Megan E Gardner v. Woodland Valley Ranch Property Owners Association,

Posted on October 16, 2023 by [email protected]

Case Summary

Case ID	23F-H061-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2023-10-16
Administrative Law Judge	Adam D. Stone
Outcome	The ALJ affirmed the petition, finding the Respondent HOA violated CC&Rs, Article 3, Section G by failing to provide 30 days' notice prior to the 2023 assessment increase. The Respondent was ordered to reimburse the Petitioner's filing fee.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Megan E Gardner	Counsel	—
Respondent	Woodland Valley Ranch Property Owners Association, Inc.	Counsel	Kyle A. von Johnson and Edith I. Rudder

Alleged Violations

CC&Rs, Article 3, Section G

Outcome Summary

The ALJ affirmed the petition, finding the Respondent HOA violated CC&Rs, Article 3, Section G by failing to provide 30 days' notice prior to the 2023 assessment increase. The Respondent was ordered to reimburse the Petitioner's filing fee.

Key Issues & Findings

Failure to provide 30-day notice for 2023 dues increase

The HOA increased annual dues from $200.00 to $240.00 effective 1/1/2023 due to a financial crisis caused by embezzlement, but failed to provide the required 30-day written notice as mandated by the CC&Rs. Although the increase was later refunded, the ALJ affirmed the petition finding the HOA failed to comply with the CC&Rs.

Orders: Petitioner's petition is affirmed. Respondent is ordered to reimburse Petitioner's $500.00 filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

CC&Rs, Article 3, Section G
ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et al.

Analytics Highlights

Topics: HOA Dues Increase, Notice Violation, CC&R Violation, Embezzlement, Filing Fee Refund, Assessment Timing

Additional Citations:

CC&Rs, Article 3, Section G
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 33-1804(D)
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. § 41-1092
ARIZ. REV. STAT. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

23F-H061-REL Decision – 1077230.pdf

Uploaded 2026-04-24T12:12:40 (41.5 KB)

23F-H061-REL Decision – 1095389.pdf

Uploaded 2026-04-24T12:12:45 (44.3 KB)

23F-H061-REL Decision – 1095762.pdf

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23F-H061-REL Decision – 1102356.pdf

Uploaded 2026-04-24T12:12:57 (110.9 KB)

23F-H061-REL Decision – 1077230.pdf

Uploaded 2026-01-23T17:59:31 (41.5 KB)

23F-H061-REL Decision – 1095389.pdf

Uploaded 2026-01-23T17:59:34 (44.3 KB)

23F-H061-REL Decision – 1095762.pdf

Uploaded 2026-01-23T17:59:37 (6.7 KB)

23F-H061-REL Decision – 1102356.pdf

Uploaded 2026-01-23T17:59:42 (110.9 KB)

This summary addresses the hearing proceedings, key arguments, and final decision in the case of *Megan E Gardner v Woodland Valley Ranch Property Owners Association, Inc.* (No. 23F-H061-REL), heard by Administrative Law Judge (ALJ) Adam D. Stone on October 2, 2023.

Key Facts and Main Issues

The dispute centered on the Association’s increase of the annual assessment from $200.00 to $240.00 for the 2023 calendar year.

Petitioner's Claim: Megan E. Gardner alleged the Association violated the Covenants, Conditions, and Restrictions (CCRs), specifically Article 3, Section G, which requires the regular assessment amount to be fixed and noticed at least thirty (30) days prior to the end of the calendar year (i.e., by December 1st). The Board voted on the increase on December 16, 2022, missing the required deadline.

Association's Defense (Respondent): The Association, represented by counsel, argued the violation was necessary due to extraordinary circumstances. The former property manager had embezzled nearly $500,000.00 of the Association’s funds in late 2022, leading to financial collapse. Facing an urgent $110,000.00 debt to the road maintenance contractor (crucial for maintaining 200 miles of necessary roadways), the Board had "no choice" but to raise rates to secure immediate funds. The Association asserted that the CCRs did not contemplate such a crisis.

Key Arguments and Legal Points

Respondent's Argument for Mootness: The Association testified that by April 2023, they recovered $387,000.00 in insurance proceeds. Consequently, they paid the debt and issued a $40.00 credit (refund) to all members around May 25, 2023. The Association argued that since the challenged assessment increase was refunded, the petition was moot.

Petitioner's Counter-Argument (Focus on Correction): Gardner received the refund but contended that the issue was not moot. She argued that a refund is not a correction. Gardner sought corrective action requiring the Board to create a formal written record and ensure transparency. She noted that the member portal still incorrectly displayed the $240.00 assessment amount, demonstrating a failure to correct the records and potentially confusing new homeowners. She emphasized that the Board must conduct business according to the CCRs going forward.

Outcome and Final Decision

The Administrative Law Judge issued a Decision on October 16, 2023, concluding that the Petitioner met her burden of proving the CCR violation by a preponderance of the evidence.

Legal Finding: The ALJ affirmed that while he sympathized with the "untenable and horrible position" the Association faced, the Board failed to comply with the CCR’s mandatory 30-day notice provision for the 2023 Assessment.

Order:

Petitioner’s petition was affirmed.
The Association was ORDERED to reimburse Petitioner’s filing fee ($500.00) pursuant to ARIZ. REV. STAT. § 32-2199.02(A), despite Gardner testifying that she was not seeking reimbursement.
No civil penalty was awarded, as the Petitioner did not request one.

Questions

Question

Can my HOA raise dues without proper notice if they are facing a severe financial emergency?

Short Answer

No, financial crises do not exempt the HOA from following the notice timelines in the CC&Rs.

Detailed Answer

The ALJ ruled that even though the HOA was in an 'untenable' position due to embezzlement and urgent debts, they were still strictly bound to provide the specific notice (30 days in this case) required by the governing documents before increasing assessments.

Alj Quote

First, while the tribunal sympathizes with the untenable and horrible position that the Association was facing, it still failed to comply with the CCR’s, by not providing the 30 day notice prior to the 2023 yearly Assessment.

Legal Basis

CC&Rs Compliance

Topic Tags

Assessments
Emergency Powers
Notice Requirements

Question

If I win my hearing, will I get my filing fee back even if I tell the judge I don't want it?

Short Answer

Yes, the statute requires the filing fee to be reimbursed if the petitioner prevails, regardless of their personal preference.

Detailed Answer

The judge ordered the HOA to reimburse the $500 filing fee because the relevant statute (A.R.S. § 32-2199.01) binds the tribunal to order reimbursement when the petitioner wins, even though the homeowner explicitly testified she did not wish to recover it.

Alj Quote

At hearing, Petitioner testified that she did not wish to recovery her filing fee, the tribunal is bound by the statute to order the same.

Legal Basis

A.R.S. § 32-2199.01; A.R.S. § 32-2199.02(A)

Topic Tags

Filing Fees
Reimbursement
Statutory Mandates

Question

What level of proof do I need to provide to win a dispute against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence,' meaning your claim is more probable than not.

Detailed Answer

The homeowner bears the burden of proof. The standard is not 'beyond a reasonable doubt' (like in criminal cases), but rather showing that the evidence is sufficient to incline a fair mind to one side over the other.

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(D); A.A.C. R2-19-119

Topic Tags

Burden of Proof
Legal Standards
Evidence

Question

Will the judge automatically fine the HOA if I prove they violated the rules?

Short Answer

No, if you do not specifically request a civil penalty in your petition, the judge generally will not award one.

Detailed Answer

In this case, although the HOA was found in violation, the judge ordered that no civil penalty be awarded specifically because the petitioner did not include a request for a penalty in her initial paperwork.

Alj Quote

IT IS FURTHER ORDERED that no civil penalty be awarded as Petitioner did not request the same in her Petition.

Legal Basis

Administrative Discretion

Topic Tags

Civil Penalties
Fines
Petition Drafting

Question

If the HOA fixes the problem (like refunding money) before the decision, is the case dismissed?

Short Answer

Not necessarily; the judge may still issue a decision affirming the violation occurred.

Detailed Answer

The HOA had already refunded the improper assessment increase to members before the decision was written. However, the ALJ still issued an order affirming the petition and finding that the HOA had failed to comply with the CC&Rs.

Alj Quote

The tribunal finds that Petitioner has met her burden. … Fortunately for the Association and the homeowners, it … was able to issue a refund of $40.00 to its members.

Legal Basis

Mootness (Implicitly Rejected)

Topic Tags

Refunds
Violations
Case Outcomes

Case

Docket No: 23F-H061-REL
Case Title: Megan E Gardner v Woodland Valley Ranch Property Owners Association, Inc.
Decision Date: 2023-10-16
Alj Name: Adam D. Stone
Tribunal: OAH
Agency: ADRE

Questions

Question

Can my HOA raise dues without proper notice if they are facing a severe financial emergency?

Short Answer

No, financial crises do not exempt the HOA from following the notice timelines in the CC&Rs.

Detailed Answer

Alj Quote

Legal Basis

CC&Rs Compliance

Topic Tags

Assessments
Emergency Powers
Notice Requirements

Question

If I win my hearing, will I get my filing fee back even if I tell the judge I don't want it?

Short Answer

Yes, the statute requires the filing fee to be reimbursed if the petitioner prevails, regardless of their personal preference.

Detailed Answer

Alj Quote

At hearing, Petitioner testified that she did not wish to recovery her filing fee, the tribunal is bound by the statute to order the same.

Legal Basis

A.R.S. § 32-2199.01; A.R.S. § 32-2199.02(A)

Topic Tags

Filing Fees
Reimbursement
Statutory Mandates

Question

What level of proof do I need to provide to win a dispute against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence,' meaning your claim is more probable than not.

Detailed Answer

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

A.R.S. § 33-1804(D); A.A.C. R2-19-119

Topic Tags

Burden of Proof
Legal Standards
Evidence

Question

Will the judge automatically fine the HOA if I prove they violated the rules?

Short Answer

No, if you do not specifically request a civil penalty in your petition, the judge generally will not award one.

Detailed Answer

Alj Quote

IT IS FURTHER ORDERED that no civil penalty be awarded as Petitioner did not request the same in her Petition.

Legal Basis

Administrative Discretion

Topic Tags

Civil Penalties
Fines
Petition Drafting

Question

If the HOA fixes the problem (like refunding money) before the decision, is the case dismissed?

Short Answer

Not necessarily; the judge may still issue a decision affirming the violation occurred.

Detailed Answer

Alj Quote

The tribunal finds that Petitioner has met her burden. … Fortunately for the Association and the homeowners, it … was able to issue a refund of $40.00 to its members.

Legal Basis

Mootness (Implicitly Rejected)

Topic Tags

Refunds
Violations
Case Outcomes

Case

Docket No: 23F-H061-REL
Case Title: Megan E Gardner v Woodland Valley Ranch Property Owners Association, Inc.
Decision Date: 2023-10-16
Alj Name: Adam D. Stone
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Megan E Gardner (petitioner)
Property owner of Parcel 222

Respondent Side

Kyle A. von Johnson (HOA attorney)
Woodland Valley Ranch Property Owners Association, Inc.
Edith I. Rudder (HOA attorney)
Woodland Valley Ranch Property Owners Association, Inc.
Ronald Carter (Treasurer/Witness)
Woodland Valley Ranch Property Owners Association, Inc.
Treasurer since June 2022. Referred to as 'Ronald Cotter' in the ALJ Decision Findings of Fact.
David Goodman (Witness)
Woodland Valley Ranch Property Owners Association, Inc.
Appeared remotely; recruited to serve as President after previous board members resigned.

Neutral Parties

Adam D. Stone (ALJ)
Office of Administrative Hearings (OAH)
Susan Nicolson (Commissioner)
Arizona Department of Real Estate (ADRE)
AHansen (ADRE Staff)
Arizona Department of Real Estate (ADRE)
Listed for copy transmittal
vnunez (ADRE Staff)
Arizona Department of Real Estate (ADRE)
Listed for copy transmittal
djones (ADRE Staff)
Arizona Department of Real Estate (ADRE)
Listed for copy transmittal
labril (ADRE Staff)
Arizona Department of Real Estate (ADRE)
Listed for copy transmittal

Jennifer J Sullivan v. The Village at Elk Run Homeowners Association,

Posted on August 8, 2023 by [email protected]

Case Summary

Case ID	23F-H043-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2023-08-08
Administrative Law Judge	Adam D. Stone
Outcome	The Administrative Law Judge denied the Petitioner's petition, finding that the HOA's CC&Rs (Section 4.1) prohibited nonresidential use, including short-term renting (deemed a business by the tribunal), unless the lot was rented or leased for month-to-month or longer terms. Therefore, rentals shorter than a month were prohibited.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Jennifer J Sullivan	Counsel	—
Respondent	The Village at Elk Run Homeowners Association, Inc.	Counsel	Michael S. McLeran

Alleged Violations

Article 4, Section 4.1 of the Community’s CC&Rs; ARIZ. REV. STAT. § 33-1804(D)

Outcome Summary

The Administrative Law Judge denied the Petitioner's petition, finding that the HOA's CC&Rs (Section 4.1) prohibited nonresidential use, including short-term renting (deemed a business by the tribunal), unless the lot was rented or leased for month-to-month or longer terms. Therefore, rentals shorter than a month were prohibited.

Why this result: The tribunal determined the Petitioner failed to meet her burden, as her short-term rental operation constituted a prohibited nonresidential use/business under Section 4.1 of the CC&Rs, which only permits leasing for Month to Month or Longer Terms.

Key Issues & Findings

Challenging HOA Violation Notice for Short-Term Rental Restriction

Petitioner challenged the Courtesy Violation Notice issued by the HOA for operating a short-term rental (Airbnb) with a minimum rental period less than month-to-month, arguing the CC&Rs did not explicitly prohibit such rentals. The HOA maintained that Section 4.1 prohibited nonresidential use, unless leased for month-to-month or longer terms, thereby prohibiting short-term rentals/business use.

Orders: Petitioner’s petition was denied. Respondent shall not reimburse Petitioner’s filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2199.01
PAL versus Washburn 211 Arizona 553 2006
Burke versus Voiceream Wireless Corporation 2 2007 Arizona 393 quarter of appeal 2004
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(D), 32-2199.02, and 41-1092

Analytics Highlights

Topics: HOA governance, short-term rental, CC&R interpretation, business use, 30-day minimum

Additional Citations:

ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2199.01
PAL versus Washburn 211 Arizona 553 2006
Burke versus Voiceream Wireless Corporation 2 2007 Arizona 393 quarter of appeal 2004
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(D), 32-2199.02, and 41-1092

Video Overview

Audio Overview

Decision Documents

23F-H043-REL Decision – 1050430.pdf

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23F-H043-REL Decision – 1081482.pdf

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23F-H043-REL Decision – 1081483.pdf

Uploaded 2026-04-24T12:08:00 (117.7 KB)

23F-H043-REL Decision – 1050430.pdf

Uploaded 2026-01-23T17:56:20 (47.3 KB)

23F-H043-REL Decision – 1081482.pdf

Uploaded 2026-01-23T17:56:23 (59.0 KB)

23F-H043-REL Decision – 1081483.pdf

Uploaded 2026-01-23T17:56:27 (117.7 KB)

Case Summary: Jennifer J. Sullivan vs. The Village at Elk Run Homeowners Association, Inc.

This matter (No. 23F-H043-REL) was a contested case before the Office of Administrative Hearings (OAH), heard on July 24, 2023, by Administrative Law Judge (ALJ) Adam D. Stone. Petitioner Jennifer J. Sullivan, a homeowner in The Village at Elk Run Homeowners Association, Inc. (Respondent), challenged a violation notice she received for operating a short-term rental (Airbnb).

Key Facts and Background

Petitioner Sullivan had owned her townhome since 2006 and began renting it on a short-term basis (minimum 3 days) through Airbnb in September 2021. She testified that she had registered for a Transaction Privilege Tax number and was pursuing a license under new city rules, acknowledging that the rental was a business. The Association issued a Courtesy Violation Notice on November 22, 2022, citing a violation of Article 4, Section 4.1 of the community's Covenants, Conditions, and Restrictions (CC&Rs) due to the short-term rental operation.

Main Issues and Arguments

The core legal issue centered on the interpretation of CC&R Section 4.1, titled "Residential Use":

> "All Lots shall be used, improved and devoted exclusively to Single family Residential Use. No gainful occupation, profession, trade or other nonresidential use shall be conducted on any Lot. This Section shall not preclude the Residential Leasing or Renting of a Lot for Month to Month or Longer Terms".

Petitioner's Argument: Sullivan contended that the CC&Rs do not contain an explicit minimum rental period, and therefore, rentals shorter than 30 days are permissible. She argued that Arizona law (ARS 33-1806.01) requires HOAs to list a minimum rental period if they intend to restrict short-term leasing, which the Elk Run CC&Rs failed to do. She asserted that renting a home is considered a residential use.

Respondent's Argument: The Association, represented by Michael McLeran, argued that Section 4.1 must be read in its entirety to uphold the community's character. They asserted that operating a short-term rental for profit (as evidenced by Petitioner's tax licensing) constitutes a "gainful occupation, profession, trade or other nonresidential use," which is prohibited. The final sentence of Section 4.1 allowing "Month to Month or Longer Terms" clarifies the *only* exception where renting for profit is permitted, thereby implicitly prohibiting shorter-term rentals. Testimony from the original CC&R signatory, John Vail, supported the intent for a minimum 30-day rental period.

Outcome and Legal Decision

The ALJ issued a Decision on August 8, 2023, denying the Petitioner's petition.

The ALJ found that Petitioner Sullivan failed to meet her burden of proving that the Association violated relevant statutes or documents. The tribunal concluded that Sullivan was "clearly running a business out of the home".

The ALJ adopted the Respondent's interpretation of Section 4.1: nonresidential use (i.e., operating a rental business for gainful occupation) is *only* permitted if the lots are rented or leased for month to month or longer terms. Thus, the ALJ ruled that, as currently written, any renting or leasing shorter than a month was prohibited.

The Petitioner's request for reimbursement of her $500 filing fee was also denied.

Questions

Question

If my CC&Rs allow leasing for 'month to month or longer terms', does that automatically prohibit short-term rentals like Airbnb?

Short Answer

Yes. The tribunal interprets 'month to month or longer' as an exclusive permission, meaning any rental term shorter than a month is prohibited.

Detailed Answer

Even if the CC&Rs do not explicitly state 'no short-term rentals', a clause permitting 'month to month or longer' terms generally implies that shorter terms are not permitted under the restrictions against non-residential use.

Alj Quote

Rather the tribunal reads the section to mean that nonresidential use is only permitted if the lots were rented or leased for month to month or longer terms. … Thus, as currently written, any renting or leasing shorted than a month was prohibited.

Legal Basis

Contract Interpretation / CC&R Section 4.1

Topic Tags

short-term rentals
CC&R interpretation
Airbnb

Question

Can listing a home on Airbnb be legally considered 'running a business' or 'non-residential use'?

Short Answer

Yes. Applying for a business license and remitting transaction privilege taxes can establish that a homeowner is conducting a business from the home.

Detailed Answer

The ALJ found that applying for a municipal business license and paying transaction taxes (which are typical for rentals) demonstrated that the homeowner was using the property for a gainful occupation or business, rather than simple residential use.

Alj Quote

Petitioner was clearly running a business out of the home, as she has applied for a business license with Flagstaff, and was remitting Transaction Privilege Tax.

Legal Basis

Finding of Fact 6 / Conclusion of Law 6

Topic Tags

business use
taxes
commercial activity

Question

Does an HOA have to explicitly use the phrase 'no short-term rentals' in the CC&Rs to ban them?

Short Answer

No. The absence of a specific exclusion for short-term rentals does not mean they are permitted if other language restricts leasing terms.

Detailed Answer

The ALJ rejected the argument that short-term rentals were allowed simply because the CC&Rs didn't explicitly name and ban them. The restrictions on non-residential use and specific permissions for monthly rentals were sufficient to create the ban.

Alj Quote

Further, tribunal was not convinced that simply because it does not mention the exclusion for short-term rentals that the same was permitted.

Legal Basis

Conclusion of Law 6

Topic Tags

CC&R interpretation
implicit restrictions
rental rules

Question

Who has to prove their case in a hearing regarding an HOA dispute?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

When a homeowner petitions for a hearing alleging the HOA violated statutes or documents, it is the homeowner's responsibility to prove the violation by a preponderance of the evidence.

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

Conclusion of Law 3

Topic Tags

burden of proof
legal procedure
evidence

Question

If I lose my hearing against the HOA, will I get my $500 filing fee reimbursed?

Short Answer

No. Reimbursement is typically denied if the petition is denied.

Detailed Answer

The ALJ ordered that because the petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid by the homeowner.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

Order / ARS § 32-2199.02(A)

Topic Tags

fees
penalties
costs

Case

Docket No: 23F-H043-REL
Case Title: Jennifer J Sullivan vs The Village at Elk Run Homeowners Association, Inc.
Decision Date: 2023-08-08
Alj Name: Adam D. Stone
Tribunal: OAH
Agency: ADRE

Questions

Question

If my CC&Rs allow leasing for 'month to month or longer terms', does that automatically prohibit short-term rentals like Airbnb?

Short Answer

Yes. The tribunal interprets 'month to month or longer' as an exclusive permission, meaning any rental term shorter than a month is prohibited.

Detailed Answer

Alj Quote

Legal Basis

Contract Interpretation / CC&R Section 4.1

Topic Tags

short-term rentals
CC&R interpretation
Airbnb

Question

Can listing a home on Airbnb be legally considered 'running a business' or 'non-residential use'?

Short Answer

Yes. Applying for a business license and remitting transaction privilege taxes can establish that a homeowner is conducting a business from the home.

Detailed Answer

Alj Quote

Petitioner was clearly running a business out of the home, as she has applied for a business license with Flagstaff, and was remitting Transaction Privilege Tax.

Legal Basis

Finding of Fact 6 / Conclusion of Law 6

Topic Tags

business use
taxes
commercial activity

Question

Does an HOA have to explicitly use the phrase 'no short-term rentals' in the CC&Rs to ban them?

Short Answer

No. The absence of a specific exclusion for short-term rentals does not mean they are permitted if other language restricts leasing terms.

Detailed Answer

Alj Quote

Further, tribunal was not convinced that simply because it does not mention the exclusion for short-term rentals that the same was permitted.

Legal Basis

Conclusion of Law 6

Topic Tags

CC&R interpretation
implicit restrictions
rental rules

Question

Who has to prove their case in a hearing regarding an HOA dispute?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

When a homeowner petitions for a hearing alleging the HOA violated statutes or documents, it is the homeowner's responsibility to prove the violation by a preponderance of the evidence.

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

Conclusion of Law 3

Topic Tags

burden of proof
legal procedure
evidence

Question

If I lose my hearing against the HOA, will I get my $500 filing fee reimbursed?

Short Answer

No. Reimbursement is typically denied if the petition is denied.

Detailed Answer

The ALJ ordered that because the petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid by the homeowner.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

Order / ARS § 32-2199.02(A)

Topic Tags

fees
penalties
costs

Case

Docket No: 23F-H043-REL
Case Title: Jennifer J Sullivan vs The Village at Elk Run Homeowners Association, Inc.
Decision Date: 2023-08-08
Alj Name: Adam D. Stone
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Jennifer J Sullivan (petitioner)
Appeared on her own behalf
David Sheffield (petitioner attorney)
Provided legal opinion to Petitioner in 2020

Respondent Side

Michael S. McLeran (HOA attorney)
Childers Hanlon & Hudson, PLC
Represented Respondent
Teresa Bale (board member)
The Village at Elk Run Homeowners Association, Inc.
Board President; Witness for Respondent
John R. Bale (developer/witness)
The Village at Elk Run Homeowners Association, Inc.
Original developer who drafted/signed CC&Rs; Witness for Respondent
Jason Miller (attorney)
Provided opinion letter regarding CC&Rs to the Board
Beth Moly (attorney)
Issued formal opinion letter regarding Section 4.1
Melanie Lashley (property manager)
Homeco Rent
Contacted by Petitioner regarding rental rules
Betsy Snow (board member)
The Village at Elk Run Homeowners Association, Inc.
Won board election against Petitioner

Neutral Parties

Adam D. Stone (ALJ)
Office of Administrative Hearings
Susan Nicolson (Commissioner)
Arizona Department of Real Estate
Recipient of decision transmission
AHansen (ADRE Staff)
Arizona Department of Real Estate
Recipient of decision transmission
vnunez (ADRE Staff)
Arizona Department of Real Estate
Recipient of decision transmission
djones (ADRE Staff)
Arizona Department of Real Estate
Recipient of decision transmission
labril (ADRE Staff)
Arizona Department of Real Estate
Recipient of decision transmission

Felicia Woodward v. The Pointe South Mountain Residential Association

Posted on July 28, 2023 by [email protected]

Case Summary

Case ID	23F-H054-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2023-07-28
Administrative Law Judge	Adam D. Stone
Outcome	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.
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 2026-04-24T12:09:44 (54.7 KB)

23F-H054-REL Decision – 1078258.pdf

Uploaded 2026-04-24T12:09:47 (113.6 KB)

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)

This summary addresses the legal case hearing held on July 14, 2023, concerning the matter of Felicia Woodward (Petitioner) versus The Pointe South Mountain Residential Association (Respondent). The hearing was conducted before Administrative Law Judge (ALJ) Adam D. Stone at the Office of Administrative Hearings (OAH).

Key Facts and Main Issues

The central issue was whether the Association violated A.R.S. § 33-1804 by failing to properly notice a community event—the Courthome Improvement Workshop—held on March 14, 2023. Arizona Revised Statute § 33-1804(D) mandates that notice for board meetings must be given at least 48 hours in advance by newsletter, conspicuous posting, or other reasonable means, and must state the date, time, and place of the meeting.

Hearing Arguments

Petitioner’s Case:

Petitioner Felicia Woodward argued that the notice was improper because the Association failed to follow customary notice methods (community-wide email, portal calendar, and sandwich boards). Although she received an email survey more than 48 hours prior to the meeting, she alleged that the link provided the date and time, but did not include the location (the Zoom link). She presented evidence suggesting the meeting was not listed on the community calendar 24 hours prior. Woodward also noted that a board member questioned the adequacy of the notice at the meeting.

Respondent’s Case:

The Association, represented by Jonathan D. Ebertshauser and Marcus R. Martinez, argued that the Association complied with A.R.S. § 33-1804, noting that the statute does not require consistent notice methods. The General Manager, Erin Busey, testified that the March 14th event was a workshop, not a regular monthly board meeting, explaining why costly sandwich boards were not used. Busey stated that the meeting information, including the date, time, and location (the Zoom link), was entered into the system and sent via email survey on March 7, 2023, exceeding the 48-hour requirement. Furthermore, evidence showed the Petitioner actually opened the survey email and clicked the link. Counsel emphasized the legal point that the failure of any member to receive *actual* notice does not affect the validity of actions taken, provided notice was issued.

Final Decision and Outcome

The Administrative Law Judge determined that the Petitioner did not meet her burden of proving a violation of A.R.S. § 33-1804(D) by a preponderance of the evidence.

Nature of the Meeting: The tribunal was not convinced the workshop was a formal “meeting of the board of directors” under the statute, as it was intended for discussion and review of survey results, with no expectation of voting or decisions.
Sufficiency of Notice: Even if the event were considered a board meeting, the Petitioner was found to have had sufficient notice, having opened the email containing the survey and link on March 7, 2023, a week before the workshop.

The ALJ issued an Order denying the Petitioner’s petition. Furthermore, the Association was not required to reimburse the Petitioner’s filing fee.

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

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

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) S. Burnes v. Saguaro Crest Homeowners Association,

Posted on March 23, 2021 by [email protected]

Case Summary

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

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

Alleged violation of CC&Rs Section 5

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

Orders: Petition denied.

Filing fee: $125.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

CC&Rs Section 5

Alleged violation of Community Agricultural Design Guidelines Section 4.0

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

Orders: Petition denied.

Filing fee: $125.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

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

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

Orders: Petition denied.

Filing fee: $125.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Alleged violation of A.R.S. § 33-1805

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

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

Filing fee: $125.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

ARIZ. REV. STAT. § 33-1805

Analytics Highlights

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

Additional Citations:

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

Video Overview

Audio Overview

Decision Documents

21F-H2120002-REL Decision – 902726.pdf

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

21F-H2120002-REL Decision – 866263.pdf

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

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

Executive Summary

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

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

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

I. Background and Procedural History

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

Procedural Timeline

July 17, 2020

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

August 11, 2020

Respondent (HOA) denies all claims in its answer.

Dec 11, 2020 & Mar 1-2, 2021

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

March 22, 2021

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

April 28, 2021

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

May 21, 2021

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

July 20, 2021

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

August 09, 2021

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

Key Parties

Name / Entity

Clifford & Maria Burnes

Petitioners; owners of Lot 6.

Cynthia F. Burnes, Esq.

Counsel for Petitioners.

Saguaro Crest HOA, Inc.

Respondent.

John Crotty, Esq.

Counsel for Respondent.

Norm Burnes

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

Raul & Ramona Martinez

Owners of Lot 7, the property under construction.

Jenna Clark

Administrative Law Judge (ALJ).

II. Analysis of Allegations and Findings

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

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

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

• Factual Record:

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

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

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

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

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

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

• Factual Record:

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

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

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

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

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

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

• Factual Record:

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

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

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

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

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

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

• Factual Record:

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

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

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

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

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

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

III. Final Order and Directives

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

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

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

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

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

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

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

Short-Answer Quiz

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

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

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

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

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

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

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

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

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

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

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

——————————————————————————–

Quiz Answer Key

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

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

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

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

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

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

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

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

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

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

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Essay Questions

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

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

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

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

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

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

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

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

Architectural Review Committee (ARC)

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

Arizona Department of Real Estate (Department)

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

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

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

Burden of Proof

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

Covenants, Conditions, and Restrictions (CC&Rs)

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

Homeowners’ Association (HOA)

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

Offer of Proof

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

Office of Administrative Hearings (OAH)

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

Petitioners

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

Preponderance of the Evidence

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

Respondent

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

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21F-H2120002-REL-RHG

1 source

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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