Tag Archives: BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Jesse Freeman v. Millett Ranch Homeowners’ Association

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Case Summary

Case ID 24F-H035-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-08-09
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge determined that Petitioner failed to sustain the burden of proof required to show the Association violated the purported Bylaws amendment, and therefore, the petition was denied.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jesse Freeman Counsel —
Respondent Millett Ranch Homeowners’ Association Counsel Augustus H. Shaw IV, Esq.

Alleged Violations

Bylaws Article II, Section 8, as amended October 18, 2000

Outcome Summary

The Administrative Law Judge determined that Petitioner failed to sustain the burden of proof required to show the Association violated the purported Bylaws amendment, and therefore, the petition was denied.

Why this result: Petitioner failed to prove the validity or implementation of the purported Bylaws amendment, and the language of the amendment itself was found not to be compulsory in requiring a subsequent meeting.

Key Issues & Findings

Alleged failure to hold a second and subsequent meeting of the membership with a diminished quorum.

Petitioner alleged the Association violated its Bylaws by failing to hold a second meeting with a diminished 15% quorum after failing to meet the initial 25% quorum at the Annual Meeting on January 16, 2024, despite a motion and second being made to adjourn and reset the meeting.

Orders: Petitioner's petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
  • ARIZ. REV. STAT. § 33-1802(4)
  • ARIZ. REV. STAT. § 33-1802(1)
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • 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)

Analytics Highlights

Topics: HOA Bylaws, Quorum, Annual Meeting, Burden of Proof, Invalid Document, Continuance
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 33-1802(1)
  • ARIZ. REV. STAT. § 33-1802(4)
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

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Video Overview

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Decision Documents

24F-H035-REL Decision – 1163387.pdf

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24F-H035-REL Decision – 1163395.pdf

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24F-H035-REL Decision – 1165696.pdf

Uploaded 2026-04-24T12:21:43 (49.1 KB)

24F-H035-REL Decision – 1165699.pdf

Uploaded 2026-04-24T12:21:46 (7.3 KB)

24F-H035-REL Decision – 1179128.pdf

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24F-H035-REL Decision – 1179136.pdf

Uploaded 2026-04-24T12:21:53 (7.6 KB)

24F-H035-REL Decision – 1209016.pdf

Uploaded 2026-04-24T12:21:57 (146.3 KB)

24F-H035-REL Decision – 1163387.pdf

Uploaded 2026-01-23T18:06:04 (48.4 KB)

24F-H035-REL Decision – 1163395.pdf

Uploaded 2026-01-23T18:06:08 (7.2 KB)

24F-H035-REL Decision – 1165696.pdf

Uploaded 2026-01-23T18:06:11 (49.1 KB)

24F-H035-REL Decision – 1165699.pdf

Uploaded 2026-01-23T18:06:13 (7.3 KB)

24F-H035-REL Decision – 1179128.pdf

Uploaded 2026-01-23T18:06:15 (53.7 KB)

24F-H035-REL Decision – 1179136.pdf

Uploaded 2026-01-23T18:06:19 (7.6 KB)

24F-H035-REL Decision – 1209016.pdf

Uploaded 2026-01-23T18:06:23 (146.3 KB)

This summary details the hearing held before the Office of Administrative Hearings (OAH) in the matter of *Jesse Freeman, Petitioner, vs. Millett Ranch Homeowners’ Association, Respondent*, Case No. 24F-H035-REL. The hearing was presided over by Administrative Law Judge (ALJ) Jenna Clark on July 24, 2024, concerning an HOA dispute.

Key Facts and Main Issue

The core issue was whether the Respondent, Millett Ranch Homeowners’ Association (the Association), failed to comply with Article II, Section 8 of its Bylaws, as purportedly amended on October 18, 2000, by refusing to hold a subsequent membership meeting with a diminished quorum.

The dispute arose after the Annual Meeting on January 16, 2024, failed to reach the required 25% quorum (only 89 votes were present, short of the 126 needed). Petitioner Jesse Freeman alleged that when quorum failed, the membership made and seconded a motion to adjourn and reconvene the meeting 60 days later with a reduced quorum requirement of 15% (76 votes), but the Association's Board President and attorney abruptly denied the motion and ended the meeting. Petitioner sought an Order compelling the Association to hold a meeting with the 15% diminished quorum requirement.

Key Arguments

Petitioner’s Case:

Petitioner Freeman, a property owner and former board member, argued that the amendment decreasing the quorum requirement for subsequent meetings to 15% was valid, asserting that its validity was established because it was dated October 18, 2000, and archived on the Association’s public website (Exhibit Y). Petitioner contended that the bylaw language was "compulsory" and mandated that the membership be allowed to adjourn and reconvene the meeting under the diminished quorum rule.

Respondent’s Case:

Respondent’s counsel and witnesses (Community Manager Brandon Moore and former Board President Chris Redden) presented two main arguments.

  1. Invalidity: The amendment was never formally adopted, ratified, or implemented by the Association. Witnesses testified that there were no ballots, meeting minutes, signatures, or stamps in the Association's records to substantiate the amendment’s validity. Furthermore, Petitioner conceded that during his two-year tenure on the Board (2017-2018), the Board never utilized the purported amendment, despite often failing to meet quorum, supporting the argument that the document was either a failed proposal or unknown.
  2. Non-Compulsory Language: Even if the amendment were valid, its language is not mandatory. The amendment states that the second meeting "shall require fifteen percent quorum". Respondent argued that this language simply sets the quorum requirement *if* a second meeting is held; it does not contain binding words (such as "shall" or "must" directed at the Association) that compel the Board to *call* a second meeting.

Outcome and Legal Conclusion

The ALJ found that Petitioner failed to sustain the burden of proof—that the contention was "more probably true than not".

The ALJ issued an Order denying the Petitioner's petition.

The legal conclusions supporting the denial were:

  1. Lack of Corroboration: Petitioner failed to present sufficient credible evidence that the Association had voted on, ratified, or implemented the amendment to Bylaw Article II, Section 8. The document’s mere presence on the Association’s website was insufficient to establish validity.
  2. Non-Compulsory Language: The ALJ concluded that the language of the purported amendment was not compulsory. It does not contain verbiage inherently binding, such as "shall" or "must," that would require the Respondent to hold a second meeting.

The ALJ Decision was issued on August 09, 2024.

Questions

Question

If a document appears on the HOA's website, is it automatically considered a valid governing document?

Short Answer

No. The presence of a document on a website does not prove it was voted on or adopted.

Detailed Answer

The ALJ found that simply finding a document on the association's website is insufficient to prove it is a valid, adopted amendment. There must be evidence that members participated in a vote or that the association officially adopted it.

Alj Quote

The document’s presence on the Association’s website does not establish or tend to suggest that members participated in a vote on or about October 18, 2000, or that the Association adopted an amendment to Bylaw Article II Section 8 thereafter.

Legal Basis

Findings of Fact No. 7

Topic Tags

  • governing documents
  • website
  • validity

Question

What specific features does a bylaw amendment need to be considered valid and enforceable?

Short Answer

It generally requires signatures, stamps, seals, or filing receipts to prove it isn't just a draft.

Detailed Answer

To be considered a valid governing document rather than a failed proposal or draft, the document should ideally have an embossed stamp, seal, or at least one signature indicating it was finalized and adopted.

Alj Quote

Moreover, the document itself does not have an embossed stamp or seal, or reflect at least one (1) signature that would reasonably suggest it was indeed a valid governing document, rather than a failed proposal or draft, which is supported by the fact that a filing receipt was not affixed.

Legal Basis

Findings of Fact No. 7

Topic Tags

  • governing documents
  • signatures
  • enforceability

Question

If the bylaws mention a reduced quorum for a 'second meeting', is the HOA required to hold that second meeting?

Short Answer

Not necessarily. If the language doesn't explicitly say the HOA 'must' hold the meeting, it may be optional.

Detailed Answer

Even if a bylaw provision states that a second meeting 'shall require' a lower quorum, this does not automatically compel the HOA to hold that meeting. Unless words like 'shall' or 'must' apply specifically to the act of holding the meeting itself, the HOA may not be required to schedule it.

Alj Quote

There are no accompanying words that are inherently binding such as shall or must that would require Respondent to hold a second meeting based on the aforementioned verbiage used.

Legal Basis

Findings of Fact No. 8

Topic Tags

  • meetings
  • quorum
  • bylaw interpretation

Question

Who is responsible for proving that an HOA violated the rules?

Short Answer

The petitioner (homeowner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving, by a preponderance of the evidence, that the HOA committed the alleged violation.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.

Legal Basis

Conclusions of Law No. 3

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

Does it matter if the HOA hasn't followed a specific rule for many years?

Short Answer

Yes. Long-term non-enforcement or lack of awareness by the board can be evidence that the rule was never validly adopted.

Detailed Answer

The ALJ considered the fact that the petitioner and board members were unaware of the amendment for years, and had failed to use it during previous quorum failures, as evidence weighing against the document's validity.

Alj Quote

Petitioner conceded that during his tenure on the Board and thereafter he was unaware of the purported amendment’s existence, notwithstanding several instances over a number of years where voting members failed to meet quorum requirements and did not utilize the provisions of the alleged amendment.

Legal Basis

Findings of Fact No. 7

Topic Tags

  • past practice
  • board conduct
  • validity

Question

What standard of proof is used in these HOA hearings?

Short Answer

Preponderance of the evidence.

Detailed Answer

The standard is 'preponderance of the evidence,' which means showing that a contention is more probably true than not. It is based on the convincing force of the evidence rather than just the number of witnesses.

Alj Quote

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

Legal Basis

Conclusions of Law No. 4

Topic Tags

  • legal standards
  • evidence

Case

Docket No
24F-H035-REL
Case Title
Jesse Freeman v. Millett Ranch Homeowners’ Association
Decision Date
2024-08-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

If a document appears on the HOA's website, is it automatically considered a valid governing document?

Short Answer

No. The presence of a document on a website does not prove it was voted on or adopted.

Detailed Answer

The ALJ found that simply finding a document on the association's website is insufficient to prove it is a valid, adopted amendment. There must be evidence that members participated in a vote or that the association officially adopted it.

Alj Quote

The document’s presence on the Association’s website does not establish or tend to suggest that members participated in a vote on or about October 18, 2000, or that the Association adopted an amendment to Bylaw Article II Section 8 thereafter.

Legal Basis

Findings of Fact No. 7

Topic Tags

  • governing documents
  • website
  • validity

Question

What specific features does a bylaw amendment need to be considered valid and enforceable?

Short Answer

It generally requires signatures, stamps, seals, or filing receipts to prove it isn't just a draft.

Detailed Answer

To be considered a valid governing document rather than a failed proposal or draft, the document should ideally have an embossed stamp, seal, or at least one signature indicating it was finalized and adopted.

Alj Quote

Moreover, the document itself does not have an embossed stamp or seal, or reflect at least one (1) signature that would reasonably suggest it was indeed a valid governing document, rather than a failed proposal or draft, which is supported by the fact that a filing receipt was not affixed.

Legal Basis

Findings of Fact No. 7

Topic Tags

  • governing documents
  • signatures
  • enforceability

Question

If the bylaws mention a reduced quorum for a 'second meeting', is the HOA required to hold that second meeting?

Short Answer

Not necessarily. If the language doesn't explicitly say the HOA 'must' hold the meeting, it may be optional.

Detailed Answer

Even if a bylaw provision states that a second meeting 'shall require' a lower quorum, this does not automatically compel the HOA to hold that meeting. Unless words like 'shall' or 'must' apply specifically to the act of holding the meeting itself, the HOA may not be required to schedule it.

Alj Quote

There are no accompanying words that are inherently binding such as shall or must that would require Respondent to hold a second meeting based on the aforementioned verbiage used.

Legal Basis

Findings of Fact No. 8

Topic Tags

  • meetings
  • quorum
  • bylaw interpretation

Question

Who is responsible for proving that an HOA violated the rules?

Short Answer

The petitioner (homeowner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving, by a preponderance of the evidence, that the HOA committed the alleged violation.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.

Legal Basis

Conclusions of Law No. 3

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

Does it matter if the HOA hasn't followed a specific rule for many years?

Short Answer

Yes. Long-term non-enforcement or lack of awareness by the board can be evidence that the rule was never validly adopted.

Detailed Answer

The ALJ considered the fact that the petitioner and board members were unaware of the amendment for years, and had failed to use it during previous quorum failures, as evidence weighing against the document's validity.

Alj Quote

Petitioner conceded that during his tenure on the Board and thereafter he was unaware of the purported amendment’s existence, notwithstanding several instances over a number of years where voting members failed to meet quorum requirements and did not utilize the provisions of the alleged amendment.

Legal Basis

Findings of Fact No. 7

Topic Tags

  • past practice
  • board conduct
  • validity

Question

What standard of proof is used in these HOA hearings?

Short Answer

Preponderance of the evidence.

Detailed Answer

The standard is 'preponderance of the evidence,' which means showing that a contention is more probably true than not. It is based on the convincing force of the evidence rather than just the number of witnesses.

Alj Quote

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

Legal Basis

Conclusions of Law No. 4

Topic Tags

  • legal standards
  • evidence

Case

Docket No
24F-H035-REL
Case Title
Jesse Freeman v. Millett Ranch Homeowners’ Association
Decision Date
2024-08-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Jesse Freeman (petitioner)
    Millett Ranch Homeowners’ Association Member
    Spelling varies as 'Jesse Freemen' in some sources; also served as Treasurer on the Board 2017-2018.
  • Nicholas Belisi (witness)
    Potential witness for Petitioner; seconded the motion to adjourn and reconvene the meeting.

Respondent Side

  • Augustus H. Shaw IV (HOA attorney)
    Shaw & Lines, LLC
    Counsel for Respondent Millett Ranch Homeowners’ Association.
  • Brandon David Moore (senior community manager/witness)
    Brown Property Management
    Senior Community Manager for Respondent Millett Ranch HOA, testified as a witness.
  • Christopher Redden (Board President/witness)
    Millett Ranch Homeowners’ Association
    Former Board President (9 years) and Board Member (13-14 years), testified as a witness.
  • Mark Saul (HOA attorney)
    Millett Ranch Homeowners’ Association
    Identified by Petitioner as the association's attorney who abruptly ended the January 16, 2024 meeting.

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    ADRE
  • vnunez (ADRE staff (Recipient))
    ADRE
    Received transmission of ALJ Decision/Minute Entries.
  • djones (ADRE staff (Recipient))
    ADRE
    Received transmission of ALJ Decision/Minute Entries.
  • labril (ADRE staff (Recipient))
    ADRE
    Received transmission of ALJ Decision/Minute Entries.
  • mneat (ADRE staff (Recipient))
    ADRE
    Received transmission of ALJ Decision/Minute Entries.
  • akowaleski (ADRE staff (Recipient))
    ADRE
    Received transmission of ALJ Decision/Minute Entries.
  • gosborn (ADRE staff (Recipient))
    ADRE
    Received transmission of ALJ Decision/Minute Entries.
  • OAH Staff (OAH Staff)
    OAH
    Transmitted documents/Final Order.

Other Participants

  • Rebecca Cook-Klaus (observer)
    Observed the hearing.
  • Millie Lton (unknown)
    Petitioner received a copy of the bylaws amendment from this person in May 2023.

Rosalie Lynne Emmons v. Rovey Farm Estates Homeowners Association

Posted on by

Case Summary

Case ID 23F-H055-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-22
Administrative Law Judge Brian Del Vecchio
Outcome The Administrative Law Judge dismissed the Petitioner's petition, concluding that Petitioner failed to meet her burden of proof that the Rovey Farm Estates Homeowners Association engaged in selective enforcement regarding the shed constructed without prior approval, which violated the CC&Rs and design guidelines.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rosalie Lynne Emmons Counsel —
Respondent Rovey Farm Estates Homeowners Association Counsel Michael S. McLeran

Alleged Violations

CC&Rs Article 2 §§ 3.2, 3.3, and 3.11

Outcome Summary

The Administrative Law Judge dismissed the Petitioner's petition, concluding that Petitioner failed to meet her burden of proof that the Rovey Farm Estates Homeowners Association engaged in selective enforcement regarding the shed constructed without prior approval, which violated the CC&Rs and design guidelines.

Why this result: Petitioner failed to provide sufficient evidence of selective enforcement. She admitted her shed was built without prior approval, was taller than the fence line, and was visible from the street, all of which violated the CC&Rs. The evidence presented by the Respondent showed consistent enforcement actions regarding similar violations.

Key Issues & Findings

Alleged selective, arbitrary, and capricious enforcement of CC&Rs regarding shed construction and prior approval.

Petitioner alleged that the HOA selectively enforced its shed policy against her, claiming that her denial for a shed built without prior approval and exceeding the fence height should be excused because other, similar non-compliant sheds existed in the community and were not consistently cited.

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

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. §§ 41-1092 et seq.
  • CC&Rs Article 2 §§ 3.2, 3.3, and 3.11
  • 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)

Analytics Highlights

Topics: HOA Enforcement, Selective Enforcement, Shed, Design Guidelines, CC&Rs, Prior Approval
Additional Citations:

  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. §§ 41-1092 et seq.
  • CC&Rs Article 2 §§ 3.2, 3.3, and 3.11
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

23F-H055-REL Decision – 1062778.pdf

Uploaded 2026-04-24T12:09:55 (44.1 KB)

23F-H055-REL Decision – 1086088.pdf

Uploaded 2026-04-24T12:10:00 (110.9 KB)

23F-H055-REL Decision – 1062778.pdf

Uploaded 2026-01-23T17:57:44 (44.1 KB)

23F-H055-REL Decision – 1086088.pdf

Uploaded 2026-01-23T17:57:46 (110.9 KB)

This summary concerns the matter of *Rosalie Lynne Emmons vs. Rovey Farm Estates Homeowners Association*, Docket No. 23F-H055-REL, heard before Administrative Law Judge (ALJ) Brian Del Vecchio.

Key Facts and Background

The Petitioner, Rosalie Lynne Emmons, is a Rovey Farm Estates property owner subject to the community documents, including the Covenants, Conditions, and Restrictions (CC&Rs) and Design Guidelines. The key fact is that Petitioner built a storage shed in the fall of 2021 without first receiving written approval from the Design Review Committee. The Petitioner admitted the shed was constructed, submitted an application post-construction in December 2021/January 2022, and the application was denied on February 7, 2022. The denial was based on the shed exceeding the height of the surrounding fence line and violating the plain language of the design guidelines and local city code.

Main Issues and Arguments

The Petitioner alleged that the Association (Respondent) engaged in selective, arbitrary, and capricious enforcement of the CC&Rs (specifically §§3.2, 3.3, and 3.11) regarding the shed policy. Petitioner argued that the HOA had a pattern of failing to enforce restrictions in a timely, fair, and reasonable manner, citing evidence and photos of approximately 20 other visible sheds allegedly in violation. Petitioner also argued the HOA demonstrated a lack of diligence in enforcement (laches).

The Respondent argued that enforcement was uniform and consistent, noting that the Design Guidelines require prior approval for construction and mandate that sheds not exceed the height of the surrounding fences. The Respondent’s witness, Matt Johnson, testified that there was no discretion when a violation was observed, and that all three applications submitted by other homeowners for sheds exceeding the fence height were also denied. Furthermore, the CC&Rs include a non-waiver provision (§3.1) stating that approving one construction does not waive the right to withhold approval of subsequent similar projects. The Respondent requested dismissal as the Petitioner had failed to meet her burden of proof.

Legal Points and Outcome

The legal proceeding established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Respondent violated the CC&Rs.

The ALJ determined that the Petitioner failed to meet her burden of proof. The Petitioner admitted that her shed was built without prior approval, was taller than the fence line, and visible from the street, all of which are violations of the CC&Rs. The Respondent provided evidence showing "a multitude of compliance letters, violations, fines, and approved and rejected shed applications associated with the enforcement".

Final Decision

The Administrative Law Judge concluded that the Respondent did not violate CC&Rs §§3.2, 3.3, and 3.11.

IT IS ORDERED that Petitioner’s petition in this matter be dismissed.

Questions

Question

If I claim my HOA is engaging in 'selective enforcement', do I have to prove it, or do they have to prove they aren't?

Short Answer

The homeowner (Petitioner) bears the burden of proving selective enforcement by a preponderance of the evidence.

Detailed Answer

In an administrative hearing regarding HOA disputes, the burden falls on the homeowner to provide sufficient evidence that the HOA violated its own CC&Rs or acted arbitrarily. Merely alleging selective enforcement without sufficient proof is not enough to win the case.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs… Petitioner alleged but failed to provide sufficient evidence of Respondent’s supposed selective enforcement.

Legal Basis

Burden of Proof

Topic Tags

  • selective enforcement
  • burden of proof
  • legal procedure

Question

Can my HOA punish me for building a structure (like a shed) without prior approval, even if I apply for approval after building it?

Short Answer

Yes. Building without prior written approval violates standard CC&Rs, and a subsequent application denial is valid if the structure violates guidelines.

Detailed Answer

Most CC&Rs explicitly state that no construction or modification can occur without prior written approval. Admitting to building a structure without this approval constitutes a violation in itself. If the structure also violates design guidelines (e.g., height or visibility), the HOA can enforce the rules against it.

Alj Quote

Petitioner admitted she built her shed without prior approval from the Design Review Committee… all of which are violations of the CC&Rs.

Legal Basis

CC&R Violation

Topic Tags

  • architectural approval
  • unauthorized construction
  • violations

Question

If my HOA relaxed enforcement during a specific period (like the COVID-19 pandemic), does that mean they can never enforce those rules again?

Short Answer

No. A temporary reduction in enforcement during a crisis does not prevent the HOA from resuming enforcement later.

Detailed Answer

The ALJ decision accepted testimony that while enforcement might have been reduced during a specific event like the COVID-19 pandemic, the HOA is entitled to resume enforcement of rules (such as design guidelines) once normal operations return.

Alj Quote

Respondent’s witness testified during COVID enforcement was reduced, however, following the reopening of the economy post-COVID, enforcement was resumed.

Legal Basis

Enforcement Discretion

Topic Tags

  • waiver
  • enforcement history
  • COVID-19

Question

Can the HOA deny my shed if it is visible from the street or taller than the fence line?

Short Answer

Yes, if the CC&Rs or Design Guidelines prohibit structures that are taller than the fence or visible from the street.

Detailed Answer

Violating specific physical constraints listed in the community documents, such as height restrictions relative to a fence line or visibility from public streets, are valid grounds for the HOA to find a violation and deny approval.

Alj Quote

Here, Petitioner admitted… her shed is taller than the current fence line, and the shed can be seen from the street; all of which are violations of the CC&Rs.

Legal Basis

Design Guidelines

Topic Tags

  • architectural standards
  • sheds
  • visibility

Question

What is the 'standard of proof' used in these HOA hearings?

Short Answer

The standard is 'preponderance of the evidence,' which means showing something is more probably true than not.

Detailed Answer

To win an administrative hearing against an HOA, a homeowner does not need to prove their case beyond a reasonable doubt. They must simply show that their claim is 'more probably true than not'—essentially carrying greater evidentiary weight than the opposing side.

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

Evidentiary Standard

Topic Tags

  • legal definitions
  • evidence
  • hearings

Question

Where can I file a legal dispute against my HOA without going to civil court?

Short Answer

Arizona homeowners can petition the Arizona Department of Real Estate (ADRE) for a hearing.

Detailed Answer

The ADRE has jurisdiction over disputes between owners and planned community associations regarding violations of community documents or statutes. The case is then typically heard by the Office of Administrative Hearings.

Alj Quote

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 as long as the petitioner has filed a petition with the department…

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • ADRE
  • dispute resolution

Case

Docket No
23F-H055-REL
Case Title
Rosalie Lynne Emmons vs Rovey Farm Estates Homeowners Association
Decision Date
2023-08-22
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

If I claim my HOA is engaging in 'selective enforcement', do I have to prove it, or do they have to prove they aren't?

Short Answer

The homeowner (Petitioner) bears the burden of proving selective enforcement by a preponderance of the evidence.

Detailed Answer

In an administrative hearing regarding HOA disputes, the burden falls on the homeowner to provide sufficient evidence that the HOA violated its own CC&Rs or acted arbitrarily. Merely alleging selective enforcement without sufficient proof is not enough to win the case.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs… Petitioner alleged but failed to provide sufficient evidence of Respondent’s supposed selective enforcement.

Legal Basis

Burden of Proof

Topic Tags

  • selective enforcement
  • burden of proof
  • legal procedure

Question

Can my HOA punish me for building a structure (like a shed) without prior approval, even if I apply for approval after building it?

Short Answer

Yes. Building without prior written approval violates standard CC&Rs, and a subsequent application denial is valid if the structure violates guidelines.

Detailed Answer

Most CC&Rs explicitly state that no construction or modification can occur without prior written approval. Admitting to building a structure without this approval constitutes a violation in itself. If the structure also violates design guidelines (e.g., height or visibility), the HOA can enforce the rules against it.

Alj Quote

Petitioner admitted she built her shed without prior approval from the Design Review Committee… all of which are violations of the CC&Rs.

Legal Basis

CC&R Violation

Topic Tags

  • architectural approval
  • unauthorized construction
  • violations

Question

If my HOA relaxed enforcement during a specific period (like the COVID-19 pandemic), does that mean they can never enforce those rules again?

Short Answer

No. A temporary reduction in enforcement during a crisis does not prevent the HOA from resuming enforcement later.

Detailed Answer

The ALJ decision accepted testimony that while enforcement might have been reduced during a specific event like the COVID-19 pandemic, the HOA is entitled to resume enforcement of rules (such as design guidelines) once normal operations return.

Alj Quote

Respondent’s witness testified during COVID enforcement was reduced, however, following the reopening of the economy post-COVID, enforcement was resumed.

Legal Basis

Enforcement Discretion

Topic Tags

  • waiver
  • enforcement history
  • COVID-19

Question

Can the HOA deny my shed if it is visible from the street or taller than the fence line?

Short Answer

Yes, if the CC&Rs or Design Guidelines prohibit structures that are taller than the fence or visible from the street.

Detailed Answer

Violating specific physical constraints listed in the community documents, such as height restrictions relative to a fence line or visibility from public streets, are valid grounds for the HOA to find a violation and deny approval.

Alj Quote

Here, Petitioner admitted… her shed is taller than the current fence line, and the shed can be seen from the street; all of which are violations of the CC&Rs.

Legal Basis

Design Guidelines

Topic Tags

  • architectural standards
  • sheds
  • visibility

Question

What is the 'standard of proof' used in these HOA hearings?

Short Answer

The standard is 'preponderance of the evidence,' which means showing something is more probably true than not.

Detailed Answer

To win an administrative hearing against an HOA, a homeowner does not need to prove their case beyond a reasonable doubt. They must simply show that their claim is 'more probably true than not'—essentially carrying greater evidentiary weight than the opposing side.

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

Evidentiary Standard

Topic Tags

  • legal definitions
  • evidence
  • hearings

Question

Where can I file a legal dispute against my HOA without going to civil court?

Short Answer

Arizona homeowners can petition the Arizona Department of Real Estate (ADRE) for a hearing.

Detailed Answer

The ADRE has jurisdiction over disputes between owners and planned community associations regarding violations of community documents or statutes. The case is then typically heard by the Office of Administrative Hearings.

Alj Quote

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 as long as the petitioner has filed a petition with the department…

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • ADRE
  • dispute resolution

Case

Docket No
23F-H055-REL
Case Title
Rosalie Lynne Emmons vs Rovey Farm Estates Homeowners Association
Decision Date
2023-08-22
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Rosalie Lynne Emmons (petitioner)
    Rovey Farm Estates property owner; appeared on her own behalf

Respondent Side

  • Michael S. McLeran (HOA attorney)
    Childers Hanlon & Hudson, PLC
    Appeared on behalf of Rovey Farm Estates Homeowners Association
  • Matt Johnson (community manager/witness)
    Envision Community Management
    Community Manager for Rovey Farm Estate; Appeared as a witness for the Association
  • Mark Schmidt (HOA staff)
    Envision Community Management
    Completed exhibit list (Exhibit 7) used by Respondent
  • Carrie Schmidt (compliance officer)
    Envision Community Management
    Compliance inspector responsible for citing violations

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Administrative Law Judge
  • Susan Nicolson (Commissioner)
    ADRE
    Arizona Department of Real Estate Commissioner

Other Participants

  • AHansen (ADRE staff)
    ADRE
    Recipient of decision transmission
  • vnunez (ADRE staff)
    ADRE
    Recipient of decision transmission
  • djones (ADRE staff)
    ADRE
    Recipient of decision transmission
  • labril (ADRE staff)
    ADRE
    Recipient of decision transmission
  • Jose Garcia (homeowner/applicant)
    Rovey Farm Estates Homeowner whose shed application was denied
  • Gilbert Bar (homeowner/applicant)
    Rovey Farm Estates Homeowner whose shed application was denied
  • Jane Kim (homeowner/applicant)
    Rovey Farm Estates Homeowner whose shed application (with MJ Kim) was denied
  • MJ Kim (homeowner/applicant)
    Rovey Farm Estates Homeowner whose shed application (with Jane Kim) was denied

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 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.
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

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

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Video Overview

Audio Overview

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)

This summary addresses the Administrative Law Judge (ALJ) hearing in the matter of Harry G. Turner v. MountainGate Home Owners Association, Inc., Case No. 23F-H045-REL. The hearing was conducted by Administrative Law Judge Brian Del Vecchio on July 24, 2023.

Key Facts and Main Issue

The Petitioner, Harry G. Turner, a MountainGate Homes property owner and member of the Association, challenged the Respondent Home Owners Association's (HOA) plan, announced November 14, 2022, to dig a drainage ditch in Tract H of the subdivision. The core legal issue before the Office of Administrative Hearings (OAH) was whether the HOA violated Article 10 Section 4 of the CC&Rs (Declaration of Covenants, Conditions, Restrictions and Easements).

Article 10 Section 4 requires the Board to secure approval from not less than two-thirds (2/3rds) of the members voting if they adopt a resolution to change the use of a specified part of the Common Areas. The dispute centered on the established classification of Tract H: if Tract H was already designated for drainage, implementing the ditch would not be a change of use and would not require a vote; if it was designated solely as "open space," a vote would be required.

Key Arguments

Petitioner's Argument (Harry G. Turner):

The Petitioner argued that the Board violated the CC&Rs by moving forward with the ditch without a membership vote. Turner contended that Tract H was designated as "Preserved/Active Open Space" according to the "Tract Data" portion of the plat map and the Subdivision Disclosure Reports. He also presented evidence, including certified engineering reports, suggesting that the necessary drainage facilities were completed or certified as "as built" during the community's transition from condominiums to townhomes between 2006 and 2010. Turner shared a prior legal opinion recommending a membership vote due to the ambiguity surrounding whether the ditch constituted a "change of use". He asserted that the HOA was attempting new construction on common area designated as passive open space.

Respondent's Argument (MountainGate HOA, represented by Michael Luden and witness Brenda Anderson):

The Respondent denied violating the CC&Rs, arguing that no change protocols were needed because Tract H has always been dedicated for drainage. The HOA pointed to the "Conveyance and Dedication" portion of the plat maps (dating from 2006, 2008, and 2010), which explicitly listed Tract H as common area to be used for "open space, landscaping, and drainage". The HOA argued that the drainage plan approved by certified engineers was never fully implemented by the original developers, resulting in severe flooding experienced by neighbors along the northern edge of the property (Tract H). Therefore, the HOA was merely implementing an *original* intended use, not changing the use.

Final Decision and Legal Outcome

The ALJ determined that the Petitioner bore the burden of proving by a preponderance of the evidence that the Respondent violated Article 10 Section 4 of the CC&Rs.

The ALJ found that Petitioner failed to meet this burden. The evidence showed a conflict in the governing documents: the plat map described Tract H as "Preserved/Active Open Space" in the "Tract Data" section, but designated it for "drainage" in the "Conveyance and Dedication" section. Since neither party presented sufficient evidence to establish which description controlled the legal designation of Tract H, the Petitioner could not definitively prove that Tract H was *not* classified as drainage.

The ALJ concluded that the Respondent did not violate Article 10 Section 4 of the CC&Rs. Petitioner’s petition was dismissed, and the request to levy a civil penalty against the Respondent was denied.

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

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 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.
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)

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

23F-H057-REL Decision – 1071114.pdf

Uploaded 2026-04-24T12:10:30 (5884.7 KB)

23F-H057-REL Decision – 1071115.pdf

Uploaded 2026-04-24T12:10:40 (7935.6 KB)

23F-H057-REL Decision – 1071120.pdf

Uploaded 2026-04-24T12:10:45 (1989.0 KB)

23F-H057-REL Decision – 1071121.pdf

Uploaded 2026-04-24T12:10:51 (4055.1 KB)

23F-H057-REL Decision – 1071122.pdf

Uploaded 2026-04-24T12:10:57 (676.0 KB)

23F-H057-REL Decision – 1071126.pdf

Uploaded 2026-04-24T12:11:06 (3343.5 KB)

23F-H057-REL Decision – 1071127.pdf

Uploaded 2026-04-24T12:11:18 (3328.5 KB)

23F-H057-REL Decision – 1071503.pdf

Uploaded 2026-04-24T12:11:23 (49.2 KB)

23F-H057-REL Decision – 1079574.pdf

Uploaded 2026-04-24T12:11:28 (114.8 KB)

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

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23F-H057-REL Decision – 1071122.pdf

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This summary concerns the legal case *Wanda Swartling v. Val Vista Park Townhome Association of Mesa*, Docket No. 23F-H057-REL. The evidentiary hearing took place on July 10, 2023, before Administrative Law Judge (ALJ) Brian Del Vecchio.

Key Facts and Main Issues

The Petitioner, Wanda Swartling (a property owner and Association member), filed a single-issue petition on or about April 10, 2023. The core allegation was that the Val Vista Park Townhome Association of Mesa (Respondent) violated ARIZ. REV. STAT. § 33-1804 (the open meeting law for planned communities).

The Petitioner contended that the Board of Directors:

  1. Sent a February 7, 2023, email to homeowners informing them of the intent to hold a special meeting and proposing funding options without first holding an open board meeting.
  2. Held a March 2, 2023, special meeting to vote on a special assessment without having held an open board meeting prior to determining the items to be voted upon.

Petitioner argued that the board unilaterally determined which special assessments would be voted on through "closed door board meetings," thereby denying members the opportunity to be present for the decision-making processes. The March 2, 2023, special assessment vote ultimately failed to pass.

Hearing Proceedings and Key Arguments

Respondent (represented by Chad Gallacher, with community manager Steve Cheff testifying) denied the claims. Respondent argued that the claims were factually incorrect and legally insufficient.

Respondent's Legal Defense:

  • There is no legal requirement in ARS § 33-1804 stipulating that an open board meeting must be held before an email is sent to the community or prior to calling a special meeting of the members.
  • The authority to call a special meeting rests with the Board President, as per the association's bylaws (Section 2.2).
  • The issues had been previously discussed: Evidence submitted included meeting minutes showing discussions of capital projects, including painting, roofs, and special assessments, dating back to an Architectural Committee meeting on August 18, 2022, and a subsequent Board meeting on October 11, 2022.

Petitioner’s Burden and ALJ Rulings:

The ALJ emphasized that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Respondent violated ARS § 33-1804. The ALJ strictly limited the scope of the hearing to the specific violations alleged in the complaint (the process surrounding the February 7th email and March 2nd meeting). Attempts by the Petitioner to introduce evidence demonstrating a *pattern* of closed meetings or to challenge procedural changes related to a prior annual meeting were repeatedly objected to and sustained as irrelevant or beyond the scope of jurisdiction.

Final Decision and Outcome

The ALJ issued a decision on August 1, 2023. The ALJ concluded that the Petitioner failed to meet her burden of proof.

  • The ALJ found that the special assessment voted on March 2, 2023, resulted from maintenance recommendations developed during the August 18, 2022, architectural committee meeting.
  • Regarding claims of informal discussions or emails constituting a violation, the Petitioner failed to provide sufficient evidence that the number of board members involved constituted a quorum necessary to trigger the notice requirement under ARS § 33-1804.

The ALJ ordered that Petitioner’s petition be dismissed and denied the request to levy a civil penalty against the Respondent.

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

Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners

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Case Summary

Case ID 23F-H053-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-07-10
Administrative Law Judge Brian Del Vecchio
Outcome The Administrative Law Judge affirmed the Petitioner's claim, finding that the HOA violated Article II Section 3 of its bylaws by failing to hold the Annual Meeting on the second Monday of March (March 13, 2023). The HOA was ordered to reimburse the Petitioner's $500.00 filing fee, but a request for a civil penalty was denied.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deborah L. Masear Counsel —
Respondent Paradise Park Condominiums Phase II Homeowners Association Counsel Ashley N. Moscarello

Alleged Violations

Article II Section 3 of Respondent’s bylaws

Outcome Summary

The Administrative Law Judge affirmed the Petitioner's claim, finding that the HOA violated Article II Section 3 of its bylaws by failing to hold the Annual Meeting on the second Monday of March (March 13, 2023). The HOA was ordered to reimburse the Petitioner's $500.00 filing fee, but a request for a civil penalty was denied.

Key Issues & Findings

Failure to hold an annual meeting as required by bylaws

The HOA failed to hold the mandatory annual meeting on March 13, 2023, as explicitly required by the amended bylaws (Article II Section 3). The meeting was subsequently scheduled for May 8, 2023, 56 days late, constituting a violation, even though the later meeting failed to meet quorum.

Orders: Petitioner’s petition is affirmed. Respondent shall 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.

Analytics Highlights

Topics: HOA, Condominium, Annual Meeting, Bylaw Violation, Filing Fee Refund
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. §§ 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

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Decision Documents

23F-H053-REL Decision – 1072068.pdf

Uploaded 2026-04-24T12:09:36 (115.3 KB)

23F-H053-REL Decision – 1072068.pdf

Uploaded 2026-01-23T17:57:32 (115.3 KB)

This summary addresses the legal case hearing concerning Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association (HOA), docket number 23F-H053-REL, which was heard by Administrative Law Judge (ALJ) Brian Del Vecchio on June 19, 2023. The case was referred by the Arizona Department of Real Estate.

Key Facts and Main Issue

The main issue was whether the HOA violated Article II Section 3 of its governing bylaws by failing to hold its 2023 annual meeting as required. The HOA’s bylaws, as amended in 1996, explicitly mandate that the Annual Meeting of Members "shall be held" on the second Monday in March each year. For 2023, the required date was March 13. The Petitioner, Deborah Masear, filed her complaint around April 10, 2023, after the mandated March date had passed without a meeting being scheduled.

Key Arguments and Proceedings

The Petitioner argued that the HOA had been out of compliance regarding the annual meeting schedule for both 2022 and 2023, and that the 2023 meeting was only scheduled *after* she filed her complaint.

The Respondent (HOA) admitted that the meeting was not held on the required March date. However, the HOA argued that the petition should be dismissed because they eventually noticed and held a meeting on May 8, 2023. The HOA further argued that while an election was attempted, no business or election could take place because the members failed to meet the required quorum of 25% (35 members needed), as only 29 members participated. The HOA asserted that the failure to conduct business was due to member non-participation, not a failure of the association itself.

Most Important Legal Points

The ALJ’s determination centered on the interpretation of the HOA’s bylaws. The ALJ emphasized that the phrase "shall be held" within the bylaws is not permissive. Therefore, the HOA was obligated to hold the meeting on the designated March date. The ALJ noted that the May 8, 2023, meeting was 56 days late.

Outcome and Final Decision

The ALJ concluded that the Petitioner sustained her burden of proof. The ALJ found that the Respondent’s conduct violated Article II Section 3 of its bylaws.

The ALJ affirmed the Petitioner’s petition. As relief, the HOA was ordered to reimburse the Petitioner’s filing fee of $500.00. The Petitioner's request to levy a civil penalty against the Respondent was denied. The ALJ's recommendation was set to become the final administrative order unless modified or rejected by the Department of Real Estate within 30 days.

{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “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”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “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”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must 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 II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these communities.”, “alj_quote”: “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”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }

{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “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”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “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”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must 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 II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these communities.”, “alj_quote”: “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”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }

Case Participants

Petitioner Side

  • Deborah Masear (petitioner)
    Paradise Park Condominiums Phase II HOA Member
    Also referred to as Deborah Maer

Respondent Side

  • Ashley Moscarello (HOA attorney)
    Goodman Law Group
    Appeared on behalf of Respondent
  • Carl Westlund (witness)
    Management Trust
    Community Manager for the HOA

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Also referred to as Judge Delio
  • Susan Nicolson (Commissioner)
    ADRE
  • AHansen (ADRE staff)
    ADRE
    Recipient of decision
  • vnunez (ADRE staff)
    ADRE
    Recipient of decision
  • djones (ADRE staff)
    ADRE
    Recipient of decision
  • labril (ADRE staff)
    ADRE
    Recipient of decision

Quail Creek Villas Association, Inc. v. Randall & Gisela White

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Case Summary

Case ID 23F-H042-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-05-09
Administrative Law Judge Jenna Clark
Outcome The HOA's petition was granted. Respondents were found to have violated CC&Rs Section 3(j) by installing tile without approval and were ordered to comply with the CC&Rs, reimburse the $500 filing fee, and pay a $100 civil penalty.
Filing Fees Refunded $500.00
Civil Penalties $100.00

Parties & Counsel

Petitioner Quail Creek Villas Association, Inc. Counsel Michael Shupe, Esq.
Respondent Randall & Gisela White Counsel —

Alleged Violations

CC&Rs Section 3(j)

Outcome Summary

The HOA's petition was granted. Respondents were found to have violated CC&Rs Section 3(j) by installing tile without approval and were ordered to comply with the CC&Rs, reimburse the $500 filing fee, and pay a $100 civil penalty.

Why this result: Respondents admitted to the alleged conduct and failed to establish a sufficient affirmative defense (incomplete CC&Rs) against the violation, as the recorded CC&Rs provided constructive notice of all provisions. Respondents' conduct during testimony was also considered a factor in aggravation.

Key Issues & Findings

Unauthorized exterior modification (tile installation)

Respondents permanently installed tile on their front porch entryway without obtaining prior written approval. The ALJ rejected the Respondents' defense regarding missing CC&R pages, noting the HOA sustained its burden of proving a community document violation by a preponderance of the evidence.

Orders: Respondents must henceforth abide by CC&Rs Section 3(j), reimburse the Petitioner $500.00 for the filing fee, and pay a $100.00 civil penalty to the Department.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $100.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • Federoff v. Pioneer Title & Trust Co., 166 Ariz. 393 (1990)
  • Heritage Heights Home Owners Ass’n v. Esser, 115 Ariz. 330 (App. 1977)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Flying Diamond Air Park LLC v. Minenberg, 215 Ariz. 44 (App. 2007)

Analytics Highlights

Topics: CC&R violation, Architectural Review Committee (ALC), exterior modification, tile installation, constructive notice, affirmative defense, HOA maintenance
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1803
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • Arpaio v. Steinle, 201 Ariz. 353, 355 ¶ 5, 35 P.3d 114, 116 (App. 2001)
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
  • Federoff v. Pioneer Title & Trust Co., 166 Ariz. 393 (1990)
  • Heritage Heights Home Owners Ass’n v. Esser, 115 Ariz. 330 (App. 1977)
  • Flying Diamond Air Park LLC v. Minenberg, 215 Ariz. 44 (App. 2007)

Video Overview

Audio Overview

Decision Documents

23F-H042-REL Decision – 1048063.pdf

Uploaded 2026-04-24T12:07:08 (55.7 KB)

23F-H042-REL Decision – 1055060.pdf

Uploaded 2026-04-24T12:07:25 (219.4 KB)

23F-H042-REL Decision – 1048063.pdf

Uploaded 2026-01-23T17:56:08 (55.7 KB)

23F-H042-REL Decision – 1055060.pdf

Uploaded 2026-01-23T17:56:11 (219.4 KB)

This summary addresses the legal case hearing concerning the Quail Creek Villas Association, Inc. (Petitioner) versus Randall and Gisela White (Respondents) regarding compliance with community documents, held remotely before Administrative Law Judge (ALJ) Jenna Clark on April 27, 2023, under Docket No. 23F-H042-REL.

Key Facts and Main Issues

The central issue was whether the Respondents violated Section 3(j) of the Covenants, Conditions, and Restrictions (CC&Rs) by installing permanent tile on their front porch entryway without prior written approval from the Association's Board of Directors. The Petitioner sought an order confirming the violation, requiring compliance, and imposing a civil penalty.

The key facts were largely undisputed:

  1. Respondents installed large, permanent tile squares in their entryway around May/June 2022.
  2. The Association’s management (Cadden Community Management) advised Mr. White in May 2022 that an Architectural Landscape Committee (ALC) form was required for any exterior modifications.
  3. The Association has a duty to maintain the structural integrity of the concrete, which the Board contended the permanent tile placement compromised, increasing maintenance costs and creating a potential trip hazard.
  4. The Association provided multiple violation notices and extended the compliance deadline from August 2022 to January 31, 2023.

Key Arguments

Petitioner's Arguments (HOA):

Petitioner argued that the Respondents acted in knowing disregard of their obligation to seek approval for exterior modifications, thereby violating the CC&Rs. They asserted that the recorded CC&Rs provide constructive notice of all provisions to all purchasers as a matter of Arizona law, regardless of any perceived defect in the documents provided at closing.

Respondents' Defense (Owners):

Mr. White acknowledged installing the tile but maintained an affirmative defense that the CC&Rs set provided during his closing was "flawed," missing pages 4 and 6, which included the foundational Section 3(j). He claimed that he had no duty to comply with documents he had not received. Mr. White also argued that the tile was not visible (covered by a rug) and that its removal, based on his engineering knowledge, would cause severe damage to the underlying post-tension concrete slab, making enforcement punitive.

Final Decision and Legal Outcome

The ALJ found that the Petitioner established a community document violation by a preponderance of the evidence.

Focus on Legal Points:

The ALJ concluded that the Respondents’ defense regarding the missing CC&Rs pages was insufficient because the Pima County recorded CC&Rs provided constructive notice of all provisions, and the CC&Rs constitute a contract binding upon the owners. Furthermore, Mr. White’s own communications referenced Section 3(j) prior to the permanent installation, confirming actual knowledge of the approval requirement. The ALJ found that allowing the tile to remain would violate the CC&Rs requirements for architectural approval and compatibility/uniformity within the Villas Property.

Outcome and Order:

The ALJ Decision, dated May 9, 2023, granted the petition. The final order mandates that Respondents:

  1. Abide by CC&Rs Section 3(j) henceforth.
  2. Reimburse the Petitioner $500.00 for its filing fee.
  3. Pay a $100.00 civil penalty to the Arizona Department of Real Estate.

Questions

Question

Am I excused from HOA rules if pages were missing from the copy of the CC&Rs I received at closing?

Short Answer

No. Recorded CC&Rs provide constructive notice of all provisions to homeowners, regardless of errors in the specific copy provided at closing.

Detailed Answer

The ALJ ruled that missing pages in the document package provided by a disclosure company or previous owner do not excuse a homeowner from compliance. Because CC&Rs are recorded public documents, homeowners are deemed to have 'constructive notice' of all rules contained within the recorded version.

Alj Quote

The Tribunal is not swayed by Mr. White’s incorrect legal interpretations regarding the annotated CC&Rs received by HomeWise, as the Pima County recorded CC&Rs provide constructive notice of all provisions contained within the community documents

Legal Basis

Constructive Notice

Topic Tags

  • CC&Rs
  • disclosure
  • compliance

Question

Can the HOA regulate changes to my property even if they aren't visible from the street or neighboring properties?

Short Answer

Yes, especially if the HOA is responsible for maintaining the exterior surfaces.

Detailed Answer

The decision upheld the HOA's authority to regulate exterior modifications regardless of visibility, particularly noting that when an owner acquires a lot where the HOA performs maintenance, they may give up rights to control the appearance of those areas.

Alj Quote

Each Owner of a Villas Lot understands, acknowledges and agrees that by acquiring an interest in a Lot in which landscaping and exterior maintenance is performed or arranged by the Villas Association, such Owner is giving up rights to control the appearance and use of the outside areas of such Owner’s Villas Lot.

Legal Basis

CC&Rs Contractual Obligations

Topic Tags

  • architectural control
  • maintenance
  • visibility

Question

Can I fix a violation for unapproved flooring by simply covering it with a rug?

Short Answer

No. Covering an unapproved permanent installation with a removable item like a rug does not cure the underlying violation.

Detailed Answer

The ALJ rejected the homeowner's argument that placing a custom rug over unapproved tiles resolved the issue. The violation (the unapproved installation) persisted despite being hidden from view.

Alj Quote

The Tribunal is not swayed… by Mr. White’s placement of a custom cut rug in lieu of paying the fine to the Association.

Legal Basis

Remedy of Violation

Topic Tags

  • violations
  • remedies
  • architectural control

Question

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

Short Answer

The Petitioner (the party bringing the case) bears the burden of proof.

Detailed Answer

The Petitioner must prove their case by a 'preponderance of the evidence' (meaning it is more likely true than not). Conversely, if the Respondent claims an affirmative defense (a legal excuse), they bear the burden of proving that defense.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805. Respondents bear the burden of establishing any affirmative defenses by the same evidentiary burden.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • procedural
  • burden of proof
  • evidence

Question

If I lose the hearing, do I have to reimburse the HOA for their filing fee?

Short Answer

Yes. The prevailing party is typically entitled to reimbursement of the filing fee.

Detailed Answer

The ALJ ordered the losing homeowner to reimburse the HOA for the $500 filing fee they paid to bring the case. This is a statutory requirement under Arizona law.

Alj Quote

IT IS FURTHER ORDERED that Respondents shall reimburse Petitioner its filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this ORDER, as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • fees
  • costs
  • penalties

Question

Can the ALJ order me to pay a penalty to the state in addition to reimbursing the HOA?

Short Answer

Yes. The ALJ has the authority to impose a civil penalty payable to the Arizona Department of Real Estate.

Detailed Answer

In this decision, in addition to ordering compliance and fee reimbursement to the HOA, the ALJ ordered the homeowner to pay a $100 civil penalty directly to the Department of Real Estate.

Alj Quote

IT IS FURTHER ORDERED that Respondents shall pay a $100.00 civil penalty in certified funds to the Department within thirty (30) days of this ORDER, as authorized by ARIZ. REV. STAT. § 32-2199.02.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • civil penalty
  • fines
  • ADRE

Question

Does my behavior during the dispute process affect the judge's decision?

Short Answer

Yes. Obfuscating or evasive conduct can be considered an aggravating factor against you.

Detailed Answer

The ALJ specifically noted that the homeowner's conduct during testimony was 'obfuscating' (confusing or unclear) and weighed this as a factor in aggravation when making the final ruling.

Alj Quote

Moreover, Mr. White’s conduct during the testimony was obfuscating, and is considered a factor in aggravation.

Legal Basis

Judicial Discretion

Topic Tags

  • conduct
  • hearing process
  • aggravating factors

Case

Docket No
23F-H042-REL
Case Title
Quail Creek Villas Association, Inc. vs. Randall & Gisela White
Decision Date
2023-05-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Am I excused from HOA rules if pages were missing from the copy of the CC&Rs I received at closing?

Short Answer

No. Recorded CC&Rs provide constructive notice of all provisions to homeowners, regardless of errors in the specific copy provided at closing.

Detailed Answer

The ALJ ruled that missing pages in the document package provided by a disclosure company or previous owner do not excuse a homeowner from compliance. Because CC&Rs are recorded public documents, homeowners are deemed to have 'constructive notice' of all rules contained within the recorded version.

Alj Quote

The Tribunal is not swayed by Mr. White’s incorrect legal interpretations regarding the annotated CC&Rs received by HomeWise, as the Pima County recorded CC&Rs provide constructive notice of all provisions contained within the community documents

Legal Basis

Constructive Notice

Topic Tags

  • CC&Rs
  • disclosure
  • compliance

Question

Can the HOA regulate changes to my property even if they aren't visible from the street or neighboring properties?

Short Answer

Yes, especially if the HOA is responsible for maintaining the exterior surfaces.

Detailed Answer

The decision upheld the HOA's authority to regulate exterior modifications regardless of visibility, particularly noting that when an owner acquires a lot where the HOA performs maintenance, they may give up rights to control the appearance of those areas.

Alj Quote

Each Owner of a Villas Lot understands, acknowledges and agrees that by acquiring an interest in a Lot in which landscaping and exterior maintenance is performed or arranged by the Villas Association, such Owner is giving up rights to control the appearance and use of the outside areas of such Owner’s Villas Lot.

Legal Basis

CC&Rs Contractual Obligations

Topic Tags

  • architectural control
  • maintenance
  • visibility

Question

Can I fix a violation for unapproved flooring by simply covering it with a rug?

Short Answer

No. Covering an unapproved permanent installation with a removable item like a rug does not cure the underlying violation.

Detailed Answer

The ALJ rejected the homeowner's argument that placing a custom rug over unapproved tiles resolved the issue. The violation (the unapproved installation) persisted despite being hidden from view.

Alj Quote

The Tribunal is not swayed… by Mr. White’s placement of a custom cut rug in lieu of paying the fine to the Association.

Legal Basis

Remedy of Violation

Topic Tags

  • violations
  • remedies
  • architectural control

Question

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

Short Answer

The Petitioner (the party bringing the case) bears the burden of proof.

Detailed Answer

The Petitioner must prove their case by a 'preponderance of the evidence' (meaning it is more likely true than not). Conversely, if the Respondent claims an affirmative defense (a legal excuse), they bear the burden of proving that defense.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805. Respondents bear the burden of establishing any affirmative defenses by the same evidentiary burden.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • procedural
  • burden of proof
  • evidence

Question

If I lose the hearing, do I have to reimburse the HOA for their filing fee?

Short Answer

Yes. The prevailing party is typically entitled to reimbursement of the filing fee.

Detailed Answer

The ALJ ordered the losing homeowner to reimburse the HOA for the $500 filing fee they paid to bring the case. This is a statutory requirement under Arizona law.

Alj Quote

IT IS FURTHER ORDERED that Respondents shall reimburse Petitioner its filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this ORDER, as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • fees
  • costs
  • penalties

Question

Can the ALJ order me to pay a penalty to the state in addition to reimbursing the HOA?

Short Answer

Yes. The ALJ has the authority to impose a civil penalty payable to the Arizona Department of Real Estate.

Detailed Answer

In this decision, in addition to ordering compliance and fee reimbursement to the HOA, the ALJ ordered the homeowner to pay a $100 civil penalty directly to the Department of Real Estate.

Alj Quote

IT IS FURTHER ORDERED that Respondents shall pay a $100.00 civil penalty in certified funds to the Department within thirty (30) days of this ORDER, as authorized by ARIZ. REV. STAT. § 32-2199.02.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • civil penalty
  • fines
  • ADRE

Question

Does my behavior during the dispute process affect the judge's decision?

Short Answer

Yes. Obfuscating or evasive conduct can be considered an aggravating factor against you.

Detailed Answer

The ALJ specifically noted that the homeowner's conduct during testimony was 'obfuscating' (confusing or unclear) and weighed this as a factor in aggravation when making the final ruling.

Alj Quote

Moreover, Mr. White’s conduct during the testimony was obfuscating, and is considered a factor in aggravation.

Legal Basis

Judicial Discretion

Topic Tags

  • conduct
  • hearing process
  • aggravating factors

Case

Docket No
23F-H042-REL
Case Title
Quail Creek Villas Association, Inc. vs. Randall & Gisela White
Decision Date
2023-05-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Michael Shupe (HOA attorney)
    Goldschmidt Shupe, PLLC
    Appeared as counsel for Petitioner
  • Carolyn B. Goldschmidt (HOA attorney)
    Goldschmidt Shupe, PLLC
    Legal counsel for the Association; communication contact listed
  • Lori Don Woullet (Property Manager/Witness)
    Cadden Community Management
    Senior Community Association Manager
  • Diane Patricia Weber (Former Board Member/Witness)
    Quail Creek Villas Association, Inc.
    Former Board Treasurer
  • Lynn Birleffi (Witness)
    Quail Creek Villas Association, Inc.
    Called as a witness for Petitioner

Respondent Side

  • Randall White (Respondent)
    Quail Creek Villas Association, Inc.
    Appeared pro se and testified
  • Gisela White (Respondent)
    Quail Creek Villas Association, Inc.
    Appearance waived

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
    Presiding Administrative Law Judge
  • Susan Nicolson (ADRE Commissioner)
    Arizona Department of Real Estate

Clifford S Burnes V. Saguaro Crest Homeowners’ Association

Posted on by

Case Summary

Case ID 23F-H031-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-04-13
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge denied the petition, finding that the Petitioner failed to meet the burden of proof that the Saguaro Crest Homeowners Association violated Article 2.1 of the Bylaws by not holding elections. The Bylaw states the annual meeting is for the purpose of 'electing or announcing the results of the election of Directors' and transacting 'other business' (which included dissolution), and the HOA was not required to hold elections if results could have been announced or if dissolution proceedings were underway.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford S Burnes Counsel —
Respondent Saguaro Crest Homeowners' Association Counsel John T. Crotty

Alleged Violations

SCHA Bylaws Article 2.1

Outcome Summary

The Administrative Law Judge denied the petition, finding that the Petitioner failed to meet the burden of proof that the Saguaro Crest Homeowners Association violated Article 2.1 of the Bylaws by not holding elections. The Bylaw states the annual meeting is for the purpose of 'electing or announcing the results of the election of Directors' and transacting 'other business' (which included dissolution), and the HOA was not required to hold elections if results could have been announced or if dissolution proceedings were underway.

Why this result: The Bylaws did not strictly require elections be held, and Petitioner failed to object to the board remaining in place to oversee the dissolution.

Key Issues & Findings

Annual meeting

Petitioner alleged the HOA violated Article 2.1 of the Bylaws by failing to hold Board of Directors elections at the 2021 annual meeting. Respondent argued the language ('for the purpose of electing or announcing the results') did not require elections and that the dissolution vote superseded the immediate need for elections, especially since no one objected at the meeting.

Orders: Petitioner’s petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Analytics Highlights

Topics: HOA, Bylaws, Election Dispute, Dissolution, Annual Meeting, Burden of Proof, Waiver
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

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Video Overview

Decision Documents

23F-H031-REL Decision – 1035344.pdf

Uploaded 2026-04-24T12:01:26 (51.8 KB)

23F-H031-REL Decision – 1049021.pdf

Uploaded 2026-04-24T12:01:32 (114.7 KB)

23F-H031-REL Decision – 1035344.pdf

Uploaded 2026-01-23T17:53:49 (51.8 KB)

23F-H031-REL Decision – 1049021.pdf

Uploaded 2026-01-23T17:53:51 (114.7 KB)

This summary concerns the hearing held before Administrative Law Judge (ALJ) Adam D. Stone of the Office of Administrative Hearings (OAH) on March 29, 2023, in the matter of *Clifford S Burnes v. Saguaro Crest Homeowners' Association* (SCHA), Docket No. 23F-H031-REL.

Key Facts and Main Issues

The central issue was whether the Saguaro Crest Homeowners' Association (Respondent) violated its Bylaws, specifically Article 2.1, by failing to hold Board of Directors elections at the annual meeting on December 11, 2021.

Article 2.1 mandates that an annual meeting "shall be held at least every twelve (12) months… for the purpose of electing or announcing the results of the election of Directors and transacting such other business as may properly come before the meeting".

Key facts established during the hearing include:

  1. The annual meeting was held on December 11, 2021.
  2. At that meeting, the voting members properly approved a vote to dissolve the SCHA.
  3. The Board President and Vice President, whose terms were ending, volunteered to remain in their positions to oversee the dissolution process.
  4. No elections were held for the subsequent 2022 calendar year.
  5. Petitioner Clifford S. Burnes was present at the meeting but did not voice an objection to the board members remaining or to the lack of elections at that time.

Key Arguments

Petitioner's Argument: Petitioner Burnes argued that the use of the word "shall" and the phrase "for the purpose of electing" in Article 2.1 constituted a requirement for elections to be held annually, and the SCHA violated this bylaw. Mr. Burnes requested that the ALJ find in his favor, require the SCHA to comply, reimburse his filing fee, and impose a civil fine on the HOA.

Respondent's Argument: The SCHA, represented by John T. Crotty, denied the claim. The Respondent argued that Article 2.1 provided options: either holding elections *or* announcing the results of elections, and also permitted transacting "such other business," which included the majority-approved dissolution. The SCHA argued that had the dissolution vote failed, an election would have been held. Crucially, the SCHA argued that Mr. Burnes waived his claim of violation by failing to object at the meeting, despite his familiarity with the governing documents.

Legal Outcome and Final Decision

The ALJ determined that the Petitioner bore the burden of proving the violation of Article 2.1 by a preponderance of the evidence.

The ALJ concluded that the Petitioner failed to meet his burden of proof. The legal analysis found that Article 2.1, as written, did not strictly require elections to be held at the meeting itself, as it allowed for results to be announced. Furthermore, the ALJ noted that the clear approval of the dissolution vote meant there would be no need for a new board once the process was complete. The ALJ deemed the Petitioner’s failure to raise an objection at the meeting to be "most harmful" to his claim.

The ALJ issued an Order denying the Petitioner’s petition.

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23F-H031-REL

3 sources

These sources document a legal dispute between Clifford S. Burnes and the Saguaro Crest Homeowners’ Association regarding an alleged violation of community bylaws. The conflict centers on a December 2021 annual meeting where the association voted to dissolve the organization but did not hold new elections for its leadership. Burnes argued that Article 2.1 of the bylaws mandated an election, while the association maintained that the dissolution vote rendered new elections unnecessary. An administrative hearing transcript captures the testimony of both parties, highlighting disagreements over meeting procedures and the legal interpretation of governing documents. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that no mandatory election requirement was violated. The final decision emphasizes that the petitioner failed to object during the meeting and did not meet the burden of proof for his claims.

What are the legal arguments for and against dissolving the HOA?
How did the judge interpret the ‘purpose’ of the annual meeting?
Explain the role of the Arizona Office of Administrative Hearings.

Thursday, February 12

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23F-H031-REL

3 sources

These sources document a legal dispute between Clifford S. Burnes and the Saguaro Crest Homeowners’ Association regarding an alleged violation of community bylaws. The conflict centers on a December 2021 annual meeting where the association voted to dissolve the organization but did not hold new elections for its leadership. Burnes argued that Article 2.1 of the bylaws mandated an election, while the association maintained that the dissolution vote rendered new elections unnecessary. An administrative hearing transcript captures the testimony of both parties, highlighting disagreements over meeting procedures and the legal interpretation of governing documents. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that no mandatory election requirement was violated. The final decision emphasizes that the petitioner failed to object during the meeting and did not meet the burden of proof for his claims.

What are the legal arguments for and against dissolving the HOA?
How did the judge interpret the ‘purpose’ of the annual meeting?
Explain the role of the Arizona Office of Administrative Hearings.

Thursday, February 12

Save to note

Today • 2:17 PM

3 sources

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Reports

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Quiz

Infographic

Slide Deck

Data Table

NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Clifford S. Burnes (petitioner)
    Saguaro Crest Homeowners' Association Member
    Also referred to as Clifford (Norm) Burnes.

Respondent Side

  • John T. Crotty (HOA attorney)
    Saguaro Crest Homeowners' Association
  • Esmerina Martinez (board member)
    Saguaro Crest Homeowners' Association
    President; referred to as Serena Martinez or Esmerelda Martinez in sources.
  • Dave Madill (board member)
    Saguaro Crest Homeowners' Association
    Vice President; referred to as Dave Matt or Dave Mel in testimony.
  • Joseph Martinez (board member)
    Saguaro Crest Homeowners' Association

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmittal.
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmittal.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmittal.
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmittal.

Matthew E Thompson v. Deer Valley Homeowners Association Inc

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Case Summary

Case ID 23F-H003-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-12-20
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied the petition, concluding Petitioner failed to sustain the burden of proof that the Association violated community documents by failing to replace trees on Member lots. The CC&Rs did not establish a duty for the HOA to replace homeowner trees.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Matthew E Thompson Counsel —
Respondent Deer Valley Homeowners Association Inc. Counsel Beth Mulcahy, Esq. & Haidyn Di Lorenzo, Esq.

Alleged Violations

Sun City West Dec CC&Rs Article 4.2(F); Deer Valley CC&Rs Articles 1.16, 6.2, 2.3, 7.1, 7.3; Deer Valley HOA Rules & Regulations ¶ 7.1 and 7.2

Outcome Summary

The Administrative Law Judge denied the petition, concluding Petitioner failed to sustain the burden of proof that the Association violated community documents by failing to replace trees on Member lots. The CC&Rs did not establish a duty for the HOA to replace homeowner trees.

Why this result: Petitioner failed to meet the burden of proof; Petitioner was not an aggrieved party; Petitioner failed to establish causation by Respondent or duty to act by Respondent; trees belong to homeowners, and the Deer Valley CC&Rs do not require the HOA to replace trees under its maintenance obligations.

Key Issues & Findings

Whether Respondent is responsible for replacing dead and/or dying trees on all Member Lots in accordance with cited community documents.

Petitioner alleged the HOA violated governing documents by failing to replace dead trees on member lots, and sought an order compelling the replacement of 59 missing trees (at a rate of 10 per year).

Orders: Petitioner’s petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • Sun City West Dec CC&Rs Article 4.2(F)
  • Deer Valley CC&Rs Article 1.16
  • Deer Valley CC&Rs Article 6.2
  • Deer Valley CC&Rs Article 2.3
  • Deer Valley CC&Rs Article 7.1
  • Deer Valley CC&Rs Article 7.3
  • Deer Valley HOA Rules & Regulations ¶ 7.1
  • Deer Valley HOA Rules & Regulations ¶ 7.2

Analytics Highlights

Topics: HOA dispute, Landscape maintenance, Tree replacement, Burden of proof, Standing
Additional Citations:

  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

23F-H003-REL Decision – 1001043.pdf

Uploaded 2026-04-24T11:55:51 (58.8 KB)

23F-H003-REL Decision – 1001154.pdf

Uploaded 2026-04-24T11:55:55 (7.1 KB)

23F-H003-REL Decision – 1021049.pdf

Uploaded 2026-04-24T11:56:02 (133.5 KB)

23F-H003-REL Decision – 999666.pdf

Uploaded 2026-04-24T11:56:09 (53.9 KB)

23F-H003-REL Decision – 1001043.pdf

Uploaded 2026-01-23T17:50:08 (58.8 KB)

23F-H003-REL Decision – 1001154.pdf

Uploaded 2026-01-23T17:50:14 (7.1 KB)

23F-H003-REL Decision – 1021049.pdf

Uploaded 2026-01-23T17:50:17 (133.5 KB)

23F-H003-REL Decision – 999666.pdf

Uploaded 2026-01-23T17:50:20 (53.9 KB)

This is a summary of the administrative hearing proceedings in the matter of *Matthew E Thompson, Petitioner, vs. Deer Valley Homeowners Association Inc., Respondent* (No. 23F-H003-REL). The hearing, presided over by Administrative Law Judge (ALJ) Jenna Clark, was held on December 12, 2022.

Key Facts and Main Issue

The Petitioner, Matthew Thompson (a homeowner and former Board member), filed a single-issue petition alleging the Deer Valley Homeowners Association (HOA) violated community documents by failing to replace dead trees within the community. Petitioner paid a $500 filing fee for the adjudication of this single issue.

Petitioner's Position: The HOA has an obligation to replace dead or missing trees, relying on provisions within the Deer Valley CC&Rs (subdivision declaration) and the Deer Valley HOA Rules & Regulations concerning "maintenance" and the Board's role in setting "priorities for plant and tree replacement". Petitioner asserted that the value of his property was negatively impacted by the approximately 59 missing or dying trees on neighboring lots, arguing he has standing because he pays common assessments for landscape maintenance.

Respondent's Position: The HOA denied the allegations. The current Board interprets the Deer Valley CC&Rs as *not* requiring tree replacement, noting that the documents only mention maintenance and specifically limit replacement obligations to irrigation parts. The Board's policy is to replace trees only if the death or damage is proven to be caused by the Association’s negligence or willful maintenance.

Hearing Proceedings and Key Arguments

Procedural Matters: At the outset, Respondent's counsel raised motions to dismiss.

  1. Jurisdiction/Relief: Counsel sought clarification that the Arizona Department of Real Estate (ADRE) and OAH lacked jurisdiction to grant injunctive relief or monetary damages. The ALJ confirmed that the only relief available was an order for a party to abide by specific documents, denying the requested injunctive relief of compelling the HOA to plant 10 trees annually.
  2. Standing (Injury in Fact): Respondent argued Petitioner lacked standing because he failed to allege a personalized injury, as no trees were missing or dead on his personal lot, and he cannot pursue disputes on behalf of other homeowners.
  3. Wrong Party: Respondent argued that the minimum tree requirement cited by Petitioner originated in the Sun City West Declaration (the Master Association), which Deer Valley HOA (the sub-association) is not responsible for enforcing.

Motion for Summary Judgment: After Petitioner presented his case-in-chief, Respondent renewed the motion, arguing that the evidence showed, as a matter of law, that the Deer Valley CC&Rs do not require tree replacement.

ALJ Ruling on Motions: The ALJ denied the motions to dismiss/summary judgment, citing an issue of fact regarding the interpretation of the CC&Rs and the necessity of establishing a definitive record.

Witness Testimony: The HOA Board President, Charles Dean Otto, testified that the Board does not interpret replacement as a requirement and respects homeowners who do not want more trees on their lots. He noted that the requirement of four trees per lot was in the Master Association documents, potentially intended for marketing, and was not intended to be maintained in perpetuity by the Deer Valley HOA.

Legal Points and Final Outcome

The ALJ, after reviewing the record, issued a FINAL ORDER denying the Petitioner's petition.

Legal Conclusions:

  • Burden of Proof: Petitioner failed to sustain his burden of proving by a preponderance of the evidence that the Association violated the cited community documents.
  • Lack of Standing (Aggrieved Party): Petitioner was found not to be an "aggrieved party" because he admitted that he brought the petition "on behalf of all community members" and did not have a dead, dying, or missing tree on his

Questions

Question

If the CC&Rs require the HOA to perform 'maintenance', does that legally obligate them to replace dead plants or trees?

Short Answer

Not necessarily. The term 'maintenance' does not automatically include 'replacement' unless specified in the governing documents.

Detailed Answer

In this case, the HOA was found not to be in violation for refusing to replace trees because the CC&Rs governed 'maintenance,' which was interpreted as distinct from a requirement to replace items owned by the homeowner. The ALJ ruled the homeowner failed to prove the HOA had a duty to replace the trees.

Alj Quote

The Board declined Petitioner’s request, as it had concluded that the Deer Valley CC&Rs did not require replacement of trees under its maintenance obligations.

Legal Basis

Contract Interpretation / CC&Rs

Topic Tags

  • Maintenance vs Replacement
  • CC&Rs
  • Landscaping

Question

Can I file a petition against my HOA on behalf of the entire community regarding a general issue?

Short Answer

No. You must be an 'aggrieved party' with a specific injury to yourself or your property.

Detailed Answer

A homeowner cannot sue on behalf of other community members. To have standing, the petitioner must demonstrate that they personally suffered an injury. In this case, the petitioner had no dead trees on his own lot, so he was not considered an aggrieved party.

Alj Quote

Here, Petitioner is not an aggrieved party. Petitioner admitted that he brought forth his petition 'on behalf of all community members' and did not have a dead, dying, or missing tree on his lot.

Legal Basis

Standing / Aggrieved Party Status

Topic Tags

  • Standing
  • Procedural Requirements

Question

Can I argue that my neighbor's violations are diminishing my property value in an administrative hearing?

Short Answer

Generally, no, unless you have concrete evidence and it is a justiciable issue.

Detailed Answer

Claims that a neighbor's lack of maintenance (like dead trees) negatively impacts your property value may be dismissed as irrelevant or unsupported without significant proof. The tribunal may consider this non-justiciable.

Alj Quote

Notably, Petitioner’s allegation that his lot’s value has been diminished by neighboring lots due to their dead, dying, and/or missing trees is irrelevant, not supported by the record, and is not a justiciable issue for this tribunal.

Legal Basis

Evidence / Justiciable Issues

Topic Tags

  • Property Value
  • Evidence

Question

If I pay a filing fee for one issue, can I add other complaints to the hearing later?

Short Answer

No. The tribunal will only address the specific issue for which the filing fee was paid.

Detailed Answer

Administrative hearings are limited in scope to the specific issues properly petitioned and paid for. Tangential issues raised in addendums or during the hearing will likely not be adjudicated if a separate fee was not paid.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioner raised in the addendum to his petition.

Legal Basis

ARIZ. REV. STAT. § 32-2199.05

Topic Tags

  • Filing Fees
  • Scope of Hearing

Question

Does the HOA have the authority to remove items (like trees) from my private lot without permission?

Short Answer

No, unless the governing documents explicitly grant that authority.

Detailed Answer

The HOA generally cannot enter a homeowner's lot to remove property, such as trees, without the owner's permission, unless the record establishes specific authority to do so.

Alj Quote

There is nothing in the record that establishes Respondent has the authority to remove a tree from a homeowner’s lot without permission, or that Respondent has done so in the past.

Legal Basis

Property Rights / HOA Authority

Topic Tags

  • Homeowner Rights
  • Trespass/Authority

Question

What level of proof is required for a homeowner to win a case against their HOA?

Short Answer

The standard is 'preponderance of the evidence'.

Detailed Answer

The petitioner must prove that their claim is more likely true than not. This is a lower standard than 'beyond a reasonable doubt' used in criminal cases, but still requires superior evidentiary weight.

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

Burden of Proof

Topic Tags

  • Legal Standards
  • Evidence

Question

Can I base my claim on the 'Master Association' CC&Rs if my specific HOA CC&Rs say something different?

Short Answer

Generally, the specific HOA CC&Rs form the enforceable contract for maintenance issues within that specific subdivision.

Detailed Answer

While a Master Association may have its own rules, the specific subdivision's CC&Rs are often the controlling documents regarding maintenance obligations for lots within that subdivision. The ALJ focused on the specific HOA's documents to determine liability.

Alj Quote

The record reflects that the Deer Valley CC&Rs govern landscaping maintenance for the Association… [and] did not require Respondent to replace dead, dying, or missing trees within the Association

Legal Basis

Governing Documents Hierarchy

Topic Tags

  • CC&Rs
  • Master Association

Case

Docket No
23F-H003-REL
Case Title
Matthew E Thompson vs. Deer Valley Homeowners Association Inc.
Decision Date
2022-12-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

If the CC&Rs require the HOA to perform 'maintenance', does that legally obligate them to replace dead plants or trees?

Short Answer

Not necessarily. The term 'maintenance' does not automatically include 'replacement' unless specified in the governing documents.

Detailed Answer

In this case, the HOA was found not to be in violation for refusing to replace trees because the CC&Rs governed 'maintenance,' which was interpreted as distinct from a requirement to replace items owned by the homeowner. The ALJ ruled the homeowner failed to prove the HOA had a duty to replace the trees.

Alj Quote

The Board declined Petitioner’s request, as it had concluded that the Deer Valley CC&Rs did not require replacement of trees under its maintenance obligations.

Legal Basis

Contract Interpretation / CC&Rs

Topic Tags

  • Maintenance vs Replacement
  • CC&Rs
  • Landscaping

Question

Can I file a petition against my HOA on behalf of the entire community regarding a general issue?

Short Answer

No. You must be an 'aggrieved party' with a specific injury to yourself or your property.

Detailed Answer

A homeowner cannot sue on behalf of other community members. To have standing, the petitioner must demonstrate that they personally suffered an injury. In this case, the petitioner had no dead trees on his own lot, so he was not considered an aggrieved party.

Alj Quote

Here, Petitioner is not an aggrieved party. Petitioner admitted that he brought forth his petition 'on behalf of all community members' and did not have a dead, dying, or missing tree on his lot.

Legal Basis

Standing / Aggrieved Party Status

Topic Tags

  • Standing
  • Procedural Requirements

Question

Can I argue that my neighbor's violations are diminishing my property value in an administrative hearing?

Short Answer

Generally, no, unless you have concrete evidence and it is a justiciable issue.

Detailed Answer

Claims that a neighbor's lack of maintenance (like dead trees) negatively impacts your property value may be dismissed as irrelevant or unsupported without significant proof. The tribunal may consider this non-justiciable.

Alj Quote

Notably, Petitioner’s allegation that his lot’s value has been diminished by neighboring lots due to their dead, dying, and/or missing trees is irrelevant, not supported by the record, and is not a justiciable issue for this tribunal.

Legal Basis

Evidence / Justiciable Issues

Topic Tags

  • Property Value
  • Evidence

Question

If I pay a filing fee for one issue, can I add other complaints to the hearing later?

Short Answer

No. The tribunal will only address the specific issue for which the filing fee was paid.

Detailed Answer

Administrative hearings are limited in scope to the specific issues properly petitioned and paid for. Tangential issues raised in addendums or during the hearing will likely not be adjudicated if a separate fee was not paid.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioner raised in the addendum to his petition.

Legal Basis

ARIZ. REV. STAT. § 32-2199.05

Topic Tags

  • Filing Fees
  • Scope of Hearing

Question

Does the HOA have the authority to remove items (like trees) from my private lot without permission?

Short Answer

No, unless the governing documents explicitly grant that authority.

Detailed Answer

The HOA generally cannot enter a homeowner's lot to remove property, such as trees, without the owner's permission, unless the record establishes specific authority to do so.

Alj Quote

There is nothing in the record that establishes Respondent has the authority to remove a tree from a homeowner’s lot without permission, or that Respondent has done so in the past.

Legal Basis

Property Rights / HOA Authority

Topic Tags

  • Homeowner Rights
  • Trespass/Authority

Question

What level of proof is required for a homeowner to win a case against their HOA?

Short Answer

The standard is 'preponderance of the evidence'.

Detailed Answer

The petitioner must prove that their claim is more likely true than not. This is a lower standard than 'beyond a reasonable doubt' used in criminal cases, but still requires superior evidentiary weight.

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

Burden of Proof

Topic Tags

  • Legal Standards
  • Evidence

Question

Can I base my claim on the 'Master Association' CC&Rs if my specific HOA CC&Rs say something different?

Short Answer

Generally, the specific HOA CC&Rs form the enforceable contract for maintenance issues within that specific subdivision.

Detailed Answer

While a Master Association may have its own rules, the specific subdivision's CC&Rs are often the controlling documents regarding maintenance obligations for lots within that subdivision. The ALJ focused on the specific HOA's documents to determine liability.

Alj Quote

The record reflects that the Deer Valley CC&Rs govern landscaping maintenance for the Association… [and] did not require Respondent to replace dead, dying, or missing trees within the Association

Legal Basis

Governing Documents Hierarchy

Topic Tags

  • CC&Rs
  • Master Association

Case

Docket No
23F-H003-REL
Case Title
Matthew E Thompson vs. Deer Valley Homeowners Association Inc.
Decision Date
2022-12-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Matthew E Thompson (petitioner)
    Also referred to as Mathew E. Thompson; Appeared on his own behalf

Respondent Side

  • Beth Mulcahy (HOA attorney)
    Mulcahy Law Firm, PC
    Also referred to as Beth Mohei, Beth Moi, or Beth Mali
  • Haidyn DiLorenzo (HOA attorney)
    Mulcahy Law Firm, PC
    Also referred to as Hayden Dorenzo
  • Charles Dean Otto (Board President; witness)
    Deer Valley Homeowners Association Inc.
    Also referred to as Charles Deano; President of the board of management

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
    Administrative Law Judge

Other Participants

  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • Dan Gardener (ADRE staff)
    Arizona Department of Real Estate
    Constituent Services Manager
  • Miranda Alvarez (Legal Secretary)
    Transmitted electronic order
  • c. serrano (OAH staff)
    OAH
    Transmitted Minute Entry
  • Sam Muza (Contractor President)
    Verde Valley Landscape Services
    Signed contract with HOA
  • Charlene Frost (homeowner)
    Filed Request for Exterior Change application
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence

Dean A Yelenik v. Meridian Condominiums Homeowners Association

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

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

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

Orders: Petitioner's petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

22F-H2221021-REL Decision – 948752.pdf

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

22F-H2221021-REL Decision – 948752.pdf

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

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

Key Facts

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

Main Issues and Legal Arguments

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

Petitioner's Argument:

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

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

Respondent's Argument:

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

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

Outcome and Final Decision

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

Questions

Question

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

Short Answer

Yes, unless the governing documents specifically prohibit it.

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • Board Vacancies
  • Term Limits
  • Board Appointments

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Bylaws Interpretation

Topic Tags

  • Board Qualifications
  • Vacancies

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1243(B)

Topic Tags

  • Elections
  • Board Authority

Question

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

Short Answer

No, a questionable choice is not necessarily unlawful.

Detailed Answer

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

Alj Quote

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

Legal Basis

Board Discretion

Topic Tags

  • Board Conduct
  • Decision Making

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Standards
  • Hearings

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Jurisdiction
  • Contract Interpretation

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 32-2199.05

Topic Tags

  • Procedure
  • Fees

Case

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

Questions

Question

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

Short Answer

Yes, unless the governing documents specifically prohibit it.

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • Board Vacancies
  • Term Limits
  • Board Appointments

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Bylaws Interpretation

Topic Tags

  • Board Qualifications
  • Vacancies

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1243(B)

Topic Tags

  • Elections
  • Board Authority

Question

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

Short Answer

No, a questionable choice is not necessarily unlawful.

Detailed Answer

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

Alj Quote

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

Legal Basis

Board Discretion

Topic Tags

  • Board Conduct
  • Decision Making

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Standards
  • Hearings

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Jurisdiction
  • Contract Interpretation

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 32-2199.05

Topic Tags

  • Procedure
  • Fees

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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

Clifford Burnes v. Saguaro Crest Homeowners Association, Inc.

Posted on by

Case Summary

Case ID 22F-H2221010-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-12-09
Administrative Law Judge Tammy L. Eigenheer
Outcome The ALJ granted the Petitioner's petition, finding the Respondent HOA violated A.R.S. § 33-1805 by requiring the Petitioner to inspect records before providing copies and failing to comply with the 10-day statutory deadline. The HOA was ordered to reimburse the Petitioner's $500.00 filing fee.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford Burnes Counsel —
Respondent Saguaro Crest Homeowners Association, Inc. Counsel John T. Crotty

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The ALJ granted the Petitioner's petition, finding the Respondent HOA violated A.R.S. § 33-1805 by requiring the Petitioner to inspect records before providing copies and failing to comply with the 10-day statutory deadline. The HOA was ordered to reimburse the Petitioner's $500.00 filing fee.

Key Issues & Findings

Failure to fulfill records request

Petitioner alleged the Association failed to fulfill his request for copies of records within the statutory 10-day period because the Association improperly required him to inspect the documents first. The ALJ found the Association violated A.R.S. § 33-1805, as the statute does not permit an HOA to mandate prior inspection before providing requested copies.

Orders: Petition granted. Respondent ordered to reimburse Petitioner's filing fee of $500.00 in certified funds and ordered to henceforth comply with ARIZ. REV. STAT. § 33-1805.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(A), 32-2199.01(D), 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)
  • ARIZ. ADMIN. CODE R2-19-119
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • Arpaio v. Steinle, 201 Ariz. 353, 355 ¶ 5, 35 P.3d 114, 116 (App. 2001)
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
  • ARIZ. REV. STAT. §32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Analytics Highlights

Topics: HOA, Records Request, ARS 33-1805, Records Inspection, Timeliness, Filing Fee Refund
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(A), 32-2199.01(D), 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)
  • ARIZ. ADMIN. CODE R2-19-119
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • Arpaio v. Steinle, 201 Ariz. 353, 355 ¶ 5, 35 P.3d 114, 116 (App. 2001)
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
  • ARIZ. REV. STAT. §32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

22F-H2221010-REL Decision – 930949.pdf

Uploaded 2026-04-24T11:39:31 (139.0 KB)

22F-H2221010-REL Decision – 930949.pdf

Uploaded 2026-01-23T17:40:34 (139.0 KB)

This summary outlines the Administrative Law Judge Decision in the case of Clifford Burnes v. Saguaro Crest Homeowners Association, Inc..

Key Facts and Background

Petitioner Clifford Burnes, a member of the Saguaro Crest Homeowners Association (HOA), filed a petition alleging the HOA failed to fulfill his request for records in violation of ARIZ. REV. STAT. § 33-1805.

On or about December 31, 2020, Petitioner submitted a certified letter and email requesting COPIES of specific Association documents and acknowledged the statutory fee of fifteen cents per page. The Association received the request on January 5, 2021, meaning the statutory 10-business-day deadline to provide copies expired on or about January 15, 2021.

The Association failed to provide the documents within this deadline. Instead, the HOA made delayed and erroneous attempts to schedule document review and send copies. Early communications were misaddressed or misnamed (using "Norm Burnes" or an incorrect address), delaying the Petitioner's ability to review or receive documents. Petitioner only had the opportunity to inspect the records on February 4, 2021, and did not receive copies until February 27, 2021, after the Association resent the package using his correct legal name, Clifford Burnes.

Main Issues and Arguments

The core legal issue was whether the Respondent HOA violated A.R.S. § 33-1805 by failing to provide copies of requested records within ten business days.

  • Petitioner’s Argument: Petitioner asserted the Association wrongly required him to inspect the documents prior to providing copies and failed to provide copies within the statutory ten-day period. Petitioner sought an order requiring compliance, reimbursement of his filing fee, and imposition of a civil fine.
  • Respondent’s Argument: The Association argued that it interpreted A.R.S. § 33-1805 to allow them to require a homeowner to inspect documents before providing copies for "efficiency". The HOA claimed to have acted in good faith, attempting to shift the blame for mailing errors to the Petitioner's inconsistent use of the name "Norm Burnes," although counsel acknowledged the HOA possessed the Petitioner's correct legal name and address.

Legal Conclusion and Outcome

The Administrative Law Judge (ALJ) concluded that nothing in ARIZ. REV. STAT. § 33-1805 permits a homeowners’ association to require members to first inspect records before providing copies requested by members.

Since the Petitioner specifically requested copies and the statute clearly states the association has ten business days to provide copies "On request for purchase of copies of records," the Association was determined to have failed to comply with the statutory mandate.

The ALJ found that Petitioner sustained his burden of proof by a preponderance of the evidence, establishing that the Association violated A.R.S. § 33-1805.

Final Decision

The Petitioner’s petition was granted.

The Administrative Law Judge ORDERED:

  1. Respondent must reimburse Petitioner’s filing fee of $500.00 in certified funds.
  2. Respondent shall henceforth comply with ARIZ. REV. STAT. § 33-1805.

Questions

Question

Can my HOA force me to inspect records in person before they will provide me with copies?

Short Answer

No. The HOA cannot require an in-person inspection as a prerequisite to providing copies.

Detailed Answer

The Administrative Law Judge ruled that Arizona statute allows homeowners to request copies directly. While the HOA can make records available for inspection, they cannot force a member to inspect them first if the member has requested copies. Doing so violates the statutory requirement to provide copies within ten business days.

Alj Quote

Nothing in ARIZ. REV. STAT. § 33-1805 can be read to permit an HOA to require members to first inspect records before it provides copies of records requested by members.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • inspection
  • homeowner rights

Question

How many days does the HOA have to provide copies of records I requested?

Short Answer

The HOA must provide copies within 10 business days.

Detailed Answer

Under Arizona law, once a member requests to purchase copies of records, the association has a strict deadline of ten business days to fulfill that request.

Alj Quote

On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • deadlines
  • records request
  • HOA obligations

Question

What is the maximum amount the HOA can charge me for copies of records?

Short Answer

The HOA cannot charge more than 15 cents per page.

Detailed Answer

The statute limits the fee an association may charge for copying records to a maximum of fifteen cents per page.

Alj Quote

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

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • fees
  • records request
  • costs

Question

Can the HOA charge me a fee just to look at or review records?

Short Answer

No. The HOA cannot charge for making materials available for review.

Detailed Answer

While the HOA can charge for copies, they are explicitly prohibited from charging a member for the act of making the material available for examination/review.

Alj Quote

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

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • fees
  • records review
  • homeowner rights

Question

If I win my hearing against the HOA, can I get my $500 filing fee back?

Short Answer

Yes, the judge can order the HOA to reimburse your filing fee.

Detailed Answer

In this case, because the homeowner prevailed in proving the violation, the Administrative Law Judge ordered the HOA to reimburse the filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

Order

Topic Tags

  • reimbursement
  • penalties
  • legal costs

Question

Can I authorize someone else to look at the HOA records for me?

Short Answer

Yes, if you designate them in writing.

Detailed Answer

The statute allows records to be examined by the member or any person the member designates in writing as their representative.

Alj Quote

…all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • representation
  • records request
  • homeowner rights

Question

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

Short Answer

Preponderance of the evidence.

Detailed Answer

The petitioner (homeowner) must prove that their contention is more probably true than not. It requires superior evidentiary weight, though not necessarily freedom from all doubt.

Alj Quote

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

Legal Basis

Legal Standard

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

Is it a valid excuse if the HOA says mailing the records to the wrong name/address was just a mistake?

Short Answer

No. If the HOA has the correct legal name and address on file, mailing to a nickname or wrong address does not satisfy the requirement to provide records on time.

Detailed Answer

The HOA attempted to shift blame to the homeowner for using a nickname in emails, but the judge noted the HOA had the official member list with the legal name. Failing to use the correct information resulted in a violation of the 10-day deadline.

Alj Quote

Respondent cannot be said to have provided Petitioner with copies of the records he requested within 10 days of his request.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • excuses
  • mailing
  • HOA obligations

Case

Docket No
22F-H2221010-REL
Case Title
Clifford Burnes vs. Saguaro Crest Homeowners Association, Inc.
Decision Date
2021-12-09
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA force me to inspect records in person before they will provide me with copies?

Short Answer

No. The HOA cannot require an in-person inspection as a prerequisite to providing copies.

Detailed Answer

The Administrative Law Judge ruled that Arizona statute allows homeowners to request copies directly. While the HOA can make records available for inspection, they cannot force a member to inspect them first if the member has requested copies. Doing so violates the statutory requirement to provide copies within ten business days.

Alj Quote

Nothing in ARIZ. REV. STAT. § 33-1805 can be read to permit an HOA to require members to first inspect records before it provides copies of records requested by members.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • inspection
  • homeowner rights

Question

How many days does the HOA have to provide copies of records I requested?

Short Answer

The HOA must provide copies within 10 business days.

Detailed Answer

Under Arizona law, once a member requests to purchase copies of records, the association has a strict deadline of ten business days to fulfill that request.

Alj Quote

On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • deadlines
  • records request
  • HOA obligations

Question

What is the maximum amount the HOA can charge me for copies of records?

Short Answer

The HOA cannot charge more than 15 cents per page.

Detailed Answer

The statute limits the fee an association may charge for copying records to a maximum of fifteen cents per page.

Alj Quote

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

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • fees
  • records request
  • costs

Question

Can the HOA charge me a fee just to look at or review records?

Short Answer

No. The HOA cannot charge for making materials available for review.

Detailed Answer

While the HOA can charge for copies, they are explicitly prohibited from charging a member for the act of making the material available for examination/review.

Alj Quote

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

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • fees
  • records review
  • homeowner rights

Question

If I win my hearing against the HOA, can I get my $500 filing fee back?

Short Answer

Yes, the judge can order the HOA to reimburse your filing fee.

Detailed Answer

In this case, because the homeowner prevailed in proving the violation, the Administrative Law Judge ordered the HOA to reimburse the filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

Order

Topic Tags

  • reimbursement
  • penalties
  • legal costs

Question

Can I authorize someone else to look at the HOA records for me?

Short Answer

Yes, if you designate them in writing.

Detailed Answer

The statute allows records to be examined by the member or any person the member designates in writing as their representative.

Alj Quote

…all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • representation
  • records request
  • homeowner rights

Question

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

Short Answer

Preponderance of the evidence.

Detailed Answer

The petitioner (homeowner) must prove that their contention is more probably true than not. It requires superior evidentiary weight, though not necessarily freedom from all doubt.

Alj Quote

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

Legal Basis

Legal Standard

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

Is it a valid excuse if the HOA says mailing the records to the wrong name/address was just a mistake?

Short Answer

No. If the HOA has the correct legal name and address on file, mailing to a nickname or wrong address does not satisfy the requirement to provide records on time.

Detailed Answer

The HOA attempted to shift blame to the homeowner for using a nickname in emails, but the judge noted the HOA had the official member list with the legal name. Failing to use the correct information resulted in a violation of the 10-day deadline.

Alj Quote

Respondent cannot be said to have provided Petitioner with copies of the records he requested within 10 days of his request.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • excuses
  • mailing
  • HOA obligations

Case

Docket No
22F-H2221010-REL
Case Title
Clifford Burnes vs. Saguaro Crest Homeowners Association, Inc.
Decision Date
2021-12-09
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Clifford Burnes (petitioner)
    Appeared on his own behalf; also identified as Clifford (Norm) Burnes or Norm Burnes,,,.

Respondent Side

  • John T. Crotty (respondent attorney)
    Farley, Choate & Wood
    Represented Saguaro Crest Homeowners Association,,.

Neutral Parties

  • Jenna Clark (ALJ)
    Listed as Administrative Law Judge.
  • Tammy L. Eigenheer (ALJ)
    Signed the Administrative Law Judge Decision.
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
    Recipient of transmission of the Decision.
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Email contact listed for transmission ([email protected]).
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Email contact listed for transmission ([email protected]).
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Email contact listed for transmission ([email protected]).
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Email contact listed for transmission ([email protected]).

Other Participants

  • Joseph Martinez (unknown)
    Petitioner verbally notified him regarding the undelivered certified mail package.