquoise Textures, LLC
The Administrative Law Judge denied the petition, concluding that the Association was in compliance with ARIZ. REV. STAT. § 33-1812(7) by providing the electronic data lists received from the voting vendor (Vote HOA Now), as the statute requires storage of 'electronic votes' not necessarily 'electronic ballots' (images).
Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Key Issues & Findings
Failure to provide voting records (electronic ballots) for inspection
Petitioner alleged the Association failed to provide all voting materials, specifically images of each actual online ballot, in response to the February 28, 2024, inspection request, arguing this violated ARIZ. REV. STAT. § 33-1812(A)(7).
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1812(A)(7)
ARIZ. REV. STAT. § 10-3708(F)
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 33-1258
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.
Analytics Highlights
Topics: Voting Records, Electronic Voting, HOA Records Inspection, Statutory Interpretation, ARS 33-1812
Additional Citations:
ARIZ. REV. STAT. § 33-1812(A)(7)
ARIZ. REV. STAT. § 10-3708(F)
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 33-1258
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. § 32-2199.02(B)
ARIZ. REV. STAT. § 41-1092.09
ARIZ. REV. STAT. § 32-2199.04
Video Overview
Audio Overview
Decision Documents
24F-H047-REL-RMD Decision – 1240168.pdf
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24F-H047-REL-RMD Decision – 1330098.pdf
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24F-H047-REL-RMD Decision – 1330115.pdf
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24F-H047-REL-RMD Decision – 1338932.pdf
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24F-H047-REL-RMD Decision – 1340272.pdf
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24F-H047-REL-RMD Decision – 1357165.pdf
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24F-H047-REL-RMD Decision – 1358023.pdf
Uploaded 2026-01-23T18:10:50 (12.1 KB)
Questions
Question
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
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
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Questions
Question
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
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
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
John F. Sullivan(Petitioner Attorney) AZNH Revocable Trust Counsel for Susan Sullivan/AZNH Trust
Susan Sullivan(Petitioner Trustee) AZNH Revocable Trust
Respondent Side
Chad M. Gallacher(Respondent Attorney) Sunland Springs Village Homeowners Association Affiliated with MAXWELL & MORGAN, P.C.
Kathy Fowers(General Manager/Witness) Sunland Springs Village Homeowners Association Custodian of Records
Cathy Braun(Association Secretary/Treasurer) Sunland Springs Village Homeowners Association Referenced in emails regarding documents inspection
Paul Minda(Board President/Board Member) Sunland Springs Village Homeowners Association Present at rehearing
Mar(Board Vice President/Board Member) Sunland Springs Village Homeowners Association Partial name only; present at rehearing
Mrs. Holden(Affiliate/Witness) Sunland Springs Village Homeowners Association Present at Superior Court argument
Neutral Parties
Kay A. Abramsohn(ALJ) Office of Administrative Hearings
Judge McKish(Superior Court Judge) Maricopa County Superior Court Presided over appeal/remand process
Susan Nicolson(ADRE Commissioner) Arizona Department of Real Estate
Other Participants
vnunez(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
djones(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
labril(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
mneat(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
lrecchia(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
gosborn(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
The Administrative Law Judge denied the petition, concluding that the Association was in compliance with ARIZ. REV. STAT. § 33-1812(7) by providing the electronic data lists received from the voting vendor (Vote HOA Now), as the statute requires storage of 'electronic votes' not necessarily 'electronic ballots' (images).
Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Key Issues & Findings
Failure to provide voting records (electronic ballots) for inspection
Petitioner alleged the Association failed to provide all voting materials, specifically images of each actual online ballot, in response to the February 28, 2024, inspection request, arguing this violated ARIZ. REV. STAT. § 33-1812(A)(7).
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1812(A)(7)
ARIZ. REV. STAT. § 10-3708(F)
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 33-1258
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.
Analytics Highlights
Topics: Voting Records, Electronic Voting, HOA Records Inspection, Statutory Interpretation, ARS 33-1812
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
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
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Questions
Question
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
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
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
John F. Sullivan(Attorney) AZNH Revocable Trust Counsel for Petitioner
Susan Sullivan(Petitioner Trustee) AZNH Revocable Trust Filed motion for peremptory change of judge
Respondent Side
Chad M. Gallacher(HOA attorney) MAXWELL & MORGAN, P.C. Counsel for Sunland Springs Village Homeowners Association
Kathy Fowers(General Manager) Sunland Springs Village Homeowners Association Custodian of Records; Present at hearing
Paul Minda(board member) Sunland Springs Village Homeowners Association Board President
Mar(board member) Sunland Springs Village Homeowners Association Vice President (Partial name identified)
Cathy Braun(Association Secretary/Treasurer) Sunland Springs Village Homeowners Association Exchanged emails with Petitioner regarding inspection request
Neutral Parties
Kay A. Abramsohn(ALJ) OAH Administrative Law Judge
Susan Nicolson(ADRE Commissioner) Arizona Department of Real Estate
Judge McKish(Judge) Superior Court Superior Court Judge who handled remand; also referred to as Judge McKittish
Other Participants
Mrs. Holden(witness) Present at Superior Court argument with Respondent representatives
The Administrative Law Judge denied the HOA's petition, finding the HOA failed to meet its burden of proving a violation. The homeowner justifiably relied on the ARC's approval, which was granted rapidly and without clarification requests, despite the lack of detail on the wall height, effectively granting an exception to the Guidelines.
Why this result: The HOA (Petitioner) failed to prove the violation by a preponderance of the evidence, primarily because the Architectural Review Committee (ARC) approved the plans after multiple rounds of review, and the homeowner relied on that approval. The delay in the stop construction notice was also deemed unreasonable.
Key Issues & Findings
Construction of unapproved structures/patio walls in excess of permitted height
Petitioner (HOA) alleged Respondent (homeowner) violated community documents by constructing walls around a courtyard in excess of the 42-inch height limit set by the Guidelines Section 2.24, and without sufficient prior approval (CC&R Section 5.22). The constructed wall was approximately 8 feet high.
Orders: Petitioner’s petition in this matter is denied. Respondent shall not reimburse Petitioner’s filing fee.
Arroyo Mountain Estate HOA vs. Goebel: A Dispute Over Architectural Approval
Executive Summary
This document provides a comprehensive overview of the dispute between the Arroyo Mountain Estate Homeowners Association (HOA) and homeowners Rick and Elizabeth Goebel, culminating in an administrative law hearing on August 28, 2024. The central conflict revolves around the construction of a courtyard wall at the Goebels’ property, which the HOA alleged was unapproved and in violation of community guidelines.
The Goebels maintained that they followed all required procedures, submitting multiple revised applications at the HOA’s request, and ultimately received explicit, unconditional approval from the Architectural Review Committee (ARC) before commencing work. They argued that they built a “courtyard wall” in conformance with section 2.9 of the guidelines, which does not specify a height limit, and not a “pony wall,” which is restricted to 42 inches under section 2.24.
The HOA contended that the Goebels’ application was misleading due to a lack of critical details, specifically the wall’s 8-foot 8-inch height and a three-foot overhead hood. Key members of the ARC testified they understood the application to be for landscaping only and would have denied it had the full scope been clear. The HOA argued the constructed wall violates the spirit and letter of the guidelines intended to maintain community aesthetic uniformity.
The case concluded with a definitive ruling by an Administrative Law Judge on September 11, 2024. The judge denied the HOA’s petition, finding that they had not met their burden of proof. The decision highlighted that the Goebels had followed the prescribed process, justifiably relied on the ARC’s formal approval, and that the HOA’s month-long delay in issuing a stop-construction notice was unreasonable. The ruling deemed the ARC’s approval “tantamount to an exception to the Guidelines.”
The Core Dispute: The Courtyard Wall
The conflict centers on improvements made at the Goebels’ property, located at 5408 North Prescott Court (incorrectly listed multiple times in HOA documents as 5408 North Carson Court). The primary structure in question is a wall enclosing a front courtyard area, which the Goebels’ plans identified as a “courtyard wall.”
Alleged Violations by the HOA
The HOA’s petition alleged that the Goebels were in violation of two primary governing documents:
1. CC&Rs Article V, Section 5.22: This section requires homeowners to receive ARC approval before beginning any construction that alters the exterior appearance of a property, demanding that requests “Specify in detail the nature and extent of construction.”
2. Architectural and Landscape Design Guidelines, Section 2.24: This section governs “Pony Walls and Courtyards,” stating that pony walls constructed in a front yard to form a courtyard “should be no higher than 42 inches.”
The HOA argued that the wall built by the Goebels, which reaches a height of approximately 8 feet 8 inches, is functionally a pony wall and therefore violates the 42-inch height restriction.
The Homeowner’s (Goebel) Position and Timeline
The Goebels’ defense was anchored in their assertion of procedural compliance, reliance on a formal approval, and a belief that they were being unfairly targeted.
Application and Approval Process
The timeline of the application process was a key element of the Goebels’ case:
Dec 30, 2022
Initial consolidated application for all improvements submitted via email.
Jan 3, 2023
Initial application denied with the instruction to “please resubmit separate applications for the different projects.”
Jan 3, 2023
Revised, separate applications submitted to the community manager, Katie Sand.
Jan 3, 2023
Additional comments received from Katie Sand requesting further changes.
Jan 3, 2023
Final revised applications submitted at 4:14 p.m. and notice of acceptance received at 4:26 p.m.
Jan 5, 2023
The ARC formally approved the applications, within 48 hours of submission, without requesting additional information.
Argument of Good Faith and Procedural Adherence
Mr. Goebel argued that he diligently followed the HOA’s process and could not have done more to ensure compliance.
“I follow the requirement of the architectural community prepared the application submitted the application via the appropriate application approval process and received approval. It’s unclear what I’m being violated for. It is unclear as to how I violated any part of the approval or constructed improvements not identified on the plan.” – Rick Goebel
He emphasized that the ARC, under its own guidelines, had the power to request more information if the application was deemed incomplete but chose not to, instead granting full approval. Elizabeth Goebel further stated, “they approved the application and we move forward with our approval… We still got the approval. We moved forward in good faith and constructed what we had done.”
Construction Timeline and HOA Response
• March 21, 2023: Engineering drawings submitted to Maricopa County.
• March 24, 2023: Technical approvals and permits issued by the county.
• April 7, 2023: Construction commenced.
• April 19, 2023: The wall reached its full height.
• May 12, 2023: Nearly one month after the wall was completed, the Goebels received a stop-construction notice from the HOA.
Claims of Targeted Harassment
Mr. Goebel testified that he felt his family and home were being targeted by board members, leading to significant distress and financial cost.
“Over the past 12 months, I’ve had to deal with continued harassment from our board… People drive past my home, take pictures of my home. John Conalo has driven past my home multiple times taking pictures of my home… I have people to drive by my home, take photos and post these photos online and generally disrupt the reasonable enjoyment of my property. I am of the opinion that me and my home are being targeted for these improvements by members of the board who are utilizing funds to support the basic attack.” – Rick Goebel
The Homeowners Association’s (HOA) Position
The HOA’s case, presented by attorney Daniel Francom, focused on the argument that the Goebels’ application was deficient and that any approval granted was therefore invalid for the wall as constructed.
Insufficient Detail and Misleading Application
The HOA argued the Goebels “failed to provide sufficient details” in their application.
• Wall Height: The plans did not specify the wall would be 8 feet 8 inches high.
• Overhead Hood: The plans did not clearly indicate a three-foot deep overhead structure above the gate.
• County Plans: The detailed plans submitted to Maricopa County, which included engineering reports and the exact wall height, were never provided to the HOA.
Board President John Consalvo testified that the application “showed nothing about a construction wall showing landscape application turned in.”
Architectural Committee’s Interpretation
ARC member Judy Oliver provided crucial testimony for the HOA, stating that the committee was misled by the application’s presentation.
• She testified that since the application was titled “revamping of landscaping,” she and other members “assumed that this was regarding landscaping only.”
• Regarding the wall itself, she stated, “I felt that that wall wasn’t even up for discussion at the time.”
• Crucially, she asserted that had the Goebels provided specifics for an 8-foot wall, the committee would have denied the project as it “counters the architectural guidelines.”
Violation of Guideline 2.24 (“Pony Walls”)
The HOA’s legal argument rested on classifying the Goebels’ structure under section 2.24. They argued that because the wall creates a courtyard, it should be considered a “pony wall” and is therefore subject to the 42-inch height limit, regardless of what the Goebels labeled it in their plans. They argued the wall “sticks out like a sore thumb” and that there are no other similar walls in the community.
Key Witness Testimony
Ms. Rozzo’s testimony significantly undermined the HOA’s position.
• Admission of Error: When asked if she noted the courtyard wall, she stated, “No, I absolutely missed it. I am completely honest about that. I have missed it just like we’ve missed other ones and nothing’s done about it.”
• Precedent of Inaction: She testified that the ARC had mistakenly approved “at least 15 to 20 homes” with non-compliant improvements and that “the HOA has never pursued them.” She cited unapproved walls, pavers, and concrete pads at other properties.
• Challenge to HOA’s Pursuit: She expressed surprise that the HOA was pursuing this case, stating that when she told John Consalvo that pursuing the Goebels meant they should pursue all other erroneous approvals, he “chuckled and said, ‘Mike, my neighbor,'” implying a neighbor of the board president also had unapproved improvements.
• Board Vote: Ms. Rozzo, who was also a board member for a short time, revealed that the decision to take action against the Goebels was not unanimous, with two of the five board members voting “no.”
Mr. Consalvo testified that the board’s function is to maintain the community and enforce HOA rules. He stated that the Goebels’ application did not provide the required detail for the courtyard wall, its height, or the overhead gate structure. He confirmed he took photos of the property and that, in his view, the wall as built did not conform to any approved application and should have been limited to 42 inches.
Ms. Oliver testified she had been on the ARC since 2017. She stated that the application was understood to be for landscaping and that the wall was not considered for approval due to the lack of detail. She testified that had the 8-foot height been specified, the application would have been denied.
The Final Decision: Administrative Law Judge Ruling
On September 11, 2024, Administrative Law Judge Adam D. Stone issued a final, binding decision in the case (No. 24F-H050-REL).
Ruling
The Petitioner’s (HOA’s) petition was denied. The judge found that the HOA failed to prove its case by a preponderance of the evidence.
Reasoning for the Decision
The judge provided a clear, multi-point rationale for siding with the Goebels:
1. Procedural Compliance: “Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC.”
2. Justifiable Reliance on Approval: The ARC had multiple opportunities to question the plans and did so on other matters. The judge concluded that Ms. Rozzo’s approval, even if she “missed it,” was a formal action on which the “Respondent justifiably relied… and moved ahead with construction.”
3. Approval as an Exception: The judge stated the formal approval “was tantamount to an exception to the Guidelines as the project was approved.”
4. Unreasonable Delay by HOA: The judge found that for the HOA “to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.”
5. Inconsistent Enforcement: The judge noted that “this was not the first time the ARC had approved projects that were not within the Guidelines,” referencing the testimony about other unpursued violations in the community.
Final Order
• The HOA’s petition was formally denied.
• The Respondent (Goebels) was not required to reimburse the HOA’s $500 filing fee.
Questions
Question
If the HOA approves my architectural application, can they later claim a violation because they 'missed' details in the plan?
Short Answer
No. If the HOA approves the application, the homeowner can justifiably rely on that approval to proceed, even if the committee claims they missed specific details during review.
Detailed Answer
The ALJ ruled that once an application is approved, the homeowner has the right to rely on that approval to begin construction. Even if an Architectural Committee member testifies later that they 'missed' a detail (like a wall height) during their review, the approval stands. The HOA cannot penalize the homeowner for the committee's oversight after approval has been granted.
Alj Quote
Ms. Rozzo testified that while she may have “missed it”, the Application was nonetheless approved, and Respondent justifiably relied on the approval and moved ahead with construction.
Legal Basis
Justifiable Reliance
Topic Tags
architectural approval
committee oversight
homeowner reliance
Question
Can an approved application serve as a valid exception to written architectural guidelines?
Short Answer
Yes. An approved application can be considered tantamount to an exception to the community's design guidelines.
Detailed Answer
In this case, the HOA argued the construction violated height guidelines. However, because the specific project plans were submitted and approved by the committee, the ALJ determined that this approval effectively acted as an exception to the general guidelines, making the construction permissible.
Alj Quote
This was tantamount to an exception to the Guidelines as the project was approved.
Legal Basis
Exception to Guidelines
Topic Tags
guidelines
exceptions
compliance
Question
Is it reasonable for an HOA to issue a stop work notice after I have already completed my project?
Short Answer
No. Waiting until a project is completed to issue a stop construction notice is considered unreasonable.
Detailed Answer
The ALJ found that the HOA failed to act in a timely manner. Issuing a stop construction notice nearly a month after the homeowner had already finished building the structure was deemed unreasonable behavior by the association.
Alj Quote
Moreover, for Petitioner to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.
Legal Basis
Reasonableness / Laches
Topic Tags
enforcement timing
stop work order
construction
Question
Who has to prove that a violation occurred during an HOA hearing?
Short Answer
The HOA (the Petitioner) bears the burden of proof.
Detailed Answer
When an HOA petitions for a hearing regarding a violation, they must prove their case by a 'preponderance of the evidence.' This means they must convince the judge that their claim is more likely true than not. If they fail to meet this burden, the homeowner prevails.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1803.
Legal Basis
Burden of Proof
Topic Tags
legal procedure
evidence
burden of proof
Question
Does it matter if the HOA has allowed other non-compliant projects in the neighborhood?
Short Answer
Yes. Evidence that the HOA has previously approved other projects that did not meet guidelines can support the homeowner's defense.
Detailed Answer
The ALJ noted that the evidence showed this was not an isolated incident; the Architectural Committee had previously approved other projects that were not compliant with the Guidelines. This pattern weakens the HOA's position in enforcing the rule against the current homeowner.
Alj Quote
Further, as the evidence provided, this was not the first time the ARC had approved projects that were not within the Guidelines.
Legal Basis
Arbitrary Enforcement / Precedent
Topic Tags
selective enforcement
consistency
precedent
Question
If I submit an application and answer the committee's questions, do I have to ensure they asked about every single detail?
Short Answer
No. If you follow the submission process and the committee has the opportunity to ask questions but doesn't, the responsibility lies with them.
Detailed Answer
The homeowner followed the CC&R process by submitting the application. The committee had multiple chances to ask for clarification or details (like height) but failed to do so before approving. The judge ruled the homeowner followed the proper process.
Alj Quote
Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC. The ARC had many opportunities thereafter to question Respondent about the project
Legal Basis
Due Process / Procedural Compliance
Topic Tags
application process
due diligence
homeowner obligations
Question
Do I have to pay the HOA's filing fees if they sue me and lose?
Short Answer
No. If the HOA's petition is denied, the homeowner is not required to reimburse the filing fee.
Detailed Answer
The ALJ explicitly ordered that because the petition was denied, the respondent (homeowner) was not required to pay back the $500 filing fee that the HOA paid to the Department.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
fees
penalties
costs
Case
Docket No
24F-H050-REL
Case Title
Arroyo Mountain Estate Homeowners Association v. Goebel
Decision Date
2024-09-11
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
If the HOA approves my architectural application, can they later claim a violation because they 'missed' details in the plan?
Short Answer
No. If the HOA approves the application, the homeowner can justifiably rely on that approval to proceed, even if the committee claims they missed specific details during review.
Detailed Answer
The ALJ ruled that once an application is approved, the homeowner has the right to rely on that approval to begin construction. Even if an Architectural Committee member testifies later that they 'missed' a detail (like a wall height) during their review, the approval stands. The HOA cannot penalize the homeowner for the committee's oversight after approval has been granted.
Alj Quote
Ms. Rozzo testified that while she may have “missed it”, the Application was nonetheless approved, and Respondent justifiably relied on the approval and moved ahead with construction.
Legal Basis
Justifiable Reliance
Topic Tags
architectural approval
committee oversight
homeowner reliance
Question
Can an approved application serve as a valid exception to written architectural guidelines?
Short Answer
Yes. An approved application can be considered tantamount to an exception to the community's design guidelines.
Detailed Answer
In this case, the HOA argued the construction violated height guidelines. However, because the specific project plans were submitted and approved by the committee, the ALJ determined that this approval effectively acted as an exception to the general guidelines, making the construction permissible.
Alj Quote
This was tantamount to an exception to the Guidelines as the project was approved.
Legal Basis
Exception to Guidelines
Topic Tags
guidelines
exceptions
compliance
Question
Is it reasonable for an HOA to issue a stop work notice after I have already completed my project?
Short Answer
No. Waiting until a project is completed to issue a stop construction notice is considered unreasonable.
Detailed Answer
The ALJ found that the HOA failed to act in a timely manner. Issuing a stop construction notice nearly a month after the homeowner had already finished building the structure was deemed unreasonable behavior by the association.
Alj Quote
Moreover, for Petitioner to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.
Legal Basis
Reasonableness / Laches
Topic Tags
enforcement timing
stop work order
construction
Question
Who has to prove that a violation occurred during an HOA hearing?
Short Answer
The HOA (the Petitioner) bears the burden of proof.
Detailed Answer
When an HOA petitions for a hearing regarding a violation, they must prove their case by a 'preponderance of the evidence.' This means they must convince the judge that their claim is more likely true than not. If they fail to meet this burden, the homeowner prevails.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1803.
Legal Basis
Burden of Proof
Topic Tags
legal procedure
evidence
burden of proof
Question
Does it matter if the HOA has allowed other non-compliant projects in the neighborhood?
Short Answer
Yes. Evidence that the HOA has previously approved other projects that did not meet guidelines can support the homeowner's defense.
Detailed Answer
The ALJ noted that the evidence showed this was not an isolated incident; the Architectural Committee had previously approved other projects that were not compliant with the Guidelines. This pattern weakens the HOA's position in enforcing the rule against the current homeowner.
Alj Quote
Further, as the evidence provided, this was not the first time the ARC had approved projects that were not within the Guidelines.
Legal Basis
Arbitrary Enforcement / Precedent
Topic Tags
selective enforcement
consistency
precedent
Question
If I submit an application and answer the committee's questions, do I have to ensure they asked about every single detail?
Short Answer
No. If you follow the submission process and the committee has the opportunity to ask questions but doesn't, the responsibility lies with them.
Detailed Answer
The homeowner followed the CC&R process by submitting the application. The committee had multiple chances to ask for clarification or details (like height) but failed to do so before approving. The judge ruled the homeowner followed the proper process.
Alj Quote
Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC. The ARC had many opportunities thereafter to question Respondent about the project
Legal Basis
Due Process / Procedural Compliance
Topic Tags
application process
due diligence
homeowner obligations
Question
Do I have to pay the HOA's filing fees if they sue me and lose?
Short Answer
No. If the HOA's petition is denied, the homeowner is not required to reimburse the filing fee.
Detailed Answer
The ALJ explicitly ordered that because the petition was denied, the respondent (homeowner) was not required to pay back the $500 filing fee that the HOA paid to the Department.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
fees
penalties
costs
Case
Docket No
24F-H050-REL
Case Title
Arroyo Mountain Estate Homeowners Association v. Goebel
