Tag Archives: ARIZ. REV. STAT. § 33-1804

Marilyn J Fogelsong vs Park Townhouses Homeowners Association, INC

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Case Summary

Case ID 25F-H050-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-08-05
Administrative Law Judge Nicole Robinson
Outcome loss
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Marilyn J. Fogelsong Counsel —
Respondent Park Townhouses Homeowners Association, INC. Counsel —

Alleged Violations

ARIZ. REV. STAT. § 33-1811
Paragraph 19 of the CC&Rs
ARIZ. REV. STAT. § 33-1804 (A) and (F)
ARIZ. REV. STAT. § 10-830(A)

Outcome Summary

Petitioner's petition was DENIED because Petitioner failed to meet her burden of proving by a preponderance of the evidence that Respondent committed the alleged violations, and the Tribunal lacked jurisdiction to enforce the alleged violation of ARIZ. REV. STAT. § 10-830(A).

Why this result: Petitioner failed to meet her burden of proof on all four issues. Issues 1, 2, and 3 lacked sufficient evidentiary support or statutory violation proof. Issue 4 was dismissed due to lack of OAH jurisdiction over ARS § 10-830.

Key Issues & Findings

The HOA failed to disclose conflicts-of-interest when hiring an HOA property manager to manage the HOA which is a violation of ARS 33-1811.

Petitioner alleged that the hiring of TRT (Tucson Realty & Trust Company, Management Services, LLC) as the HOA manager constituted an undisclosed conflict of interest because TRT also managed individual townhouses within the community.

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1811

The HOA has violated paragraph 19 of the CC&Rs by directing an HOA property manager to pursue an unsanctioned project for individual townhouses which is beyond the scope of HOA management for common areas.

The HOA manager solicited bids to paint the exteriors of all townhouses. Petitioner argued the HOA lacked authority to manage improvements for individual units, as Paragraph 19 limits HOA authority to common areas.

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Paragraph 19 of the CC&Rs

The board has violated the open meeting laws of ARS 33-1804 (A) and (F) by holding a private board meeting without notice; failing to provide material information, minutes, financial statements, and a budget upon request; and by failing to communicate via the designated representative.

Petitioner alleged the HOA violated open meeting laws by failing to provide proper notice for meetings and failing to provide requested documentation (minutes, financial statements, etc.).

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804

The board has violated ARS 10-830(A) by failing to act in good faith with the care an ordinarily prudent person in a like position would act by failing to perform their duties.

Petitioner alleged the board failed to perform required duties in a timely or prudent manner, including failing to elect officers, manage the bank account, check the post office box, and schedule a backflow test.

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 10-830

Analytics Highlights

Topics: HOA Management, Conflict of Interest, Open Meeting Law, Jurisdiction, Planned Community, CC&Rs, Director Duty, Burden of Proof
Additional Citations:

  • ARIZ. REV. STAT. § 33-1811
  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 10-830
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 41-1092
  • Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Declaration of Covenants, Conditions and Restrictions for Park Association

Audio Overview

Decision Documents

25F-H050-REL Decision – 1336348.pdf

Uploaded 2026-01-23T18:23:33 (157.7 KB)

25F-H050-REL Decision – 1348020.pdf

Uploaded 2026-01-23T18:23:37 (43.9 KB)

25F-H050-REL Decision – 1380164.pdf

Uploaded 2026-01-23T18:23:41 (51.8 KB)

25F-H050-REL Decision – 1384549.pdf

Uploaded 2026-01-23T18:23:45 (49.0 KB)

25F-H050-REL Decision – 1384804.pdf

Uploaded 2026-01-23T18:23:50 (7.5 KB)

25F-H050-REL Decision – 1393862.pdf

Uploaded 2026-02-12T19:19:32 (59.6 KB)





Briefing Doc – 25F-H050-REL


Briefing Document: Fogelsong vs. Park Townhouses Homeowners Association (Docket No. 25F-H050-REL)

Executive Summary

This document synthesizes the proceedings and outcome of the legal dispute between Marilyn J. Fogelsong (“Petitioner”) and the Park Townhouses Homeowners Association, Inc. (“Respondent”). The case was adjudicated by the Arizona Office of Administrative Hearings (OAH).

The Petitioner, a co-owner of a unit in the eight-unit Park Townhouses community, filed a petition on or about March 31, 2025, alleging four distinct violations by the HOA board. These allegations included failure to disclose a conflict of interest in hiring an HOA manager, violating the community’s CC&Rs by pursuing projects for individual units, violating state open meeting laws, and failing to act in good faith as fiduciaries.

An evidentiary hearing was conducted on July 16, 2025, before Administrative Law Judge (ALJ) Nicole Robinson. The Respondent did not appear at the hearing, and the Petitioner provided sole testimony.

On August 5, 2025, the ALJ issued a decision denying the Petitioner’s petition in its entirety. The judge concluded that the Petitioner failed to meet her burden of proof by a preponderance of the evidence for three of the four issues. The fourth issue was dismissed on the grounds that the OAH lacked the jurisdiction to enforce the specific statute cited (A.R.S. § 10-830). A subsequent request for a rehearing filed by the Petitioner was rejected by the OAH as it was submitted to the incorrect office after the OAH’s jurisdiction had ended.

Case Overview

Case Number

25F-H050-REL

Adjudicating Body

Arizona Office of Administrative Hearings (OAH)

Administrative Law Judge

Nicole Robinson

Petitioner

Marilyn J. Fogelsong

Respondent

Park Townhouses Homeowners Association, Inc.

Subject Property

Park Townhouses, an 8-unit planned community in Tucson, AZ

Petition Filed

On or about March 31, 2025

Hearing Date

July 16, 2025

Decision Issued

August 5, 2025

Final Outcome

Petition DENIED

The Parties and Property

• Petitioner Marilyn J. Fogelsong: A partial owner of unit 2467 East 1st Street since April 2021, co-owning with her 39-year-old son who resides in the unit. Fogelsong previously served as the HOA board president for three years, with her last term ending in September 2024.

• Respondent Park Townhouses HOA: A planned community association for an eight-unit townhouse development in Tucson, Arizona. Each unit owner is responsible for their own structure and lot.

• The Property: The community consists of two buildings, each with four townhouses facing each other across a 20-foot wide common driveway.

Petitioner’s Allegations and Testimony

During the July 16, 2025 hearing, Ms. Fogelsong, representing herself, presented testimony on the four issues outlined in her petition. The HOA did not appear.

Issue #1: Conflict of Interest (A.R.S. § 33-1811)

The Petitioner alleged that the HOA failed to disclose conflicts of interest when hiring Tucson Realty & Trust Company (TRT) as the HOA property manager, rendering the contract void.

• Core Allegation: On February 17, 2025, the HOA board presented only one proposal—from TRT—and asked homeowners to approve the hire without disclosing pertinent conflicts.

• Identified Conflicts:

◦ TRT’s property management division manages two units within the community (2463 and 2467) owned by then-current board members Mark Schlang (Treasurer) and Gerald Schwarzenb[erger] (Secretary).

◦ Both the property management and HOA management divisions of TRT operate under the same broker, Deborah Garcia.

• History of Misconduct by TRT: The Petitioner testified to a history of issues with TRT that she believed constituted conflicts of interest:

◦ TRT collected parking violation fines from a tenant but failed to remit them to the HOA.

◦ TRT failed to provide tenant contact information to the HOA upon request, which is a violation of Arizona law.

◦ TRT’s attorney, BL Edmonson, sent a “cease and desist” letter to Fogelsong and then invoiced the HOA for the legal fees, which Fogelsong, as president at the time, rejected. The invoice was resubmitted to the HOA 18 months later.

Issue #2: CC&R Violation (Paragraph 19)

The Petitioner alleged the HOA violated Paragraph 19 of the Covenants, Conditions, and Restrictions (CC&Rs) by directing the HOA manager to pursue an “unsanctioned project for individual townhouses.”

• Core Allegation: The HOA manager (TRT) met with a painting company on March 31, 2025, to solicit bids for painting the exteriors of all townhouses. The Petitioner argued this action is beyond the scope of the HOA’s authority, which is limited to maintaining common areas.

• Supporting Evidence:

◦ The Petitioner cited a legal opinion she obtained from an HOA attorney, Jason Smith, which concluded that the HOA does not have the right to conduct repairs on individual units.

◦ She referenced a past incident where another homeowner, David Zinfeld, paid an assessment for awning wood repair “under protest” because the funds were being used for an individual unit, not a common area.

Issue #3: Open Meeting Law Violations (A.R.S. § 33-1804)

The Petitioner claimed the board violated Arizona’s open meeting laws through multiple actions.

• Secret Meeting: The board held a private meeting to approve TRT as the manager before the February 17, 2025, homeowners meeting where the vote occurred. No notice of this prior board meeting was given to homeowners.

• Failure to Provide Information: The Petitioner made multiple requests for documents that were ignored. She requested management proposals on February 4, 2025, and later requested minutes, financial statements, and property management agreements, none of which were provided.

• Disregarded Standing: In its written response to the petition, the HOA claimed the Petitioner lacked “sufficient standing” due to her “limited ownership stake,” a position the Petitioner refutes based on her recorded deed.

Issue #4: Failure to Act in Good Faith (A.R.S. § 10-830A)

The Petitioner alleged the board failed to perform its duties with the care an “ordinarily prudent person” would exercise.

• Dereliction of Duties:

◦ The board, elected in September 2024, waited 10 weeks to meet and elect officers.

◦ The board failed to take control of the HOA bank account until March 2025, approximately six months into its one-year term.

◦ It failed to schedule a required annual backflow test for the irrigation system, resulting in the water being shut off.

◦ It failed to replace a dead tree that was on the agenda for replacement in fall 2024.

◦ It failed to check the HOA’s post office box, leading to the return of dues checks from homeowners.

◦ It did not abate new graffiti for six weeks, at which point the Petitioner did so herself after receiving permission.

Respondent’s Position

Although the HOA was not present at the hearing, its positions were articulated in a five-page written response submitted to the Department of Real Estate on May 8, 2025, and were referenced during the hearing.

• Denial of Claims: The Respondent denied all of the Petitioner’s claims.

• Challenge to Standing: The HOA’s formal position was that Ms. Fogelsong lacked sufficient standing due to her “limited ownership stake.”

• Allegation of Ulterior Motive: The Respondent accused the Petitioner of a “calculated and systematic attempt to devalue the property and agitate the owners to possibly sell their respective units to Miss Fogong [sic] and her son at a below market value.” They claimed several owners could testify to her “repeated suggestions and solicitations to sell.”

• Claim of Non-cooperation: The HOA stated that the Petitioner had “not been fully cooperative in the transition process” regarding missing documentation after her term as president ended.

Administrative Law Judge’s Decision

On August 5, 2025, ALJ Nicole Robinson issued a decision denying the petition. The core finding was that the Petitioner failed to meet her burden of proving the violations by a preponderance of the evidence.

Findings on Each Issue

• Issue #1 (Conflict of Interest): No Violation Found. The ALJ concluded that the Petitioner failed to prove the hiring of TRT constituted a conflict of interest as defined by A.R.S. § 33-1811. The evidence showed that a prior management company (McElwain) also managed individual units while serving as the HOA manager, suggesting this was an established practice. The statute specifically addresses benefits to board members or their families, which was not sufficiently established by the evidence presented.

• Issue #2 (CC&R Violation): No Violation Found. The decision stated that the Petitioner failed to submit the entirety of the CC&Rs and Bylaws, providing only “snippets.” Without the complete governing documents, the tribunal could not definitively determine the scope of the HOA’s authority regarding projects on individual units. Furthermore, the evidence only showed that a bid was solicited for painting; there was no evidence that work was actually performed.

• Issue #3 (Open Meeting Law): No Violation Found. The ALJ found that the February 17, 2025, meeting was properly noticed via email. Regarding a March 5, 2025, email the Petitioner did not receive, the evidence showed her co-owner son did receive it, meaning the unit was properly notified. A December 2024 meeting was deemed emergent, for which the statute does not require prior notice.

• Issue #4 (Failure to Act in Good Faith): No Jurisdiction. The ALJ concluded that the Office of Administrative Hearings lacks jurisdiction to enforce A.R.S. § 10-830. The OAH’s authority is limited by statute to adjudicating violations of Title 33 (Planned Communities and Condominiums) and community documents, not Title 10 (Corporations and Associations).

Post-Decision Events

• On August 26, 2025, the Petitioner filed a request for a rehearing.

• On September 8, 2025, the OAH issued a Minute Entry stating that the request would not be considered because it was “inappropriately sent to the Office of Administrative Hearings.”

• The OAH’s jurisdiction over the matter had concluded with the August 5 decision. The Petitioner was advised to address any further requests to the Arizona Department of Real Estate.


Case Participants

Petitioner Side

  • Marilyn J. Fogelsong (petitioner)
    Park Townhouses HOA
    Represented herself; former HOA President/Treasurer
  • Levi Benjamin Lazarus (co-owner/son of petitioner)
    Park Townhouses HOA
    Co-owner of petitioner's unit
  • Jason Smith (HOA attorney)
    Consulted by petitioner regarding CC&R interpretation for unit repairs

Respondent Side

  • Gerald Schwarzenb (board member/Secretary)
    Park Townhouses HOA
    Current HOA board member; his unit managed by TRT
  • Mark Schlang (board member/Treasurer/architect)
    Park Townhouses HOA
    Current HOA board member; his unit managed by TRT
  • Deborah Garcia (broker/HOA manager)
    TRT Property Management
    Broker of TRT; homeowners voted to accept her as HOA manager
  • Andrew Viscara (HOA property manager)
    TRT Property Management
    TRT representative designated for Park Townhouses HOA management
  • Mary Lord Lr (property manager)
    TRT Property Management
    Property manager for unit 2465
  • B.L. Edmonson (attorney)
    TRT Property Management
    Wrote cease and desist letter to petitioner; billed HOA

Neutral Parties

  • Nicole Robinson (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    ADRE

Other Participants

  • David Zinfeld (homeowner/former Treasurer)
    Park Townhouses HOA
    Property owner; prior treasurer during self-managed period; paid assessment under protest
  • Ray Floyd (former board member)
    Park Townhouses HOA
    Served on board with petitioner during self-managed period
  • Sasha Flores (bank account signer)
    Park Townhouses HOA
    Wife of Rick Flores; co-signer on HOA bank account
  • Rick Flores (homeowner/delegate)
    Park Townhouses HOA
    Delegated authority to wife Sasha Flores for bank account deeds

Marilyn J Fogelsong

Posted on by

Case Summary

Case ID 25F-H050-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-08-05
Administrative Law Judge Nicole Robinson
Outcome loss
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Marilyn J. Fogelsong Counsel —
Respondent Park Townhouses Homeowners Association, INC. Counsel —

Alleged Violations

ARIZ. REV. STAT. § 33-1811
Paragraph 19 of the CC&Rs
ARIZ. REV. STAT. § 33-1804 (A) and (F)
ARIZ. REV. STAT. § 10-830(A)

Outcome Summary

Petitioner's petition was DENIED because Petitioner failed to meet her burden of proving by a preponderance of the evidence that Respondent committed the alleged violations, and the Tribunal lacked jurisdiction to enforce the alleged violation of ARIZ. REV. STAT. § 10-830(A).

Why this result: Petitioner failed to meet her burden of proof on all four issues. Issues 1, 2, and 3 lacked sufficient evidentiary support or statutory violation proof. Issue 4 was dismissed due to lack of OAH jurisdiction over ARS § 10-830.

Key Issues & Findings

The HOA failed to disclose conflicts-of-interest when hiring an HOA property manager to manage the HOA which is a violation of ARS 33-1811.

Petitioner alleged that the hiring of TRT (Tucson Realty & Trust Company, Management Services, LLC) as the HOA manager constituted an undisclosed conflict of interest because TRT also managed individual townhouses within the community.

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1811

The HOA has violated paragraph 19 of the CC&Rs by directing an HOA property manager to pursue an unsanctioned project for individual townhouses which is beyond the scope of HOA management for common areas.

The HOA manager solicited bids to paint the exteriors of all townhouses. Petitioner argued the HOA lacked authority to manage improvements for individual units, as Paragraph 19 limits HOA authority to common areas.

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Paragraph 19 of the CC&Rs

The board has violated the open meeting laws of ARS 33-1804 (A) and (F) by holding a private board meeting without notice; failing to provide material information, minutes, financial statements, and a budget upon request; and by failing to communicate via the designated representative.

Petitioner alleged the HOA violated open meeting laws by failing to provide proper notice for meetings and failing to provide requested documentation (minutes, financial statements, etc.).

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804

The board has violated ARS 10-830(A) by failing to act in good faith with the care an ordinarily prudent person in a like position would act by failing to perform their duties.

Petitioner alleged the board failed to perform required duties in a timely or prudent manner, including failing to elect officers, manage the bank account, check the post office box, and schedule a backflow test.

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 10-830

Analytics Highlights

Topics: HOA Management, Conflict of Interest, Open Meeting Law, Jurisdiction, Planned Community, CC&Rs, Director Duty, Burden of Proof
Additional Citations:

  • ARIZ. REV. STAT. § 33-1811
  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 10-830
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 41-1092
  • Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Declaration of Covenants, Conditions and Restrictions for Park Association

Marilyn J Fogelsong vs Park Townhouses Homeowners Association, 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 25F-H050-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-08-05
Administrative Law Judge Nicole Robinson
Outcome loss
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Marilyn J. Fogelsong Counsel —
Respondent Park Townhouses Homeowners Association, INC. Counsel —

Alleged Violations

ARIZ. REV. STAT. § 33-1811
Paragraph 19 of the CC&Rs
ARIZ. REV. STAT. § 33-1804 (A) and (F)
ARIZ. REV. STAT. § 10-830(A)

Outcome Summary

Petitioner's petition was DENIED because Petitioner failed to meet her burden of proving by a preponderance of the evidence that Respondent committed the alleged violations, and the Tribunal lacked jurisdiction to enforce the alleged violation of ARIZ. REV. STAT. § 10-830(A).

Why this result: Petitioner failed to meet her burden of proof on all four issues. Issues 1, 2, and 3 lacked sufficient evidentiary support or statutory violation proof. Issue 4 was dismissed due to lack of OAH jurisdiction over ARS § 10-830.

Key Issues & Findings

The HOA failed to disclose conflicts-of-interest when hiring an HOA property manager to manage the HOA which is a violation of ARS 33-1811.

Petitioner alleged that the hiring of TRT (Tucson Realty & Trust Company, Management Services, LLC) as the HOA manager constituted an undisclosed conflict of interest because TRT also managed individual townhouses within the community.

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1811

The HOA has violated paragraph 19 of the CC&Rs by directing an HOA property manager to pursue an unsanctioned project for individual townhouses which is beyond the scope of HOA management for common areas.

The HOA manager solicited bids to paint the exteriors of all townhouses. Petitioner argued the HOA lacked authority to manage improvements for individual units, as Paragraph 19 limits HOA authority to common areas.

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Paragraph 19 of the CC&Rs

The board has violated the open meeting laws of ARS 33-1804 (A) and (F) by holding a private board meeting without notice; failing to provide material information, minutes, financial statements, and a budget upon request; and by failing to communicate via the designated representative.

Petitioner alleged the HOA violated open meeting laws by failing to provide proper notice for meetings and failing to provide requested documentation (minutes, financial statements, etc.).

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804

The board has violated ARS 10-830(A) by failing to act in good faith with the care an ordinarily prudent person in a like position would act by failing to perform their duties.

Petitioner alleged the board failed to perform required duties in a timely or prudent manner, including failing to elect officers, manage the bank account, check the post office box, and schedule a backflow test.

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 10-830

Analytics Highlights

Topics: HOA Management, Conflict of Interest, Open Meeting Law, Jurisdiction, Planned Community, CC&Rs, Director Duty, Burden of Proof
Additional Citations:

  • ARIZ. REV. STAT. § 33-1811
  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 10-830
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 41-1092
  • Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Declaration of Covenants, Conditions and Restrictions for Park Association

Anne F. Segal vs Prince Court Homeowners Association, INC.

Posted on by

Case Summary

Case ID 25F-H032-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-05-22
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Anne F. Segal Counsel —
Respondent Prince Court Homeowners Association, Inc. Counsel Wendy Ehrlich, Esq.

Alleged Violations

ARIZ. REV. STAT. §§ 33-1812, 33-1803(B-E), 33-1804, 33-1817, and CC&Rs Article VII

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the Association was legally permitted to amend its CC&Rs via written, notarized consent of the members under ARIZ. REV. STAT. § 33-1817(A)(1), and that the actions taken did not violate the cited statutes or the governing documents.

Why this result: Petitioner failed to meet the burden of proof; statutory requirements regarding voting (33-1812) and violation notices (33-1803) were inapplicable, and the process of using written consent and closed sessions for legal advice adhered to ARIZ. REV. STAT. §§ 33-1817 and 33-1804.

Key Issues & Findings

Alleged unlawful procedures in replacing CC&Rs

Petitioner alleged the Association violated multiple Arizona Revised Statutes and CC&Rs Article VII by using unlawful procedures to replace the existing CC&Rs. Specific complaints included the Board directing members to sign a notarized agreement without permitting open discussion or dissent on specific proposed changes, arguing that a full vote was required. Respondent argued compliance with ARS § 33-1817 and CC&Rs Article VII, which permits amendment via written consent.

Orders: Petitioner’s petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1812
  • ARIZ. REV. STAT. § 33-1803(B-E)
  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 33-1817
  • CC&Rs Article VII
  • ARIZ. REV. STAT. § 10-3704

Analytics Highlights

Topics: HOA, CC&R Amendment, Written Consent, Executive Session, Statutory Interpretation, Planned Community, Filing Fee
Additional Citations:

  • ARIZ. REV. STAT. § 33-1812
  • ARIZ. REV. STAT. § 33-1803(B-E)
  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 33-1817
  • CC&Rs Article VII
  • ARIZ. REV. STAT. § 10-3704
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1802

Audio Overview

Decision Documents

25F-H032-REL Decision – 1269718.pdf

Uploaded 2026-01-23T18:17:43 (53.7 KB)

25F-H032-REL Decision – 1269742.pdf

Uploaded 2026-01-23T18:17:47 (7.8 KB)

25F-H032-REL Decision – 1274756.pdf

Uploaded 2026-01-23T18:17:51 (54.6 KB)

25F-H032-REL Decision – 1274775.pdf

Uploaded 2026-01-23T18:17:55 (7.9 KB)

25F-H032-REL Decision – 1277633.pdf

Uploaded 2026-01-23T18:18:01 (48.1 KB)

25F-H032-REL Decision – 1288621.pdf

Uploaded 2026-01-23T18:18:08 (51.6 KB)

25F-H032-REL Decision – 1308520.pdf

Uploaded 2026-01-23T18:18:15 (206.1 KB)





Briefing Doc – 25F-H032-REL


Briefing Document: Segal vs. Prince Court Homeowners Association, Inc.

Executive Summary

This document synthesizes the proceedings and outcome of the administrative case Anne F. Segal, Petitioner, vs. Prince Court Homeowners Association, Inc., Respondent (No. 25F-H032-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute centered on the petitioner’s allegation that the respondent HOA utilized unlawful procedures to replace the community’s Covenants, Conditions, and Restrictions (CC&Rs).

The petitioner argued that the HOA violated state statutes and the original governing documents by failing to hold sufficient open meetings for discussion, by not providing a proper ballot for a vote, and by circumventing a one-year discussion period intended by the original developer. Key evidence presented by the petitioner included testimony from the community’s original developer, who affirmed his intent for a lengthy, homeowner-driven amendment process, and testimony detailing significant, substantive changes to the CC&Rs that were allegedly not transparently communicated.

The respondent HOA defended its actions by asserting full compliance with Arizona law, particularly A.R.S. § 33-1817, which permits amendments via written consent of a majority of homeowners—a process legally distinct from a formal vote. The HOA maintained that state law superseded any conflicting provisions in the original CC&Rs. The board justified its decision to forgo a large, open-forum meeting by citing perceived “aggressive and threatening” communications from the petitioner, opting instead for a process of email-based “straw polls,” a formal Q&A period with its attorney, and a notarization event for collecting written consent.

Ultimately, the Administrative Law Judge (ALJ) denied the petition. The final decision concluded that the petitioner failed to meet her burden of proof. The ALJ found that the HOA acted lawfully by using executive sessions to obtain legal advice, by amending the CC&Rs through the statutory process of written consent, and that other statutes cited by the petitioner were inapplicable to the case.

Case Overview

The matter involves a formal petition filed on December 22, 2024, by homeowner Anne F. Segal with the Arizona Department of Real Estate. The petition alleged that the Prince Court Homeowners Association, Inc. violated multiple Arizona Revised Statutes (§§ 33-1812, 33-1803(B-E), 33-1804, 33-1817) and its own governing documents (initially cited as Article V, later amended to Article VII) during the process of replacing the community’s CC&Rs.

The case was referred to the Office of Administrative Hearings, with evidentiary hearings held on March 27, 2025, and May 2, 2025, before Administrative Law Judge Jenna Clark. A final decision denying the petition was issued on May 22, 2025.

Key Parties and Witnesses

Name / Entity

Key Contributions

Anne F. Segal

Petitioner, Homeowner

Argued the HOA’s process was unlawful, lacked transparency, and violated open meeting laws and voting rights. Provided testimony and evidence regarding communications and the substance of the CC&R changes.

Prince Court Homeowners Association

Respondent

Defended its amendment process as compliant with state statutes for written consent and justified its communication methods based on legal advice and the petitioner’s conduct.

Mary Beth Snyder

President, HOA Board

Testified on behalf of the HOA (also called as an adverse witness by Petitioner). Detailed the board’s decision-making process, reliance on legal counsel, and rationale for avoiding an open-forum meeting.

Susan Matheson

Vice President, HOA Board

Corroborated Snyder’s testimony. Testified to managing the HOA’s email communications, including the accidental removal of David Zinfeld from the distribution list. Detailed complaints received from other homeowners about the petitioner’s communications.

David Zinfeld

Witness for Petitioner; Original Developer of Prince Court

Testified that he wrote the original CC&Rs with the intent for a year-long, homeowner-led discussion before any amendments. Stated he stopped receiving HOA communications and was not involved in or properly notified of the replacement process.

Dr. Robert Segal

Witness for Petitioner; Husband of Petitioner and Property Manager

Testified to the lack of open meetings and poor communication. Described the proposed CC&R changes as a “heart transplant” and highlighted discrepancies between the board’s “summary of changes” and the actual legal text.

Wendy Ehrlich, Esq.

Counsel for Respondent

Provided legal advice to the HOA board, which formed the basis for their procedural decisions. Argued the case for the Respondent during the hearings.

Jenna Clark

Administrative Law Judge

Presided over the hearings and issued the final decision, concluding the HOA acted lawfully and denying the petition.

——————————————————————————–

Central Arguments and Evidence

Petitioner’s Core Allegations

The petitioner’s case was built on the premise that the HOA’s procedure for replacing the CC&Rs was fundamentally flawed and unlawful.

• Violation of Governing Documents (Article VII): The petitioner argued the HOA ignored the original CC&Rs, which, according to the original developer David Zinfeld, intended a one-year period of open discussion prior to any amendment. Zinfeld testified, “I wanted it to be done at least a year beforehand…with discussion and meetings before any amendments should take place.”

• Improper Amendment Process: The petitioner contended that the “notarized agreement” process was not a valid “vote” and violated A.R.S. § 33-1812. This process did not provide a formal ballot or an opportunity for homeowners to vote “for or against” the action, effectively silencing dissent.

• Violation of Open Meeting Laws (A.R.S. § 33-1804): The petitioner alleged a lack of genuine open meetings where the substance of the new CC&Rs could be debated. Testimony indicated that discussions about the CC&Rs primarily occurred in closed executive sessions, justified by the board as necessary for receiving legal advice.

• Inadequate and Misleading Communication: Dr. Robert Segal described the summary of changes provided by the board as misleading and incomplete. He gave specific examples, such as a new rule allowing the board to remove any “objectionable” vehicle, which was not mentioned in the summary provided to homeowners. The petitioner also argued that relying solely on an incomplete and unverified email list was an unreasonable means of notice.

• Substantive Overhaul Without Consent: Dr. Segal characterized the changes as a “heart transplant,” not a minor revision. He noted the new CC&Rs gave the board “much more power and authority,” including the ability to raise fees by 20% per year.

Respondent’s Defense

The respondent HOA maintained that its actions were deliberate, based on legal counsel, and fully compliant with Arizona law.

• Adherence to Statutory Process (A.R.S. § 33-1817): The HOA’s central defense was that A.R.S. § 33-1817 allows for CC&R amendments through either an “affirmative vote or written consent.” They argued they lawfully chose the written consent path, which does not require a formal ballot under A.R.S. § 33-1812. Their counsel stated, “Article 7 dictated written consent. There was no vote conducted.”

• State Law Supersedes Governing Documents: The HOA argued, and noted in its October 14, 2024 email to members, that “The time limitations for CC&R amendments set forth in our current CC&Rs, Article VII… have been superseded by Arizona law which allows CC&Rs to be amended at any time; see A.R.S. § 33-1817.”

• Justification for Avoiding an Open Forum: Both Mary Beth Snyder and Susan Matheson testified that the decision not to hold a large, in-person informational meeting was based on legal advice and the board’s concern that the petitioner would “hijack the meeting” due to her perceived “aggressive and threatening” emails and communications. Matheson read excerpts from petitioner’s emails, including phrases like “This unilateral decision of the board is buying a lawsuit” and “I’m willing to legally challenge this effort.”

• Reasonable Communication Efforts: The board defended its use of email as a reasonable means of notice. They testified to sending eight separate email communications regarding the CC&Rs, including “straw polls” to gauge opinion, drafts of the new CC&Rs, and a formal Q&A where the board’s attorney answered submitted questions.

——————————————————————————–

Final Adjudication: Administrative Law Judge Decision

On May 22, 2025, Judge Jenna Clark issued a decision denying the petition in its entirety, finding that the petitioner had not sustained her burden of proof.

Findings of Fact

The decision outlined a timeline of events from the initial announcement in March 2024 to the notarization event in December 2024. Key findings included:

• The board hired counsel in April 2024 to assist with updating the CC&Rs.

• The association conducted “straw poll” emails in July and August 2024.

• The board held closed executive sessions to discuss legal advice from its attorney regarding the CC&R revisions.

• A draft of the proposed CC&Rs was distributed to members via email on October 14, 2024.

• A Q&A process was conducted, with attorney-provided answers distributed on November 25, 2025.

• The association intentionally did not hold a large open meeting due to concerns over the petitioner’s perceived behavior.

• A majority of homeowners (at least 20 of 39) provided signed and notarized consent agreements.

Conclusions of Law

The ALJ made the following legal conclusions, which formed the basis of the denial:

1. Written Consent is a Lawful Process: The Tribunal found that A.R.S. § 33-1817(A)(1) explicitly allows an association to amend its declaration by “an affirmative vote or written consent.” The HOA lawfully chose the written consent method.

2. State Law Supersedes CC&Rs: The provisions of A.R.S. § 33-1817 supersede the edicts outlined in Article VII of the original CC&Rs regarding the amendment timeline.

3. Executive Sessions Were Permissible: The board was permitted under A.R.S. § 33-1804(A) to go into executive session to receive legal advice from its attorney, even if the advice was unrelated to pending litigation.

4. Inapplicability of Other Statutes: The statutes regarding voting procedures (A.R.S. § 33-1812) and violation notices (A.R.S. § 33-1803) were deemed inapplicable and irrelevant to the matter at hand, as no formal vote was conducted and no violation notice was issued to the petitioner.

5. Failure to Meet Burden of Proof: The decision concluded that the petitioner failed to establish by a preponderance of the evidence that the respondent had violated any of the cited statutes or its governing documents. The petition was therefore denied.






Study Guide – 25F-H032-REL


{ “case”: { “docket_no”: “25F-H032-REL”, “case_title”: “Anne F. Segal v. Prince Court Homeowners Association, Inc.”, “decision_date”: “2025-05-22”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can an HOA amend its CC&Rs by obtaining written consent from homeowners rather than holding a vote?”, “short_answer”: “Yes, an HOA is permitted to amend CC&Rs by written consent under A.R.S. § 33-1817(A)(1), and voting statutes do not apply to this process.”, “detailed_answer”: “The Administrative Law Judge ruled that the association was permitted to modify its CC&Rs by written consent of its members. Because this process falls under A.R.S. § 33-1817(A)(1), the statutes governing voting (A.R.S. § 33-1812) are considered unrelated and irrelevant to the proceedings.”, “alj_quote”: “It is clear from the record that the Association … was also permitted to modify or otherwise amend its CC&Rs by written consent of its Members under ARIZ. REV. STAT. § 33-1817(A)(1)… Notably, ARIZ. REV. STAT. §§ 33-1812(A) and 33-1803 are inapplicable to the proceedings at bar as unrelated and irrelevant.”, “legal_basis”: “A.R.S. § 33-1817(A)(1)”, “topic_tags”: [ “CC&R Amendments”, “Written Consent”, “Voting Rights” ] }, { “question”: “Does state law override CC&R provisions that restrict when amendments can be made (e.g., only every 10 years)?”, “short_answer”: “Yes, A.R.S. § 33-1817(A)(1) supersedes original CC&R restrictions regarding periodic renewal or specific timelines for amendments.”, “detailed_answer”: “The decision clarifies that state statute supersedes ‘edicts’ in original CC&Rs regarding timing for amendments. Even if the original documents specify a renewal period, the association can amend the documents via the statutory written consent process.”, “alj_quote”: “…permitted to modify or otherwise amend its CC&Rs by written consent of its Members under ARIZ. REV. STAT. § 33-1817(A)(1); which supersedes any edicts outlined in Article VII of the original CC&Rs.”, “legal_basis”: “A.R.S. § 33-1817(A)(1)”, “topic_tags”: [ “CC&R Amendments”, “State Statute Supremacy”, “Governing Documents” ] }, { “question”: “Can the HOA Board hold a closed executive session to get legal advice if there is no pending lawsuit?”, “short_answer”: “Yes, the Board may meet in executive session to receive legal advice from their attorney, even if it is unrelated to pending litigation.”, “detailed_answer”: “Homeowners often believe legal advice must relate to a lawsuit for a meeting to be closed. However, the ALJ ruled that the Board is permitted to go into executive session to receive legal advice unrelated to pending litigation under A.R.S. § 33-1804(A).”, “alj_quote”: “It is clear from the record that the Association was not only permitted to go into executive session to receive legal advice unrelated to pending litigation from its attorney under ARIZ. REV. STAT. § 33-1804(A)…”, “legal_basis”: “A.R.S. § 33-1804(A)”, “topic_tags”: [ “Open Meetings”, “Executive Session”, “Legal Advice” ] }, { “question”: “Is the HOA required to hold an open discussion or town hall meeting before amending the CC&Rs?”, “short_answer”: “No, the tribunal found that there is no requirement to permit members to openly deliberate proposed changes for a specific period if the statutory process is followed.”, “detailed_answer”: “The petitioner argued that the HOA was required to permit open deliberation for at least one year. The ALJ disagreed, ruling that the petitioner did not sustain the burden of proof for this contention, implying statutory compliance for written consent is sufficient.”, “alj_quote”: “Specifically, Petitioner contends that Respondent was required to permit Members to openly deliberate proposed changes to the CC&Rs for at least 1 year… the Tribunal is not in agreement with either of Petitioner’s contentions, and holds that she has not sustained her burden of proof in this matter.”, “legal_basis”: “A.R.S. § 33-1817”, “topic_tags”: [ “Procedural Requirements”, “Open Discussion”, “CC&R Amendments” ] }, { “question”: “Do statutes regarding monetary penalties apply to the process of amending CC&Rs?”, “short_answer”: “No, statutes regarding fines and penalties are irrelevant to the amendment process if no actual violation notice was issued or penalty imposed.”, “detailed_answer”: “The ALJ dismissed allegations regarding A.R.S. § 33-1803 (which governs monetary penalties) because they were inapplicable to a dispute centered on the procedural validity of amending CC&Rs where no fines were levied.”, “alj_quote”: “Notably, ARIZ. REV. STAT. §§ 33-1812(A) and 33-1803 are inapplicable to the proceedings at bar as unrelated and irrelevant. No violations of these statutes have been established by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 33-1803”, “topic_tags”: [ “Penalties”, “Statutory Application”, “Relevance” ] }, { “question”: “Who bears the burden of proof in a hearing regarding HOA procedural violations?”, “short_answer”: “The petitioner (homeowner) bears the burden of proving the violation by a preponderance of the evidence.”, “detailed_answer”: “In administrative hearings regarding HOA disputes, it is up to the homeowner filing the petition to prove that their allegations are more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory and/or governing document violation(s).”, “legal_basis”: “Administrative Procedure”, “topic_tags”: [ “Burden of Proof”, “Legal Procedure” ] } ] }






Blog Post – 25F-H032-REL


{ “case”: { “docket_no”: “25F-H032-REL”, “case_title”: “Anne F. Segal v. Prince Court Homeowners Association, Inc.”, “decision_date”: “2025-05-22”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can an HOA amend its CC&Rs by obtaining written consent from homeowners rather than holding a vote?”, “short_answer”: “Yes, an HOA is permitted to amend CC&Rs by written consent under A.R.S. § 33-1817(A)(1), and voting statutes do not apply to this process.”, “detailed_answer”: “The Administrative Law Judge ruled that the association was permitted to modify its CC&Rs by written consent of its members. Because this process falls under A.R.S. § 33-1817(A)(1), the statutes governing voting (A.R.S. § 33-1812) are considered unrelated and irrelevant to the proceedings.”, “alj_quote”: “It is clear from the record that the Association … was also permitted to modify or otherwise amend its CC&Rs by written consent of its Members under ARIZ. REV. STAT. § 33-1817(A)(1)… Notably, ARIZ. REV. STAT. §§ 33-1812(A) and 33-1803 are inapplicable to the proceedings at bar as unrelated and irrelevant.”, “legal_basis”: “A.R.S. § 33-1817(A)(1)”, “topic_tags”: [ “CC&R Amendments”, “Written Consent”, “Voting Rights” ] }, { “question”: “Does state law override CC&R provisions that restrict when amendments can be made (e.g., only every 10 years)?”, “short_answer”: “Yes, A.R.S. § 33-1817(A)(1) supersedes original CC&R restrictions regarding periodic renewal or specific timelines for amendments.”, “detailed_answer”: “The decision clarifies that state statute supersedes ‘edicts’ in original CC&Rs regarding timing for amendments. Even if the original documents specify a renewal period, the association can amend the documents via the statutory written consent process.”, “alj_quote”: “…permitted to modify or otherwise amend its CC&Rs by written consent of its Members under ARIZ. REV. STAT. § 33-1817(A)(1); which supersedes any edicts outlined in Article VII of the original CC&Rs.”, “legal_basis”: “A.R.S. § 33-1817(A)(1)”, “topic_tags”: [ “CC&R Amendments”, “State Statute Supremacy”, “Governing Documents” ] }, { “question”: “Can the HOA Board hold a closed executive session to get legal advice if there is no pending lawsuit?”, “short_answer”: “Yes, the Board may meet in executive session to receive legal advice from their attorney, even if it is unrelated to pending litigation.”, “detailed_answer”: “Homeowners often believe legal advice must relate to a lawsuit for a meeting to be closed. However, the ALJ ruled that the Board is permitted to go into executive session to receive legal advice unrelated to pending litigation under A.R.S. § 33-1804(A).”, “alj_quote”: “It is clear from the record that the Association was not only permitted to go into executive session to receive legal advice unrelated to pending litigation from its attorney under ARIZ. REV. STAT. § 33-1804(A)…”, “legal_basis”: “A.R.S. § 33-1804(A)”, “topic_tags”: [ “Open Meetings”, “Executive Session”, “Legal Advice” ] }, { “question”: “Is the HOA required to hold an open discussion or town hall meeting before amending the CC&Rs?”, “short_answer”: “No, the tribunal found that there is no requirement to permit members to openly deliberate proposed changes for a specific period if the statutory process is followed.”, “detailed_answer”: “The petitioner argued that the HOA was required to permit open deliberation for at least one year. The ALJ disagreed, ruling that the petitioner did not sustain the burden of proof for this contention, implying statutory compliance for written consent is sufficient.”, “alj_quote”: “Specifically, Petitioner contends that Respondent was required to permit Members to openly deliberate proposed changes to the CC&Rs for at least 1 year… the Tribunal is not in agreement with either of Petitioner’s contentions, and holds that she has not sustained her burden of proof in this matter.”, “legal_basis”: “A.R.S. § 33-1817”, “topic_tags”: [ “Procedural Requirements”, “Open Discussion”, “CC&R Amendments” ] }, { “question”: “Do statutes regarding monetary penalties apply to the process of amending CC&Rs?”, “short_answer”: “No, statutes regarding fines and penalties are irrelevant to the amendment process if no actual violation notice was issued or penalty imposed.”, “detailed_answer”: “The ALJ dismissed allegations regarding A.R.S. § 33-1803 (which governs monetary penalties) because they were inapplicable to a dispute centered on the procedural validity of amending CC&Rs where no fines were levied.”, “alj_quote”: “Notably, ARIZ. REV. STAT. §§ 33-1812(A) and 33-1803 are inapplicable to the proceedings at bar as unrelated and irrelevant. No violations of these statutes have been established by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 33-1803”, “topic_tags”: [ “Penalties”, “Statutory Application”, “Relevance” ] }, { “question”: “Who bears the burden of proof in a hearing regarding HOA procedural violations?”, “short_answer”: “The petitioner (homeowner) bears the burden of proving the violation by a preponderance of the evidence.”, “detailed_answer”: “In administrative hearings regarding HOA disputes, it is up to the homeowner filing the petition to prove that their allegations are more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory and/or governing document violation(s).”, “legal_basis”: “Administrative Procedure”, “topic_tags”: [ “Burden of Proof”, “Legal Procedure” ] } ] }


Case Participants

Petitioner Side

  • Anne F. Segal (petitioner)
    Appeared on her own behalf.
  • David Zeinfeld (witness)
    Original developer and declarant of the subdivision.
  • Robert J. Seagull (witness)
    Petitioner's husband and property manager.

Respondent Side

  • Wendy Ehrlich (HOA attorney)
    Counsel for Prince Court Homeowners Association, Inc.
  • Mary Beth Snyder (board member)
    Prince Court Homeowners Association, Inc.
    President of the Association and witness.
  • Susan Matheson (board member)
    Prince Court Homeowners Association, Inc.
    Vice President of the Association and witness.

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Susan Nicolson (ADRE Commissioner)
    ADRE
  • Dianna Tidle (observer)
  • vnunez (ADRE staff)
    ADRE
  • djones (ADRE staff)
    ADRE
  • labril (ADRE staff)
    ADRE
  • mneat (ADRE staff)
    ADRE
  • lrecchia (ADRE staff)
    ADRE
  • gosborn (ADRE staff)
    ADRE

Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s

Posted on by

Case Summary

Case ID 24F-H015-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-01-03
Administrative Law Judge Adam D. Stone
Outcome total
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Teri S. Morcomb & J. Ted Morcomb Counsel Jeffrey Brie, Esq.
Respondent Sierra Tortuga Homeowner’s Association Counsel Phillip Brown, Esq. and Kelly Oetinger, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

Petitioner met the burden of proof for both alleged violations: violation of the Declaration (not enforcing the 25ft setback) and violation of A.R.S. § 33-1805 (failing to provide documents). The petition was granted, and Respondent was ordered to reimburse the $1,000.00 filing fee.

Key Issues & Findings

Failure to provide documents

Respondent failed to produce documents requested by Petitioner, specifically meeting minutes discussing the investigative report, within the statutory timeframe, violating A.R.S. § 33-1805.

Orders: Respondent was found in violation of A.R.S. § 33-1805 and Declaration Section F. Respondent shall reimburse Petitioner’s filing fee of $1,000.00.

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

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • Declaration Section F

Analytics Highlights

Topics: setback enforcement, document request, HOA governance, filing fee refund, A.R.S. 33-1805
Additional Citations:

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

Video Overview

Audio Overview

Decision Documents

24F-H015-REL Decision – 1102948.pdf

Uploaded 2026-01-23T18:02:19 (53.9 KB)

24F-H015-REL Decision – 1116083.pdf

Uploaded 2026-01-23T18:02:23 (50.5 KB)

24F-H015-REL Decision – 1129495.pdf

Uploaded 2026-01-23T18:02:26 (148.2 KB)





Study Guide – 24F-H015-REL


{ “case”: { “docket_no”: “24F-H015-REL”, “case_title”: “Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s Association”, “decision_date”: “2024-01-03”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I win my case against the HOA, can I get my filing fee reimbursed?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “Under Arizona law, if a homeowner prevails in their petition against the association, the Administrative Law Judge has the authority to order the respondent (HOA) to reimburse the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee of $1,000.00 as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “penalties” ] }, { “question”: “What is the timeline for an HOA to provide records after a homeowner requests them?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination or provide copies of records.”, “detailed_answer”: “Arizona statute requires that an association make financial and other records reasonably available for examination. When a member requests to examine or purchase copies of records, the association must comply within ten business days.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records … the association shall have ten business days to provide copies of the requested records.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “records request”, “deadlines”, “homeowner rights” ] }, { “question”: “Can an HOA refuse to provide meeting minutes by claiming other documents regarding a specific issue don’t exist?”, “short_answer”: “No, even if specific architectural files don’t exist, the HOA must still provide related meeting minutes if requested.”, “detailed_answer”: “In this case, while the HOA claimed no documents existed regarding a specific architectural submission (because none was made), they were still found in violation for failing to produce the meeting minutes where the issue and an investigative report were discussed.”, “alj_quote”: “From the evidence presented, and Mr. Lewin admitted, that Respondent failed to produce a copy of the meeting minutes discussing the investigative report.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “meeting minutes”, “records access”, “HOA obligations” ] }, { “question”: “Does the ALJ have the authority to order the HOA to physically clear a violation from a neighbor’s lot?”, “short_answer”: “Not necessarily, if the CC&Rs grant the HOA the ‘right’ rather than the ‘duty’ to clear the lot, it remains a discretionary action.”, “detailed_answer”: “Although the ALJ found the HOA in violation of the CC&Rs for the setback issue, the judge disagreed that the HOA must clear the lot. The specific language of the governing documents gave the Architectural Committee the ‘right’ to clear the lot, which the judge interpreted as discretionary.”, “alj_quote”: “However, the tribunal disagrees with Petitioner that Respondent must clear the lot. Section H of the Declaration merely states that the Architectural Committee ‘shall have the right to clear such lot’. Thus, it is still within the Architectural Committee’s discretion to act on that right.”, “legal_basis”: “CC&Rs Interpretation”, “topic_tags”: [ “enforcement”, “remedies”, “CC&Rs” ] }, { “question”: “What is the burden of proof in an HOA administrative hearing?”, “short_answer”: “The petitioner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner bringing the complaint bears the burden of proving that the HOA violated the community documents or statutes. The standard is a ‘preponderance of the evidence,’ meaning the contention is more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the item F of the Declarations and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Can the HOA be found in violation for a neighbor’s unapproved improvements?”, “short_answer”: “Yes, if the HOA fails to enforce setback requirements against unapproved improvements.”, “detailed_answer”: “The ALJ found the Board in violation of the Declaration (setback rules) because the neighbor never submitted a request for the improvements, the improvements did not comply with setbacks, and the Board failed to enforce the requirement.”, “alj_quote”: “Petitioner has met the burden of proof in demonstrating that the Board was in violation of Section F of the Declaration and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “CC&Rs (Section F)”, “topic_tags”: [ “architectural control”, “setbacks”, “violations” ] }, { “question”: “Do HOA directors have the right to inspect association records?”, “short_answer”: “Yes, directors generally have an absolute right to inspect all books and records at any reasonable time.”, “detailed_answer”: “The decision cites the Association Bylaws which grant every Director the absolute right to inspect all books, records, documents, and physical properties of the Association.”, “alj_quote”: “Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.”, “legal_basis”: “Association Bylaws Article 11.3”, “topic_tags”: [ “board members”, “records inspection”, “bylaws” ] } ] }






Blog Post – 24F-H015-REL


{ “case”: { “docket_no”: “24F-H015-REL”, “case_title”: “Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s Association”, “decision_date”: “2024-01-03”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I win my case against the HOA, can I get my filing fee reimbursed?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “Under Arizona law, if a homeowner prevails in their petition against the association, the Administrative Law Judge has the authority to order the respondent (HOA) to reimburse the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee of $1,000.00 as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “penalties” ] }, { “question”: “What is the timeline for an HOA to provide records after a homeowner requests them?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination or provide copies of records.”, “detailed_answer”: “Arizona statute requires that an association make financial and other records reasonably available for examination. When a member requests to examine or purchase copies of records, the association must comply within ten business days.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records … the association shall have ten business days to provide copies of the requested records.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “records request”, “deadlines”, “homeowner rights” ] }, { “question”: “Can an HOA refuse to provide meeting minutes by claiming other documents regarding a specific issue don’t exist?”, “short_answer”: “No, even if specific architectural files don’t exist, the HOA must still provide related meeting minutes if requested.”, “detailed_answer”: “In this case, while the HOA claimed no documents existed regarding a specific architectural submission (because none was made), they were still found in violation for failing to produce the meeting minutes where the issue and an investigative report were discussed.”, “alj_quote”: “From the evidence presented, and Mr. Lewin admitted, that Respondent failed to produce a copy of the meeting minutes discussing the investigative report.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “meeting minutes”, “records access”, “HOA obligations” ] }, { “question”: “Does the ALJ have the authority to order the HOA to physically clear a violation from a neighbor’s lot?”, “short_answer”: “Not necessarily, if the CC&Rs grant the HOA the ‘right’ rather than the ‘duty’ to clear the lot, it remains a discretionary action.”, “detailed_answer”: “Although the ALJ found the HOA in violation of the CC&Rs for the setback issue, the judge disagreed that the HOA must clear the lot. The specific language of the governing documents gave the Architectural Committee the ‘right’ to clear the lot, which the judge interpreted as discretionary.”, “alj_quote”: “However, the tribunal disagrees with Petitioner that Respondent must clear the lot. Section H of the Declaration merely states that the Architectural Committee ‘shall have the right to clear such lot’. Thus, it is still within the Architectural Committee’s discretion to act on that right.”, “legal_basis”: “CC&Rs Interpretation”, “topic_tags”: [ “enforcement”, “remedies”, “CC&Rs” ] }, { “question”: “What is the burden of proof in an HOA administrative hearing?”, “short_answer”: “The petitioner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner bringing the complaint bears the burden of proving that the HOA violated the community documents or statutes. The standard is a ‘preponderance of the evidence,’ meaning the contention is more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the item F of the Declarations and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Can the HOA be found in violation for a neighbor’s unapproved improvements?”, “short_answer”: “Yes, if the HOA fails to enforce setback requirements against unapproved improvements.”, “detailed_answer”: “The ALJ found the Board in violation of the Declaration (setback rules) because the neighbor never submitted a request for the improvements, the improvements did not comply with setbacks, and the Board failed to enforce the requirement.”, “alj_quote”: “Petitioner has met the burden of proof in demonstrating that the Board was in violation of Section F of the Declaration and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “CC&Rs (Section F)”, “topic_tags”: [ “architectural control”, “setbacks”, “violations” ] }, { “question”: “Do HOA directors have the right to inspect association records?”, “short_answer”: “Yes, directors generally have an absolute right to inspect all books and records at any reasonable time.”, “detailed_answer”: “The decision cites the Association Bylaws which grant every Director the absolute right to inspect all books, records, documents, and physical properties of the Association.”, “alj_quote”: “Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.”, “legal_basis”: “Association Bylaws Article 11.3”, “topic_tags”: [ “board members”, “records inspection”, “bylaws” ] } ] }


Case Participants

Petitioner Side

  • Teri S. Morcomb (petitioner)
    Lot 8 owner, testified
  • J. Ted Morcomb (petitioner)
    Lot 8 owner
  • Jeffrey T. Brei (petitioner attorney)
  • Tracy Allen Bogardis (witness)
    Civil Engineer
    Testified regarding drainage/hydrology

Respondent Side

  • Phillip Brown (HOA attorney)
  • Kelly Oetinger (HOA attorney)
  • Robert Leuen (board president)
    Sierra Tortuga HOA
    Testified
  • Marcella Bernadette Aguilar (witness)
    Sierra Tortuga HOA
    Lot 9 owner, testified
  • Abel Sodto (lot owner)
    Sierra Tortuga HOA
    Lot 9 owner, former Board/ARC member, subject of violation
  • Clint Stoddard (board member)
    Sierra Tortuga HOA
    Investigator
  • Benny Medina (board member)
    Sierra Tortuga HOA
    Investigator, former president
  • Joseph D. Martino (ARC member)
    Sierra Tortuga HOA
    Former Architectural Committee Head
  • Chris Stler (board member)
    Sierra Tortuga HOA
    Vice President of HOA
  • Yvon Posche (board member)
    Sierra Tortuga HOA
    Secretary of HOA
  • Steve Brockam (board member)
    Sierra Tortuga HOA
    Board Director
  • Perry Terren (ARC chair)
    Sierra Tortuga HOA
    ARC Chairman and Board Director
  • Jeremy Thompson (law clerk)
    HOA Attorney's office
  • Mike Shupe (former HOA attorney)

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Tim Ross (board member)
    Sierra Tortuga HOA
    Former board/investigator, criticized current board actions
  • Susan Nicolson (Commissioner)
    ADRE
  • A. Hansen (ADRE staff)
    ADRE
  • V. Nunez (ADRE staff)
    ADRE
  • D. Jones (ADRE staff)
    ADRE
  • L. Abril (ADRE staff)
    ADRE

Harry G. Turner v. MountainGate Home Owners Association, Inc.

Posted on by

Case Summary

Case ID 23F-H045-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-14
Administrative Law Judge Brian Del Vecchio
Outcome none
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Harry G. Turner Counsel —
Respondent Mountain Gate Home Owners Association, Inc. Counsel —

Alleged Violations

Article 10 Section 4 of the CC&Rs

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that Petitioner Harry G. Turner failed to meet his burden of proof to demonstrate that the Mountain Gate Home Owners Association, Inc. violated Article 10 Section 4 of the CC&Rs by planning drainage construction in Tract H.

Why this result: Petitioner failed to provide sufficient evidence to reconcile conflicting designations of Tract H in the plat map (Preserved/Active Open Space vs. Drainage), thus failing to prove that the drainage ditch constituted a prohibited change of use.

Key Issues & Findings

Required membership vote for common area use change (Tract H drainage ditch)

Petitioner alleged the HOA (Respondent) violated CC&Rs Article 10 Section 4 by planning to dig a drainage ditch in Tract H, arguing this was a change of use requiring a 2/3rds membership vote. Respondent argued Tract H was already designated for drainage in the 'Conveyance and Dedication' portion of the plat map, negating the need for a vote.

Orders: Petitioner's petition is dismissed. Petitioner's request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 33-1804
  • 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.
  • 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)
  • Article 10 Section 4 of the Declaration of Covenants, Conditions, Restrictions and Easements for Mountain Gate Homes, a Townhouse Project

Analytics Highlights

Topics: HOA, CC&R, Drainage, Common Area, Change of Use, Burden of Proof, Planned Community, Plat Map
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 33-1804
  • 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.
  • 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)
  • Article 10 Section 4 of the Declaration of Covenants, Conditions, Restrictions and Easements for Mountain Gate Homes, a Townhouse Project

Video Overview

Audio Overview

https://open.spotify.com/episode/1KAeIyRL8kVCBXnkJx4Gy7

Decision Documents

23F-H045-REL Decision – 1055488.pdf

Uploaded 2026-01-23T17:56:36 (49.7 KB)

23F-H045-REL Decision – 1057334.pdf

Uploaded 2026-01-23T17:56:40 (43.7 KB)

23F-H045-REL Decision – 1083773.pdf

Uploaded 2026-01-23T17:56:42 (105.1 KB)

Questions

Question

Who is responsible for proving that an HOA violated the community's CC&Rs in an administrative hearing?

Short Answer

The petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

In a hearing before the Office of Administrative Hearings, it is not the HOA's job to disprove the allegations initially. The homeowner must provide sufficient evidence to prove the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 10 Section 4 of the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

  • legal standards
  • procedure

Question

What is the legal standard of evidence required to win a case against an HOA?

Short Answer

The standard is a 'preponderance of the evidence,' meaning the claim is more probable than not.

Detailed Answer

The homeowner does not need to prove the violation beyond a reasonable doubt. They must simply show that their version of events or interpretation of the documents is more likely true than the HOA's version.

Alj Quote

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

Legal Basis

Preponderance of Evidence

Topic Tags

  • evidence
  • legal definitions

Question

What happens if community documents (like a plat map) contain conflicting descriptions of a common area?

Short Answer

If the homeowner cannot prove why their preferred description should control, they fail to meet their burden of proof, and the case may be dismissed.

Detailed Answer

In this case, one section of the plat map described the land as 'Open Space' while another described it as 'Drainage.' Because the homeowner could not legally establish why the 'Open Space' description superseded the 'Drainage' description, the judge ruled against them.

Alj Quote

Neither party presented sufficient evidence to determine why their characterization of Tract “H” controlled. Petitioner bears the burden of proof and has failed to provide sufficient evidence to meet his burden.

Legal Basis

Burden of Proof

Topic Tags

  • document interpretation
  • common areas

Question

Does the Department of Real Estate have jurisdiction over CC&R disputes?

Short Answer

Yes, they have jurisdiction over disputes between owners and associations regarding violations of community documents or statutes.

Detailed Answer

Homeowners can petition the department for a hearing regarding alleged violations of the community's governing documents (CC&Rs) or state laws regulating planned communities.

Alj Quote

This matter lies within the Department’s jurisdiction… regarding a dispute between an owner and a planned community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • regulatory authority

Question

If an HOA modifies a common area (e.g., digging a ditch), does it always require a member vote?

Short Answer

Not necessarily. If the modification aligns with a designated use in the governing documents (like 'drainage'), it may not constitute a 'change of use' requiring a vote.

Detailed Answer

The homeowner argued a vote was required to change 'Open Space' to a drainage ditch. The HOA argued the land was already dedicated for 'drainage,' so no use change occurred. The judge dismissed the complaint because the homeowner failed to prove it wasn't already a drainage area.

Alj Quote

Respondent argued it did not violate the CC&Rs because it did not change the characteristic of the common area and therefore no change protocols needed to be observed… Petitioner failed to meet his burden.

Legal Basis

CC&R Interpretation

Topic Tags

  • common areas
  • voting rights

Question

Can I request a civil penalty be levied against my HOA?

Short Answer

You can request it, but it will be denied if you fail to prove the violation.

Detailed Answer

In this decision, the judge explicitly denied the petitioner's request for a civil penalty after dismissing the petition.

Alj Quote

IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

Administrative Order

Topic Tags

  • penalties
  • remedies

Case

Docket No
23F-H045-REL
Case Title
Harry G. Turner v Mountain Gate Home Owners Association, Inc.
Decision Date
2023-08-14
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

Who is responsible for proving that an HOA violated the community's CC&Rs in an administrative hearing?

Short Answer

The petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

In a hearing before the Office of Administrative Hearings, it is not the HOA's job to disprove the allegations initially. The homeowner must provide sufficient evidence to prove the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 10 Section 4 of the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

  • legal standards
  • procedure

Question

What is the legal standard of evidence required to win a case against an HOA?

Short Answer

The standard is a 'preponderance of the evidence,' meaning the claim is more probable than not.

Detailed Answer

The homeowner does not need to prove the violation beyond a reasonable doubt. They must simply show that their version of events or interpretation of the documents is more likely true than the HOA's version.

Alj Quote

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

Legal Basis

Preponderance of Evidence

Topic Tags

  • evidence
  • legal definitions

Question

What happens if community documents (like a plat map) contain conflicting descriptions of a common area?

Short Answer

If the homeowner cannot prove why their preferred description should control, they fail to meet their burden of proof, and the case may be dismissed.

Detailed Answer

In this case, one section of the plat map described the land as 'Open Space' while another described it as 'Drainage.' Because the homeowner could not legally establish why the 'Open Space' description superseded the 'Drainage' description, the judge ruled against them.

Alj Quote

Neither party presented sufficient evidence to determine why their characterization of Tract “H” controlled. Petitioner bears the burden of proof and has failed to provide sufficient evidence to meet his burden.

Legal Basis

Burden of Proof

Topic Tags

  • document interpretation
  • common areas

Question

Does the Department of Real Estate have jurisdiction over CC&R disputes?

Short Answer

Yes, they have jurisdiction over disputes between owners and associations regarding violations of community documents or statutes.

Detailed Answer

Homeowners can petition the department for a hearing regarding alleged violations of the community's governing documents (CC&Rs) or state laws regulating planned communities.

Alj Quote

This matter lies within the Department’s jurisdiction… regarding a dispute between an owner and a planned community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • regulatory authority

Question

If an HOA modifies a common area (e.g., digging a ditch), does it always require a member vote?

Short Answer

Not necessarily. If the modification aligns with a designated use in the governing documents (like 'drainage'), it may not constitute a 'change of use' requiring a vote.

Detailed Answer

The homeowner argued a vote was required to change 'Open Space' to a drainage ditch. The HOA argued the land was already dedicated for 'drainage,' so no use change occurred. The judge dismissed the complaint because the homeowner failed to prove it wasn't already a drainage area.

Alj Quote

Respondent argued it did not violate the CC&Rs because it did not change the characteristic of the common area and therefore no change protocols needed to be observed… Petitioner failed to meet his burden.

Legal Basis

CC&R Interpretation

Topic Tags

  • common areas
  • voting rights

Question

Can I request a civil penalty be levied against my HOA?

Short Answer

You can request it, but it will be denied if you fail to prove the violation.

Detailed Answer

In this decision, the judge explicitly denied the petitioner's request for a civil penalty after dismissing the petition.

Alj Quote

IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

Administrative Order

Topic Tags

  • penalties
  • remedies

Case

Docket No
23F-H045-REL
Case Title
Harry G. Turner v Mountain Gate Home Owners Association, Inc.
Decision Date
2023-08-14
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Harry G. Turner (petitioner)
    Appeared on his own behalf

Respondent Side

  • Michael Luden (president/representative)
    Mountain Gate Home Owners Association, Inc.
    Appeared on behalf of Respondent. Identified as President of the Homeowners Association
  • Brenda Anderson (witness/secretary)
    Mountain Gate Home Owners Association, Inc.
    Witness for Respondent; Secretary of Mountain Gate Homeowners Association
  • Kelly Callahan (HOA attorney)
    HOA's attorney who wrote an email regarding the drainage ditch proposal

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Administrative Law Judge
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Listed in transmission list
  • Jeremiah Lloyd (Community Development Director)
    Pinetop Lakeside
    Community Development Director for Pinetop Lakeside
  • Bill Best (County Engineer)
    Navajo County
    Navajo County Engineer
  • Emory Ellsworth (engineer)
    Painted Sky Engineering and Surveying
    Engineer consulted by Petitioner
  • John Murphy (engineer)
    Murphy Engineering Group
    Engineer whose company provided original certified plans

Other Participants

  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Listed in transmission list
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Listed in transmission list
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Listed in transmission list
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Listed in transmission list
  • Ken Anderson (community member)
    Mentioned as being present when a document was allegedly falsified
  • Gary Lao (developer)
    Original developer

Richard K. Morris v. The Townes at Paradise Valley Landings

Posted on by

Case Summary

Case ID 23F-H056-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-07
Administrative Law Judge Brian Del Vecchio
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Richard K. Morris Counsel —
Respondent The Townes at Paradise Valley Landings Counsel —

Alleged Violations

Section 9.2 of the CC&Rs

Outcome Summary

The ALJ affirmed the Petitioner's claim that the HOA violated CC&Rs Section 9.2 by forcing the removal of a previously approved security light. The HOA was ordered to comply with the CC&Rs and reimburse the $500 filing fee. However, the Petitioner's request for a civil penalty was denied.

Key Issues & Findings

Respondent required permanent removal of pre-approved security light in violation of CC&Rs Section 9.2.

Petitioner had Architectural Review Committee (ARC) approval from 2010 to install a security light on the shed fascia (a common area). Respondent HOA later required its removal, arguing their fiduciary duty and a new roofing warranty (2023) voided the prior approval. The ALJ found the HOA failed to perform due diligence regarding the pre-existing ARC approval before contracting the new work and violated CC&Rs Section 9.2, which allows rebuilding in accordance with previously approved plans.

Orders: Respondent is directed to comply with the provisions of Section 9.2 of the CC&Rs and reimburse Petitioner's filing fee of $500.00. Petitioner's request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • 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. § 33-1804
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: ARC Approval, CC&R Violation, Fiduciary Duty, Homeowner Victory, Warranty Voidance
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • 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. § 33-1804
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

23F-H056-REL Decision – 1073539.pdf

Uploaded 2026-01-23T17:57:57 (51.9 KB)

23F-H056-REL Decision – 1080973.pdf

Uploaded 2026-01-23T17:58:02 (110.3 KB)

Questions

Question

Can an HOA revoke a previous architectural approval because of a new maintenance policy or warranty?

Short Answer

No, the HOA cannot simply revoke a prior approval to satisfy a new fiduciary duty or warranty if they failed to consider existing approvals first.

Detailed Answer

The ALJ ruled that an HOA cannot claim that its fiduciary duty to protect common area warranties overrides a homeowner's valid, prior architectural authorization. The HOA is responsible for performing due diligence regarding existing approvals before entering into contracts that might conflict with them.

Alj Quote

While it may be true Respondent had a fiduciary duty to all the homeowners to protect their investment in maintenance of the common area roofs, this does not entitle Respondent to fail to do their due diligence and disavow prior agreements.

Legal Basis

Contract Law Principles / Due Diligence

Topic Tags

  • architectural approval
  • fiduciary duty
  • maintenance

Question

If I have to remove an approved improvement for HOA repairs, do I need permission to reinstall it?

Short Answer

No, if the CC&Rs state that rebuilding according to previously approved plans does not require new approval.

Detailed Answer

In this case, the CC&Rs explicitly stated that no new permission was needed to rebuild improvements that followed plans previously approved by the committee. Therefore, the homeowner was entitled to reinstall the approved item.

Alj Quote

No permission or approval shall be required to rebuild in accordance with plans and specifications previously approved by the Committee.

Legal Basis

CC&Rs Section 9.2

Topic Tags

  • architectural approval
  • repairs
  • CC&Rs interpretation

Question

Who has the burden of proof in an HOA dispute hearing?

Short Answer

The petitioner (the person filing the complaint) bears the burden of proof.

Detailed Answer

The homeowner filing the petition must prove that the HOA violated the statutes or documents. The standard is a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • burden of proof
  • legal procedure

Question

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

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.

Detailed Answer

Upon ruling in favor of the homeowner, the judge ordered the HOA to pay back the $500.00 filing fee the homeowner paid to initiate the hearing.

Alj Quote

IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Does winning the case automatically mean the HOA will be fined a civil penalty?

Short Answer

No, a judge may rule in favor of the homeowner but still deny a request for a civil penalty.

Detailed Answer

Although the ALJ found that the HOA violated the CC&Rs and ordered them to comply, the specific request to levy a civil penalty against the HOA was denied.

Alj Quote

IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

Administrative Discretion

Topic Tags

  • civil penalty
  • fines

Question

Can an HOA claim a new contractor's warranty voids my old approval?

Short Answer

Not if the HOA failed to check for existing approvals before signing the contract.

Detailed Answer

The HOA argued that a new roof warranty (which would be voided by penetrations) should extinguish the prior approval. The judge rejected this, noting the HOA admitted they did no due diligence to check for conflicts before signing the roofing contract.

Alj Quote

Furthermore, Respondent admitted no due diligence was performed regarding the existence of Architectural Review Committee approvals which would conflict with potential roof work before a contract was signed.

Legal Basis

Duty of Care / Contract Awareness

Topic Tags

  • warranties
  • contractor
  • due diligence

Case

Docket No
23F-H056-REL
Case Title
Richard K. Morris v The Townes at Paradise Valley Landings
Decision Date
2023-08-07
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

Can an HOA revoke a previous architectural approval because of a new maintenance policy or warranty?

Short Answer

No, the HOA cannot simply revoke a prior approval to satisfy a new fiduciary duty or warranty if they failed to consider existing approvals first.

Detailed Answer

The ALJ ruled that an HOA cannot claim that its fiduciary duty to protect common area warranties overrides a homeowner's valid, prior architectural authorization. The HOA is responsible for performing due diligence regarding existing approvals before entering into contracts that might conflict with them.

Alj Quote

While it may be true Respondent had a fiduciary duty to all the homeowners to protect their investment in maintenance of the common area roofs, this does not entitle Respondent to fail to do their due diligence and disavow prior agreements.

Legal Basis

Contract Law Principles / Due Diligence

Topic Tags

  • architectural approval
  • fiduciary duty
  • maintenance

Question

If I have to remove an approved improvement for HOA repairs, do I need permission to reinstall it?

Short Answer

No, if the CC&Rs state that rebuilding according to previously approved plans does not require new approval.

Detailed Answer

In this case, the CC&Rs explicitly stated that no new permission was needed to rebuild improvements that followed plans previously approved by the committee. Therefore, the homeowner was entitled to reinstall the approved item.

Alj Quote

No permission or approval shall be required to rebuild in accordance with plans and specifications previously approved by the Committee.

Legal Basis

CC&Rs Section 9.2

Topic Tags

  • architectural approval
  • repairs
  • CC&Rs interpretation

Question

Who has the burden of proof in an HOA dispute hearing?

Short Answer

The petitioner (the person filing the complaint) bears the burden of proof.

Detailed Answer

The homeowner filing the petition must prove that the HOA violated the statutes or documents. The standard is a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • burden of proof
  • legal procedure

Question

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

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.

Detailed Answer

Upon ruling in favor of the homeowner, the judge ordered the HOA to pay back the $500.00 filing fee the homeowner paid to initiate the hearing.

Alj Quote

IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Does winning the case automatically mean the HOA will be fined a civil penalty?

Short Answer

No, a judge may rule in favor of the homeowner but still deny a request for a civil penalty.

Detailed Answer

Although the ALJ found that the HOA violated the CC&Rs and ordered them to comply, the specific request to levy a civil penalty against the HOA was denied.

Alj Quote

IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

Administrative Discretion

Topic Tags

  • civil penalty
  • fines

Question

Can an HOA claim a new contractor's warranty voids my old approval?

Short Answer

Not if the HOA failed to check for existing approvals before signing the contract.

Detailed Answer

The HOA argued that a new roof warranty (which would be voided by penetrations) should extinguish the prior approval. The judge rejected this, noting the HOA admitted they did no due diligence to check for conflicts before signing the roofing contract.

Alj Quote

Furthermore, Respondent admitted no due diligence was performed regarding the existence of Architectural Review Committee approvals which would conflict with potential roof work before a contract was signed.

Legal Basis

Duty of Care / Contract Awareness

Topic Tags

  • warranties
  • contractor
  • due diligence

Case

Docket No
23F-H056-REL
Case Title
Richard K. Morris v The Townes at Paradise Valley Landings
Decision Date
2023-08-07
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Richard K. Morris (petitioner)
    The Townes at Paradise Valley Landings
    Appeared on his own behalf

Respondent Side

  • Joelle Lever (board member)
    The Townes at Paradise Valley Landings
    Represented the Respondent and provided testimony
  • Chelsea Hearn (board member)
    The Townes at Paradise Valley Landings
    Homeowner who complained about the light
  • alice.riesterer (management staff)
    The Management Trust Arizona

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Administrative Law Judge who signed the Order and Decision
  • Judge Svio (hearing officer)
    OAH
    Administrative Law Judge who opened the hearing
  • Susan Nicolson (commissioner)
    Arizona Department of Real Estate

Other Participants

  • Deborah L (ARC member)
    Association
    Association representative who approved Petitioner's request in 2010
  • AHansen (ADRE staff)
    ADRE
    Recipient of transmission
  • vnunez (ADRE staff)
    ADRE
    Recipient of transmission
  • djones (ADRE staff)
    ADRE
    Recipient of transmission
  • labril (ADRE staff)
    ADRE
    Recipient of transmission

Wanda Swartling v. Val Vista Park Townhome Association of Mesa

Posted on by

Case Summary

Case ID 23F-H057-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-01
Administrative Law Judge Brian Del Vecchio
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Wanda Swartling Counsel —
Respondent Val Vista Park Townhome Association of Mesa Counsel Chad Gallacher

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge dismissed the Petitioner’s petition because the Petitioner failed to meet her burden of proving that the HOA violated ARS § 33-1804 by failing to hold a properly noticed open board meeting prior to the March 2, 2023, special assessment vote. Evidence suggested issues were discussed in prior committee and board meetings, and Petitioner did not prove informal discussions constituted a violation requiring a finding against the Respondent.

Why this result: Petitioner failed to meet her burden of proof by a preponderance of the evidence that the Respondent's conduct violated ARS § 33-1804.

Key Issues & Findings

Failure to hold open board meeting prior to special assessment meeting

Petitioner alleged the HOA violated open meeting law (ARS § 33-1804) by failing to hold an open board meeting prior to the March 2, 2023, special meeting where members voted on a special assessment, arguing that preliminary discussions and decisions were made unilaterally in supposed closed-door meetings or through email/informal discussions.

Orders: Petitioner's petition is dismissed. Petitioner's request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804

Analytics Highlights

Topics: Open Meeting Law, Special Assessment, Board Meetings, HOA Governance, Committee Meeting
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804
  • 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.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

23F-H057-REL Decision – 1071114.pdf

Uploaded 2026-01-23T17:58:11 (5884.7 KB)

23F-H057-REL Decision – 1071115.pdf

Uploaded 2026-01-23T17:58:14 (7935.6 KB)

23F-H057-REL Decision – 1071120.pdf

Uploaded 2026-01-23T17:58:19 (1989.0 KB)

23F-H057-REL Decision – 1071121.pdf

Uploaded 2026-01-23T17:58:23 (4055.1 KB)

23F-H057-REL Decision – 1071122.pdf

Uploaded 2026-01-23T17:58:27 (676.0 KB)

23F-H057-REL Decision – 1071126.pdf

Uploaded 2026-01-23T17:58:31 (3343.5 KB)

23F-H057-REL Decision – 1071127.pdf

Uploaded 2026-01-23T17:58:36 (3328.5 KB)

23F-H057-REL Decision – 1071503.pdf

Uploaded 2026-01-23T17:58:39 (49.2 KB)

23F-H057-REL Decision – 1079574.pdf

Uploaded 2026-01-23T17:58:42 (114.8 KB)

Questions

Question

What is the burden of proof for a homeowner alleging a violation against their HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a "preponderance of the evidence."

Detailed Answer

In an administrative hearing, the burden is on the homeowner to prove their case. The standard used is 'preponderance of the evidence,' meaning the homeowner must show that their claim is more likely true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Do informal discussions or emails between board members automatically violate open meeting laws?

Short Answer

Not necessarily. To constitute a violation, there must be proof that a quorum was present and that board business was actually conducted.

Detailed Answer

While informal discussions or emails might technically constitute a meeting, the homeowner must provide sufficient evidence that a quorum of board members was involved and that they were conducting actual board business to prove a violation of the open meeting statute.

Alj Quote

The informal discussions and emails between board members may have constituted board meetings under ARIZ. REV. STAT. § 33-1804, however, Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • open meetings
  • emails
  • board communication

Question

What evidence is required to prove the board held a 'secret' meeting?

Short Answer

The homeowner must provide sufficient evidence that a quorum met and that specific board business was conducted.

Detailed Answer

Allegations of closed-door meetings fail if the homeowner cannot prove that enough board members were present to form a quorum and that they engaged in board business during that time.

Alj Quote

Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners. Furthermore, Petitioner failed to provide sufficient evidence board business was conducted during these putative board meetings.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • evidence
  • secret meetings
  • quorum

Question

Can a special assessment vote be based on recommendations from a committee meeting held months earlier?

Short Answer

Yes, if the committee meeting was valid, its recommendations can serve as the basis for a later vote.

Detailed Answer

In this decision, the ALJ found that a special assessment vote in March 2023 was validly based on maintenance recommendations generated during an architectural committee meeting held the previous August.

Alj Quote

The special assessment which was voted on during the March 2, 2023, special meeting were maintenance recommendations from the architectural committee meeting on August 18, 2022.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • special assessments
  • committees
  • voting

Question

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

Short Answer

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

Detailed Answer

This legal standard requires evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't remove all reasonable doubt.

Alj Quote

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

Legal Basis

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

Topic Tags

  • legal definitions
  • evidence

Question

Which HOA meetings are required by law to be open to all members?

Short Answer

Meetings of the members, the board of directors, and any regularly scheduled committee meetings must be open.

Detailed Answer

Arizona statute explicitly requires that meetings of the members' association, the board of directors, and regularly scheduled committee meetings be open to all association members, notwithstanding contrary bylaws.

Alj Quote

Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1804(A)

Topic Tags

  • open meetings
  • homeowner rights
  • statutes

Case

Docket No
23F-H057-REL
Case Title
Wanda Swartling v Val Vista Park Townhome Association of Mesa
Decision Date
2023-08-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

What is the burden of proof for a homeowner alleging a violation against their HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a "preponderance of the evidence."

Detailed Answer

In an administrative hearing, the burden is on the homeowner to prove their case. The standard used is 'preponderance of the evidence,' meaning the homeowner must show that their claim is more likely true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Do informal discussions or emails between board members automatically violate open meeting laws?

Short Answer

Not necessarily. To constitute a violation, there must be proof that a quorum was present and that board business was actually conducted.

Detailed Answer

While informal discussions or emails might technically constitute a meeting, the homeowner must provide sufficient evidence that a quorum of board members was involved and that they were conducting actual board business to prove a violation of the open meeting statute.

Alj Quote

The informal discussions and emails between board members may have constituted board meetings under ARIZ. REV. STAT. § 33-1804, however, Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • open meetings
  • emails
  • board communication

Question

What evidence is required to prove the board held a 'secret' meeting?

Short Answer

The homeowner must provide sufficient evidence that a quorum met and that specific board business was conducted.

Detailed Answer

Allegations of closed-door meetings fail if the homeowner cannot prove that enough board members were present to form a quorum and that they engaged in board business during that time.

Alj Quote

Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners. Furthermore, Petitioner failed to provide sufficient evidence board business was conducted during these putative board meetings.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • evidence
  • secret meetings
  • quorum

Question

Can a special assessment vote be based on recommendations from a committee meeting held months earlier?

Short Answer

Yes, if the committee meeting was valid, its recommendations can serve as the basis for a later vote.

Detailed Answer

In this decision, the ALJ found that a special assessment vote in March 2023 was validly based on maintenance recommendations generated during an architectural committee meeting held the previous August.

Alj Quote

The special assessment which was voted on during the March 2, 2023, special meeting were maintenance recommendations from the architectural committee meeting on August 18, 2022.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • special assessments
  • committees
  • voting

Question

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

Short Answer

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

Detailed Answer

This legal standard requires evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't remove all reasonable doubt.

Alj Quote

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

Legal Basis

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

Topic Tags

  • legal definitions
  • evidence

Question

Which HOA meetings are required by law to be open to all members?

Short Answer

Meetings of the members, the board of directors, and any regularly scheduled committee meetings must be open.

Detailed Answer

Arizona statute explicitly requires that meetings of the members' association, the board of directors, and regularly scheduled committee meetings be open to all association members, notwithstanding contrary bylaws.

Alj Quote

Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1804(A)

Topic Tags

  • open meetings
  • homeowner rights
  • statutes

Case

Docket No
23F-H057-REL
Case Title
Wanda Swartling v Val Vista Park Townhome Association of Mesa
Decision Date
2023-08-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Wanda Swartling (petitioner)
    Val Vista Park Townhome Association
    Homeowner, VVP Unit 82

Respondent Side

  • Chad Gallacher (HOA attorney)
    Maxwell & Morgan, P.C.
  • Steve Cheff (property manager / witness)
    Heywood Community Management
    Also community manager
  • Patti Locks (board member)
    Val Vista Park HOA
    Also listed as candidate/incumbent
  • Stephanie Hamrock (board member / witness)
    Val Vista Park HOA
  • Troy Goudeau (board member)
    Val Vista Park HOA
    Elected director
  • Paul Wilcox (board member)
    Val Vista Park HOA
    Elected director
  • Bettie Smiley (board member)
    Val Vista Park HOA
  • Carlee Collins (administrative assistant)
    Heywood Community Management
  • Alli (attorney)
    Maxwell & Morgan, P.C.
    Associate attorney

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
  • Susan Nicolson (ADRE Commissioner)
    ADRE
  • A. Hansen (ADRE staff)
    ADRE
  • V. Nunez (ADRE staff)
    ADRE
  • D. Jones (ADRE staff)
    ADRE
  • L. Abril (ADRE staff)
    ADRE

Other Participants

  • Shelley Dusek (candidate)
    Val Vista Park HOA
    Candidate for Board of Directors
  • Lori Solomon (candidate)
    Val Vista Park HOA
    Candidate for Board of Directors
  • Tanya (committee attendee)
    Val Vista Park HOA
    Attended Building Architectural Committee meeting
  • David Clem Sr (homeowner)
    Val Vista Park Townhomes
    Email recipient

Felicia Woodward v. The Pointe South Mountain Residential Association

Posted on by

Case Summary

Case ID 23F-H054-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-07-28
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Felicia Woodward Counsel —
Respondent The Pointe South Mountain Residential Association Counsel Jonathan D. Ebertshauser

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge denied the single-issue petition, concluding that the Petitioner failed to prove the Association violated A.R.S. § 33-1804(D). The ALJ found that the gathering was a 'workshop' and not necessarily a formal 'meeting of the board of directors,' and further found that the Petitioner had received sufficient notice regardless.

Why this result: Petitioner failed to meet the burden of proof required by a preponderance of the evidence for the alleged violation of A.R.S. § 33-1804(D). The tribunal determined the meeting was advertised as a workshop and not a statutory board meeting, and the Petitioner had timely opened the notice email a week prior.

Key Issues & Findings

Petitioner alleges the Respondent has violated A.R.S. § 33-1804 by holding a meeting that 'had not been properly noticed…'

Petitioner alleged that the March 14, 2023 meeting was not properly noticed because customary channels (email, calendar, sandwich boards) were not used, and the notice provided did not include the meeting location. Respondent argued notice was given through email survey and the community calendar, meeting the statutory requirements, and that the event was a workshop.

Orders: Petitioner's petition was denied. Respondent shall not reimburse Petitioner's filing fee pursuant to A.R.S. § 32-2199.02(A).

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Notice Requirements, HOA Board Meeting, Workshop, Filing Fee Reimbursement
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.01

Video Overview

Audio Overview

Decision Documents

23F-H054-REL Decision – 1068018.pdf

Uploaded 2026-01-23T17:57:36 (54.7 KB)

23F-H054-REL Decision – 1078258.pdf

Uploaded 2026-01-23T17:57:40 (113.6 KB)

Questions

Question

Does an HOA workshop count as a 'board meeting' that requires formal legal notice?

Short Answer

Not necessarily. If no votes are taken or decisions made, it may not be considered a meeting of the board of directors under the statute.

Detailed Answer

The ALJ determined that an event advertised as a 'workshop,' where comments and survey results were discussed but no items were voted on or decisions made, did not qualify as a 'meeting of the board of directors' requiring statutory notice.

Alj Quote

The tribunal was not convinced that this was a 'meeting of the board of directors' under the statute. … There was no expectation that items would be voted on or decisions made.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • meetings
  • workshops
  • definitions

Question

What is the burden of proof for a homeowner filing a petition against their HOA?

Short Answer

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

Detailed Answer

In an administrative hearing, the homeowner must convince the trier of fact that their contention is 'more probably true than not.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804(D).

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Does a member's failure to see a meeting notice invalidate the actions taken at that meeting?

Short Answer

No. The validity of actions taken at a meeting is not affected if a member fails to receive actual notice.

Detailed Answer

Arizona statute explicitly states that if a member does not receive actual notice, it does not void the meeting's actions, provided the notice was properly issued.

Alj Quote

The failure of any member to receive actual notice of a meeting of the board of directors does not affect the validity of any action taken at that meeting.

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

  • notice
  • validity
  • homeowner rights

Question

How far in advance must an HOA provide notice for a board meeting?

Short Answer

Notice must be given at least 48 hours in advance of the meeting.

Detailed Answer

Unless emergency circumstances exist, the board must provide notice to members via newsletter, conspicuous posting, or other reasonable means at least 48 hours prior.

Alj Quote

notice to members of meetings of the board of directors shall be given at least forty-eight hours in advance of the meeting

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

  • notice
  • timelines
  • HOA obligations

Question

Can a Zoom link be considered the 'location' of a meeting for notice purposes?

Short Answer

Yes, providing a Zoom link can satisfy the requirement for a meeting location.

Detailed Answer

The decision accepted testimony that a reminder notice containing a Zoom link was considered the location of the meeting, contributing to sufficient notice.

Alj Quote

Ms. Busey testified that a reminder notice was sent out the day of the workshop with the Zoom link, which was considered the 'location' of the meeting.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • virtual meetings
  • notice
  • technology

Question

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

Short Answer

No. If the petition is denied, the filing fee is generally not reimbursed.

Detailed Answer

The order specifically stated that because the petition was denied, the Respondent (HOA) was not required to reimburse the Petitioner's filing fee.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee

Legal Basis

A.R.S. § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • outcomes

Question

Can opening an email with a survey link constitute receiving notice of a meeting?

Short Answer

Yes. Evidence that a homeowner opened an email/link about the event in advance can establish sufficient notice.

Detailed Answer

The ALJ found that because the Petitioner clicked a survey link related to the workshop a week prior, they had sufficient notice of the event.

Alj Quote

Petitioner opened the email regarding the survey and clicked on the link on March 7, 2023, a week prior to the workshop. Therefore, even if this were considered a 'board meeting' Petitioner would have had sufficient notice.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • notice
  • email
  • digital communication

Case

Docket No
23F-H054-REL
Case Title
Felicia Woodward vs The Pointe South Mountain Residential Association
Decision Date
2023-07-28
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Does an HOA workshop count as a 'board meeting' that requires formal legal notice?

Short Answer

Not necessarily. If no votes are taken or decisions made, it may not be considered a meeting of the board of directors under the statute.

Detailed Answer

The ALJ determined that an event advertised as a 'workshop,' where comments and survey results were discussed but no items were voted on or decisions made, did not qualify as a 'meeting of the board of directors' requiring statutory notice.

Alj Quote

The tribunal was not convinced that this was a 'meeting of the board of directors' under the statute. … There was no expectation that items would be voted on or decisions made.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • meetings
  • workshops
  • definitions

Question

What is the burden of proof for a homeowner filing a petition against their HOA?

Short Answer

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

Detailed Answer

In an administrative hearing, the homeowner must convince the trier of fact that their contention is 'more probably true than not.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804(D).

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Does a member's failure to see a meeting notice invalidate the actions taken at that meeting?

Short Answer

No. The validity of actions taken at a meeting is not affected if a member fails to receive actual notice.

Detailed Answer

Arizona statute explicitly states that if a member does not receive actual notice, it does not void the meeting's actions, provided the notice was properly issued.

Alj Quote

The failure of any member to receive actual notice of a meeting of the board of directors does not affect the validity of any action taken at that meeting.

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

  • notice
  • validity
  • homeowner rights

Question

How far in advance must an HOA provide notice for a board meeting?

Short Answer

Notice must be given at least 48 hours in advance of the meeting.

Detailed Answer

Unless emergency circumstances exist, the board must provide notice to members via newsletter, conspicuous posting, or other reasonable means at least 48 hours prior.

Alj Quote

notice to members of meetings of the board of directors shall be given at least forty-eight hours in advance of the meeting

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

  • notice
  • timelines
  • HOA obligations

Question

Can a Zoom link be considered the 'location' of a meeting for notice purposes?

Short Answer

Yes, providing a Zoom link can satisfy the requirement for a meeting location.

Detailed Answer

The decision accepted testimony that a reminder notice containing a Zoom link was considered the location of the meeting, contributing to sufficient notice.

Alj Quote

Ms. Busey testified that a reminder notice was sent out the day of the workshop with the Zoom link, which was considered the 'location' of the meeting.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • virtual meetings
  • notice
  • technology

Question

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

Short Answer

No. If the petition is denied, the filing fee is generally not reimbursed.

Detailed Answer

The order specifically stated that because the petition was denied, the Respondent (HOA) was not required to reimburse the Petitioner's filing fee.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee

Legal Basis

A.R.S. § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • outcomes

Question

Can opening an email with a survey link constitute receiving notice of a meeting?

Short Answer

Yes. Evidence that a homeowner opened an email/link about the event in advance can establish sufficient notice.

Detailed Answer

The ALJ found that because the Petitioner clicked a survey link related to the workshop a week prior, they had sufficient notice of the event.

Alj Quote

Petitioner opened the email regarding the survey and clicked on the link on March 7, 2023, a week prior to the workshop. Therefore, even if this were considered a 'board meeting' Petitioner would have had sufficient notice.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • notice
  • email
  • digital communication

Case

Docket No
23F-H054-REL
Case Title
Felicia Woodward vs The Pointe South Mountain Residential Association
Decision Date
2023-07-28
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Felicia Woodward (petitioner)
    Property owner/Association member
    Full name is Felicia Anne Woodward; Appeared via Google Meet.

Respondent Side

  • Jonathan D. Ebertshauser (attorney)
    Carpenter, Hazlewood, Delgado, & Bolen
    Represented Respondent.
  • Marcus R. Martinez (attorney)
    Carpenter, Hazlewood, Delgado, & Bolen
    Represented Respondent.
  • Erin Busey (witness/general manager)
    First Service Residential (The Pointe South Mountain Residential Association)
    Called as a witness by Respondent; Identified herself as Aaron Ducy during testimony.

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (commissioner)
    Arizona Department of Real Estate
    Recipient of official transmission.
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission.
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission.
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission.

Other Participants

  • Debbie Robinson (witness)
    Referenced by Petitioner as the person who took a screenshot exhibit; Presence/testimony not confirmed in hearing record.

Clifford (Norm) Burnes v. Saguaro Crest Homeowners Association, 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 21F-H2121051-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2022-01-03
Administrative Law Judge Thomas Shedden
Outcome none
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford (Norm) Burnes Counsel —
Respondent Saguaro Crest Homeowners Association, Inc. Counsel John Crotty

Alleged Violations

ARIZ. REV STAT. 33-1804

Outcome Summary

The ALJ dismissed the Petitioner's complaint, finding that the Respondent HOA did not violate the open meeting law (A.R.S. § 33-1804) because the action was taken without a meeting via unanimous written consent as authorized by A.R.S. § 10-3821.

Why this result: The Petitioner did not meet the burden of proof to show that the alleged violation occurred, as the board acted without holding a formal meeting.

Key Issues & Findings

Violation of open meeting law by taking action via unanimous written consent

Petitioner alleged that the Board of Directors violated the open meeting law (A.R.S. § 33-1804) on May 3, 2020, by taking two actions using unanimous written consent of the Board members, which the Respondent claimed was permissible under A.R.S. § 10-3821 as action without a meeting.

Orders: Petitioner's petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV STAT. 33-1804
  • ARIZ. REV STAT. 10-3821

Analytics Highlights

Topics: HOA, Open Meeting Law, Unanimous Written Consent, Rehearing, Planned Community
Additional Citations:

  • ARIZ. REV STAT. 33-1804
  • ARIZ. REV STAT. 10-3821
  • ARIZ. REV. STAT. 32-2199
  • ARIZ. REV. STAT. 32-2199.02(A)
  • ARIZ. REV. STAT. 41-1092.08
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. 10-3701(F)
  • ARIZ. REV. STAT. 10-3071

Video Overview

Audio Overview

Decision Documents

21F-H2121051-REL-RHG Decision – 930803.pdf

Uploaded 2026-01-23T17:37:56 (46.9 KB)

21F-H2121051-REL-RHG Decision – 935756.pdf

Uploaded 2026-01-23T17:38:01 (124.8 KB)

21F-H2121051-REL-RHG Decision – ../21F-H2121051-REL/899423.pdf

Uploaded 2026-01-23T17:38:05 (101.7 KB)





Briefing Doc – 21F-H2121051-REL-RHG


Briefing Document: Burnes v. Saguaro Crest Homeowners Association

Executive Summary

This briefing document synthesizes the legal proceedings and final decision in the case of Clifford (Norm) Burnes versus the Saguaro Crest Homeowners Association, Inc. (Case No. 21F-H2121051-REL). The core of the dispute was Petitioner Burnes’s allegation that the HOA Board of Directors violated Arizona’s open meeting law for planned communities by taking two official actions on May 3, 2020, without holding a public meeting. The HOA defended its actions, stating that it utilized a provision in the Arizona statutes for non-profit corporations (ARIZ. REV. STAT. § 10-3821) that allows a board to take action “without a meeting” through the unanimous written consent of all directors.

The Administrative Law Judge (ALJ), Thomas Shedden, ultimately ruled in favor of the HOA. The key finding was that no “meeting” as defined by the open meeting law actually occurred on May 3, 2020. Instead, the Board President individually visited other board members to obtain signatures on consent forms. The ALJ concluded that the two relevant statutes—the open meeting law (§ 33-1803/1804) and the action-by-consent statute (§ 10-3821)—are not in conflict. An HOA board can legally use the action-by-consent procedure, but if it chooses to hold a meeting, it must comply with the open meeting law.

Mr. Burnes’s request for a rehearing, which raised several legal and jurisdictional arguments, was granted but ultimately denied on its merits. The ALJ systematically rejected each of Burnes’s arguments, reaffirming the original decision. The final order dismissed Mr. Burnes’s petition, making the HOA the prevailing party.

——————————————————————————–

Case Overview

• Petitioner: Clifford (Norm) Burnes

• Respondent: Saguaro Crest Homeowners Association, Inc.

• Case Number: 21F-H2121051-REL (and 21F-H2121051-REL-RHG for rehearing)

• Adjudicating Body: Arizona Office of Administrative Hearings

• Administrative Law Judge: Thomas Shedden

• Core Allegation: The Petitioner alleged that on May 3, 2020, the Respondent’s Board of Directors violated Arizona’s open meeting law (cited as ARIZ. REV STAT. § 33-1803 in the initial decision and § 33-1804 in the rehearing decision) by taking two formal actions via unanimous written consent without allowing members to attend and speak.

• Respondent’s Defense: The Respondent acknowledged taking action by unanimous consent but asserted this was permissible under ARIZ. REV. STAT. § 10-3821, which allows for action without a meeting. Therefore, the open meeting law did not apply.

Factual Background and Timeline

1. April 2020: Mr. Burnes and his wife raised two issues with the HOA Board concerning “lot 7,” which is adjacent to their property. The issues were related to a construction bond waiver and the placement of a house on the lot.

2. April 2020 (Post-Complaint): Following the complaint, research was conducted by Jamie Argueta, and emails were exchanged between Mr. Burnes, the Board members, and Mr. Argueta.

3. April 19 & 21, 2020: The Board members met with Mr. and Ms. Burnes to discuss the issues. Minutes were kept for these meetings.

4. Undated Discussions: Board President Esmerelda Sarina Martinez and Board member Mr. Madill had informal discussions with other HOA members, which Ms. Martinez characterized as “neighbors talking and not a meeting.”

5. May 3, 2020: Ms. Martinez, acting alone, drafted two unanimous consent forms. She personally brought the forms and related documents to the homes of the other Board members, who each read the information and signed. The two actions taken by consent were:

◦ Honoring a waiver of the construction deposit for lot 7.

◦ A decision regarding the placement of the home on lot 7.

6. August 29, 2020: The first regularly scheduled Board meeting after the May 3rd actions was held. The meeting minutes did not include an entry showing that the written consent documents had been filed with the corporate records, a requirement of § 10-3281(A).

Procedural History

• May 7, 2021: Mr. Burnes filed his petition with the Arizona Department of Real Estate, initially asserting seven violations but being required to select only one for adjudication due to paying a single fee. He selected the violation of members not being permitted to attend and speak before the Board took formal action on May 3, 2020.

• July 16, 2021: An initial hearing was held before ALJ Thomas Shedden.

• July 28, 2021: The ALJ issued a decision dismissing Mr. Burnes’s petition, finding he had not proven a violation because no meeting occurred on May 3, 2020.

• September 2, 2021 (approx.): Mr. Burnes filed a Rehearing Request.

• September 22, 2021: The Department of Real Estate granted the request for a rehearing.

• December 9, 2021: The ALJ issued an order concluding the rehearing matter, noting that since only legal issues were raised, the decision would be based on the existing record and supplemental briefs (though neither party filed one).

• January 3, 2022: The ALJ issued the final decision on the rehearing, once again dismissing the petition and upholding the original ruling. This order was final and binding, subject to judicial review in the Superior Court.

Analysis of Legal Arguments from Rehearing

In his request for a rehearing, Mr. Burnes raised six primary legal arguments against the initial decision. The ALJ addressed and rejected each one.

Petitioner’s Argument

ALJ’s Analysis and Conclusion

1. Limited Jurisdiction: The ALJ’s jurisdiction is limited to Title 33, Chapter 16 and does not include ARIZ. REV. STAT. § 10-3821.

Rejected. Jurisdiction was proper because Mr. Burnes alleged a violation of § 33-1804 (which is in Title 33, Ch. 16). Nothing prohibits a Respondent from raising defenses from outside Title 33, or the ALJ from considering them.

2. Inapplicability of § 10-3821: The statute for action-by-consent only applies to actions found in Title 10, Chapters 24-40. The actions the HOA took are not found there.

Rejected. The ALJ noted that Mr. Burnes himself acknowledged that “voting” is an action found within those chapters of Title 10, and voting is precisely the action that was taken by unanimous consent.

3. Conflict of Law (§ 10-3701(F)): Statute § 10-3701(F) states that in cases of inconsistency, Title 33 (planned communities) controls over Title 10.

Rejected. This analysis is flawed because § 10-3701(F) applies specifically to membership meetings (Title 10, Ch. 30). The statute for action by consent, § 10-3821, deals with directors’ meetings and is in a different chapter (Title 10, Ch. 31), which has no similar provision. The legislature’s choice to include this provision for membership meetings but not for board meetings indicates an intent to allow boards more latitude to act by consent.

4. Specific vs. General Statute: § 33-1804 is specific to planned communities and should control over § 10-3821, which applies to all non-profits. The policy of the state favors open meetings.

Rejected. This principle of statutory construction only applies when statutes are in conflict and cannot both be given effect. Here, they are not in conflict. Both can be given full effect: an HOA may take action without a meeting per § 10-3821, but if a meeting is held, it must follow the open meeting requirements of § 33-1804.

5. Bylaws Are Irrelevant: The ALJ wrongly cited the HOA’s bylaws allowing action-by-consent, because § 33-1804 applies “notwithstanding any provision in the… bylaws.”

Rejected. Mr. Burnes was correct that bylaws do not trump the open meeting law. However, he overlooked that § 10-3821 itself contains an exception: it does not apply if the corporation’s bylaws prohibit action by consent. The finding regarding the bylaws was necessary only to show that this exception did not apply to the HOA, thus making § 10-3821 available to them.

6. A Meeting Did Occur: Mr. Burnes asserted a meeting did take place on May 3, 2020.

Rejected. The ALJ found this position had several flaws: Mr. Burnes cited no evidence from the record to prove discussion occurred on May 3rd; he conflated prior meetings with the events of May 3rd; and he provided no legal authority to show that drawing on past discussions to draft a consent form constitutes a “meeting.” The ALJ also dismissed his reliance on new dictionary definitions not presented at the original hearing.

Key Statutes and Legal Principles

• ARIZ. REV. STAT. § 33-1803 / § 33-1804 (Open Meetings Law):

◦ Mandates that “all meetings of the members’ association and the board of directors… are open to all members of the association.”

◦ Members “shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings.”

◦ A “quorum of the board of directors that meets informally to discuss association business… shall comply with the open meeting and notice provisions.”

◦ Reflects a state policy that provisions should be construed “in favor of open meetings.”

• ARIZ. REV. STAT. § 10-3821 (Action Without Meeting):

◦ “Unless the articles of incorporation or bylaws provide otherwise, action… to be taken at a directors’ meeting may be taken without a meeting if the action is taken by all of the directors.”

◦ The action must be evidenced by one or more written consents, signed by each director, and included in the minutes filed with corporate records.

◦ A consent signed under this section has “the effect of a meeting vote.”

• Saguaro Crest HOA Bylaws (Section 3.5):

◦ The association’s bylaws explicitly provide directors with “the right to take any action in the absence of a meeting, which they could take at a meeting by obtaining the written consent of all the directors.”

Conclusion and Final Order

The Administrative Law Judge concluded that Mr. Burnes failed to meet his burden of proof to show that the Saguaro Crest HOA violated the open meeting law. The central finding was that the HOA’s actions on May 3, 2020, did not constitute a “meeting” but were a legally permissible “action without a meeting” under ARIZ. REV. STAT. § 10-3821. The subsequent rehearing confirmed this legal interpretation.

The final order, issued January 3, 2022, was:

“IT IS ORDERED that Petitioner Clifford (Norm) Burnes’s petition is dismissed.”

The order was final and binding, with any further appeal requiring judicial review by the Superior Court within 35 days.






Study Guide – 21F-H2121051-REL-RHG


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

This study guide provides a review of the administrative law case involving Petitioner Clifford (Norm) Burnes and Respondent Saguaro Crest Homeowners Association, Inc. It includes a short-answer quiz, an answer key, essay questions, and a glossary of key terms based on the provided legal decisions.

Short-Answer Quiz

Answer each question in 2-3 sentences, based on the information in the case documents.

1. What was the single, specific violation that Clifford (Norm) Burnes alleged against the Saguaro Crest Homeowners Association’s Board of Directors?

2. What was the Respondent’s primary legal justification for the actions its Board of Directors took on May 3, 2020?

3. What two specific decisions did the Board make using the unanimous consent forms on May 3, 2020?

4. According to the Administrative Law Judge (ALJ), how can both the open meeting law (§ 33-1804) and the statute allowing action without a meeting (§ 10-3821) be given effect without being in conflict?

5. What was the purpose of the rehearing granted to Mr. Burnes, and what was the outcome?

6. How did the HOA’s bylaws, specifically section 3.5, support the Respondent’s case?

7. What argument did Mr. Burnes make regarding the ALJ’s jurisdiction to consider ARIZ. REV. STAT. section 10-3821?

8. What is the standard of proof required in this matter, and who bears the burden of meeting it?

9. Mr. Burnes asserted that a meeting did occur on May 3, 2020. What flaws did the ALJ identify in this assertion?

10. What specific requests did Mr. Burnes make in his petition as a remedy for the alleged violation?

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Quiz Answer Key

1. Mr. Burnes’s single alleged violation was that at the “meeting” on May 3, 2020, HOA members were not permitted to attend and speak after discussion but before the Board took formal action. This, he claimed, was a violation of Arizona’s open meeting law, cited as ARIZ. REV STAT. § 33-1803 and later § 33-1804.

2. The Respondent acknowledged taking two actions by consent but argued that no meeting actually occurred. Their defense was that they acted under the authority of ARIZ. REV. STAT. § 10-3821, which explicitly allows a board of directors to take action without a meeting if it is done via unanimous written consent of all directors.

3. The two decisions made via unanimous consent related to issues Mr. Burnes had raised about lot 7, which abuts his property. The first action was to honor a waiver of the construction deposit for lot 7, and the second action was regarding the placement of the home on lot 7.

4. The ALJ reasoned that the statutes are not in conflict because they apply to different situations. Respondent may take action without a meeting as allowed by § 10-3821, but if a meeting is held, Respondent must follow all the requirements of the open meeting law, § 33-1804.

5. Mr. Burnes requested a rehearing, alleging that the initial ALJ decision’s findings of fact were not supported by evidence or were contrary to law. The rehearing was granted to review these legal issues, but the outcome was the same: the ALJ once again concluded that no violation had occurred and dismissed Mr. Burnes’s petition.

6. Section 3.5 of the Association’s bylaws, titled “Action Without a Meeting,” explicitly provides the directors with “the right to take any action in the absence of a meeting, which they could take at a meeting by obtaining the written consent of all the directors.” This directly supported the Respondent’s claim that its actions were permissible under its own governing documents as well as state law.

7. Mr. Burnes argued that the ALJ’s jurisdiction is limited to Title 33, Chapter 16, and therefore the ALJ had no jurisdiction to consider section 10-3821 as a defense because it is not found in that title. The ALJ rejected this, stating that jurisdiction was proper because the complaint was about a violation of Title 33, and nothing prohibits a respondent from raising defenses from outside that title.

8. The standard of proof is a “preponderance of the evidence.” The Petitioner, Mr. Burnes, bore the burden of proof to show that the alleged violation occurred.

9. The ALJ found several flaws in this assertion: Mr. Burnes did not cite evidence from the record proving a discussion occurred on May 3rd, he conflated prior meetings with the events of May 3rd, and he provided no legal authority showing that prior discussions are pertinent to whether a meeting occurred on that specific day.

10. Mr. Burnes requested that the Respondent be ordered to rescind the consent actions, comply with the open meeting law, pay his filing fee, and be assessed a civil penalty.

——————————————————————————–

Essay Questions

1. Analyze the central conflict between ARIZ. REV. STAT. § 33-1804 (“Open meetings”) and ARIZ. REV. STAT. § 10-3821 (“Action without meeting”) as presented in this case. Explain the ALJ’s reasoning for concluding that the statutes do not conflict and can both be given effect.

2. Describe the timeline of events leading up to the May 3, 2020 unanimous written consent. How did the meetings and communications in April 2020 between Mr. Burnes and the Board influence the context of the dispute, even though they were not the subject of the final legal violation claim?

3. Evaluate the six specific legal arguments Mr. Burnes raised in his request for rehearing. For each, summarize his point and the ALJ’s counter-argument or legal conclusion.

4. Discuss the concept of “preponderance of the evidence” as defined in the case documents. Explain why the ALJ concluded that Mr. Burnes failed to meet this standard of proof in both the initial hearing and the rehearing.

5. Examine the relationship between state statutes and an association’s governing documents (like bylaws) in this case. How did the ALJ address Mr. Burnes’s argument that § 33-1804 should apply “notwithstanding any provision in the…bylaws”?

——————————————————————————–

Glossary of Key Terms

Term / Statute

Definition

Action without meeting

A procedure allowed by ARIZ. REV. STAT. § 10-3821 and the Association’s Bylaws (Section 3.5) where a board of directors may take action if it is evidenced by one or more written consents signed by all directors. The consent has the effect of a meeting vote.

Administrative Law Judge (ALJ)

The official, in this case Thomas Shedden, assigned to adjudicate complaints and ensure compliance with relevant statutes for the Office of Administrative Hearings.

ARIZ. REV. STAT. § 10-3821

The state statute titled “Action without meeting” that permits a board of directors to take action without a meeting if all directors provide written consent, unless the articles of incorporation or bylaws provide otherwise.

ARIZ. REV. STAT. § 33-1803 / § 33-1804

The state’s “Open meetings” law for planned communities. It requires that all meetings of an HOA board be open to all members, who shall be permitted to attend and speak at an appropriate time.

Burden of Proof

The obligation of a party in a trial to produce the evidence that will prove the claims they have made against the other party. In this case, the Petitioner (Mr. Burnes) bore the burden of proof.

Clifford (Norm) Burnes

The Petitioner in the case, a member of the Saguaro Crest Homeowners Association.

Petitioner

The party who files a petition or brings an action; in this case, Clifford (Norm) Burnes.

Preponderance of the evidence

The standard of proof in this case, defined as “The greater weight of the evidence…sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Respondent

The party against whom a petition is filed; in this case, Saguaro Crest Homeowners Association, Inc.

Saguaro Crest Homeowners Association, Inc.

The Respondent in the case; a planned community governed by a Board of Directors.

Unanimous Written Consent

The method used by the Respondent’s Board of Directors on May 3, 2020, to take action. It involved each board member signing written consent forms, as permitted by ARIZ. REV. STAT. § 10-3821.






Blog Post – 21F-H2121051-REL-RHG


Your HOA Board Can Legally Make Decisions in Secret—Here’s How One Homeowner’s Lawsuit Proved It

1.0 Introduction: The Expectation vs. The Reality

For most homeowners living in a planned community, the principle of transparency is paramount. The common expectation is that all significant decisions made by the Homeowners Association (HOA) board of directors will happen in open meetings. These are forums where members can attend, listen to the deliberations, and, at the appropriate time, make their voices heard before the board takes a formal vote. This commitment to openness is often seen as a cornerstone of fair governance.

But what if a board could make a decision without ever holding a meeting at all? This question was at the heart of a legal dispute in Arizona, where a homeowner named Clifford (Norm) Burnes took his HOA, Saguaro Crest, to court. Mr. Burnes alleged that his board violated the state’s open meeting law when it took action on two separate issues without convening a meeting. The case worked its way through an administrative law court, and the final decision sided with the HOA, establishing a critical legal precedent that boards can, under specific circumstances, bypass open meetings entirely.

2.0 Takeaway 1: Boards Can Legally Act “Without a Meeting”

The central facts of the case were not in dispute. On May 3, 2020, the Saguaro Crest HOA board made two formal decisions concerning a neighboring lot, specifically regarding a construction bond waiver and home placement—issues that Mr. Burnes himself had previously raised. Instead of calling a meeting, the board used a procedure known as “unanimous written consent.” The Board President, Ms. Martinez, drafted two consent forms, personally brought them to the homes of the other board members, and had each director sign them.

This action, while sidestepping an open meeting, was found to be perfectly legal. The board was operating under the authority of a specific Arizona state law, ARIZ. REV. STAT. section 10-3821, titled “Action without meeting.” This statute explicitly allows the board of a non-profit corporation to take action without a meeting, provided the action is taken by all directors and is documented by written consent.

Furthermore, this power was not just granted by state law; it was also written directly into the HOA’s own governing documents. Section 3.5 of the Saguaro Crest HOA’s bylaws, titled “Action Without a Meeting,” explicitly grants its directors “the right to take any action in the absence of a meeting, which they could take at a meeting by obtaining the written consent of all the directors.”

3.0 Takeaway 2: A Legal Puzzle—When Two State Laws Seem to Conflict

Mr. Burnes’s case created a compelling legal puzzle by highlighting two state laws that appeared to be in direct opposition. On one side was Arizona’s Planned Community law (ARIZ. REV. STAT. section 33-1804), which strongly mandates open meetings for HOA boards and includes a policy statement that any interpretation of the law should be construed “in favor of open meetings.”

On the other side was the state’s Nonprofit Corporation law (ARIZ. REV. STAT. section 10-3821), which, as noted, expressly permits a board to act without a meeting. Mr. Burnes argued that the open meeting law should take precedence.

The Administrative Law Judge, however, made a crucial distinction. Applying a standard legal principle that courts must try to give effect to both laws if possible, the judge determined the two statutes do not actually conflict. The judge’s reasoning clarifies how both can exist and be applied legally.

In this case, both sections 10-3821 and 33-1804 can be given effect in that Respondent may take action without a meeting as allowed by section 10-3821, but if a meeting is held, Respondent must follow the requirements of section 33-1804.

This interpretation is the core of the decision. The open meeting law, with all its requirements for notice and member participation, only applies if a meeting is held. By using the “action without meeting” statute, the Saguaro Crest board legally sidestepped the requirement to hold a meeting in the first place, thereby rendering the open meeting law inapplicable to their actions on that day.

4.0 Takeaway 3: Legislative Intent Can Be Read in a Law’s Silence

Mr. Burnes also advanced a more sophisticated legal argument: that in any conflict, the specific laws written for HOAs (found in Title 33 of the state code) should overrule the more general laws for non-profit corporations (found in Title 10).

The judge’s response to this provided a fascinating lesson in how courts interpret legislative intent, not just from what a law says, but from what it doesn’t say. The judge noted that the section of law governing general membership meetings does contain a specific clause stating that in the case of an inconsistency, the HOA laws control.

Crucially, the section of law governing board meetings, where the “action without meeting” statute is found, has no such clause. The judge interpreted this difference not as an oversight, but as a deliberate choice by lawmakers. This “silence” in the statute was read as a “legislative intent to allow boards latitude to act by consent.” In other words, if the legislature had intended for the open meeting law to always override the board’s ability to act by written consent, it would have explicitly said so, just as it did for membership meetings.

5.0 Conclusion: Efficiency vs. Transparency

While homeowners understandably value and expect open meetings as a tool for transparency and participation, the law also recognizes the need for boards to operate efficiently. The unanimous written consent procedure provides a legal mechanism for boards to make decisions, particularly on straightforward matters, without the time and expense of convening a formal meeting.

This case is more than a legal curiosity; it’s a practical lesson for every homeowner. The power wielded by the Saguaro Crest board is not unique to Arizona. If you want to understand the true scope of your own board’s authority, take these two steps:

1. Review your HOA’s bylaws. Look for a clause titled “Action Without a Meeting” or similar language that grants the board the right to act via written consent. This is the internal authorization.

2. Check your state’s Nonprofit Corporation Act. Search for a statute similar to Arizona’s § 10-3821. This is the ultimate source of the board’s power, and it likely exists in some form in your state, defining the boundary between efficiency and transparency for your community.


Case Participants

Petitioner Side

  • Clifford (Norm) Burnes (petitioner)
    Appeared on his own behalf
  • Ms. Burnes (spouse of petitioner)
    Wife of Clifford (Norm) Burnes; raised issues with the Board

Respondent Side

  • John Crotty (HOA attorney)
    Law Offices of Farley, Choate & Wood
  • Esmerelda Sarina Martinez (board member)
    Saguaro Crest Homeowners Association, Inc.
    Board president and witness
  • Madill (board member)
    Saguaro Crest Homeowners Association, Inc.
    Referred to as 'Mr. Madill'
  • Jennifer Elias (HOA attorney)
    Law Offices of Farley, Choate & Wood

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
    Addressee of original decision
  • Miranda Alvarez (clerk)
    Transmitted original decision and final rehearing decision (By Miranda Alvarez/Miranda A.)
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
    Addressee of documents relating to the rehearing
  • c. serrano (clerk)
    Transmitted Order Concluding Matter

Other Participants

  • Jamie Argueta (researcher/staff)
    Conducted research regarding issues raised by Petitioner