Tag Archives: ARIZ. REV. STAT. § 32-2199.02

Pointe Tapatio Community Association v. Lanye C. and Devin E. Willey

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Case Summary

Case ID 19F-H1919044-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-07
Administrative Law Judge Thomas Shedden
Outcome partial
Filing Fees Refunded $0.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Pointe Tapatio Community Association Counsel Lauren Vie
Respondent Lanye C. Wilkey and Devin E. Wilkey Counsel Joseph Velez

Alleged Violations

CC&R Article 3, section 3.1

Outcome Summary

The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.

Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.

Key Issues & Findings

Violation of Residential Use covenant prohibiting traffic/parking generation by business

The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.

Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.

Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: HOA, CC&Rs, Business Use, Home Business, Parking, Traffic, Civil Penalty
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Pointe Tapatio Community Association v. Lanye C. and Devin E. Willey

Posted on by

Case Summary

Case ID 19F-H1919044-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-07
Administrative Law Judge Thomas Shedden
Outcome partial
Filing Fees Refunded $0.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Pointe Tapatio Community Association Counsel Lauren Vie
Respondent Lanye C. Wilkey and Devin E. Wilkey Counsel Joseph Velez

Alleged Violations

CC&R Article 3, section 3.1

Outcome Summary

The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.

Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.

Key Issues & Findings

Violation of Residential Use covenant prohibiting traffic/parking generation by business

The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.

Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.

Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: HOA, CC&Rs, Business Use, Home Business, Parking, Traffic, Civil Penalty
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Pointe Tapatio Community Association vs. Lanye C. and Devin E. Wilkey

Posted on by

Case Summary

Case ID 19F-H1919044-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-07
Administrative Law Judge Thomas Shedden
Outcome partial
Filing Fees Refunded $0.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Pointe Tapatio Community Association Counsel Lauren Vie
Respondent Lanye C. Wilkey and Devin E. Wilkey Counsel Joseph Velez

Alleged Violations

CC&R Article 3, section 3.1

Outcome Summary

The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.

Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.

Key Issues & Findings

Violation of Residential Use covenant prohibiting traffic/parking generation by business

The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.

Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.

Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: HOA, CC&Rs, Business Use, Home Business, Parking, Traffic, Civil Penalty
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Video Overview

Audio Overview

Decision Documents

19F-H1919044-REL Decision – 706518.pdf

Uploaded 2025-10-09T03:34:04 (36.5 KB)

19F-H1919044-REL Decision – 706560.pdf

Uploaded 2025-10-09T03:34:04 (108.8 KB)





Briefing Doc – 19F-H1919044-REL


Administrative Hearing Briefing: Pointe Tapatio Community Association vs. Wilkey

Executive Summary

This document details the findings and decision of an administrative law judge in the case of Pointe Tapatio Community Association versus residents Layne C. and Devin E. Wilkey. The core issue was the operation of a payroll processing company, Devau Human Resources, from the Wilkeys’ residential unit. The Association alleged this violated community CC&Rs, which prohibit non-residential uses that create traffic or parking. The Wilkeys admitted that two employees commuted to the unit daily but argued they had received permission from a former property manager.

The judge found in favor of the Association, concluding that the daily commute of two employees constituted the creation of “traffic and parking,” a direct and unambiguous violation of the CC&Rs. The judge deemed the residents’ claims of verbal permission to be unsubstantiated and irrelevant, as the covenant’s language was clear. Consequently, the judge ordered the Wilkeys to cease all business operations at the unit within 35 days and imposed a civil penalty of $500.

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Case Overview

Case Name

Pointe Tapatio Community Association, Petitioner, vs. Lanye C. Wilkey and Devin E. Wilkey, Respondent.

Case Number

19F-H1919044-REL

Jurisdiction

Office of Administrative Hearings (Arizona Department of Real Estate)

Hearing Date

April 26, 2019

Decision Date

May 7, 2019

Administrative Law Judge

Thomas Shedden

Petitioner’s Counsel

Lauren Vie, Esq.

Respondent’s Counsel

Joseph Velez, Esq.

——————————————————————————–

Central Allegation and Governing Covenant

The Pointe Tapatio Community Association (Petitioner) alleged that Layne C. Wilkey and Devin E. Wilkey (Respondents) violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by using their residential unit as an office for their business.

The specific provision at issue is Article 3, Section 3.1 of the CC&Rs, which states:

“Residential. Each Residence shall be used, improved, and devoted exclusively to first class residential use, and no gainful occupation, profession, trade, business, religion, or other non-residential use which creates traffic [or] parking … shall be conducted from any Residence [or part thereof.]”

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Key Findings of Fact

The Business Operation

• Respondents: Layne C. Wilkey (mother) and Devin E. Wilkey (son) are co-owners of the unit at 720 E. North Lane, Unit 1 (Lot 50).

• Company: They own and operate Devau Human Resources, a payroll processing company, from this unit. The business also operates from a second, commercial site in Tempe.

• History: The business was moved into the residential unit from a commercial location in late 2009.

• Public Presence: Devau’s website and Google Maps both list the 720 E. North Lane address as an office location, with stated office hours from 9:00 a.m. to 5:00 p.m., Monday through Friday. The website notes it is a “mailing address only.”

• Admission: Ms. Wilkey acknowledged during testimony that they consider the unit to be an office.

Employee Activity and Impact

• The Wilkeys acknowledged that two Devau employees commute to the unit to work.

• One employee works from 9:30 a.m. to 4:00 p.m., Monday through Thursday.

• A second employee works from 9:30 a.m. to 5:00 p.m., Monday through Friday.

• These employees at times park their vehicles on the community’s streets.

• The business does not have clients or customers who visit the unit.

The Dispute Over Permission

• Respondents’ Claim: The Wilkeys asserted they had permission to operate the business from Howard Flisser, a former property manager. They admitted they had no written confirmation and had never spoken to Mr. Flisser directly about it.

◦ Ms. Wilkey testified that in 2009, she asked her husband, who asked a salesperson, who then allegedly asked Mr. Flisser and relayed that it was permissible.

◦ Mr. Wilkey testified that his now-deceased father would not have taken the risk of moving the business without permission.

• Petitioner’s Rebuttal: Board member Paula Duistermars testified that Mr. Flisser stated a few days before the hearing that he could not recall giving permission and, on two occasions during the conversation, volunteered that he had never given permission.

• Authority: Ms. Duistermars also testified that Mr. Flisser lacked the authority to grant such permission; only the Board of Directors could do so.

Association’s Stance and Actions

• Notification: Through a letter dated August 8, 2018, the Association informed the Wilkeys of the violation and required compliance by August 31, 2018.

• Petition: The Association filed the petition that initiated the hearing on or about January 17, 2019.

• Other Businesses: The Association permits certain home-based businesses that do not generate traffic or parking, such as telecommuting and online teaching, without requiring Board permission.

• Complaints: Ms. Duistermars acknowledged she was unaware of any specific complaints regarding traffic, parking, or noise from the Wilkeys’ unit. However, she testified that the Board was first made aware of the business operation when another resident brought the issue to its attention.

——————————————————————————–

Legal Analysis and Conclusions

• Standard of Proof: The judge determined all issues based on a “preponderance of the evidence,” defined as evidence with the most convincing force.

• CC&Rs as Contract: The CC&Rs are a legally binding contract between the Association and the residents.

• Unambiguous Language: The judge found the language in CC&R Article 3, Section 3.1 to be clear and unambiguous. Such covenants must be enforced to give effect to the parties’ original intent.

• Direct Violation: The judge concluded that the evidence overwhelmingly showed the Wilkeys were operating a business from their unit. The admission that two employees drive to the unit and park on the street proves that the business creates both traffic and parking.

• Violation Trigger: The creation of any traffic or parking by the business is sufficient to constitute a violation. The CC&R does not require that the traffic or parking cause a secondary violation or generate resident complaints. Therefore, the lack of other complaints was deemed to have little probative value.

• Final Conclusion: Based on the facts, the Wilkeys are in clear violation of CC&R Article 3, Section 3.1.

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Final Order and Penalties

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following orders:

1. Compliance Order: Respondent Layne C. Wilkey and Devin E. Wilkey must cease all business operations at 720 E. North Lane, Unit 1 (Lot 50) within thirty-five (35) days of the Order’s effective date.

2. Civil Penalty: The Respondents must pay a civil penalty of $500.00 to the Department of Real Estate within sixty (60) days of the Order’s effective date. Payment must be made by cashier’s check or money order.

3. Filing Fee: The Petitioner’s request for a refund of its filing fee was denied, as the judge found no legal authority to grant it.

The Order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of service.






Study Guide – 19F-H1919044-REL


Study Guide:Pointe Tapatio Community Association v. Wilkey

This guide provides a comprehensive overview of the administrative law case Pointe Tapatio Community Association v. Wilkey, Case No. 19F-H1919044-REL, heard before the Arizona Office of Administrative Hearings. It details the central conflict, the arguments presented by both parties, the legal standards applied, and the final judgment.

Case Summary

The Pointe Tapatio Community Association (Petitioner) filed a complaint against homeowners Layne C. Wilkey and Devin E. Wilkey (Respondent), alleging that they were violating the community’s Covenants, Conditions, and Restrictions (CC&Rs) by operating a business, Devau Human Resources, from their residential unit. The Association argued that the business, which employed two individuals who commuted to the property, generated traffic and parking, explicitly prohibited by the CC&Rs for non-residential activities. The Wilkeys contended they had received verbal permission years prior and that the business was not disruptive. The Administrative Law Judge found in favor of the Association, ruling that the Wilkeys were in clear violation of the community’s governing documents.

Key Parties & Entities

Name / Entity

Key Actions & Involvement

Pointe Tapatio Community Association

Petitioner

The homeowners’ association that filed the petition alleging a CC&R violation. Represented by Lauren Vie, Esq.

Layne C. Wilkey & Devin E. Wilkey

Respondent

Mother and son, co-owners of the unit at 720 E. North Lane, Unit 1. Operators of Devau Human Resources. Represented by Joseph Velez, Esq.

Thomas Shedden

Administrative Law Judge (ALJ)

Presided over the hearing, made findings of fact, drew conclusions of law, and issued the final order.

Arizona Department of Real Estate

Regulatory Body

Issued the initial Notice of Hearing and has legal authority over such disputes under ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.

Paula Duistermars

Board Member, Pointe Tapatio

Testified on behalf of the Association, detailing the Board’s position and interactions regarding the violation.

Howard Flisser

Property Manager (Former or Current)

Named by the Wilkeys as the source of verbal permission to operate their business; Flisser denied recalling this.

Devau Human Resources

Business Entity

A payroll processing company owned by the Wilkeys, operating out of the residential unit and a commercial site in Tempe.

Office of Administrative Hearings

Adjudicative Body

The venue for the hearing, located at 1740 West Adams Street, Lower Level, in Phoenix, Arizona.

Case Timeline

• Late 2009: The Wilkeys move their business, Devau Human Resources, from a commercial location into their unit at Pointe Tapatio.

• August 8, 2018: Pointe Tapatio sends a letter informing the Wilkeys they are out of compliance with the CC&Rs and must comply by August 31, 2018.

• January 17, 2019 (approx.): Pointe Tapatio files a petition with the Arizona Department of Real Estate.

• February 28, 2019: The Arizona Department of Real Estate issues a Notice of Hearing.

• April 26, 2019: The administrative hearing is held before ALJ Thomas Shedden.

• May 7, 2019: ALJ Thomas Shedden issues the final decision and order.

Central Conflict: CC&R Article 3, Section 3.1

The core of the dispute revolved around the interpretation and enforcement of a specific restrictive covenant within the community’s governing documents.

• The Allegation: Pointe Tapatio alleged that the Wilkeys were using their unit as an office for a “gainful occupation,” which is not a “first class residential use.”

• The Specific Provision: Article 3, Section 3.1 of the CC&Rs states:

• The Triggering Condition: The prohibition is not absolute. It applies specifically to non-residential uses that create traffic or parking.

Arguments and Evidence

Arguments & Evidence Presented

Petitioner (Pointe Tapatio)

  • Employee Activity: The Wilkeys acknowledged two employees drive to the unit to work Monday through Friday, creating traffic and parking on community streets.
  • Public Information: Devau’s website and Google Maps listed the residential unit as an office address with set business hours (9:00 a.m. to 5:00 p.m.).
  • Owner Admission: Ms. Wilkey acknowledged during testimony that they consider the unit to be an office.
  • Lack of Authority: Board member Paula Duistermars testified that property manager Howard Flisser did not have the authority to grant permission for a business; only the Board could. She also testified that Flisser could not recall giving permission and had volunteered that he never did.

Respondent (The Wilkeys)

  • Verbal Permission: The Wilkeys claimed they received verbal permission from property manager Howard Flisser in 2009. They admitted they never spoke to him directly and had nothing in writing.
  • Implied Permission: Mr. Wilkey argued his father would not have taken the risk of moving the payroll business without permission, implying it must have been granted.
  • No Direct Complaints: It was acknowledged that the Association was not aware of specific complaints filed against the Wilkeys for traffic, parking, or noise issues.
  • Residential Use: Mr. Wilkey testified that he considers the unit one of his two primary residences, though he did not provide a responsive answer when asked how often he stayed there.

The Judge’s Decision & Legal Reasoning

ALJ Thomas Shedden concluded that the Wilkeys were in violation of the CC&Rs based on a “preponderance of the evidence.”

• The Wilkeys operate Devau Human Resources, a payroll processing company, from the unit.

• Two employees commute to the unit for work and sometimes park on community streets.

• The business is publicly listed at the residential address.

• The Wilkeys’ claim of verbal permission from Howard Flisser was not substantiated. Testimony from Paula Duistermars indicated Flisser could not recall, and in fact denied, giving such permission.

• The Association does permit some home businesses (e.g., telecommuting, online teaching) that do not create traffic or parking and do not require Board permission.

1. CC&Rs as a Contract: The CC&Rs constitute a binding contract between the homeowners and the Association.

2. Unambiguous Language: The language in Article 3, section 3.1 is clear and unambiguous. It prohibits businesses that create traffic or parking.

3. Violation Proven: The evidence clearly showed the Wilkeys’ business created both traffic and parking due to its two commuting employees. This is a direct violation of the unambiguous terms of the CC&R.

4. No Other Violation Needed: The fact that no other rules (e.g., specific parking ordinances) were broken is irrelevant. The creation of any traffic or parking by the business is sufficient to trigger the violation as written.

1. Cease Operations: The Wilkeys were ordered to comply with CC&R Article 3, section 3.1 by ceasing business operations at the unit within 35 days.

2. Civil Penalty: The Wilkeys were ordered to pay a civil penalty of $500.00 to the Department of Real Estate within 60 days.

3. Filing Fee Request Denied: The Association’s request to have its filing fee refunded was denied because it cited no legal authority showing the judge had the power to grant it.

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Answer the following questions in 2-3 complete sentences based on the information in the case file.

1. Who were the petitioner and the respondents in this case, and what was their relationship?

2. What specific activity led the petitioner to claim the respondents were violating the CC&Rs?

3. According to Article 3, section 3.1, what condition makes a non-residential use of a property a violation?

4. What was the respondents’ primary defense for operating their business from the unit?

5. Why did the Administrative Law Judge find the respondents’ primary defense unconvincing?

6. What two specific pieces of evidence demonstrated that the business created traffic and parking?

7. What is the legal standard of proof required in this type of administrative hearing, and what does it mean?

8. What two penalties were imposed on the Wilkeys in the final order?

9. Does the Pointe Tapatio Community Association prohibit all home-based businesses? Explain.

10. Who was Howard Flisser, and what was his significance to the respondents’ case?

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Answer Key

1. The petitioner was the Pointe Tapatio Community Association. The respondents were Layne C. Wilkey and Devin E. Wilkey, who were homeowners within the community and co-owners of the unit in question.

2. The Wilkeys were operating their payroll processing company, Devau Human Resources, out of their residential unit. This included having two employees commute to the property to work during business hours.

3. A non-residential use becomes a violation if it “creates traffic [or] parking.” The rule does not require a certain amount of traffic or parking, only that it is created by the business activity.

4. The respondents’ primary defense was that they had received verbal permission to operate the business from the community’s property manager, Howard Flisser, back in 2009.

5. The judge found the defense unconvincing because the Wilkeys had no written proof, had not spoken to Mr. Flisser directly, and testimony from a board member indicated Mr. Flisser could not recall—and later denied—ever giving such permission. Furthermore, the property manager likely lacked the authority to grant it.

6. The evidence was the Wilkeys’ own acknowledgement that two of their employees drive to the unit to work on a weekly basis. This commuting by non-resident employees necessarily creates traffic and, at times, requires them to park on community streets.

7. The standard of proof is a “preponderance of the evidence.” This means the greater weight of the evidence must be sufficient to incline a fair and impartial mind to one side of the issue over the other, even if it does not remove all reasonable doubt.

8. The Wilkeys were ordered to cease all business operations at the unit within 35 days. They were also ordered to pay a civil penalty of $500.00 to the Department of Real Estate within 60 days.

9. No, the association does not prohibit all home-based businesses. It allows for activities like telecommuting and teaching online classes, which do not require board permission because they do not create traffic or parking.

10. Howard Flisser was the property manager whom the Wilkeys claimed gave them verbal permission to run their business. His significance was central to their defense, but his alleged permission was unsubstantiated and contradicted by later testimony.

——————————————————————————–

Essay Questions

The following questions are designed for longer-form analysis. No answers are provided.

1. Analyze the concept of “preponderance of the evidence” as applied in this case. How did the evidence presented by Pointe Tapatio meet this standard, while the Wilkeys’ evidence did not?

2. Discuss the legal principle that CC&Rs are treated as contracts. Explain how Judge Shedden applied contract law principles, particularly regarding “unambiguous” language, to reach his conclusion.

3. Evaluate the Wilkeys’ defense strategy, focusing on their claim of verbal permission from Howard Flisser. Why was this argument legally insufficient? What kind of evidence would have been necessary to make it successful?

4. Examine the distinction the Pointe Tapatio Community Association makes between permissible home-based businesses (like telecommuting) and impermissible ones (like Devau Human Resources). What is the key factor in this distinction according to the CC&Rs, and how does it relate to the core purpose of residential covenants?

5. Based on the judge’s order, discuss the remedies available to a homeowner’s association in Arizona when a CC&R violation is proven. What penalties were imposed, and what penalty was requested but denied?

——————————————————————————–

Glossary of Key Terms

• Administrative Law Judge (ALJ): A judge and trier of fact who presides over administrative hearings, such as disputes handled by the Office of Administrative Hearings. The ALJ renders decisions, called orders, based on evidence and legal arguments.

• CC&Rs (Covenants, Conditions, and Restrictions): The governing legal documents that set out the rules for a planned community or subdivision. In this case, they are treated as a legally binding contract between the association and the homeowners.

• Civil Penalty: A monetary fine levied by a government agency or administrative court for a violation of a statute or rule. In this case, a $500 penalty was imposed on the Wilkeys for violating the community documents.

• Conclusions of Law: The section of a judicial decision where the judge applies legal principles and statutes to the established facts of the case to reach a judgment.

• Findings of Fact: The section of a judicial decision that formally lists the factual determinations made by the judge based on the evidence presented at the hearing.

• Order: The final ruling or judgment issued by an Administrative Law Judge that directs the parties on what actions they must take.

• Petitioner: The party who initiates a legal action or files a petition seeking a legal remedy. In this case, the Pointe Tapatio Community Association.

• Preponderance of the Evidence: The standard of proof in most civil and administrative cases. It requires the trier of fact to believe that it is more likely than not that a claim is true, based on the evidence presented.

• Respondent: The party against whom a petition is filed or an appeal is brought. In this case, Layne C. Wilkey and Devin E. Wilkey.






Blog Post – 19F-H1919044-REL


4 Surprising Lessons from an HOA Lawsuit That Shut Down a 10-Year-Old Home Business

Introduction: The Rise of the Home Office and the Rules You Didn’t Know Existed

In an age where the line between the living room and the corner office has all but vanished, millions of us have embraced working from home. But as we settle into our home-based routines, a critical question often goes unasked: Are you truly familiar with your homeowner’s association (HOA) rules regarding home-based businesses?

For the Wilkey family, owners of Devau Human Resources, the answer to that question proved to be a costly one. After operating their payroll processing company from their home for nearly a decade without a single complaint, they found themselves in a legal battle that ultimately shut them down. Their case serves as a powerful cautionary tale about what can happen when long-standing home businesses collide with the fine print of HOA rules.

1. It’s Not About Complaints, It’s About the Contract

One of the most chilling lessons from the Wilkey case is that the HOA’s action wasn’t triggered by angry neighbors complaining about noise or traffic. In fact, Board member Paula Duistermars testified that she was unaware of any such complaints. The issue arose simply because “a resident brought the issue to [the Board’s] attention.”

This reveals a crucial legal reality: your business’s existence, not its impact, can be the sole trigger for enforcement. It doesn’t take a chorus of angry neighbors—just one person notifying the Board of a potential rule violation is enough. The Covenants, Conditions, and Restrictions (CC&Rs) are a legally binding contract, and the court’s decision was not based on whether the business was a nuisance, but simply whether it complied with the contract’s terms. Your takeaway: You must operate as if the rulebook will be enforced literally, because it can be.

2. The Deciding Factor: A Single Clause About “Traffic and Parking”

The entire legal dispute hinged on the precise wording of one specific rule. The HOA wasn’t enforcing a vague, blanket ban on all home businesses; its power came from a single, carefully worded clause in the CC&Rs.

The relevant section, Article 3, section 3.1, stated:

“Each Residence shall be used, improved, and devoted exclusively to first class residential use, and no gainful occupation, profession, trade, business, religion, or other non-residential use which creates traffic [or] parking … shall be conducted from any Residence [or part thereof.]”

As a legal analyst, I can tell you why this clause was so powerful: its focus on a tangible impact (“creates traffic [or] parking”) made it highly defensible. A blanket prohibition on “all businesses” might be open to challenge, but this specific, impact-based rule was nearly impossible to argue against once the facts were established. The Wilkeys’ business was found in violation specifically because it created traffic and parking, which is also why the HOA permitted other home businesses, like telecommuting, that did not.

3. Your Two-Person TeamIsa Traffic Problem

Many homeowners assume that business traffic rules are meant to prevent a steady stream of clients visiting a residential property. The Wilkeys had no clients come to their unit. However, this did not protect them.

The undisputed fact that proved decisive was that two of the company’s employees commuted to the home to work—one from Monday to Thursday and the other from Monday to Friday. The judge concluded that this daily employee commute constituted the creation of “traffic and parking” as prohibited by the CC&Rs. The employees at times parking on the community’s common streets provided concrete, undeniable evidence of this. This case sets a precedent that a micro-business with just one or two employees commuting to the home can be deemed in violation—a scenario many entrepreneurs wouldn’t even consider a “traffic” issue.

4. “He Said We Could” Is Not a Legal Defense

The Wilkeys asserted that they had received verbal permission to operate their business from the property manager back in 2009. This defense completely fell apart under legal scrutiny.

Courts prioritize written agreements and official board actions over “he said/she said” accounts, especially when they involve multi-level hearsay (in this case, a husband asking a salesperson who asked the manager). The defense failed for several clear reasons: the Wilkeys had no written proof, the manager denied recalling or ever giving such permission, and most importantly, a Board member testified that the manager lacked the authority to grant this permission anyway. Only the Board could.

The takeaway is unambiguous: Never rely on verbal assurances. Get all permissions from your HOA Board in writing, or they do not legally exist.

Conclusion: Know Your Rules Before You Unpack Your Desk

The story of the Wilkey family is a stark reminder that HOA documents are not mere suggestions; they are legally binding contracts where every word matters. The Wilkeys’ experience is a costly lesson for every home-based professional. Proactive compliance is your only true protection. The final outcome was an order for them to cease all business operations from their home within 35 days and pay a $500 civil penalty.

You might have been working from home for years without a problem, but have you ever read the fine print on what your community actually allows?


Case Participants

Petitioner Side

  • Lauren Vie (HOA attorney)
    Attorney for Petitioner
  • Paula Duistermars (board member)
    Pointe Tapatio Community Association
    Presented testimony for Petitioner
  • Beth Mulchay (HOA attorney)
    Mulchay Law Firm, P.C.
    Listed on transmission list

Respondent Side

  • Layne C. Wilkey (respondent)
  • Devin E. Wilkey (respondent)
  • Joseph A Velez (respondent attorney)
    For Respondent

Neutral Parties

  • Thomas Shedden (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Howard Flisser (property manager)
    Statements regarding alleged business permission were discussed
  • Felicia Del Sol (unknown)

Pointe Tapatio Community Association v. Lanye C. and Devin E. Willey

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Case Summary

Case ID 19F-H1919044-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-07
Administrative Law Judge Thomas Shedden
Outcome partial
Filing Fees Refunded $0.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Pointe Tapatio Community Association Counsel Lauren Vie
Respondent Lanye C. Wilkey and Devin E. Wilkey Counsel Joseph Velez

Alleged Violations

CC&R Article 3, section 3.1

Outcome Summary

The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.

Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.

Key Issues & Findings

Violation of Residential Use covenant prohibiting traffic/parking generation by business

The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.

Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.

Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: HOA, CC&Rs, Business Use, Home Business, Parking, Traffic, Civil Penalty
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Pointe Tapatio Community Association v. Lanye C. and Devin E. Willey

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Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 19F-H1919044-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-07
Administrative Law Judge Thomas Shedden
Outcome partial
Filing Fees Refunded $0.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Pointe Tapatio Community Association Counsel Lauren Vie
Respondent Lanye C. Wilkey and Devin E. Wilkey Counsel Joseph Velez

Alleged Violations

CC&R Article 3, section 3.1

Outcome Summary

The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.

Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.

Key Issues & Findings

Violation of Residential Use covenant prohibiting traffic/parking generation by business

The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.

Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.

Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: HOA, CC&Rs, Business Use, Home Business, Parking, Traffic, Civil Penalty
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Tom J Martin v. SaddleBrooke Home Owners Association #1, Inc.

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Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 19F-H1918022-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-05-10
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Tom J Martin Counsel —
Respondent SaddleBrooke Home Owners Association #1, Inc. Counsel Carolyn B. Goldschmidt

Alleged Violations

ARIZ. REV. STAT. § 32-2199.01(A); ARIZ. REV. STAT. § 33-1802(2)

Outcome Summary

The petition was dismissed because the Administrative Law Judge determined that the alleged violations of the HOA's website and policy manual did not involve 'community documents' as defined by statute, meaning the matter did not fall within the tribunal's jurisdiction under ARIZ. REV. STAT. § 32-2199.01(A).

Why this result: The petition was dismissed because the initial claims did not meet the requirements of ARIZ. REV. STAT. § 32-2199.01(A), as the alleged violations involved documents (website and policy BC-3) that are not considered 'community documents' under ARIZ. REV. STAT. § 33-1802(2).

Key Issues & Findings

Alleged violation of HOA website and Policy BC-3 concerning the provision of pickleball courts

Petitioner alleged the HOA violated its website and Policy Manual (BC-3) regarding the provision of pickleball courts. Respondent filed a Motion to Dismiss, arguing the Department lacked jurisdiction because neither the website nor Policy BC-3 are defined as 'community documents' under ARIZ. REV. STAT. § 33-1802(2). The ALJ agreed, finding the claim failed to meet the jurisdictional requirements of ARIZ. REV. STAT. § 32-2199.01(A).

Orders: Petitioner Tom J. Martin’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 33-1802(2)
  • ARIZ. REV. STAT. § 32-2199.02

Analytics Highlights

Topics: jurisdiction, community documents, policy manual, dismissal
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1802
  • ARIZ. REV. STAT. § 32-2199.02
  • Walker v. Scottsdale
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc.

Video Overview

Audio Overview

Decision Documents

19F-H1918022-REL-RHG Decision – 704322.pdf

Uploaded 2025-10-09T03:33:41 (89.7 KB)





Briefing Doc – 19F-H1918022-REL-RHG


Briefing Document: Martin v. SaddleBrooke Home Owners Association #1, Inc. (Case No. 19F-H1918022-REL-RHG)

Executive Summary

This document synthesizes the Administrative Law Judge Decision in the case of Tom J. Martin versus SaddleBrooke Home Owners Association #1, Inc., which resulted in the dismissal of the petitioner’s case. The decision, issued on May 10, 2019, centered on a critical jurisdictional question: whether an HOA’s website content and internal policy manual constitute “community documents” under Arizona state law.

The Administrative Law Judge (ALJ) concluded they do not. The petitioner’s claim, which alleged the HOA failed to provide pickleball courts as promised on its website and in its “Policy Number BC-3,” was dismissed because it did not allege a violation of a legally recognized “community document.” According to Arizona Revised Statutes, such documents are strictly defined as the declaration, bylaws, articles of incorporation, and formally adopted rules. As the petitioner’s initial filing cited only the website and a policy not adopted as a rule, the Office of Administrative Hearings lacked the statutory jurisdiction to hear the case. Furthermore, the ALJ determined that the petitioner’s requested relief—a financial award of $463,112 or the construction of eight new courts—was beyond the scope of the tribunal’s authority.

Case Overview

Case Name

Tom J. Martin v. SaddleBrooke Home Owners Association #1, Inc.

Case Number

19F-H1918022-REL-RHG

Tribunal

Arizona Office of Administrative Hearings

Petitioner

Tom J. Martin

Respondent

SaddleBrooke Home Owners Association #1, Inc.

Presiding Judge

Administrative Law Judge Thomas Shedden

Date of Decision

May 10, 2019

Petitioner’s Core Allegations and Requested Relief

The petition filed by Tom J. Martin on September 28, 2018, was founded on the central allegation that the SaddleBrooke HOA violated its own website content and its internal policy manual, specifically “Policy Number BC-3.”

• Primary Allegation: The HOA failed to fulfill its advertised and marketed promise to provide pickleball courts.

• Cited Violations: In the initial petition, Martin explicitly alleged violations of the HOA’s website and policy manual. While he checked boxes on the petition form indicating violations of the CC&Rs and Bylaws, he failed to identify any specific provisions from those documents.

• Requested Relief: The petitioner sought a significant remedy from the HOA, requesting one of the following:

1. Financial support in the amount of $463,112.00 for the expansion of pickleball courts in Bobcat Canyon.

2. The provision of eight new pickleball courts within a two-mile radius of the community within one year.

3. A commitment from the HOA to be financially responsible for the maintenance of pickleball courts in an amount equal to its spending on eight tennis courts.

Procedural History and Key Arguments

The case progressed through several key stages, culminating in a rehearing and a final dismissal.

1. Initial Petition (September 28, 2018): Mr. Martin filed his single-issue petition with the Arizona Department of Real Estate.

2. Respondent’s Motion to Dismiss (November 30, 2018): The HOA argued that the Department of Real Estate lacked jurisdiction over the matter. Its core argument was that hearings under ARIZ. REV. STAT. § 32-2199.01 are limited to violations of “community documents,” and that a website and an internal policy do not meet the legal definition of such documents. The HOA also contended the requested relief was outside the tribunal’s authority.

3. Petitioner’s Response (December 4, 2018): In his response, Mr. Martin argued that a “policy” should be interpreted as a “rule” under its ordinary meaning. He further asserted that another HOA policy (CE-3) defined “governing documents” to include “Rules and Regulations,” and therefore Policy BC-3 should be considered a governing document.

4. Initial Dismissal (December 12, 2018): The ALJ dismissed the petition, finding that it had not alleged a violation meeting the statutory requirements.

5. Request for Rehearing (December 31, 2018): Mr. Martin requested a rehearing, reasserting that a “policy” is a “rule.” In this request, he newly alleged that the HOA had violated specific provisions: Bylaws article 4, section 6(3) and Articles of Incorporation Article XII, by failing to implement policy BC-3.

6. Rehearing (April 16, 2019): A rehearing was conducted where both parties presented their cases. The respondent renewed its argument regarding lack of jurisdiction.

Central Legal Dispute: The Definition of “Community Documents”

The determinative issue of the case was the precise legal definition of “community documents” and whether the petitioner’s claims fell within that scope.

• Statutory Definition: The court’s decision was anchored in ARIZ. REV. STAT. § 33-1802(2), which defines community documents as:

◦ The declaration (CC&Rs)

◦ Bylaws

◦ Articles of incorporation, if any

◦ Rules, if any

• The Court’s Finding: The ALJ concluded that this legislative definition is exclusive and does not include “a planned community’s statements of policy, statements on its website, or advertising and marketing material.”

• Petitioner’s Argument Rejected: Mr. Martin’s argument that Policy BC-3 should be considered a rule was found to be “not persuasive.” A critical finding of fact was that the “Respondent has not adopted policy BC-3 as a rule” under the authority granted in its CC&Rs (section 4.5). The tribunal must follow the legislature’s explicit definition.

Administrative Law Judge’s Conclusions and Final Order

The ALJ’s conclusions of law led directly to the dismissal of the petition on jurisdictional grounds.

• Lack of Jurisdiction: Because Mr. Martin’s original petition only alleged that the respondent violated its website and policy manual—neither of which are “community documents” under Arizona law—the petition failed to meet the foundational requirements for a hearing under ARIZ. REV. STAT. § 32-2199.01(A).

• Improper Relief Requested: The ALJ also concluded that the relief Mr. Martin sought was not within the tribunal’s authority. Under ARIZ. REV. STAT. § 32-2199.02, an ALJ may order a party to abide by statutes or community documents and may levy civil penalties. The statute does not grant the authority to order large financial payments for construction or to mandate specific capital improvement projects.

• Final Order: Based on these conclusions, the petition was dismissed.

IT IS ORDERED that Petitioner Tom J. Martin’s petition is dismissed.

The decision, having been issued as the result of a rehearing, is binding on the parties. Any appeal must be filed for judicial review with the superior court within thirty-five days from the date of the order’s service.






Study Guide – 19F-H1918022-REL-RHG


Study Guide: Martin v. SaddleBrooke Home Owners Association #1, Inc.

This guide provides a detailed review of the Administrative Law Judge Decision in the case of Tom J. Martin vs. SaddleBrooke Home Owners Association #1, Inc. (No. 19F-H1918022-REL-RHG). It is designed to test and deepen understanding of the case’s facts, legal arguments, and final outcome.

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Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, based on the information provided in the source document.

1. Who were the Petitioner and Respondent in case No. 19F-H1918022-REL-RHG?

2. What was the central allegation made by the Petitioner in his initial petition filed on or about September 28, 2018?

3. Describe the two alternative forms of relief the Petitioner requested in his petition.

4. On what primary legal grounds did the Respondent file its Motion to Dismiss?

5. According to Arizona Revised Statute section 33-1802(2), what are the four types of documents that constitute “community documents”?

6. Explain the two main arguments the Petitioner made in his Response to the Motion to Dismiss for why Policy BC-3 should be considered a governing document.

7. What new violation did the Petitioner allege in his request for a rehearing on December 31, 2019?

8. According to the Administrative Law Judge’s findings, what was the final outcome of the Petitioner’s petition and the primary reason for this decision?

9. According to A.R.S. § 32-2199.02, what powers does an administrative law judge have if a violation of community documents is found?

10. What is the process and time frame for a party wishing to appeal this Administrative Law Judge order?

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Answer Key

1. The Petitioner was Tom J. Martin, who appeared on his own behalf. The Respondent was SaddleBrooke Home Owners Association #1, Inc., which was represented by Carolyn B. Goldschmidt, Esq.

2. In his initial petition, Mr. Martin’s single-issue allegation was that the Respondent violated its website and its policy manual, specifically Policy Number BC-3. He included printouts from the website and a copy of the policy with his petition.

3. The Petitioner requested financial support in the sum of $463,112.00 for the expansion of pickleball courts in Bobcat Canyon. Alternatively, he requested that the Respondent provide eight pickleball courts within a two-mile radius of the community within one year, and be financially responsible for their maintenance at a level equal to its spending on eight tennis courts.

4. The Respondent argued that the Arizona Department of Real Estate lacked jurisdiction over the matter. This was because hearings are limited to disputes over “community documents,” and neither the website nor Policy BC-3 qualified as such under the definition provided in ARIZ. REV. STAT. section 33-1802(2).

5. Arizona Revised Statute section 33-1802(2) defines “community documents” as “the declaration, bylaws, articles of incorporation, if any, and rules, if any.”

6. First, Mr. Martin argued that based on A.R.S. § 1-213, the word “policy” should be given its ordinary meaning, which is a rule. Second, he asserted that because the Respondent’s own policy CE-3 defines “governing documents” to include Rules and Regulations, then BC-3 must be a governing document.

7. In his request for a rehearing, Mr. Martin alleged for the first time that the Respondent had violated its bylaws, specifically article 4, section 6(3), by failing to implement policy BC-3. He also alleged a violation of Articles of Incorporation Article XII.

8. The Administrative Law Judge ordered that Mr. Martin’s petition be dismissed. The dismissal was based on the finding that the petition did not meet the requirements of A.R.S. § 32-2199.01(A) because it alleged violations of a website and a policy manual, which are not legally defined as “community documents.”

9. If a violation is found, an administrative law judge may order any party to abide by the statute or document at issue. The judge may also levy a civil penalty for each violation and, if the petitioner prevails, order the respondent to pay the petitioner’s filing fee.

10. A party wishing to appeal the order must seek judicial review by filing an appeal with the superior court. This appeal must be filed within thirty-five days from the date a copy of the order was served upon the parties, as prescribed by A.R.S. section 12-904(A).

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Essay Questions

The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response for each question based on the facts and legal principles presented in the decision.

1. Analyze the concept of jurisdiction as it applies to this case. Why was the distinction between “community documents” and other materials like websites or policy manuals the central factor in the judge’s jurisdictional decision?

2. Trace the procedural history of this case, from Mr. Martin’s initial petition to the final order of dismissal. Identify the key filings, arguments, and decisions at each stage of the process.

3. Evaluate the legal arguments presented by Mr. Martin. Explain his reasoning for equating a “policy” with a “rule” and why the Administrative Law Judge ultimately found this argument unpersuasive, citing relevant statutes and case law mentioned in the decision.

4. Discuss the limitations on the relief an Administrative Law Judge can grant in disputes involving planned communities, as outlined in A.R.S. § 32-2199.02. How did Mr. Martin’s requested relief fall outside the scope of the judge’s authority?

5. Explain the legal principle that when a legislature defines a word or term, a tribunal must follow that definition. How did this principle, as cited in Walker v. Scottsdale, directly influence the outcome of Mr. Martin’s petition?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, the ALJ was Thomas Shedden.

ARIZ. REV. STAT. (A.R.S.)

The abbreviation for Arizona Revised Statutes, which are the codified laws of the State of Arizona.

Articles of Incorporation

A set of formal documents filed with a government body to legally document the creation of a corporation. Defined in A.R.S. § 33-1802(2) as one of the “community documents.”

Bylaws

A set of rules adopted by an organization, such as an HOA, to govern its internal management and operations. Defined in A.R.S. § 33-1802(2) as one of the “community documents.”

CC&Rs (Covenants, Conditions, and Restrictions)

Rules governing the use of land within a particular planned community. Section 4.5 of the Respondent’s CC&Rs sets out its authority to adopt rules.

Community Documents

As defined by A.R.S. § 33-1802(2), these are “the declaration, bylaws, articles of incorporation, if any, and rules, if any.” The central legal issue of the case was whether the Respondent’s website and policy manual qualified as community documents.

Jurisdiction

The official power to make legal decisions and judgments. The Respondent argued, and the ALJ agreed, that the Office of Administrative Hearings did not have jurisdiction because the alleged violations did not involve “community documents.”

Motion to Dismiss

A formal request by a party for a court or tribunal to dismiss a case. The Respondent filed a Motion to Dismiss on November 30, 2018, arguing a lack of jurisdiction.

Petitioner

The party who files a petition initiating a legal case. In this matter, the Petitioner was Tom J. Martin.

Rehearing

A second hearing of a case to reconsider the issues and arguments, granted in this instance after the initial dismissal. The rehearing was conducted on April 16, 2019.

Respondent

The party against whom a petition is filed. In this matter, the Respondent was SaddleBrooke Home Owners Association #1, Inc.

Regulations adopted by a planned community association. The decision notes that while the Respondent has the authority to adopt rules, it had not adopted policy BC-3 as a rule.






Blog Post – 19F-H1918022-REL-RHG


4 Harsh Lessons from a Homeowner’s Failed Lawsuit Against His HOA

Introduction: The Promise vs. The Paperwork

Imagine finding the perfect community. Its website advertises fantastic amenities, including the pickleball courts you’ve been dreaming of. The association’s own policy manual seems to confirm this commitment. But what happens when the courts are never built and the homeowner association (HOA) doesn’t deliver on these perceived promises?

This isn’t a hypothetical scenario. It’s the central conflict in the case of Tom J. Martin versus the SaddleBrooke HOA in Arizona. Mr. Martin believed his HOA was legally obligated to provide pickleball courts based on its policies and marketing materials. His subsequent lawsuit, however, failed spectacularly, revealing some surprising truths about HOA disputes. This case provides several critical, counter-intuitive lessons for any current or future homeowner about the difference between a promise and a legally enforceable contract.

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1. A “Policy” Isn’t Always a Legally Binding “Rule”

Mr. Martin’s argument was straightforward: he believed the HOA violated its own “policy manual,” specifically a section referred to as Policy BC-3, by not providing pickleball courts. He contended that, in the ordinary sense of the word, a “policy” is a rule that must be followed.

The judge, however, dismissed the case based on a harsh legal reality. According to Arizona law, the court’s jurisdiction in this type of hearing is limited to violations of official “community documents.” The judge was bound by the statute’s specific definition of what constitutes these documents.

Based on Arizona Revised Statute § 33-1802(2), “community documents” are strictly defined as:

• The declaration (often called CC&Rs)

• Bylaws

• Articles of incorporation

• Rules

Crucially, the HOA’s own CC&Rs specified the exact procedure for how to adopt an enforceable rule, and the association had never subjected Policy BC-3 to that formal process. It wasn’t just a legal technicality; the HOA was following its own governing documents about how to create—or not create—a binding rule. Because the pickleball policy had not been formally adopted, it was legally unenforceable in this hearing.

Key Takeaway Analysis: In a legal dispute, the common-sense meaning of a word can be overruled by a specific statutory definition. It’s not enough to read an HOA’s policy manual. As a homeowner, you must cross-reference that policy with the CC&Rs or Bylaws to confirm the HOA has followed its own stated procedure for adopting it as a formal, legally binding rule.

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2. Marketing Materials Are Not Governing Documents

To support his case, Mr. Martin presented printouts from the HOA’s website. He felt these materials advertised and marketed the availability of pickleball courts, stating in a legal filing that “the Association is in violation for not providing pickleball courts as advertised and marketed….”

The judge’s conclusion was unequivocal: advertising and marketing materials, just like the internal policy manual, do not qualify as “community documents.” The legal definition is exclusive, and an HOA’s website is not on the list. Therefore, promises or suggestions made on a website carry no legal weight in a dispute over violations of governing documents.

Key Takeaway Analysis: There is a significant gap between marketing promises and legally enforceable obligations. For potential buyers, this is a critical warning. The glossy brochure, the community website, and the sales pitch might paint a picture of community life, but that picture is not guaranteed by the legally binding documents you sign at closing.

——————————————————————————–

3. You Must Allege a Violation of theRightDocument

The case also reveals a crucial lesson in legal procedure. In his initial petition, Mr. Martin only alleged violations of the HOA’s website and its policy manual. While his petition form indicated alleged violations of the “CC&Rs and Bylaws,” he failed to identify any specific provisions within those official documents that the HOA had actually violated.

It was only after his case was first dismissed that he attempted to specify violations of the Bylaws and Articles of Incorporation in his request for a rehearing. By then, it was too late. The initial petition failed to allege a violation of a legitimate community document.

Key Takeaway Analysis: Precision is paramount. To successfully challenge an HOA in an administrative hearing, a homeowner cannot just have a general grievance. You must be able to pinpoint the exact article, section, and provision of an official “community document” (like the CC&Rs or Bylaws) that was violated and state it clearly in your initial complaint.

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4. The Court May Not Have the Power to Grant Your Request

Mr. Martin was clear about what he wanted the court to do. He requested one of two specific forms of relief:

• Provide financial support of $463,112.00 for the expansion of pickleball courts in Bobcat Canyon.

• Alternatively, construct eight new pickleball courts within a two-mile radius of the community within one year, with the HOA being financially responsible for their maintenance.

The judge noted a final, critical problem with the case: the requested relief was “not within the scope of the Administrative Law Judge’s authority.” The law governing these hearings simply did not give the judge the power to order an HOA to undertake a massive, six-figure construction project.

Key Takeaway Analysis: Even if you have a valid case and prove the HOA violated a rule, the court or tribunal you are in has limits. An administrative hearing might only be empowered to levy a civil penalty or issue an order for the HOA to abide by an existing rule. It likely cannot force the HOA to build new facilities or make large capital expenditures. This highlights the need to research the legal venue before you file to ensure it has the authority to grant the specific outcome you are seeking.

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Conclusion: Read Before You Litigate

The outcome of Mr. Martin’s lawsuit underscores the critical difference between a homeowner’s reasonable expectations and an HOA’s legally enforceable covenants. For homeowners, disputes are won or lost based on the precise wording of official governing documents—the CC&Rs, bylaws, and formal rules.

Before you challenge your HOA, have you read the fine print to see if their promise is written in the one place that truly matters?


Case Participants

Petitioner Side

  • Tom J. Martin (petitioner)
    Appeared on his own behalf

Respondent Side

  • Carolyn B. Goldschmidt (respondent attorney)
    Goldschmidt, Shupe, PLLC
  • Michael S. Shupe (attorney)
    Goldschmidt, Shupe, PLLC
    Recipient of transmittal

Neutral Parties

  • Thomas Shedden (ALJ)
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
    Recipient of transmittal
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal (Identified by email handle portion)
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal (Identified by email handle portion)
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal (Identified by email handle portion)
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal (Identified by email handle portion)
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal (Identified by email handle portion)

Other Participants

  • JS (Unknown staff)
    Transmittal initials

Tom J Martin v. SaddleBrooke Home Owners Association #1, Inc.

Posted on by
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 19F-H1918022-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-05-10
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Tom J Martin Counsel —
Respondent SaddleBrooke Home Owners Association #1, Inc. Counsel Carolyn B. Goldschmidt

Alleged Violations

ARIZ. REV. STAT. § 32-2199.01(A); ARIZ. REV. STAT. § 33-1802(2)

Outcome Summary

The Administrative Law Judge affirmed the dismissal of the petition on rehearing, ruling that the HOA's website and policy manual are not 'community documents' as defined by statute, and therefore the Department has no jurisdiction to adjudicate disputes regarding them. Additionally, the requested financial relief was outside the ALJ's authority.

Why this result: Lack of subject matter jurisdiction because the alleged violations did not involve the declaration, bylaws, articles of incorporation, or rules of the planned community.

Key Issues & Findings

Alleged violation of HOA website and Policy Manual (Policy BC-3) regarding pickleball courts

Petitioner alleged that the HOA violated its website and policy manual by failing to provide pickleball courts as marketed. The Respondent moved to dismiss for lack of jurisdiction, arguing these documents are not community documents. The ALJ affirmed the dismissal, finding that policies and website statements do not fall under the statutory definition of community documents in A.R.S. § 33-1802(2), thus the Department lacked jurisdiction.

Orders: Petitioner Tom J. Martin’s petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1802
  • ARIZ. REV. STAT. § 32-2199.02
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc.

Analytics Highlights

Topics: jurisdiction, community documents, policy manual, pickleball courts, dismissal, rehearing
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1802(2)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 1-213
  • ARIZ. REV. STAT. § 12-904
  • Walker v. Scottsdale, 163 Ariz. 206, 786 P.2d 1057 (App. 1989)
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)

Video Overview

Audio Overview

Decision Documents

19F-H1918022-REL-RHG Decision – 704322.pdf

Uploaded 2026-01-23T17:27:17 (89.7 KB)





Briefing Doc – 19F-H1918022-REL-RHG


Briefing Document: Martin v. SaddleBrooke Home Owners Association #1, Inc. (Case No. 19F-H1918022-REL-RHG)

Executive Summary

This document synthesizes the Administrative Law Judge Decision in the case of Tom J. Martin versus SaddleBrooke Home Owners Association #1, Inc., which resulted in the dismissal of the petitioner’s case. The decision, issued on May 10, 2019, centered on a critical jurisdictional question: whether an HOA’s website content and internal policy manual constitute “community documents” under Arizona state law.

The Administrative Law Judge (ALJ) concluded they do not. The petitioner’s claim, which alleged the HOA failed to provide pickleball courts as promised on its website and in its “Policy Number BC-3,” was dismissed because it did not allege a violation of a legally recognized “community document.” According to Arizona Revised Statutes, such documents are strictly defined as the declaration, bylaws, articles of incorporation, and formally adopted rules. As the petitioner’s initial filing cited only the website and a policy not adopted as a rule, the Office of Administrative Hearings lacked the statutory jurisdiction to hear the case. Furthermore, the ALJ determined that the petitioner’s requested relief—a financial award of $463,112 or the construction of eight new courts—was beyond the scope of the tribunal’s authority.

Case Overview

Case Name

Tom J. Martin v. SaddleBrooke Home Owners Association #1, Inc.

Case Number

19F-H1918022-REL-RHG

Tribunal

Arizona Office of Administrative Hearings

Petitioner

Tom J. Martin

Respondent

SaddleBrooke Home Owners Association #1, Inc.

Presiding Judge

Administrative Law Judge Thomas Shedden

Date of Decision

May 10, 2019

Petitioner’s Core Allegations and Requested Relief

The petition filed by Tom J. Martin on September 28, 2018, was founded on the central allegation that the SaddleBrooke HOA violated its own website content and its internal policy manual, specifically “Policy Number BC-3.”

• Primary Allegation: The HOA failed to fulfill its advertised and marketed promise to provide pickleball courts.

• Cited Violations: In the initial petition, Martin explicitly alleged violations of the HOA’s website and policy manual. While he checked boxes on the petition form indicating violations of the CC&Rs and Bylaws, he failed to identify any specific provisions from those documents.

• Requested Relief: The petitioner sought a significant remedy from the HOA, requesting one of the following:

1. Financial support in the amount of $463,112.00 for the expansion of pickleball courts in Bobcat Canyon.

2. The provision of eight new pickleball courts within a two-mile radius of the community within one year.

3. A commitment from the HOA to be financially responsible for the maintenance of pickleball courts in an amount equal to its spending on eight tennis courts.

Procedural History and Key Arguments

The case progressed through several key stages, culminating in a rehearing and a final dismissal.

1. Initial Petition (September 28, 2018): Mr. Martin filed his single-issue petition with the Arizona Department of Real Estate.

2. Respondent’s Motion to Dismiss (November 30, 2018): The HOA argued that the Department of Real Estate lacked jurisdiction over the matter. Its core argument was that hearings under ARIZ. REV. STAT. § 32-2199.01 are limited to violations of “community documents,” and that a website and an internal policy do not meet the legal definition of such documents. The HOA also contended the requested relief was outside the tribunal’s authority.

3. Petitioner’s Response (December 4, 2018): In his response, Mr. Martin argued that a “policy” should be interpreted as a “rule” under its ordinary meaning. He further asserted that another HOA policy (CE-3) defined “governing documents” to include “Rules and Regulations,” and therefore Policy BC-3 should be considered a governing document.

4. Initial Dismissal (December 12, 2018): The ALJ dismissed the petition, finding that it had not alleged a violation meeting the statutory requirements.

5. Request for Rehearing (December 31, 2018): Mr. Martin requested a rehearing, reasserting that a “policy” is a “rule.” In this request, he newly alleged that the HOA had violated specific provisions: Bylaws article 4, section 6(3) and Articles of Incorporation Article XII, by failing to implement policy BC-3.

6. Rehearing (April 16, 2019): A rehearing was conducted where both parties presented their cases. The respondent renewed its argument regarding lack of jurisdiction.

Central Legal Dispute: The Definition of “Community Documents”

The determinative issue of the case was the precise legal definition of “community documents” and whether the petitioner’s claims fell within that scope.

• Statutory Definition: The court’s decision was anchored in ARIZ. REV. STAT. § 33-1802(2), which defines community documents as:

◦ The declaration (CC&Rs)

◦ Bylaws

◦ Articles of incorporation, if any

◦ Rules, if any

• The Court’s Finding: The ALJ concluded that this legislative definition is exclusive and does not include “a planned community’s statements of policy, statements on its website, or advertising and marketing material.”

• Petitioner’s Argument Rejected: Mr. Martin’s argument that Policy BC-3 should be considered a rule was found to be “not persuasive.” A critical finding of fact was that the “Respondent has not adopted policy BC-3 as a rule” under the authority granted in its CC&Rs (section 4.5). The tribunal must follow the legislature’s explicit definition.

Administrative Law Judge’s Conclusions and Final Order

The ALJ’s conclusions of law led directly to the dismissal of the petition on jurisdictional grounds.

• Lack of Jurisdiction: Because Mr. Martin’s original petition only alleged that the respondent violated its website and policy manual—neither of which are “community documents” under Arizona law—the petition failed to meet the foundational requirements for a hearing under ARIZ. REV. STAT. § 32-2199.01(A).

• Improper Relief Requested: The ALJ also concluded that the relief Mr. Martin sought was not within the tribunal’s authority. Under ARIZ. REV. STAT. § 32-2199.02, an ALJ may order a party to abide by statutes or community documents and may levy civil penalties. The statute does not grant the authority to order large financial payments for construction or to mandate specific capital improvement projects.

• Final Order: Based on these conclusions, the petition was dismissed.

IT IS ORDERED that Petitioner Tom J. Martin’s petition is dismissed.

The decision, having been issued as the result of a rehearing, is binding on the parties. Any appeal must be filed for judicial review with the superior court within thirty-five days from the date of the order’s service.






Study Guide – 19F-H1918022-REL-RHG


Study Guide: Martin v. SaddleBrooke Home Owners Association #1, Inc.

This guide provides a detailed review of the Administrative Law Judge Decision in the case of Tom J. Martin vs. SaddleBrooke Home Owners Association #1, Inc. (No. 19F-H1918022-REL-RHG). It is designed to test and deepen understanding of the case’s facts, legal arguments, and final outcome.

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Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, based on the information provided in the source document.

1. Who were the Petitioner and Respondent in case No. 19F-H1918022-REL-RHG?

2. What was the central allegation made by the Petitioner in his initial petition filed on or about September 28, 2018?

3. Describe the two alternative forms of relief the Petitioner requested in his petition.

4. On what primary legal grounds did the Respondent file its Motion to Dismiss?

5. According to Arizona Revised Statute section 33-1802(2), what are the four types of documents that constitute “community documents”?

6. Explain the two main arguments the Petitioner made in his Response to the Motion to Dismiss for why Policy BC-3 should be considered a governing document.

7. What new violation did the Petitioner allege in his request for a rehearing on December 31, 2019?

8. According to the Administrative Law Judge’s findings, what was the final outcome of the Petitioner’s petition and the primary reason for this decision?

9. According to A.R.S. § 32-2199.02, what powers does an administrative law judge have if a violation of community documents is found?

10. What is the process and time frame for a party wishing to appeal this Administrative Law Judge order?

——————————————————————————–

Answer Key

1. The Petitioner was Tom J. Martin, who appeared on his own behalf. The Respondent was SaddleBrooke Home Owners Association #1, Inc., which was represented by Carolyn B. Goldschmidt, Esq.

2. In his initial petition, Mr. Martin’s single-issue allegation was that the Respondent violated its website and its policy manual, specifically Policy Number BC-3. He included printouts from the website and a copy of the policy with his petition.

3. The Petitioner requested financial support in the sum of $463,112.00 for the expansion of pickleball courts in Bobcat Canyon. Alternatively, he requested that the Respondent provide eight pickleball courts within a two-mile radius of the community within one year, and be financially responsible for their maintenance at a level equal to its spending on eight tennis courts.

4. The Respondent argued that the Arizona Department of Real Estate lacked jurisdiction over the matter. This was because hearings are limited to disputes over “community documents,” and neither the website nor Policy BC-3 qualified as such under the definition provided in ARIZ. REV. STAT. section 33-1802(2).

5. Arizona Revised Statute section 33-1802(2) defines “community documents” as “the declaration, bylaws, articles of incorporation, if any, and rules, if any.”

6. First, Mr. Martin argued that based on A.R.S. § 1-213, the word “policy” should be given its ordinary meaning, which is a rule. Second, he asserted that because the Respondent’s own policy CE-3 defines “governing documents” to include Rules and Regulations, then BC-3 must be a governing document.

7. In his request for a rehearing, Mr. Martin alleged for the first time that the Respondent had violated its bylaws, specifically article 4, section 6(3), by failing to implement policy BC-3. He also alleged a violation of Articles of Incorporation Article XII.

8. The Administrative Law Judge ordered that Mr. Martin’s petition be dismissed. The dismissal was based on the finding that the petition did not meet the requirements of A.R.S. § 32-2199.01(A) because it alleged violations of a website and a policy manual, which are not legally defined as “community documents.”

9. If a violation is found, an administrative law judge may order any party to abide by the statute or document at issue. The judge may also levy a civil penalty for each violation and, if the petitioner prevails, order the respondent to pay the petitioner’s filing fee.

10. A party wishing to appeal the order must seek judicial review by filing an appeal with the superior court. This appeal must be filed within thirty-five days from the date a copy of the order was served upon the parties, as prescribed by A.R.S. section 12-904(A).

——————————————————————————–

Essay Questions

The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response for each question based on the facts and legal principles presented in the decision.

1. Analyze the concept of jurisdiction as it applies to this case. Why was the distinction between “community documents” and other materials like websites or policy manuals the central factor in the judge’s jurisdictional decision?

2. Trace the procedural history of this case, from Mr. Martin’s initial petition to the final order of dismissal. Identify the key filings, arguments, and decisions at each stage of the process.

3. Evaluate the legal arguments presented by Mr. Martin. Explain his reasoning for equating a “policy” with a “rule” and why the Administrative Law Judge ultimately found this argument unpersuasive, citing relevant statutes and case law mentioned in the decision.

4. Discuss the limitations on the relief an Administrative Law Judge can grant in disputes involving planned communities, as outlined in A.R.S. § 32-2199.02. How did Mr. Martin’s requested relief fall outside the scope of the judge’s authority?

5. Explain the legal principle that when a legislature defines a word or term, a tribunal must follow that definition. How did this principle, as cited in Walker v. Scottsdale, directly influence the outcome of Mr. Martin’s petition?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, the ALJ was Thomas Shedden.

ARIZ. REV. STAT. (A.R.S.)

The abbreviation for Arizona Revised Statutes, which are the codified laws of the State of Arizona.

Articles of Incorporation

A set of formal documents filed with a government body to legally document the creation of a corporation. Defined in A.R.S. § 33-1802(2) as one of the “community documents.”

Bylaws

A set of rules adopted by an organization, such as an HOA, to govern its internal management and operations. Defined in A.R.S. § 33-1802(2) as one of the “community documents.”

CC&Rs (Covenants, Conditions, and Restrictions)

Rules governing the use of land within a particular planned community. Section 4.5 of the Respondent’s CC&Rs sets out its authority to adopt rules.

Community Documents

As defined by A.R.S. § 33-1802(2), these are “the declaration, bylaws, articles of incorporation, if any, and rules, if any.” The central legal issue of the case was whether the Respondent’s website and policy manual qualified as community documents.

Jurisdiction

The official power to make legal decisions and judgments. The Respondent argued, and the ALJ agreed, that the Office of Administrative Hearings did not have jurisdiction because the alleged violations did not involve “community documents.”

Motion to Dismiss

A formal request by a party for a court or tribunal to dismiss a case. The Respondent filed a Motion to Dismiss on November 30, 2018, arguing a lack of jurisdiction.

Petitioner

The party who files a petition initiating a legal case. In this matter, the Petitioner was Tom J. Martin.

Rehearing

A second hearing of a case to reconsider the issues and arguments, granted in this instance after the initial dismissal. The rehearing was conducted on April 16, 2019.

Respondent

The party against whom a petition is filed. In this matter, the Respondent was SaddleBrooke Home Owners Association #1, Inc.

Regulations adopted by a planned community association. The decision notes that while the Respondent has the authority to adopt rules, it had not adopted policy BC-3 as a rule.






Blog Post – 19F-H1918022-REL-RHG


4 Harsh Lessons from a Homeowner’s Failed Lawsuit Against His HOA

Introduction: The Promise vs. The Paperwork

Imagine finding the perfect community. Its website advertises fantastic amenities, including the pickleball courts you’ve been dreaming of. The association’s own policy manual seems to confirm this commitment. But what happens when the courts are never built and the homeowner association (HOA) doesn’t deliver on these perceived promises?

This isn’t a hypothetical scenario. It’s the central conflict in the case of Tom J. Martin versus the SaddleBrooke HOA in Arizona. Mr. Martin believed his HOA was legally obligated to provide pickleball courts based on its policies and marketing materials. His subsequent lawsuit, however, failed spectacularly, revealing some surprising truths about HOA disputes. This case provides several critical, counter-intuitive lessons for any current or future homeowner about the difference between a promise and a legally enforceable contract.

——————————————————————————–

1. A “Policy” Isn’t Always a Legally Binding “Rule”

Mr. Martin’s argument was straightforward: he believed the HOA violated its own “policy manual,” specifically a section referred to as Policy BC-3, by not providing pickleball courts. He contended that, in the ordinary sense of the word, a “policy” is a rule that must be followed.

The judge, however, dismissed the case based on a harsh legal reality. According to Arizona law, the court’s jurisdiction in this type of hearing is limited to violations of official “community documents.” The judge was bound by the statute’s specific definition of what constitutes these documents.

Based on Arizona Revised Statute § 33-1802(2), “community documents” are strictly defined as:

• The declaration (often called CC&Rs)

• Bylaws

• Articles of incorporation

• Rules

Crucially, the HOA’s own CC&Rs specified the exact procedure for how to adopt an enforceable rule, and the association had never subjected Policy BC-3 to that formal process. It wasn’t just a legal technicality; the HOA was following its own governing documents about how to create—or not create—a binding rule. Because the pickleball policy had not been formally adopted, it was legally unenforceable in this hearing.

Key Takeaway Analysis: In a legal dispute, the common-sense meaning of a word can be overruled by a specific statutory definition. It’s not enough to read an HOA’s policy manual. As a homeowner, you must cross-reference that policy with the CC&Rs or Bylaws to confirm the HOA has followed its own stated procedure for adopting it as a formal, legally binding rule.

——————————————————————————–

2. Marketing Materials Are Not Governing Documents

To support his case, Mr. Martin presented printouts from the HOA’s website. He felt these materials advertised and marketed the availability of pickleball courts, stating in a legal filing that “the Association is in violation for not providing pickleball courts as advertised and marketed….”

The judge’s conclusion was unequivocal: advertising and marketing materials, just like the internal policy manual, do not qualify as “community documents.” The legal definition is exclusive, and an HOA’s website is not on the list. Therefore, promises or suggestions made on a website carry no legal weight in a dispute over violations of governing documents.

Key Takeaway Analysis: There is a significant gap between marketing promises and legally enforceable obligations. For potential buyers, this is a critical warning. The glossy brochure, the community website, and the sales pitch might paint a picture of community life, but that picture is not guaranteed by the legally binding documents you sign at closing.

——————————————————————————–

3. You Must Allege a Violation of theRightDocument

The case also reveals a crucial lesson in legal procedure. In his initial petition, Mr. Martin only alleged violations of the HOA’s website and its policy manual. While his petition form indicated alleged violations of the “CC&Rs and Bylaws,” he failed to identify any specific provisions within those official documents that the HOA had actually violated.

It was only after his case was first dismissed that he attempted to specify violations of the Bylaws and Articles of Incorporation in his request for a rehearing. By then, it was too late. The initial petition failed to allege a violation of a legitimate community document.

Key Takeaway Analysis: Precision is paramount. To successfully challenge an HOA in an administrative hearing, a homeowner cannot just have a general grievance. You must be able to pinpoint the exact article, section, and provision of an official “community document” (like the CC&Rs or Bylaws) that was violated and state it clearly in your initial complaint.

——————————————————————————–

4. The Court May Not Have the Power to Grant Your Request

Mr. Martin was clear about what he wanted the court to do. He requested one of two specific forms of relief:

• Provide financial support of $463,112.00 for the expansion of pickleball courts in Bobcat Canyon.

• Alternatively, construct eight new pickleball courts within a two-mile radius of the community within one year, with the HOA being financially responsible for their maintenance.

The judge noted a final, critical problem with the case: the requested relief was “not within the scope of the Administrative Law Judge’s authority.” The law governing these hearings simply did not give the judge the power to order an HOA to undertake a massive, six-figure construction project.

Key Takeaway Analysis: Even if you have a valid case and prove the HOA violated a rule, the court or tribunal you are in has limits. An administrative hearing might only be empowered to levy a civil penalty or issue an order for the HOA to abide by an existing rule. It likely cannot force the HOA to build new facilities or make large capital expenditures. This highlights the need to research the legal venue before you file to ensure it has the authority to grant the specific outcome you are seeking.

——————————————————————————–

Conclusion: Read Before You Litigate

The outcome of Mr. Martin’s lawsuit underscores the critical difference between a homeowner’s reasonable expectations and an HOA’s legally enforceable covenants. For homeowners, disputes are won or lost based on the precise wording of official governing documents—the CC&Rs, bylaws, and formal rules.

Before you challenge your HOA, have you read the fine print to see if their promise is written in the one place that truly matters?


Case Participants

Petitioner Side

  • Tom J. Martin (petitioner)
    Appeared on his own behalf

Respondent Side

  • Carolyn B. Goldschmidt (respondent attorney)
    Goldschmidt, Shupe, PLLC
  • Michael S. Shupe (attorney)
    Goldschmidt, Shupe, PLLC
    Recipient of transmittal

Neutral Parties

  • Thomas Shedden (ALJ)
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
    Recipient of transmittal
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal (Identified by email handle portion)
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal (Identified by email handle portion)
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal (Identified by email handle portion)
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal (Identified by email handle portion)
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal (Identified by email handle portion)

Other Participants

  • JS (Unknown staff)
    Transmittal initials

Tom Barrs v. Desert Ranch Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1918037-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-09-12
Administrative Law Judge Jenna Clark
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Tom Barrs Counsel Jonathan A. Dessaules
Respondent Desert Ranch Homeowners Association Counsel B. Austin Baillio

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge concluded that the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide the full requested documentation relating to EDC actions and communications. The Petitioner's request for relief was granted, resulting in the reimbursement of the $500 filing fee and the imposition of a $500 civil penalty against the HOA.

Key Issues & Findings

Whether Desert Ranch Homeowners Association (Respondent) violated A.R.S. § 33-1805 by failing to fulfill a records request.

The Association violated A.R.S. § 33-1805 by failing to fully comply with Petitioner's specific request for EDC records (submissions, requests, and approvals) by providing only a summary table instead of the totality of requested communications within the statutory deadline.

Orders: Petitioner's petition granted. Respondent ordered to reimburse Petitioner's $500.00 filing fee (ARIZ. REV. STAT. § 32-2199.01) and tender a $500.00 civil penalty to the Department (ARIZ. REV. STAT. § 32-2199.02(A)).

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

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Records Request, HOA Violation, Civil Penalty, Filing Fee Reimbursement
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • 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
  • ARIZ. REV. STAT. § 1-243
  • ARIZ. ADMIN. CODE R2-19-107
  • ARIZ. REV. STAT. § 33-1804

Video Overview

Audio Overview

Decision Documents

19F-H1918037-REL Decision – 700566.pdf

Uploaded 2025-10-09T03:33:55 (149.3 KB)





Briefing Doc – 19F-H1918037-REL


Briefing Document: Barrs v. Desert Ranch Homeowners Association (Case No. 19F-H1918037-REL)

Executive Summary

This briefing document synthesizes two Administrative Law Judge (ALJ) decisions concerning a records request dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent). The core of the dispute was the Association’s failure to fully comply with a request for records under Arizona Revised Statutes (A.R.S.) § 33-1805.

The case is notable for its complete reversal upon rehearing. An initial ruling on April 10, 2019, favored the Association, finding that the Petitioner had failed to properly submit his request by not emailing all Board members. However, this decision was overturned in a final, binding order on September 12, 2019. In the rehearing, the Petitioner presented new evidence demonstrating he was following the Association’s own prior written instructions for submitting such requests.

The ALJ ultimately concluded that the Association did violate A.R.S. § 33-1805 by providing only a summary document instead of making the full records available for examination. Consequently, the final order granted the Petitioner’s petition, mandated the full reimbursement of his $500 filing fee, and levied an additional $500 civil penalty against the Association. The case underscores the critical importance of procedural compliance and the weight of documented instructions in governing interactions between homeowners and their associations.

——————————————————————————–

I. Case Overview

• Parties:

◦ Petitioner: Tom Barrs, a property owner and member of the Association.

◦ Respondent: Desert Ranch Homeowners Association (“the Association”).

• Venue: Arizona Office of Administrative Hearings (OAH).

• Presiding Judge: Administrative Law Judge (ALJ) Jenna Clark.

• Core Allegation: Whether the Desert Ranch Homeowners Association violated A.R.S. § 33-1805 by failing to fulfill a records request submitted by the Petitioner.

• Case Numbers:

◦ 19F-H1918037-REL (Initial Decision)

◦ 19F-H1918037-REL-RHG (Rehearing Decision)

II. Chronology of the Dispute

Jul. 19, 2017

Association President Catherine Overby appoints Environmental Design Committee (EDC) Director Brian Schoeffler as the Petitioner’s primary contact for records requests.

Jul. 18, 2018

Ms. Overby instructs the Petitioner to direct all requests to the Association’s management company, Associated Asset Management (AAM), specifically to Lori Lock-Lee.

Nov. 1, 2018

Petitioner submits the records request at issue via email to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee.

Nov. 2, 2018

Ms. Loch-Lee acknowledges the request, states she will forward it to all Board members, and clarifies that AAM is only the Association’s accounting firm.

Nov. 18, 2018

Mr. Schoeffler responds on behalf of the Association, providing a summary table of EDC actions but not the full records. He also advises the Petitioner that all Board members must be copied on future requests.

Dec. 17, 2018

Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500 fee.

Mar. 6, 2019

Petitioner sends a follow-up email specifying the exact documents he is seeking, referencing items listed in the summary table he received.

Mar. 11, 2019

Mr. Schoeffler replies, asserting the request was already fulfilled and instructing the Petitioner to submit a new request for the additional items.

Mar. 17, 2019

Mr. Schoeffler emails again, claiming the original request was improperly submitted to only two of four Board members and that providing more documents could be seen as an “admission of guilt.”

Mar. 21, 2019

The first evidentiary hearing is held at the OAH.

Apr. 10, 2019

The initial ALJ Decision is issued, denying the Petitioner’s petition.

Jun. 10, 2019

Petitioner submits an appeal to the Department, which is granted.

Aug. 27, 2019

A rehearing is held at the OAH.

Sep. 12, 2019

The final ALJ Decision is issued, reversing the initial ruling and granting the Petitioner’s petition.

III. The Records Request and Response

Petitioner’s Request (November 1, 2018)

The Petitioner submitted a clear and direct request for specific records via email, citing the relevant statute:

“Pursuant to ARS 33-1805, I am requesting a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018. Soft copies via return email are preferable; otherwise, please let me know when hard copies are available for pickup.”

Association’s Response (November 18, 2018)

The Association did not provide the requested documents (e.g., letters, emails, applications). Instead, it provided a “summary table listing of some, not all, EDC actions.” As of the August 27, 2019, rehearing, the Petitioner had still not received the full documentation he originally requested.

Petitioner’s Clarification (March 6, 2019)

In an attempt to resolve the issue, the Petitioner sent a detailed follow-up email outlining the specific missing records by referencing the line items in the Association’s own summary table. This demonstrated that his request was not for a vague “list of actions” but for the underlying correspondence. This included requests for:

• Copies of violation notices and “Full Compliance” correspondence.

• Complaint correspondence from homeowners regarding shrubs and subsequent citations.

• Submittal correspondence for a project from Mr. Schoeffler himself, along with approvals.

• Original submittals and approvals for a garage remodel and septic install.

IV. Analysis of the Two Administrative Rulings

The opposite outcomes of the two hearings hinged entirely on the validity of the Petitioner’s original email submission.

A. Initial ALJ Decision (April 10, 2019) – In Favor of Respondent (HOA)

• Central Finding: The Petitioner failed to properly submit his records request because he sent it to only two Board members, not the entire Board.

• Reasoning: The ALJ concluded that because the request was improperly submitted, the Association was not obligated to fulfill it under A.R.S. § 33-1805. Therefore, its failure to provide the full records did not constitute a violation. The decision noted, “Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation…”

• Outcome: The petition was denied. The Association was not required to reimburse the Petitioner’s filing fee, and his request for a civil penalty was denied.

B. Rehearing ALJ Decision (September 12, 2019) – In Favor of Petitioner (Barrs)

• Central Finding: The Petitioner did properly submit his records request by emailing the designated contacts.

• Key New Evidence: The Petitioner introduced two exhibits proving he had received explicit instructions from the Association President on where to direct his requests:

1. A July 19, 2017 communication appointing EDC Chairman Brian Schoeffler as his primary records request contact.

2. A July 18, 2018 communication instructing him to direct requests to the management company (AAM).

• Reasoning: The ALJ found this evidence dispositive, stating, “Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.” With the submission deemed proper, the focus shifted to the response. The ALJ concluded that providing a summary table was not compliant with the statute’s requirement to make records “reasonably available for examination.”

• Outcome: The initial decision was reversed, and the Petitioner’s petition was granted.

V. Key Arguments and Testimonies

• Petitioner (Tom Barrs):

◦ Argued his dispute was with the adequacy of the Association’s response, not its timeliness.

◦ Alleged the Association acted in bad faith and willfully withheld records, citing a previous OAH adjudication over a similar request.

◦ Successfully demonstrated he had followed the Association’s own prior instructions for submitting requests.

• Respondent (via Brian Schoeffler):

◦ Maintained that the request was invalid because it was not sent to all four Board members, an argument that collapsed during the rehearing.

◦ Admitted the Association’s governing documents do not contain a requirement that all Board members be copied on records requests.

◦ Justified the incomplete response by stating that providing additional documents after the petition was filed could be “interpreted as an admission of guilt.”

◦ Reasoned that the Association acted as it did because a previous, similar dispute had been decided in its favor.

VI. Final Order and Penalties

The binding order issued on September 12, 2019, following the rehearing, mandated the following:

1. Petition Granted: The Petitioner’s petition was granted in its entirety.

2. Filing Fee Reimbursement: The Association was ordered to reimburse the Petitioner’s $500 filing fee.

3. Civil Penalty: The Association was ordered to pay a civil penalty of $500 to the Arizona Department of Real Estate for its violation of A.R.S. § 33-1805.






Study Guide – 19F-H1918037-REL


Study Guide: Barrs v. Desert Ranch Homeowners Association

This guide provides a comprehensive review of the administrative legal case between petitioner Tom Barrs and respondent Desert Ranch Homeowners Association, covering the initial hearing and the subsequent rehearing. It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms.

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Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences based on the provided source documents.

1. Who are the primary parties in this legal dispute, and what are their respective roles?

2. What specific Arizona Revised Statute was the Desert Ranch Homeowners Association accused of violating, and what does this statute generally require?

3. What was the exact nature of the records request Tom Barrs submitted on November 1, 2018?

4. In the initial hearing, what was the key reason the Administrative Law Judge ruled in favor of the Association?

5. What was the Association’s initial response to Barrs’ records request, and why did Barrs consider it incomplete?

6. Upon what grounds was a rehearing of the case granted?

7. What crucial new evidence presented at the rehearing changed the outcome of the case?

8. How did the Association’s own bylaws and concessions during the rehearing weaken its defense?

9. What was the final ruling in the Administrative Law Judge’s decision after the rehearing?

10. What financial penalties were imposed on the Desert Ranch Homeowners Association in the final order?

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Answer Key

1. The primary parties are Tom Barrs, the Petitioner, and the Desert Ranch Homeowners Association, the Respondent. Barrs, a homeowner and member of the Association, filed a petition alleging the Association failed to comply with a records request. The Association, represented in the hearings by Brian Schoeffler, defended its actions against this claim.

2. The Association was accused of violating A.R.S. § 33-1805. This statute requires a homeowners’ association to make its financial and other records reasonably available for examination by a member within ten business days of a request. It also allows the association to charge a fee of not more than fifteen cents per page for copies.

3. On November 1, 2018, Tom Barrs requested “a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018.” He specified that electronic copies were preferable but that he was also willing to pick up hard copies.

4. In the initial hearing, the judge ruled for the Association because the evidence indicated Barrs had failed to properly submit his request to all members of the Association’s Board. This procedural error meant Barrs failed to establish by a preponderance of the evidence that the Association was in violation of the statute.

5. The Association responded on November 18, 2018, by providing Barrs with a summary table of Environmental Design Committee (EDC) actions. Barrs considered this incomplete because his request was for the underlying communications, including all written requests and approvals, not just a summary list of actions.

6. A rehearing was granted after Petitioner Tom Barrs submitted an appeal to the Arizona Department of Real Estate on June 10, 2019. The Department granted the appeal and referred the matter back to the Office of Administrative Hearings for a new evidentiary hearing.

7. The crucial new evidence showed that the Association’s President had previously appointed Brian Schoeffler as Barrs’ primary contact for records requests. This evidence demonstrated that Barrs had, in fact, followed the specific instructions given to him and was not required to send his request to all board members, directly contradicting the basis for the initial ruling.

8. The Association conceded that its governing documents do not require members to copy all Board members on records requests. It also admitted that its own bylaws regarding the submission of forms for such requests were not adhered to or enforced, which undermined its argument that Barrs had failed to follow proper procedure.

9. The final ruling, issued September 12, 2019, granted the Petitioner’s petition. The Administrative Law Judge concluded that the Association’s conduct violated A.R.S. § 33-1805 because it did not fully comply with Barrs’ specific and properly submitted request.

10. The Association was ordered to reimburse Petitioner Tom Barrs’ $500.00 filing fee. Additionally, a civil penalty of $500.00 was levied against the Association, payable to the Arizona Department of Real Estate.

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Essay Questions

Instructions: The following questions are designed for longer, essay-format answers that require critical thinking and synthesis of information from the case documents. Answers are not provided.

1. Compare and contrast the Findings of Fact and Conclusions of Law in the initial decision (April 10, 2019) with those in the rehearing decision (September 12, 2019). Analyze how specific factual clarifications led to a complete reversal of the legal conclusion.

2. Explain the legal standard of “preponderance of the evidence” as defined in the decisions. Detail why the petitioner initially failed to meet this burden and what specific evidence allowed him to successfully meet it in the rehearing.

3. Analyze the testimony and arguments presented by Brian Schoeffler on behalf of the Association across both hearings. Discuss the consistency of his defense, his reasoning based on prior OAH decisions, and his stated fear that providing more documents could be interpreted as an “admission of guilt.”

4. Trace the complete procedural timeline of case No. 19F-H1918037-REL, from the filing of the initial petition on December 17, 2018, to the final, binding order on September 12, 2019. Highlight the roles of the Arizona Department of Real Estate and the Office of Administrative Hearings (OAH).

5. Using the details of this case, write an analysis of the function and importance of A.R.S. § 33-1805 in regulating the relationship between a homeowner and a homeowners’ association. Discuss the statute’s requirements for both parties and the consequences of non-compliance.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent, impartial judge who presides over administrative hearings at government agencies like the Office of Administrative Hearings. In this case, the ALJ was Jenna Clark.

A.R.S. § 33-1805

The section of the Arizona Revised Statutes that governs a homeowner’s right to access the records of a homeowners’ association. It mandates that an association must make records available for examination within ten business days of a request.

Associated Asset Management (AAM)

The management company that served as the accounting firm for the Desert Ranch Homeowners Association. Petitioner was instructed at one point to direct requests to Lori Lock-Lee at AAM.

Board of Directors (the Board)

The governing body that oversees the operations of the Desert Ranch Homeowners Association.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the rules for a planned community or subdivision. The Desert Ranch HOA is governed by its CC&Rs.

Environmental Design Committee (EDC)

A committee within the Desert Ranch Homeowners Association responsible for reviewing and approving architectural and landscaping changes. Brian Schoeffler was the Chairman of the EDC.

Petitioner

The party who files a petition to initiate a legal proceeding. In this case, Tom Barrs is the Petitioner.

Preponderance of the evidence

The standard of proof in this civil administrative case. It is defined as evidence that is more convincing and has superior weight, inclining a fair mind to one side of the issue over the other.

Rehearing

A second hearing of a case, granted upon appeal, to re-examine the issues and evidence. The rehearing in this case took place on August 27, 2019, and resulted in the reversal of the initial decision.

Respondent

The party against whom a petition is filed. In this case, the Desert Ranch Homeowners Association is the Respondent.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona that conducts evidentiary hearings for other state agencies, providing a neutral forum for resolving disputes like the one between Barrs and the Association.






Blog Post – 19F-H1918037-REL


Briefing Document: Barrs v. Desert Ranch Homeowners Association (Case No. 19F-H1918037-REL)

Executive Summary

This briefing document synthesizes two Administrative Law Judge (ALJ) decisions concerning a records request dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent). The core of the dispute was the Association’s failure to fully comply with a request for records under Arizona Revised Statutes (A.R.S.) § 33-1805.

The case is notable for its complete reversal upon rehearing. An initial ruling on April 10, 2019, favored the Association, finding that the Petitioner had failed to properly submit his request by not emailing all Board members. However, this decision was overturned in a final, binding order on September 12, 2019. In the rehearing, the Petitioner presented new evidence demonstrating he was following the Association’s own prior written instructions for submitting such requests.

The ALJ ultimately concluded that the Association did violate A.R.S. § 33-1805 by providing only a summary document instead of making the full records available for examination. Consequently, the final order granted the Petitioner’s petition, mandated the full reimbursement of his $500 filing fee, and levied an additional $500 civil penalty against the Association. The case underscores the critical importance of procedural compliance and the weight of documented instructions in governing interactions between homeowners and their associations.

——————————————————————————–

I. Case Overview

• Parties:

◦ Petitioner: Tom Barrs, a property owner and member of the Association.

◦ Respondent: Desert Ranch Homeowners Association (“the Association”).

• Venue: Arizona Office of Administrative Hearings (OAH).

• Presiding Judge: Administrative Law Judge (ALJ) Jenna Clark.

• Core Allegation: Whether the Desert Ranch Homeowners Association violated A.R.S. § 33-1805 by failing to fulfill a records request submitted by the Petitioner.

• Case Numbers:

◦ 19F-H1918037-REL (Initial Decision)

◦ 19F-H1918037-REL-RHG (Rehearing Decision)

II. Chronology of the Dispute

Jul. 19, 2017

Association President Catherine Overby appoints Environmental Design Committee (EDC) Director Brian Schoeffler as the Petitioner’s primary contact for records requests.

Jul. 18, 2018

Ms. Overby instructs the Petitioner to direct all requests to the Association’s management company, Associated Asset Management (AAM), specifically to Lori Lock-Lee.

Nov. 1, 2018

Petitioner submits the records request at issue via email to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee.

Nov. 2, 2018

Ms. Loch-Lee acknowledges the request, states she will forward it to all Board members, and clarifies that AAM is only the Association’s accounting firm.

Nov. 18, 2018

Mr. Schoeffler responds on behalf of the Association, providing a summary table of EDC actions but not the full records. He also advises the Petitioner that all Board members must be copied on future requests.

Dec. 17, 2018

Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500 fee.

Mar. 6, 2019

Petitioner sends a follow-up email specifying the exact documents he is seeking, referencing items listed in the summary table he received.

Mar. 11, 2019

Mr. Schoeffler replies, asserting the request was already fulfilled and instructing the Petitioner to submit a new request for the additional items.

Mar. 17, 2019

Mr. Schoeffler emails again, claiming the original request was improperly submitted to only two of four Board members and that providing more documents could be seen as an “admission of guilt.”

Mar. 21, 2019

The first evidentiary hearing is held at the OAH.

Apr. 10, 2019

The initial ALJ Decision is issued, denying the Petitioner’s petition.

Jun. 10, 2019

Petitioner submits an appeal to the Department, which is granted.

Aug. 27, 2019

A rehearing is held at the OAH.

Sep. 12, 2019

The final ALJ Decision is issued, reversing the initial ruling and granting the Petitioner’s petition.

III. The Records Request and Response

Petitioner’s Request (November 1, 2018)

The Petitioner submitted a clear and direct request for specific records via email, citing the relevant statute:

“Pursuant to ARS 33-1805, I am requesting a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018. Soft copies via return email are preferable; otherwise, please let me know when hard copies are available for pickup.”

Association’s Response (November 18, 2018)

The Association did not provide the requested documents (e.g., letters, emails, applications). Instead, it provided a “summary table listing of some, not all, EDC actions.” As of the August 27, 2019, rehearing, the Petitioner had still not received the full documentation he originally requested.

Petitioner’s Clarification (March 6, 2019)

In an attempt to resolve the issue, the Petitioner sent a detailed follow-up email outlining the specific missing records by referencing the line items in the Association’s own summary table. This demonstrated that his request was not for a vague “list of actions” but for the underlying correspondence. This included requests for:

• Copies of violation notices and “Full Compliance” correspondence.

• Complaint correspondence from homeowners regarding shrubs and subsequent citations.

• Submittal correspondence for a project from Mr. Schoeffler himself, along with approvals.

• Original submittals and approvals for a garage remodel and septic install.

IV. Analysis of the Two Administrative Rulings

The opposite outcomes of the two hearings hinged entirely on the validity of the Petitioner’s original email submission.

A. Initial ALJ Decision (April 10, 2019) – In Favor of Respondent (HOA)

• Central Finding: The Petitioner failed to properly submit his records request because he sent it to only two Board members, not the entire Board.

• Reasoning: The ALJ concluded that because the request was improperly submitted, the Association was not obligated to fulfill it under A.R.S. § 33-1805. Therefore, its failure to provide the full records did not constitute a violation. The decision noted, “Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation…”

• Outcome: The petition was denied. The Association was not required to reimburse the Petitioner’s filing fee, and his request for a civil penalty was denied.

B. Rehearing ALJ Decision (September 12, 2019) – In Favor of Petitioner (Barrs)

• Central Finding: The Petitioner did properly submit his records request by emailing the designated contacts.

• Key New Evidence: The Petitioner introduced two exhibits proving he had received explicit instructions from the Association President on where to direct his requests:

1. A July 19, 2017 communication appointing EDC Chairman Brian Schoeffler as his primary records request contact.

2. A July 18, 2018 communication instructing him to direct requests to the management company (AAM).

• Reasoning: The ALJ found this evidence dispositive, stating, “Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.” With the submission deemed proper, the focus shifted to the response. The ALJ concluded that providing a summary table was not compliant with the statute’s requirement to make records “reasonably available for examination.”

• Outcome: The initial decision was reversed, and the Petitioner’s petition was granted.

V. Key Arguments and Testimonies

• Petitioner (Tom Barrs):

◦ Argued his dispute was with the adequacy of the Association’s response, not its timeliness.

◦ Alleged the Association acted in bad faith and willfully withheld records, citing a previous OAH adjudication over a similar request.

◦ Successfully demonstrated he had followed the Association’s own prior instructions for submitting requests.

• Respondent (via Brian Schoeffler):

◦ Maintained that the request was invalid because it was not sent to all four Board members, an argument that collapsed during the rehearing.

◦ Admitted the Association’s governing documents do not contain a requirement that all Board members be copied on records requests.

◦ Justified the incomplete response by stating that providing additional documents after the petition was filed could be “interpreted as an admission of guilt.”

◦ Reasoned that the Association acted as it did because a previous, similar dispute had been decided in its favor.

VI. Final Order and Penalties

The binding order issued on September 12, 2019, following the rehearing, mandated the following:

1. Petition Granted: The Petitioner’s petition was granted in its entirety.

2. Filing Fee Reimbursement: The Association was ordered to reimburse the Petitioner’s $500 filing fee.

3. Civil Penalty: The Association was ordered to pay a civil penalty of $500 to the Arizona Department of Real Estate for its violation of A.R.S. § 33-1805.


Case Participants

Petitioner Side

  • Tom Barrs (petitioner)
    Appeared on his own behalf in the initial hearing; appeared as a witness in the rehearing.
  • Jonathan Dessaules (petitioner attorney)
    Dessaules Law Group
    Appeared on behalf of Petitioner in the rehearing.

Respondent Side

  • Brian Schoeffler (respondent representative / EDC chairman / witness)
    Desert Ranch Homeowners Association
    Also identified as a Board Director.
  • Catherine Overby (HOA president / board member)
    Desert Ranch Homeowners Association
    Appointed Mr. Schoeffler as Petitioner’s primary records request contact.
  • Lori Loch-Lee (property manager)
    Associated Asset Management (AAM)
    Vice President of Client Services.
  • Amanda Shaw (property manager)
    AAM LLC
    Contact for Respondent.
  • B. Austin Baillio (HOA attorney)
    Maxwell & Morgan, P.C.
    Received electronic transmission of the rehearing decision.

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    ADRE
  • Dan Gardner (ADRE staff)
    ADRE
    HOA Coordinator.

Other Participants

  • Gerard Manieri (observer)
    Listed as 'G. Mangiero' in initial hearing source.
  • Peter Ashkin (observer)
    Observed initial hearing.
  • Stephen Banks (observer)
    Observed initial hearing.
  • Noah Banks (observer)
    Observed initial hearing.
  • Stephen Barrs (observer)
    Observed rehearing.
  • Abraham Barrs (observer)
    Observed rehearing.

Tom Barrs v. Desert Ranch Homeowners Association

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Case Summary

Case ID 19F-H1918037-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-09-12
Administrative Law Judge Jenna Clark
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Tom Barrs Counsel Jonathan A. Dessaules
Respondent Desert Ranch Homeowners Association Counsel B. Austin Baillio

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge concluded that the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide the full requested documentation relating to EDC actions and communications. The Petitioner's request for relief was granted, resulting in the reimbursement of the $500 filing fee and the imposition of a $500 civil penalty against the HOA.

Key Issues & Findings

Whether Desert Ranch Homeowners Association (Respondent) violated A.R.S. § 33-1805 by failing to fulfill a records request.

The Association violated A.R.S. § 33-1805 by failing to fully comply with Petitioner's specific request for EDC records (submissions, requests, and approvals) by providing only a summary table instead of the totality of requested communications within the statutory deadline.

Orders: Petitioner's petition granted. Respondent ordered to reimburse Petitioner's $500.00 filing fee (ARIZ. REV. STAT. § 32-2199.01) and tender a $500.00 civil penalty to the Department (ARIZ. REV. STAT. § 32-2199.02(A)).

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

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Records Request, HOA Violation, Civil Penalty, Filing Fee Reimbursement
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • 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
  • ARIZ. REV. STAT. § 1-243
  • ARIZ. ADMIN. CODE R2-19-107
  • ARIZ. REV. STAT. § 33-1804

Audio Overview

Decision Documents

19F-H1918037-REL Decision – 700566.pdf

Uploaded 2025-10-08T07:08:27 (149.3 KB)





Briefing Doc – 19F-H1918037-REL


Briefing Document: Barrs v. Desert Ranch Homeowners Association

Executive Summary

This document synthesizes the findings from two Administrative Law Judge (ALJ) Decisions concerning a records request dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent). The central issue was whether the Association violated Arizona Revised Statute (A.R.S.) § 33-1805 by failing to adequately fulfill a records request submitted by the Petitioner on November 1, 2018.

The initial hearing on March 21, 2019, resulted in an April 10, 2019, decision in favor of the Association. The ALJ concluded that the Petitioner had failed to properly submit his request to all members of the Association’s Board, and thus the Association’s partial response (a summary table) did not constitute a statutory violation.

Following a successful appeal by the Petitioner, a rehearing was held on August 27, 2019. New evidence demonstrated that the Petitioner had followed prior express instructions from the Association regarding who to contact for records requests. Consequently, the ALJ issued a new decision on September 12, 2019, reversing the original order. The final ruling found the Association in violation of A.R.S. § 33-1805. The Association was ordered to reimburse the Petitioner’s $500 filing fee and was assessed a civil penalty of $500.

Case Overview

Case Numbers

No. 19F-H1918037-REL (Initial Decision)
No. 19F-H1918037-REL-RHG (Rehearing Decision)

Petitioner

Tom Barrs, a property owner and member of the Association.

Respondent

Desert Ranch Homeowners Association, Scottsdale, Arizona.

Central Issue

Whether the Association violated A.R.S. § 33-1805 by failing to fulfill a records request for Environmental Design Committee (EDC) actions, requests, and approvals.

Initial Petition

Filed by Tom Barrs on December 17, 2018.

Initial Hearing

March 21, 2019, before ALJ Jenna Clark.

Rehearing

August 27, 2019, before ALJ Jenna Clark.

Final Outcome

Petition granted in favor of Tom Barrs. The Association was found in violation of state law, ordered to reimburse the filing fee, and fined.

Key Individuals and Entities

Role / Affiliation

Tom Barrs

Petitioner; homeowner in the Desert Ranch subdivision.

Desert Ranch HOA

Respondent; homeowners’ association.

Jenna Clark

Administrative Law Judge, Office of Administrative Hearings.

Brian Schoeffler

Chairman of the Association’s Environmental Design Committee (EDC); appeared on behalf of the Association.

Catherine Overby

President of the Association’s Board of Directors.

Lori Loch-Lee

Vice President of Client Services at Associated Asset Management (AAM), the Association’s accounting/management company.

Jonathan Dessaules, Esq.

Attorney who appeared on behalf of the Petitioner at the rehearing.

The Records Request and Subsequent Dispute

The Initial Request

On November 1, 2018, at 9:40 p.m., Petitioner submitted an electronic records request to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee. The text of the request was as follows:

“Pursuant to ARS 33-1805, I am requesting a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018. Soft copies via return email are preferable; otherwise, please let me know when hard copies are available for pickup.”

The Association’s Response and Petitioner’s Follow-Up

• November 2, 2018: Lori Loch-Lee from AAM notified the Petitioner she would forward his request to all Board members, noting that AAM was only the Association’s accounting firm.

• November 18, 2018: The Petitioner received a summary table listing some EDC actions, not the complete set of communications and documents requested. At this time, he was advised by Brian Schoeffler that he “needed to copy all Board members on records requests.”

• March 6, 2019: The Petitioner sent a follow-up email, accusing the Association of willful failure and clarifying the specific records he sought beyond the summary table, including “copies of the communications (letters, emails, and application forms) relating to Environmental Design Review (EDC) submissions, requests, complaints and approvals (or denials).”

• March 11, 2019: Mr. Schoeffler replied, arguing that the request had been complied with on November 18, 2018, and directed the Petitioner to “submit a new request” for the additional information.

• March 17, 2019: Mr. Schoeffler reiterated that the original request was only sent to two of four Board members and stated that providing additional documents could be “interpreted as an admission of guilt.”

As of the rehearing date (August 27, 2019), the Petitioner had still not received all the documentation requested on November 1, 2018.

Legal Proceedings and Rulings

Initial Hearing and Decision (April 10, 2019)

In the first hearing, the dispute centered on the validity of the request submission and the adequacy of the Association’s response.

Arguments:

• Petitioner (Barrs): Argued the Association acted in bad faith and willfully failed to fulfill the request, noting a similar dispute had been previously adjudicated. He was concerned with the completeness of the response, not its timeliness.

• Respondent (HOA): Argued it had complied with the request by providing a summary table, consistent with its handling of a previous dispute with the Petitioner. Mr. Schoeffler testified that the response was untimely (provided on the 11th business day) but asserted it was otherwise sufficient.

ALJ Conclusion: The Judge ruled in favor of the Association, denying the Petitioner’s petition. The key finding was that the Petitioner had failed to properly submit his request.

“Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation of ARIZ. REV. STAT. § 33-1805 for providing him with a summary table on November 18, 2018.”

The decision also noted that the statute does not legally obligate an HOA to email copies of records.

Rehearing and Final Decision (September 12, 2019)

After the Petitioner’s appeal was granted, a rehearing introduced new evidence that fundamentally changed the outcome.

New Evidence and Concessions:

• July 19, 2017 Instruction: Evidence showed Association President Catherine Overby had previously appointed Brian Schoeffler as the Petitioner’s “primary records request contact.”

• July 18, 2018 Instruction: Evidence showed Ms. Overby had also instructed the Petitioner to direct requests to the management company, AAM.

• Association Concessions: The Respondent conceded that its governing documents do not require all Board members to be copied on records requests and that its own bylaws regarding submission forms are not adhered to or enforced.

ALJ’s Reversed Conclusion: The Judge reversed the prior decision and granted the Petitioner’s petition. The new evidence proved the Petitioner had followed express instructions from the Association.

“Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.”

The Judge concluded that the partial response was a clear violation of the law.

“Petitioner is correct that the Association did not fully comply with his specific request, and has established by a preponderance of the evidence that the summary table provided by the Association was a violation of ARIZ. REV. STAT. § 33-1805.”

Final Order and Penalties

The Administrative Law Judge’s Final Order on September 12, 2019, which is binding on the parties, mandated the following:

1. Petition Granted: The Petitioner’s petition was granted.

2. Filing Fee Reimbursement: The Respondent (Desert Ranch HOA) was ordered to reimburse the Petitioner’s $500.00 filing fee.

3. Civil Penalty: The Respondent was ordered to pay a civil penalty of $500.00 to the Arizona Department of Real Estate.


Loraine Brokaw vs. Sin Vacas Property Owners Association

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Case Summary

Case ID 19F-H1918017-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-04-01
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Loraine Brokaw Counsel —
Respondent Sin Vacas Property Owners Association Counsel Sean K Moynihan, Esq. and Jason E Smith, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1803; Bylaws Article IV, Section 6

Outcome Summary

The Administrative Law Judge denied the Petitioner's request, finding that the HOA's action to uniformly assess all CR-1 Lots (including Petitioner's two uncombined lots) adhered to the Association Bylaws, which require uniform rates, and did not violate ARS § 33-1803. The governing documents took precedence over any prior reduced assessment granted by a previous Board Order.

Why this result: Petitioner failed to prove the Association’s interpretation of the Bylaws requiring uniform assessment for all CR-1 lots was incorrect or unlawful, as her lots remained separate parcels according to the county map.

Key Issues & Findings

Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements.

Petitioner challenged the Association's decision to raise her assessment from 150% to 200% (full rate for two lots) based on the Association's interpretation that the Bylaws require uniform assessment rates for all CR-1 lots, arguing the new rate violated a long-standing prior Board Order (2003) granting her a reduced rate.

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 33-1802(4)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Bylaws Article IV, Covenant For Maintenance Assessments, Section 6

Analytics Highlights

Topics: HOA Assessment Dispute, Uniform Assessment Rate, Bylaws Interpretation, Planned Community, Governing Document Precedence
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 33-1802(4)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

19F-H1918017-REL Decision – 698354.pdf

Uploaded 2025-10-09T03:33:35 (137.2 KB)





Briefing Doc – 19F-H1918017-REL


Briefing Document: Brokaw v. Sin Vacas Property Owners Association (Case No. 19F-H1918017-REL)

Executive Summary

This document synthesizes the findings of the Administrative Law Judge Decision in the case of Loraine Brokaw versus the Sin Vacas Property Owners Association (POA). The central conflict concerned the POA Board’s decision to increase Ms. Brokaw’s annual assessment from 150% to 200% for a single residence constructed across two separate lots.

The Petitioner, Ms. Brokaw, argued that this increase was unlawful and capricious, violating a nearly thirty-year practice that had been formalized by a 2003 Board decision granting her a reduced assessment. The POA contended that its action, taken on the advice of counsel, was necessary to comply with the Association’s governing documents, which mandate uniform assessments for all lots.

The Administrative Law Judge (ALJ) ultimately denied the homeowner’s petition. The decision established a critical legal precedent for the Association: the unambiguous language of the governing Covenants, Conditions, and Restrictions (CC&Rs) takes precedence over any past Board decisions, informal agreements, or long-standing practices, regardless of their duration. Because the Petitioner owns two distinct, legally unconsolidated lots, the ALJ found that the Board’s action to assess each lot at the full, uniform rate was not a violation, but rather a correct and required application of the community’s Bylaws.

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I. Case Overview

• Parties: Loraine Brokaw (Petitioner) vs. Sin Vacas Property Owners Association (Respondent).

• Jurisdiction: Office of Administrative Hearings (OAH), State of Arizona.

• Case Number: 19F-H1918017-REL.

• Presiding Judge: Administrative Law Judge Jenna Clark.

• Hearing Date: March 25, 2019.

• Decision Date: April 01, 2019.

II. Central Issue of the Dispute

The hearing was convened to address the following issue, as stated in the NOTICE OF HEARING:

“Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements based on utterly flawed legal theory, which, in fact, changed from attorney to attorney.”

The core of the dispute was the Association Board’s decision in 2017 to increase the annual assessment for the Petitioner’s property—a single home built across two adjacent lots—from 150% to 200% of the standard single-lot assessment rate. The Petitioner sought to compel the Board to revert to the 150% assessment schedule and reimburse her for costs associated with the petition.

III. Petitioner’s Position and Key Testimony

• Property History: The Petitioner testified that her husband first bought property in Sin Vacas in 1979. In 2003, the couple purchased an adjacent lot and constructed a new home that spanned across both properties (Lots 156 and 157).

• Claim of Lot Combination: The Petitioner claimed to have legally combined the two lots but presented no supporting documentation to the tribunal.

• Historical Assessment Practice: The Petitioner testified that as of 2003, the Association’s practice was to assess properties as follows:

◦ 100%: For a home on a single lot.

◦ 25%: For an undeveloped vacant lot.

◦ 150%: For a residence situated on two lots.

• 2003 Board Decision: On March 24, 2003, the Petitioner received written confirmation from the Board that it had voted to grant her a reduced assessment of 150%, formalizing the existing practice for her property.

• 2017 Assessment Change: On or about December 4, 2017, the Petitioner received a letter from the Association’s management company advising that the Board had decided to raise her assessment to 200%, citing “advice of counsel.”

• Rationale for Increase: The Petitioner stated she was given varying reasons for the change but was ultimately informed that the Board determined all plats needed to be assessed uniformly according to the Association’s governing documents. She was also told that to be assessed as a single lot, she would need to formally combine the lots on the county plat map, a process estimated to cost between $3,000 and $10,000 and require the permission of every other homeowner in the community.

IV. Respondent’s Position

The Sin Vacas Property Owners Association declined to present witnesses or exhibits. Its position at the hearing was that the dispute arose from differing interpretations of the language within the governing Bylaws. The Association’s counsel stated that the matter would be resolved based on the tribunal’s interpretation of the relevant governing texts.

V. Analysis of Governing Documents

The decision rested heavily on the interpretation of the Association’s Covenants, Conditions, and Restrictions (CC&Rs), recorded on April 13, 1978.

Document Section

Key Provision

Relevance to the Case

Bylaws Article I, Section 5

Defines a “Lot” as “any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties.”

This established that the Petitioner’s two properties, being separately numbered on the subdivision map, constitute two distinct lots for assessment purposes.

Bylaws Article IV, Section 6

“Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”

This clause was central to the Judge’s decision. It establishes a clear mandate for uniformity in assessments across all lots of the same type (CR-1), which the 150% rate violated by treating two CR-1 lots differently from others.

Bylaws Article IV, Section 7

States the Board of Directors shall “fix the amount of the annual assessment against each Lot.”

This empowers the Board to set assessments but reinforces that they must do so on a per-lot basis, consistent with the uniformity requirement.

VI. Judge’s Findings and Conclusions of Law

The Administrative Law Judge made the following key determinations, leading to the denial of the petition:

• Failure to Meet Burden of Proof: The Petitioner failed to prove by a preponderance of the evidence that the Association violated community documents or Arizona statutes.

• Undisputed Material Facts: The Judge found it undisputed that:

1. The Petitioner owns two distinct CR-1 lots (Lot 156 and Lot 157).

2. The lots have never been legally combined or consolidated on the Pima County Assessor’s plat map.

3. The Petitioner’s residence is constructed across both lots.

• Primacy of Governing Documents: The central conclusion of the decision was that the Association’s governing documents supersede any past Board decisions or long-standing informal agreements. The Judge stated:

• Uniformity is Mandatory: The Bylaws require that the Association assess all developed CR-1 lots at a uniform rate. By assessing both of the Petitioner’s lots at the same full rate as every other developed CR-1 lot, the Association was found to be complying with the Declaration.

• Board’s Action as Corrective: The 2017 Board’s action was not a breach of contract or an unlawful act. Instead, it was an appropriate correction of the previous Board’s 2003 order, which was inconsistent with the Bylaws’ uniformity mandate. The Petitioner’s argument that the 2003 order should supersede the 2017 order was deemed inaccurate.

VII. Final Order

Based on the findings and legal conclusions, the Administrative Law Judge ordered that the Petitioner’s petition be denied.

The decision affirmed that the Sin Vacas Property Owners Association Board’s action to uniformly assess all CR-1 lots did not violate Arizona state law (ARIZ. REV. STAT. § 33-1803) or the Association’s Bylaws.






Study Guide – 19F-H1918017-REL


Study Guide: Brokaw v. Sin Vacas Property Owners Association

This guide reviews the key facts, legal arguments, and final ruling in the administrative hearing case No. 19F-H1918017-REL, Loraine Brokaw v. Sin Vacas Property Owners Association.

Short-Answer Quiz

Answer each question in 2-3 sentences, based on the provided source document.

1. Who were the primary parties involved in the hearing, and what were their respective roles?

2. What specific relief did the Petitioner request from the Office of Administrative Hearings?

3. What specific action taken by the Respondent prompted the Petitioner to file her petition?

4. Describe the assessment practice that the Sin Vacas Board had in place for the Petitioner’s property from 2003 until the change in 2017.

5. What was the Association’s stated reason for increasing the Petitioner’s assessment from 150% to 200%?

6. According to the Association’s Bylaws, what is the rule for how special assessments must be fixed and apportioned?

7. On what grounds did the Administrative Law Judge determine that the Petitioner owned two separate lots?

8. What is the legal standard of proof required in this case, and did the Petitioner successfully meet it?

9. Why did the Judge rule that the 2003 Board Order reducing the Petitioner’s assessment was not a binding contract?

10. What was the final order issued by the Administrative Law Judge in this matter?

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Answer Key

1. The primary parties were Loraine Brokaw, the Petitioner, who brought the action, and the Sin Vacas Property Owners Association, the Respondent. The case was heard by Administrative Law Judge Jenna Clark from the Office of Administrative Hearings.

2. The Petitioner requested that the Association’s Board be compelled to honor the 30-year assessment schedule and charge her the 150% assessment rate. She also requested that the Board reimburse her for the costs of bringing the petition.

3. The Petitioner filed her petition after receiving a letter on or about December 4, 2017, from the Association’s management company. This letter advised her that the Board had decided to raise her assessment from 150% to 200% based on “advice of counsel.”

4. Beginning in 2003, the Association assessed a home on a single lot at 100%, an undeveloped vacant lot at 25%, and a residence spanning two lots, like the Petitioner’s, at 150%. The Petitioner received written confirmation of her reduced 150% assessment from the Board on March 24, 2003.

5. The Association’s Board increased the assessment after determining that all plats needed to be assessed uniformly, per the Association’s Restatement. The increase was meant to bring her two lots into compliance with the governing documents.

6. Bylaws Article IV, Section 6 states that “Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”

7. The Judge’s conclusion was based on the undisputed fact that the Petitioner’s two properties, Lots 156 and 157, have never been officially combined or consolidated into a single numbered lot on the Pima County Assessor’s Office plat map.

8. The required standard of proof was a “preponderance of the evidence,” which means proving a contention is more probably true than not. The Judge found that the Petitioner failed to sustain her burden of proof.

9. The Judge ruled that the 2003 Board Order was not a binding contract because the Petitioner provided no proof of consideration tendered to the Association. Therefore, the Association’s governing documents took precedence over the informal agreement.

10. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The Judge concluded that the Board’s action to uniformly assess all CR-1 lots did not violate state statutes or the Association’s Bylaws.

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Essay Questions

The following questions are designed for longer, more analytical responses. No answers are provided.

1. Analyze the legal reasoning behind the Administrative Law Judge’s decision. Discuss the hierarchy of authority between the Association’s governing documents (CC&Rs) and a Board Order, as interpreted in this case.

2. Explain the concept of “burden of proof” in the context of this hearing. How did the Petitioner’s failure to meet the “preponderance of the evidence” standard lead to the denial of her petition?

3. The Petitioner’s case relied heavily on past practice and a 2003 Board decision to grant her a reduced assessment. Discuss why this argument was ultimately insufficient to overcome the explicit language of the Association’s governing documents.

4. Examine the contractual nature of a homeowners’ association’s CC&Rs as described in the Findings of Fact. How does this contractual relationship between the Association and each property owner shape the obligations and rights of both parties?

5. The Respondent (Sin Vacas POA) declined to present witnesses or exhibits, taking a passive stance at the hearing. Discuss the potential legal strategy behind this approach and how the undisputed material facts of the case made this a viable option.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official, in this case Jenna Clark, who presides over administrative hearings, reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders.

Association

The Sin Vacas Property Owners Association, a homeowners’ association for the Sin Vacas subdivision in Tucson, Arizona, responsible for managing, maintaining, and improving the property.

Assessment

A fee levied by the Association on property owners to promote the recreation, health, safety, and welfare of residents and for the improvement and maintenance of common areas and private streets.

Bylaws

The specific articles and sections within the CC&Rs that govern the Association’s operations, including definitions, assessment rules, and voting procedures.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing documents for the Association, recorded with Pima County on April 13, 1978. They form an enforceable contract between the Association and each property owner.

Department

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

Any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties, with the exception of the Common Area. This case deals specifically with CR-1 lots.

OAH (Office of Administrative Hearings)

An independent state agency to which the Department refers matters for evidentiary hearings. The OAH has the authority to hear and decide contested cases and interpret contracts between parties.

Petitioner

Loraine Brokaw, a property owner in the Sin Vacas subdivision and member of the Association who filed the petition against the Association.

Planned Community

A real estate development where owners of separately owned lots are mandatory members of a nonprofit association and are required to pay assessments for the purpose of managing, maintaining, or improving the property.

Preponderance of the evidence

The standard of proof required for the Petitioner to win her case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and represents the greater weight of evidence.

Respondent

The Sin Vacas Property Owners Association, the entity against whom the petition was filed.






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