Tag Archives: MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)

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

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23F-H003-REL Decision – 1001154.pdf

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23F-H003-REL Decision – 1021049.pdf

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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

Gregory Ehle V. Fulton Ranch Homeowners Association

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Case Summary

Case ID 22F-H2222031-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-07-11
Administrative Law Judge Velva Moses-Thompson
Outcome The Administrative Law Judge dismissed the petition after finding that the Petitioner failed to meet his burden of proof to show that the Fulton Ranch Homeowners Association violated A.R.S. § 33-1804(E)(2) concerning an emergency board meeting. The evidence established that no such meeting took place, and the statute does not require the Board to hold one.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Gregory Ehle Counsel —
Respondent Fulton Ranch Homeowners Association Counsel Emily H. Mann, Esq.

Alleged Violations

A.R.S. § 33-1804(E)(2)

Outcome Summary

The Administrative Law Judge dismissed the petition after finding that the Petitioner failed to meet his burden of proof to show that the Fulton Ranch Homeowners Association violated A.R.S. § 33-1804(E)(2) concerning an emergency board meeting. The evidence established that no such meeting took place, and the statute does not require the Board to hold one.

Why this result: Petitioner failed to establish the violation by a preponderance of the evidence, as he conceded he did not know if an emergency meeting was held and could not provide legal authority showing that one was required.

Key Issues & Findings

Alleged violation regarding an emergency meeting of the board members.

Petitioner alleged that the Respondent HOA violated A.R.S. § 33-1804(E)(2) concerning the procedures for an emergency board meeting, specifically regarding a message sent out by the HOA's managing agent. The case proceeded on this single issue after Petitioner failed to pay the required additional filing fees for four total issues claimed.

Orders: The Administrative Law Judge dismissed the petition, concluding that the Respondent HOA did not hold an emergency board meeting and was not required by A.R.S. § 33-1804(E)(2) to hold one.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1804(E)(2)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)

Analytics Highlights

Topics: emergency meeting, board of directors, failure to pay filing fee, burden of proof, dismissal, A.R.S. 33-1804
Additional Citations:

  • A.R.S. § 33-1804(E)(2)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

22F-H2222031-REL Decision – 964714.pdf

Uploaded 2026-04-24T11:47:06 (48.2 KB)

22F-H2222031-REL Decision – 964973.pdf

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22F-H2222031-REL Decision – 965150.pdf

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22F-H2222031-REL Decision – 965339.pdf

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22F-H2222031-REL Decision – 967084.pdf

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22F-H2222031-REL Decision – 967089.pdf

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22F-H2222031-REL Decision – 967102.pdf

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22F-H2222031-REL Decision – 973304.pdf

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22F-H2222031-REL Decision – 977404.pdf

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22F-H2222031-REL Decision – 982867.pdf

Uploaded 2026-04-24T11:47:50 (106.4 KB)

22F-H2222031-REL Decision – 964714.pdf

Uploaded 2026-01-23T17:44:36 (48.2 KB)

22F-H2222031-REL Decision – 964973.pdf

Uploaded 2026-01-23T17:44:39 (18.9 KB)

22F-H2222031-REL Decision – 965150.pdf

Uploaded 2026-01-23T17:44:42 (44.4 KB)

22F-H2222031-REL Decision – 965339.pdf

Uploaded 2026-01-23T17:44:46 (40.0 KB)

22F-H2222031-REL Decision – 967084.pdf

Uploaded 2026-01-23T17:44:50 (55.7 KB)

22F-H2222031-REL Decision – 967089.pdf

Uploaded 2026-01-23T17:44:54 (45.1 KB)

22F-H2222031-REL Decision – 967102.pdf

Uploaded 2026-01-23T17:44:59 (7.1 KB)

22F-H2222031-REL Decision – 973304.pdf

Uploaded 2026-01-23T17:45:02 (47.0 KB)

22F-H2222031-REL Decision – 977404.pdf

Uploaded 2026-01-23T17:45:06 (50.3 KB)

22F-H2222031-REL Decision – 982867.pdf

Uploaded 2026-01-23T17:45:09 (106.4 KB)

This summary details the proceedings, key arguments, and final decision in the administrative hearing case of *Gregory Ehle v. Fulton Ranch Homeowners Association* (No. 22F-H2222031-REL), held before Administrative Law Judge (ALJ) Velva Moses-Thompson.

Key Facts and Procedural History

Petitioner Gregory Ehle filed a petition with the Arizona Department of Real Estate (AZDRE) around February 2, 2022, alleging four separate violations by the Respondent, Fulton Ranch Homeowners Association (Fulton Ranch). Ehle paid a $500 filing fee, but the tribunal ordered him to remit an additional $1,500 for the four claims. Ehle failed to pay the outstanding fee by the deadline (May 6, 2022). Consequently, and because Ehle failed to notify the tribunal of his preferred single issue, the ALJ determined that the sole issue to be addressed at the June 21, 2022, hearing was an alleged violation of A.R.S. § 33-1804(E)(2) concerning an emergency meeting of the board members.

Hearing Proceedings and Main Arguments

The hearing took place on June 21, 2022. Petitioner Ehle, appearing on his own behalf, initially failed to appear, but the hearing proceeded after he connected virtually.

Petitioner's Argument: Ehle contended that a November 12, 2020, notice issued by Fulton Ranch regarding the cessation of responses to his emails constituted a matter of urgency that should have necessitated an emergency board meeting. Ehle alleged that if an emergency meeting had been conducted, the required minutes were not published at the next regular board meeting. However, under examination, Ehle conceded that he was unaware of whether an emergency board meeting was actually held.

Respondent's Argument: Fulton Ranch, represented by Emily Mann, Esq., argued for dismissal on multiple grounds, including a potential bar by the one-year statute of limitations. The primary argument, supported by testimony from Kevin Hearty (Division Vice President for the community manager, CCMC), was that no emergency board meeting occurred between September 2020 and November 12, 2020. Fulton Ranch asserted that A.R.S. § 33-1804(E)(2) governs the *procedure* for an emergency meeting, and since no meeting was held, no violation of the procedure could have occurred.

Outcome and Legal Decision

The ALJ issued the decision on July 11, 2022.

Key Legal Points and Findings:

  1. Petitioner bore the burden of proof to establish a violation by a preponderance of the evidence.
  2. The weight of the evidence showed that Fulton Ranch did not hold an emergency board meeting regarding the decision concerning Mr. Ehle's emails.
  3. The ALJ explicitly concluded that A.R.S. § 33-1804(E)(2) allows the Board to conduct an emergency meeting, but the statute does not require the Board to hold one. Ehle failed to provide legal authority supporting his contention that a meeting was mandatory.

Final Decision: Because Ehle failed to establish that Fulton Ranch violated A.R.S. § 33-1804(E)(2), the Administrative Law Judge dismissed the petition.

Questions

Question

Is my HOA board legally required to hold an emergency meeting for urgent matters?

Short Answer

No, the statute allows for emergency meetings but does not mandate them.

Detailed Answer

The ALJ determined that while state law permits a board to call an emergency meeting for issues that cannot wait 48 hours, the homeowner failed to prove there is any legal requirement forcing the board to hold one. The board has the discretion to call such meetings but is not obligated to do so.

Alj Quote

Mr. Ehle failed to provide any legal authority in his petition or at hearing to support his contention that the Board was required to hold an emergency board meeting.

Legal Basis

A.R.S. § 33-1804(E)(2)

Topic Tags

  • emergency meetings
  • board obligations

Question

Who is responsible for proving that the HOA violated the law?

Short Answer

The homeowner (petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, the homeowner filing the complaint must prove their case by a 'preponderance of the evidence,' meaning they must show it is more likely than not that the violation occurred.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • burden of proof
  • legal standards

Question

Can I be penalized if I don't pay the full filing fees for all my complaints?

Short Answer

Yes, the tribunal will limit the hearing to only the issues covered by the paid fees.

Detailed Answer

If a homeowner alleges multiple violations but only pays the filing fee for one, the tribunal may dismiss the unpaid claims and order the homeowner to choose a single issue to proceed with at the hearing.

Alj Quote

The tribunal ordered Petitioner to pay an additional $1,500 for the four issues claimed. However, Petitioner failed to do so… IT IS ORDERED that the single issue to be addressed at hearing is an alleged violation of A.R.S. § 33-1804(E)(2)…

Legal Basis

Procedural Order

Topic Tags

  • filing fees
  • procedure

Question

Can I punish my HOA for failing to produce minutes for a meeting they claim never happened?

Short Answer

No, if no meeting was held, there are no minutes to produce.

Detailed Answer

You cannot successfully claim a procedural violation (like missing minutes) for a meeting that did not take place. If the evidence shows no meeting occurred, the claim will be dismissed.

Alj Quote

The weight of the evidence shows that Fulton Ranch did not hold an emergency board meeting… Therefore, the Administrative Law Judge concludes that Mr. Ehle has failed to establish that Fulton Ranch violated A.R.S. § 33-1804(E)(2) and the petition should be dismissed.

Legal Basis

A.R.S. § 33-1804(E)(2)

Topic Tags

  • meeting minutes
  • evidence

Question

What qualifies as an 'emergency' for an HOA board meeting?

Short Answer

Matters that cannot be delayed for the standard 48-hour notice period.

Detailed Answer

State law defines an emergency meeting as one called to discuss business or take action that is too urgent to wait for the standard 48 hours required for notice of a regular meeting.

Alj Quote

An emergency meeting of the board of directors may be called to discuss business or take action that cannot be delayed for the forty-eight hours required for notice.

Legal Basis

A.R.S. § 33-1804(E)(2)

Topic Tags

  • emergency meetings
  • definitions

Question

Can I attend my HOA dispute hearing virtually?

Short Answer

Yes, hearings can be conducted via video conferencing or telephone.

Detailed Answer

The Office of Administrative Hearings allows parties to appear either in person or virtually (e.g., via Google Meet) for the proceedings.

Alj Quote

Either party may appear virtually or in person for the hearing.

Legal Basis

Procedural Order

Topic Tags

  • hearings
  • procedure

Question

What does 'preponderance of the evidence' mean?

Short Answer

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

Detailed Answer

This is the standard of proof used in these hearings. It is not about the number of witnesses, but the convincing force of the evidence that inclines an impartial mind to one 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

Morris K. Udall, Arizona Law of Evidence

Topic Tags

  • legal definitions
  • evidence

Case

Docket No
22F-H2222031-REL
Case Title
Gregory Ehle v. Fulton Ranch Homeowners Association
Decision Date
2022-07-11
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Is my HOA board legally required to hold an emergency meeting for urgent matters?

Short Answer

No, the statute allows for emergency meetings but does not mandate them.

Detailed Answer

The ALJ determined that while state law permits a board to call an emergency meeting for issues that cannot wait 48 hours, the homeowner failed to prove there is any legal requirement forcing the board to hold one. The board has the discretion to call such meetings but is not obligated to do so.

Alj Quote

Mr. Ehle failed to provide any legal authority in his petition or at hearing to support his contention that the Board was required to hold an emergency board meeting.

Legal Basis

A.R.S. § 33-1804(E)(2)

Topic Tags

  • emergency meetings
  • board obligations

Question

Who is responsible for proving that the HOA violated the law?

Short Answer

The homeowner (petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, the homeowner filing the complaint must prove their case by a 'preponderance of the evidence,' meaning they must show it is more likely than not that the violation occurred.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • burden of proof
  • legal standards

Question

Can I be penalized if I don't pay the full filing fees for all my complaints?

Short Answer

Yes, the tribunal will limit the hearing to only the issues covered by the paid fees.

Detailed Answer

If a homeowner alleges multiple violations but only pays the filing fee for one, the tribunal may dismiss the unpaid claims and order the homeowner to choose a single issue to proceed with at the hearing.

Alj Quote

The tribunal ordered Petitioner to pay an additional $1,500 for the four issues claimed. However, Petitioner failed to do so… IT IS ORDERED that the single issue to be addressed at hearing is an alleged violation of A.R.S. § 33-1804(E)(2)…

Legal Basis

Procedural Order

Topic Tags

  • filing fees
  • procedure

Question

Can I punish my HOA for failing to produce minutes for a meeting they claim never happened?

Short Answer

No, if no meeting was held, there are no minutes to produce.

Detailed Answer

You cannot successfully claim a procedural violation (like missing minutes) for a meeting that did not take place. If the evidence shows no meeting occurred, the claim will be dismissed.

Alj Quote

The weight of the evidence shows that Fulton Ranch did not hold an emergency board meeting… Therefore, the Administrative Law Judge concludes that Mr. Ehle has failed to establish that Fulton Ranch violated A.R.S. § 33-1804(E)(2) and the petition should be dismissed.

Legal Basis

A.R.S. § 33-1804(E)(2)

Topic Tags

  • meeting minutes
  • evidence

Question

What qualifies as an 'emergency' for an HOA board meeting?

Short Answer

Matters that cannot be delayed for the standard 48-hour notice period.

Detailed Answer

State law defines an emergency meeting as one called to discuss business or take action that is too urgent to wait for the standard 48 hours required for notice of a regular meeting.

Alj Quote

An emergency meeting of the board of directors may be called to discuss business or take action that cannot be delayed for the forty-eight hours required for notice.

Legal Basis

A.R.S. § 33-1804(E)(2)

Topic Tags

  • emergency meetings
  • definitions

Question

Can I attend my HOA dispute hearing virtually?

Short Answer

Yes, hearings can be conducted via video conferencing or telephone.

Detailed Answer

The Office of Administrative Hearings allows parties to appear either in person or virtually (e.g., via Google Meet) for the proceedings.

Alj Quote

Either party may appear virtually or in person for the hearing.

Legal Basis

Procedural Order

Topic Tags

  • hearings
  • procedure

Question

What does 'preponderance of the evidence' mean?

Short Answer

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

Detailed Answer

This is the standard of proof used in these hearings. It is not about the number of witnesses, but the convincing force of the evidence that inclines an impartial mind to one 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

Morris K. Udall, Arizona Law of Evidence

Topic Tags

  • legal definitions
  • evidence

Case

Docket No
22F-H2222031-REL
Case Title
Gregory Ehle v. Fulton Ranch Homeowners Association
Decision Date
2022-07-11
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Gregory Ehle (petitioner)
    Appeared on behalf of himself.

Respondent Side

  • Emily H. Mann (HOA attorney)
    Phillips, Maceyko & Battock, PLLC
    Appeared on behalf of Respondent Fulton Ranch Homeowners Association.
  • Kevin Hardy (witness)
    CCMC
    Division Vice President for Fulton Ranch's Community Manager (CCMC).

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    ADRE
  • Miranda Alvarez (legal secretary)
    OAH
    Handled document transmission.
  • c. serrano (staff)
    OAH
    Handled document transmission.
  • A. Hansen (staff)
    ADRE
    Listed as contact for ADRE.
  • v. nunez (staff)
    ADRE
    Listed as contact for ADRE.
  • d. jones (staff)
    ADRE
    Listed as contact for ADRE.
  • l. abril (staff)
    ADRE
    Listed as contact for ADRE.

Other Participants

  • Natasha Bell (community manager)
    CCMC
    Former CCMC employee who served as the association's community manager in 2020.

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.

Carlos J Sanchez & Marinda K Minch, vs. Tempe Villages Homeowners

Posted on by

Case Summary

Case ID 21F-H2121033-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-03-09
Administrative Law Judge Sondra J. Vanella
Outcome The Petition was dismissed because Petitioners failed to prove the Respondent HOA violated the Bylaws regarding the filling of a vacant Board seat. The ALJ determined the Bylaws did not impose a timeframe for filling the vacancy and the Board acted according to Article IV, Section 3.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Carlos J. Sanchez & Marinda K. Minch Counsel —
Respondent Tempe Villages Homeowners Association, Inc. Counsel Ashley Moscarello

Alleged Violations

Bylaws Article 4 Section 1

Outcome Summary

The Petition was dismissed because Petitioners failed to prove the Respondent HOA violated the Bylaws regarding the filling of a vacant Board seat. The ALJ determined the Bylaws did not impose a timeframe for filling the vacancy and the Board acted according to Article IV, Section 3.

Why this result: Petitioners failed to meet the burden of proof to establish the violation by a preponderance of the evidence. The Bylaws do not contain a provision providing a timeframe in which a vacancy on the Board must be filled.

Key Issues & Findings

Violation of Bylaws regarding Board of Directors composition and appointment

Petitioners alleged the HOA violated Bylaws Article 4 Section 1 by leaving a Board seat open following a resignation (August 2020) and not filling it until November 2020. The ALJ found the Bylaws (Sections 1, 2, and 3) did not mandate a timeframe for filling a vacancy, and the HOA followed procedures for appointment.

Orders: Petitioners’ Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Analytics Highlights

Topics: HOA Governance, Board of Directors, Bylaws, Board Vacancy
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

21F-H2121033-REL Decision – 862059.pdf

Uploaded 2026-04-24T11:33:33 (132.3 KB)

21F-H2121033-REL Decision – 862059.pdf

Uploaded 2026-01-23T17:36:41 (132.3 KB)

This summary addresses the legal case hearing concerning the dispute between Carlos J. Sanchez & Marinda K. Minch (Petitioners) and Tempe Villages Homeowners Association, Inc. (Respondent). The hearing was held before an Administrative Law Judge (ALJ) on March 2, 2021.

Key Facts and Main Issues

Petitioners filed a Homeowners Association (HOA) Dispute Process Petition on or about January 11, 2021, alleging the Respondent violated community Bylaws, specifically Article 4 Section 1.

The central issue was whether the HOA improperly maintained an unfilled seat on its Board of Directors. Petitioners asserted that the HOA violated the Bylaws by leaving a Board seat vacant for a period of time and attempted to prevent Petitioner Marinda Minch from joining the Board.

Respondent's defense focused on the interpretation of Article IV of the Bylaws. The Board's number is set at seven directors. A director resigned in August 2020, leaving six members. The subsequent annual meeting in October 2020 filled two regularly expiring seats via election, in which Petitioners were candidates but were not elected.

The August 2020 vacancy was subject to Article IV, Section 3 of the Bylaws, which states that in the event of resignation, the successor "shall be selected by the remaining members of the Board" to serve the unexpired term.

Hearing Proceedings and Arguments

Petitioners' Argument: Petitioner Marinda Minch testified that the Board delayed filling the vacancy (until November 2020) because of personal dislike for her, and she had petitioned the Board three times for appointment.

Respondent's Argument: Respondent’s President, Bradley Hudson, testified that the Board decided the newly elected Board should fill the vacancy. At the November 11, 2020, virtual meeting, a motion to appoint Ms. Minch failed (2-4 vote), and the Board subsequently appointed another individual (4-2 vote), thereby filling all seven seats. Crucially, the Respondent argued, and the ALJ noted, that the Bylaws do not contain a timeframe within which a vacancy due to resignation must be filled.

Legal Points and Outcome

Petitioners bore the burden of proof to establish the alleged violation by a preponderance of the evidence.

The ALJ determined that Article IV Sections 1, 2, and 3 must be read collectively. The process used by the Board to fill the August vacancy—selection by the remaining Board members—complied with Article IV, Section 3. Because the Bylaws did not mandate an immediate appointment timeframe, the Respondent was found to have acted within the scope of the community documents.

Final Decision: The Petitioners failed to sustain their burden to establish a violation of the Bylaws. IT IS ORDERED that Petitioners’ Petition is dismissed.

Questions

Question

If a Board member resigns, does the HOA have to hold an election to fill the seat?

Short Answer

Not necessarily. Bylaws may allow the remaining Board members to appoint a successor for the unexpired term.

Detailed Answer

In this case, the Bylaws explicitly stated that in the event of a resignation, the remaining Board members select the successor. The ALJ found that the Board was not required to put this seat up for a general election, distinguishing it from seats with expiring terms.

Alj Quote

In the event of death, resignation or removal of a director, his successor shall be selected by the remaining members of the Board and shall serve for the unexpired term of his predecessor.

Legal Basis

Bylaws Article IV, Section 3

Topic Tags

  • Board Vacancies
  • Elections
  • Bylaws

Question

Is there a specific deadline for the Board to fill a vacant seat after a resignation?

Short Answer

Only if the governing documents specify one. If the Bylaws are silent, there is no strict timeframe.

Detailed Answer

The ALJ ruled that because the community's Bylaws did not specify a deadline, the HOA did not violate the rules by waiting several months (from August to November) to fill the vacancy.

Alj Quote

The Bylaws do not contain a timeframe in which the Board must appoint a successor director after the resignation of a director.

Legal Basis

Bylaws Interpretation

Topic Tags

  • Board Vacancies
  • Timelines
  • Bylaws

Question

Can the Community Manager appoint or remove Board members?

Short Answer

No. The authority to appoint or remove directors typically lies with the Board or the membership, not the manager.

Detailed Answer

The Community Manager testified that they lacked the authority to make such appointments, confirming that this power resides with the Board itself.

Alj Quote

Mr. Nurse further testified that he does not have the authority to appoint or remove members of the Board.

Legal Basis

Testimony / Findings of Fact

Topic Tags

  • Community Manager
  • Authority
  • Board Composition

Question

What is the 'burden of proof' for a homeowner suing their HOA in an administrative hearing?

Short Answer

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

Detailed Answer

This legal standard requires the homeowner to show that their claims are 'more probably true than not.' It is not enough to simply make an allegation; superior evidentiary weight is required.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Evidence

Question

Can I force the Board to hold a vote for a vacant seat if the term hasn't expired yet?

Short Answer

Generally, no. If the term is unexpired, it may not be eligible for a member vote if the Bylaws provide for appointment.

Detailed Answer

The ALJ accepted the explanation that a seat vacated by resignation was not eligible for the general member vote because the original term had not yet expired (it ran until 2022), whereas other seats were up for election because their terms had ended.

Alj Quote

Mr. Nurse explained that the term for the Board member who resigned does not expire until 2022, and as such was not eligible for a member vote.

Legal Basis

Findings of Fact / Bylaws

Topic Tags

  • Elections
  • Board Terms
  • Voting

Question

Does personal dislike or bias by the Board constitute a violation of the Bylaws?

Short Answer

Not on its own. The homeowner must prove a specific violation of the governing documents.

Detailed Answer

Although the homeowner claimed the Board disliked her and was trying to keep her out, the ALJ dismissed the petition because the HOA followed the technical requirements of the Bylaws regarding elections and appointments.

Alj Quote

Petitioners failed to prove by a preponderance of the evidence that Respondent violated the Bylaws as alleged in the Petition.

Legal Basis

Conclusions of Law

Topic Tags

  • Discrimination/Bias
  • Enforcement
  • Board Conduct

Case

Docket No
21F-H2121033-REL
Case Title
Carlos J. Sanchez & Marinda K. Minch v. Tempe Villages Homeowners Association, Inc.
Decision Date
2021-03-09
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

If a Board member resigns, does the HOA have to hold an election to fill the seat?

Short Answer

Not necessarily. Bylaws may allow the remaining Board members to appoint a successor for the unexpired term.

Detailed Answer

In this case, the Bylaws explicitly stated that in the event of a resignation, the remaining Board members select the successor. The ALJ found that the Board was not required to put this seat up for a general election, distinguishing it from seats with expiring terms.

Alj Quote

In the event of death, resignation or removal of a director, his successor shall be selected by the remaining members of the Board and shall serve for the unexpired term of his predecessor.

Legal Basis

Bylaws Article IV, Section 3

Topic Tags

  • Board Vacancies
  • Elections
  • Bylaws

Question

Is there a specific deadline for the Board to fill a vacant seat after a resignation?

Short Answer

Only if the governing documents specify one. If the Bylaws are silent, there is no strict timeframe.

Detailed Answer

The ALJ ruled that because the community's Bylaws did not specify a deadline, the HOA did not violate the rules by waiting several months (from August to November) to fill the vacancy.

Alj Quote

The Bylaws do not contain a timeframe in which the Board must appoint a successor director after the resignation of a director.

Legal Basis

Bylaws Interpretation

Topic Tags

  • Board Vacancies
  • Timelines
  • Bylaws

Question

Can the Community Manager appoint or remove Board members?

Short Answer

No. The authority to appoint or remove directors typically lies with the Board or the membership, not the manager.

Detailed Answer

The Community Manager testified that they lacked the authority to make such appointments, confirming that this power resides with the Board itself.

Alj Quote

Mr. Nurse further testified that he does not have the authority to appoint or remove members of the Board.

Legal Basis

Testimony / Findings of Fact

Topic Tags

  • Community Manager
  • Authority
  • Board Composition

Question

What is the 'burden of proof' for a homeowner suing their HOA in an administrative hearing?

Short Answer

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

Detailed Answer

This legal standard requires the homeowner to show that their claims are 'more probably true than not.' It is not enough to simply make an allegation; superior evidentiary weight is required.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Evidence

Question

Can I force the Board to hold a vote for a vacant seat if the term hasn't expired yet?

Short Answer

Generally, no. If the term is unexpired, it may not be eligible for a member vote if the Bylaws provide for appointment.

Detailed Answer

The ALJ accepted the explanation that a seat vacated by resignation was not eligible for the general member vote because the original term had not yet expired (it ran until 2022), whereas other seats were up for election because their terms had ended.

Alj Quote

Mr. Nurse explained that the term for the Board member who resigned does not expire until 2022, and as such was not eligible for a member vote.

Legal Basis

Findings of Fact / Bylaws

Topic Tags

  • Elections
  • Board Terms
  • Voting

Question

Does personal dislike or bias by the Board constitute a violation of the Bylaws?

Short Answer

Not on its own. The homeowner must prove a specific violation of the governing documents.

Detailed Answer

Although the homeowner claimed the Board disliked her and was trying to keep her out, the ALJ dismissed the petition because the HOA followed the technical requirements of the Bylaws regarding elections and appointments.

Alj Quote

Petitioners failed to prove by a preponderance of the evidence that Respondent violated the Bylaws as alleged in the Petition.

Legal Basis

Conclusions of Law

Topic Tags

  • Discrimination/Bias
  • Enforcement
  • Board Conduct

Case

Docket No
21F-H2121033-REL
Case Title
Carlos J. Sanchez & Marinda K. Minch v. Tempe Villages Homeowners Association, Inc.
Decision Date
2021-03-09
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Carlos J. Sanchez (petitioner)
    Candidate for Board election
  • Marinda K. Minch (petitioner)
    Candidate for Board election; considered for vacancy appointment; testified

Respondent Side

  • Ashley Moscarello (HOA attorney)
    Goodman Lawgroup
  • Bradley Hudson (board member)
    Tempe Villages Homeowners Association, Inc. Board
    President of the Board; testified as witness
  • Shawn Nurse (community manager)
    Tempe Villages Homeowners Association, Inc.
    Testified as witness; received ballots for election
  • William Skanadore (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Incumbent candidate; elected
  • Will Terrick (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Incumbent candidate; elected
  • Wendelyn Neal (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Made motion to appoint Marinda Minch
  • Joel Krick (board member)
    Tempe Villages Homeowners Association, Inc. Board
  • Kathy Hudson (board member)
    Tempe Villages Homeowners Association, Inc. Board
  • Christiane Pieraggi (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Appointed to fill vacancy

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
  • Judy Lowe (commissioner)
    ADRE

Other Participants

  • John Neelsen (unknown)
    Candidate for Board election
  • Tania Almonte (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Former Board member whose resignation created a vacancy
  • Ruby (witness assistant)
    Aided in counting votes

Erik R. Pierce v. Sierra Morado Community Association

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Case Summary

Case ID 20F-H2020053-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-02-10
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge denied the petition, concluding that the Respondent HOA did not violate CC&R Section 11.1 because that section grants the Board discretion, rather than a mandatory obligation, in the timing of enforcement actions.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Erik R. Pierce Counsel James C. Frisch
Respondent Sierra Morado Community Association Counsel Nicholas C.S. Nogami and Heather M. Hampstead

Alleged Violations

Article 11, Section 11.1

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the Respondent HOA did not violate CC&R Section 11.1 because that section grants the Board discretion, rather than a mandatory obligation, in the timing of enforcement actions.

Why this result: The Petitioner failed to meet the burden of proof to establish that the Respondent violated CC&R Section 11.1, as the ALJ found the Board's decision to temporarily delay enforcement pending litigation and settlement discussions fell within the discretion granted by the CC&R.

Key Issues & Findings

Failure of HOA to Enforce Architectural Approval Conditions (Hot Tub Screening)

Petitioner alleged that the HOA failed to enforce the mandatory installation of a pergola and screening around a neighbor's hot tub, a condition imposed by the Architectural Review Committee when retroactively approving the installation.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199(B)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • CC&R Article 11, Section 11.1
  • CC&R Article 4, Section 4.27

Analytics Highlights

Topics: HOA Enforcement, CC&R Dispute, Architectural Control, Discretionary Enforcement
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.07(G)(2)
  • A.R.S. § 41-1092.09
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • CC&R Article 4, Section 4.27
  • CC&R Article 11, Section 11.1
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

20F-H2020053-REL Decision – 850237.pdf

Uploaded 2026-04-26T09:52:48 (43.0 KB)

20F-H2020053-REL Decision – 850239.pdf

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20F-H2020053-REL Decision – 853778.pdf

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20F-H2020053-REL Decision – 850237.pdf

Uploaded 2026-01-23T17:32:29 (43.0 KB)

20F-H2020053-REL Decision – 850239.pdf

Uploaded 2026-01-23T17:32:31 (7.1 KB)

20F-H2020053-REL Decision – 853778.pdf

Uploaded 2026-01-23T17:32:32 (119.9 KB)

Administrative Hearing Briefing: Pierce v. Sierra Morado Community Association

Executive Summary

This briefing synthesizes the key findings and judicial decision in the administrative case of Erik R. Pierce versus the Sierra Morado Community Association (SMCA), Case No. 20F-H2020053-REL. The petition, filed by homeowner Erik R. Pierce, was ultimately denied by the Administrative Law Judge on February 10, 2021.

The core of the dispute was Pierce’s allegation that the SMCA failed to enforce its Covenants, Conditions, and Restrictions (CC&Rs) against his neighbors, the Kinstles, who installed a hot tub visible from Pierce’s property, creating a privacy violation. While the SMCA Board retroactively approved the hot tub, it did so with the explicit condition that a pergola and screening be installed to mitigate the visibility issue. The Kinstles subsequently failed to install the required screening.

The judge concluded that the SMCA’s conditional approval resolved the initial violation claim under CC&R Section 4.27. The central issue then became whether the SMCA’s subsequent failure to compel the installation of the screening constituted a violation of its enforcement duty under CC&R Section 11.1. The judge ruled that it did not, finding that the CC&Rs grant the Association a discretionary right to enforce its rules, not an absolute obligation. The judge found persuasive the SMCA’s testimony that it delayed enforcement actions due to the ongoing litigation and in an attempt to foster a settlement between the neighbors. This exercise of discretion was deemed permissible under the Association’s governing documents.

1. Case Overview

Parties and Legal Representation

Entity

Legal Counsel

Petitioner

Erik R. Pierce

James C. Frisch, Esq. & Michael Resare, Esq. (King & Frisch, P.C.)

Respondent

Sierra Morado Community Association (SMCA)

Heather M. Hampstead, Esq. & Nicholas C.S. Nogami, Esq. (Carpenter, Hazlewood, Delgado & Bolen, LLP)

Key Case Details

• Case Number: 20F-H2020053-REL

• Presiding Judge: Adam D. Stone, Administrative Law Judge

• Hearing Date: January 25, 2021 (conducted via Google Meet)

• Decision Date: February 10, 2021

• Jurisdiction: The Arizona Department of Real Estate (ADRE) is statutorily authorized to hear petitions from homeowners’ association members. This case was referred by the ADRE to the Office of Administrative Hearings for an evidentiary hearing.

2. Core Dispute and Allegations

Petitioner’s Complaint

On March 23, 2020, Erik R. Pierce filed a complaint with the ADRE alleging that the SMCA was in violation of its own CC&Rs, specifically Sections 4.27 (Swimming Pools and Spas) and 11.1 (Enforcement).

The dispute originated with the installation of a hot tub by Pierce’s neighbors, the Kinstles. Pierce testified that the hot tub and its occupants were visible from inside his house, and that occupants of the hot tub could look directly into his home, violating his right to privacy.

Timeline of Key Events

• September 4, 2019: Pierce submits his initial complaint to the SMCA, noting the hot tub’s visibility and asserting that the Kinstles had failed to obtain prior approval from the Architectural Review Committee (ARC).

• Post-September 2019: The SMCA informs the Kinstles that they installed the hot tub without approval and directs them to submit plans for the proper approval process.

• February 10, 2020: After several rejections, the SMCA Board approves the Kinstles’ hot tub installation on the condition that a pergola and screening are installed.

• March 3, 2020: Pierce receives a letter from the property management company, AAM, LLC, stating that the installation was approved with the screening requirement and that the complaint was closed.

• January 25, 2021: At the time of the hearing, the Kinstles had still not installed the required pergola and screening.

3. Analysis of Key Testimonies

The decision was informed by testimony from four witnesses presented by the Petitioner.

• Erik R. Pierce (Petitioner): Outlined the timeline of the dispute, the visibility of the neighbors’ hot tub, the resulting privacy violation, and the SMCA Board’s failure to enforce its own conditional approval requiring a pergola and screening.

• Bill Oliver (Former SMCA President, Fall 2019 – April 2020): Confirmed that the Board approved the hot tub retroactively with the stipulation for a pergola and screening. He stated the Board had a “rigorous process of enforcement” but could not recall if a specific violation letter was sent to the Kinstles after the conditional approval was granted.

• Jodie Cervantes (Former Community Manager, 2019 – June 2020): Testified that she believed the CC&Rs were enforced and the matter was closed. She suggested the Kinstles had a six-month period to comply with the screening requirement, which she believed was in the Design Guidelines, but could not point to the specific language.

• Martin Douglas (Current SMCA President, from April 2020): Stated he had been to the Pierce residence for another matter and the hot tub was not visible to him. He attributed the lack of enforcement action to the “ongoing litigation and multiple settlement offers which were being exchanged.” He testified that upon resolution of the case, the Board “will follow through with enforcement actions should the Kinstle’s fail to comply.”

4. Judicial Reasoning and Decision

The Administrative Law Judge’s decision centered on the interpretation of the SMCA’s CC&Rs and the discretionary power of its Board.

Governing CC&R Provisions

The ruling rested on the specific language of two sections of the SMCA CC&Rs:

• Section 4.27 (Swimming Pools and Spas): This section permits the installation of a hot tub only if it is “properly screened… if neither it nor its occupants are Visible from Neighboring Property, and with the prior written approval of the Architectural Review Committee.”

• Section 11.1 (Enforcement): This section states that “The Association or any Owner shall have the right to enforce the Project Documents… The failure of the Association or an Owner to take enforcement action with respect to a violation of the Project Documents shall not constitute or be deemed a waiver of the right of the Association or any Owner to enforce the Project Documents in the future.”

Administrative Law Judge’s Conclusions

1. Resolution of the Section 4.27 Claim: The judge determined that the initial issue regarding the unapproved hot tub “was essentially resolved by the Board instructing the Kinstle’s erect a pergola and install screening.” By making its approval conditional on a privacy solution, the Board addressed the core requirement of the section.

2. The “Heart of the Matter” – Section 11.1 Enforcement: The judge identified the central question as whether the SMCA violated Section 11.1 by failing to enforce the screening requirement against the Kinstles.

3. Discretionary vs. Mandatory Enforcement: The judge concluded that the language of Section 11.1 grants the Board a “right to enforce, not an absolute obligation.”

4. Rationale for Delayed Enforcement: The judge found the testimony of the current SMCA President, Martin Douglas, to be “more persuasive.” Douglas’s explanation—that the Board delayed enforcement to “foster an agreement with the neighbors” amid ongoing litigation—was accepted as a valid exercise of the Board’s discretion.

5. Final Ruling: The judge stated, “Section 11.1 expressly granted the Board this discretion, and it should not be disturbed.” Consequently, the judge ruled that the Petitioner failed to prove by a preponderance of the evidence that the Respondent had violated CC&R Section 11.1.

Final Order

IT IS ORDERED that Petitioners’ petition is denied.

The order was issued on February 10, 2021, and is binding unless a rehearing is granted.

Study Guide: Pierce v. Sierra Morado Community Association (Case No. 20F-H2020053-REL)

This study guide provides a review of the administrative hearing concerning the dispute between Erik R. Pierce and the Sierra Morado Community Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a comprehensive glossary of terms and entities involved in the case.

Short-Answer Quiz

Answer each of the following questions in two to three complete sentences, based on the provided source documents.

1. Who were the primary parties in this case, and what were their respective roles?

2. What was the initial reason for Mr. Pierce’s complaint against his neighbors, the Kinstles?

3. Which two sections of the Sierra Morado Community Association (SMCA) CC&Rs did Mr. Pierce allege were violated?

4. What action did the SMCA Board take after being informed that the Kinstles had installed a hot tub without prior approval?

5. What specific conditions did the SMCA Board require for the retroactive approval of the Kinstles’ hot tub installation?

6. According to former Board President Bill Oliver’s testimony, what was the Board’s common practice regarding architectural requests made after an installation?

7. What reason did Community Manager Jodie Cervantes give for her belief that no further enforcement action could be taken against the Kinstles?

8. According to current SMCA Board President Martin Douglas, why had the Board delayed enforcement actions against the Kinstles?

9. What was the Administrative Law Judge’s final decision regarding the alleged violation of CC&R Section 11.1?

10. How did the judge interpret the Board’s enforcement power as described in Section 11.1 of the CC&Rs?

——————————————————————————–

Answer Key

1. The primary parties were Erik R. Pierce, who was the Petitioner filing the complaint, and the Sierra Morado Community Association (SMCA), which was the Respondent. Mr. Pierce is a homeowner and member of the SMCA.

2. Mr. Pierce’s complaint originated because his neighbors, the Kinstles, installed a hot tub that was visible from his backyard. He testified that occupants in the hot tub were visible from inside his house, violating his privacy.

3. The Petitioner, Mr. Pierce, alleged that the Respondent, SMCA, was in violation of sections 4.27 and 11.1 of the SMCA CC&Rs. Section 4.27 pertains to the installation of spas, and Section 11.1 addresses the enforcement of project documents.

4. After Mr. Pierce filed his complaint, the SMCA informed the Kinstles that they had installed the hot tub without approval. The Board then directed the Kinstles to submit their plans and go through the proper architectural approval process.

5. The Kinstles’ hot tub was approved retroactively on February 10, 2020, on the condition that they install a pergola and screening. This was intended to address the visibility of the hot tub from Mr. Pierce’s property.

6. Bill Oliver, the SMCA President from fall 2019 to April 2020, testified that the Board would approve architectural requests retroactively. He confirmed that this is what occurred in the case of the Kinstles’ hot tub.

7. Jodie Cervantes, the Community Manager, testified that she believed the matter was closed because the Kinstles had six months to comply with the pergola and screening requirements. She believed this six-month deadline was outlined in the Design Guidelines, though she could not locate the specific language.

8. Martin Douglas, who became Board President in April 2020, testified that the Board delayed enforcement actions due to the ongoing litigation. He stated that multiple settlement offers were being exchanged in an effort to foster an agreement between the neighbors.

9. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge concluded that Mr. Pierce did not establish by a preponderance of the evidence that the SMCA had violated CC&R Section 11.1.

10. The judge determined that Section 11.1 grants the Board a right to enforce the rules, not an absolute obligation to do so. This interpretation means the Board has the discretion to delay enforcement, which it did in this case to facilitate a potential settlement.

——————————————————————————–

Essay Questions

The following questions are designed for longer, essay-style responses. Use evidence and testimony from the case documents to construct a thorough analysis. No answers are provided.

1. Explain the legal standard of “preponderance of the evidence” as defined in the Administrative Law Judge’s decision. Analyze why the Petitioner, Erik R. Pierce, failed to meet this burden of proof concerning the violation of CC&R Section 11.1.

2. Trace the timeline of events from Mr. Pierce’s initial complaint on September 4, 2019, to the final decision on February 10, 2021. Discuss the key actions, delays, and decisions made by the SMCA Board during this period.

3. Compare and contrast the testimonies of Bill Oliver, Jodie Cervantes, and Martin Douglas. How do their different roles and timeframes with the SMCA shape their perspectives on the association’s enforcement process and the specific handling of the Kinstle case?

4. Analyze the Administrative Law Judge’s interpretation of CC&R Section 11.1. Discuss the distinction made between a “right to enforce” and an “absolute obligation,” and explain how this interpretation was central to the final ruling.

5. Based on the judge’s findings and the testimony of Martin Douglas, what are the likely next steps for the SMCA regarding the Kinstles’ non-compliance with the pergola and screening requirement? Evaluate the potential for future conflict or resolution between the parties involved.

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Glossary of Key Terms

Term / Entity

Definition

AAM, LLC

The property management company that employed Community Manager Jodie Cervantes and managed the Sierra Morado Community Association during the period of the dispute.

Administrative Law Judge (ALJ)

The official who presides over administrative hearings. In this case, the ALJ was Adam D. Stone of the Office of Administrative Hearings.

Architectural Committee (ARC)

The committee within the SMCA responsible for approving construction, installations, and alterations to properties, as referenced in CC&R Section 4.27.

Arizona Department of Real Estate (ADRE)

The state agency authorized by statute to receive and decide Petitions for Hearing from members of homeowners’ associations. Mr. Pierce filed his initial complaint with this department.

Burden of Proof

The obligation on a party in a legal case to prove its allegations. In this case, the Petitioner had the burden to establish his claim by a “preponderance of the evidence.”

Covenants, Conditions, and Restrictions. These are the governing documents or rules of a planned community. The dispute centered on alleged violations of Sections 4.27 (Swimming Pools and Spas) and 11.1 (Enforcement).

Hearing

The formal proceeding held on January 25, 2021, where the parties presented exhibits and witness testimony to the Administrative Law Judge.

Office of Administrative Hearings

An independent state agency that conducts evidentiary hearings for other state agencies, such as the Department of Real Estate.

Petitioner

The party who files a petition or complaint to initiate a legal proceeding. In this case, the Petitioner was Erik R. Pierce.

Preponderance of the Evidence

The evidentiary standard required for the Petitioner to win the case. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”

Respondent

The party against whom a petition or complaint is filed. In this case, the Respondent was the Sierra Morado Community Association (SMCA).

Retroactive Approval

The act of approving an architectural installation (such as a hot tub) after it has already been completed, which the SMCA Board did in this case.

Sierra Morado Community Association (SMCA)

The homeowners’ association in Tucson, Arizona, of which Erik R. Pierce and the Kinstles are members.

Stipulation

An agreement between the parties in a legal proceeding. In this case, the parties stipulated to enter all submitted exhibits into the record.

Your HOA Can Ignore Its Own Rules? A Surprising Legal Case Every Homeowner Needs to Understand

Introduction: The Homeowner’s Dilemma

Most homeowners in a planned community operate under a simple assumption: if a neighbor violates a clear rule, you can file a complaint, and the Homeowners Association (HOA) is required to take action. It’s the fundamental promise of an HOA—consistent enforcement to protect property values and quality of life.

But what happens when the HOA agrees a violation has occurred, demands a fix, and then… does nothing to enforce it?

A real-world legal case, Erik R. Pierce versus the Sierra Morado Community Association, provides a surprising and cautionary answer. The final court decision reveals a critical loophole that may exist in your own HOA agreement. This article will break down the three most counter-intuitive takeaways from that case that every homeowner should understand.

Takeaway 1: “A Right to Enforce” Isn’t an “Obligation to Enforce”

The core of the dispute was straightforward. Homeowner Erik Pierce filed a complaint because his neighbors, the Kinstles, installed a hot tub that was visible from his property, a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs)—the legally binding rules that govern the community. The HOA’s Architectural Committee retroactively approved the hot tub, but only on the condition that the neighbors install a pergola and screening to shield it from view.

The neighbors never installed the required screening, yet the HOA took no further enforcement action. This inaction led Mr. Pierce to sue the HOA.

The judge’s decision hinged on a crucial interpretation of the HOA’s governing documents. The judge ruled in favor of the HOA because the documents gave the Board the right to enforce the rules, not an absolute obligation to do so. This distinction granted the HOA discretion to choose its strategy. The judge found the board’s reasoning for the delay persuasive: it was deliberately choosing negotiation over immediate punitive action to resolve the conflict. The board’s discretion wasn’t just a right to do nothing; it was a right to choose a different path to compliance.

The key phrase here is “shall have the right to enforce.” Had the documents stated the board “shall enforce,” the outcome would likely have been entirely different. This single phrase transforms enforcement from a mandate into a strategic option for the board.

The Administrative Law Judge’s decision highlights this critical point:

“…Section 11.1 only gives the Board a right to enforce, not an absolute obligation. While Petitioner is understandably upset that there has yet to be any follow through on enforcement of the screening requirements, this tribunal finds the testimony of Mr. Douglas more persuasive, namely that the Board has delayed in enforcing because it was trying to foster an agreement with the neighbors. Section 11.1 expressly granted the Board this discretion, and it should not be disturbed.”

This finding is shocking for most homeowners, who reasonably assume that the rules laid out in their CC&Rs are mandates for the board, not a menu of discretionary options.

Takeaway 2: Suing Your HOA Can Ironically Pause Enforcement

The board’s discretionary power was put on full display when Mr. Pierce filed his lawsuit, creating a legal Catch-22. The current SMCA Board President, Martin Douglas, testified that the board deliberately paused formal enforcement actions against the neighbors who had violated the architectural requirement.

The judge ultimately found that the board’s rationale for this pause was a valid exercise of its discretion. The decision to delay was framed not as inaction, but as a strategic choice “to foster an agreement with the neighbors” amidst the complexities of litigation.

This reveals a deep irony: by filing a petition to force the HOA’s hand, the homeowner inadvertently provided the context for the HOA to justify a delay. The judge accepted that the board’s attempt to find a negotiated solution instead of escalating fines and penalties during an active lawsuit was a reasonable use of its discretionary authority. This case demonstrates how legal action, intended to accelerate a resolution, can sometimes be used by an HOA board to justify a different, slower approach.

Takeaway 3: A Clear Rule Violation Doesn’t Guarantee a Win in Court

One of the most surprising aspects of this case is that the facts of the violation were not in dispute. The judge explicitly acknowledged that the neighbors were in violation of the Architectural Review Committee’s requirement. The official decision states:

“Based upon the evidence provided, the Kinstle’s are in violation of the requirement the ARC Committee imposed on them.”

Despite this clear violation by the neighbor, the homeowner, Mr. Pierce, still lost his case against the HOA.

The case was lost on a critical legal distinction: the lawsuit was not about the neighbor’s violation, but about the HOA’s alleged failure to act. Since the judge determined the HOA had the discretionary right—not the mandatory obligation—to enforce the rule, its choice to pursue negotiation rather than immediate punitive action was not considered a violation of its duties.

The lesson here is profound: proving a neighbor is breaking the rules is only the first step. To win a case against your HOA for non-enforcement, you must also prove that its response (or lack thereof) constitutes a breach of its specific duties as outlined in your community’s governing documents.

Conclusion: Know Your Documents, Temper Your Expectations

The case of Pierce v. Sierra Morado Community Association serves as a stark reminder that HOA governance is often more complex than it appears. The precise wording of your community’s CC&Rs is critically important, as a single phrase can be the difference between a mandatory duty and a discretionary power. This case illustrates that the gap between a rule existing on paper and the board’s power to enforce it can be vast.

As a homeowner, your first step should be to obtain a copy of your community’s most recent CC&Rs and search for the enforcement clause—does it say your board “shall” enforce the rules, or does it say they have the “right” to?

This case forces every homeowner to ask: If your governing documents give your board the ‘right’ to act, what leverage do you truly have to ensure they actually will?

Case Participants

Petitioner Side

  • Erik R. Pierce (petitioner)
  • James C. Frisch (petitioner attorney)
    King & Frisch, P.C.
  • Michael Resare (petitioner attorney)

Respondent Side

  • Nicholas C.S. Nogami (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Heather M. Hampstead (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Jodie Cervantes (property manager/witness)
    AAM, LLC
    Community Manager for Respondent SMCA
  • Bill Oliver (board member/witness)
    Former SMCA President (Fall 2019 to April 2020)
  • Martin Douglas (board member/witness)
    Current SMCA Board President (since April 2020)

Neutral Parties

  • Adam D. Stone (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • LDettorre (unknown)
    Arizona Department of Real Estate
    Transmission recipient
  • AHansen (unknown)
    Arizona Department of Real Estate
    Transmission recipient
  • djones (unknown)
    Arizona Department of Real Estate
    Transmission recipient
  • DGardner (unknown)
    Arizona Department of Real Estate
    Transmission recipient
  • ncano (unknown)
    Arizona Department of Real Estate
    Transmission recipient
  • c. serrano (clerk)
    Signed document transmission

Foothills Club West Homeowners Association v. Subrahmanyam & Sheila

Posted on by

Case Summary

Case ID 21F-H2120004-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-11-27
Administrative Law Judge Kay Abramsohn
Outcome The ALJ concluded that Foothills demonstrated Respondents' violation of the community governing documents by commencing and continuing construction of a second-story Addition without obtaining the required Architectural Committee approval. Foothills was deemed the prevailing party, and Respondents' appeal was dismissed.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Foothills Club West Homeowners Association Counsel John Halk, Esq.
Respondent Subrahmanyam & Sudhakar Living Trust Counsel Mary T. Hone, Esq.

Alleged Violations

CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5

Outcome Summary

The ALJ concluded that Foothills demonstrated Respondents' violation of the community governing documents by commencing and continuing construction of a second-story Addition without obtaining the required Architectural Committee approval. Foothills was deemed the prevailing party, and Respondents' appeal was dismissed.

Key Issues & Findings

Unauthorized 2nd story addition

Respondents constructed a second-story Addition to their property without first obtaining approval from the Foothills Architectural Committee, violating the community governing documents.

Orders: Respondents’ appeal is dismissed, and Foothills is deemed the prevailing party with regard to its Petition.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_win

Cited:

  • CC&Rs Article 7, Section 7.3
  • CC&R Article 9, Section 9.3
  • CC&R Article 9, Section 9.4
  • CC&R Article 9, Section 9.5

Analytics Highlights

Topics: architectural review, cc&r violation, unapproved construction, second story addition, prevailing party
Additional Citations:

  • A.R.S. §§ 32-2102
  • A.R.S. §§ 32-2199 et al.
  • A.R.S. §§ 32-2199(2)
  • A.R.S. §§ 32-2199.01(D)
  • A.R.S. §§ 32-2199.02
  • A.R.S. § 32-2199.05
  • A.R.S. § 41-1092
  • A.R.S. §32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • 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)

Video Overview

Audio Overview

Decision Documents

21F-H2120004-REL Decision – 839537.pdf

Uploaded 2026-04-28T10:53:36 (135.4 KB)

21F-H2120004-REL Decision – 839537.pdf

Uploaded 2026-01-23T17:34:43 (135.4 KB)

Briefing Document: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust

Executive Summary

This document synthesizes the findings and decision in the case of Foothills Club West Homeowners Association v. Subrahmanyam & Sudhakar Living Trust (No. 21F-H2120004-REL), adjudicated by the Arizona Office of Administrative Hearings. The core dispute involved the construction of a second-story addition by homeowners (Respondents) without the prior approval of the Homeowners Association (Petitioner), a direct violation of the community’s governing documents.

The Administrative Law Judge (ALJ) found conclusively in favor of the Foothills Club West HOA. The evidence demonstrated that the Respondents not only began construction without seeking approval but continued the project even after receiving a formal denial from the HOA’s Architectural Committee. A subsequent agreement between the parties, wherein the Respondents would demolish the addition in exchange for a waiver of fines, was not honored by the Respondents. The ALJ dismissed the Respondents’ appeal and declared the HOA the prevailing party, validating its authority to enforce the community’s architectural standards as outlined in its Covenants, Conditions, and Restrictions (CC&Rs).

I. Case Overview

• Case Name: Foothills Club West Homeowners Association, Petitioner, v. Subrahmanyam & Sudhakar Living Trust, Respondent.

• Case Number: 21F-H2120004-REL

• Jurisdiction: Arizona Office of Administrative Hearings

• Administrative Law Judge: Kay Abramsohn

• Hearing Date: October 5, 2020

• Decision Date: November 27, 2020

• Central Issue: The petition filed by Foothills HOA on July 24, 2020, alleged that the Respondents constructed an unauthorized and unapproved second-story addition to their property. This action was alleged to be in violation of CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5.

II. Chronology of Key Events

The hearing record established the following undisputed sequence of events:

Oct. 2018

Respondents begin construction of the second-story addition.

Nov. 7, 2018

The City of Phoenix issues a stop-work order, noting a permit is required.

Nov. 7, 2018

Foothills HOA issues a violation notice to the Respondents.

Dec. 17, 2018

Respondents obtain a permit from the City of Phoenix.

Jan. 18, 2019 (approx.)

Respondents submit a request for approval to the Foothills Architectural Committee.

Jan. 18, 2019

Foothills HOA issues a penalty notice to the Respondents, with further notices issued monthly.

Feb. 22, 2019

Foothills HOA issues a formal denial of the application.

Mar. 15, 2019

The City of Phoenix gives final approval to the construction and issues a Certificate of Occupancy.

Post Feb. 2019

The parties reach an agreement for Respondents to demolish the addition in exchange for a waiver of fines.

July 24, 2020

Foothills HOA files its petition, noting Respondents have not complied with the demolition agreement.

Oct. 5, 2020

The administrative hearing is held.

Nov. 27, 2020

The Administrative Law Judge issues the final decision.

III. Arguments of the Parties

A. Petitioner: Foothills Club West HOA

• Violation of CC&Rs: The HOA argued that the Respondents violated CC&R Article 9, Section 9.3 by commencing construction without first obtaining approval from the Architectural Committee.

• Disregard for Denial: The HOA asserted that the Respondents completed the addition after receiving a formal denial of their application.

• Breach of Agreement: The HOA noted that the parties had reached a settlement agreement for demolition, which the Respondents failed to honor. The HOA requested that the Tribunal enforce this agreement.

• Jurisdictional Distinction: The HOA maintained that approval from the City of Phoenix was a separate matter and did not negate the requirement to obtain approval from the HOA as mandated by the governing documents.

B. Respondents: Subrahmanyam & Sudhakar Living Trust

• Initial Ignorance: Respondents claimed they were initially unaware of the HOA approval requirements.

• Attempted Compliance: They argued that once notified, they followed the association’s guidance, met with the Board, and sought approval.

• Vague Denial: Respondents stated they did not understand the meaning of the denial reason, “Fails aesthetics of surrounding community,” or how the addition specifically violated community rules.

• Lack of Due Process: They argued they did not receive a letter indicating an appeal process was available and therefore felt they had not received a final “denial.”

• Demolition Delay: While not disputing the existence of the demolition agreement, Respondents cited COVID-19 issues and safety concerns for their at-risk family as reasons for requesting more time.

• Final Appeal: At the hearing, Respondents reversed their position on the agreement and requested to be allowed to keep the addition.

IV. Analysis of Governing Documents

The decision centered on specific provisions within the Foothills Club West governing documents, which constitute the contract between the HOA and the homeowners.

• CC&R Article 9, Section 9.3 (Architectural Approval): This section was central to the case. It states in pertinent part:

• CC&R Article 9, Section 9.4 (Obligation to Obtain Approval): This provision explicitly sets forth a homeowner’s obligation to secure approval from the Architectural Committee.

• CC&R Article 9, Section 9.5 (Exterior Appearance): This section clarifies that while the HOA cannot limit interior remodeling, it retains jurisdiction over any changes that are “visible from outside such [home] … or affects the exterior appearance of such [home].”

• Amended Architectural Guidelines (2013): These guidelines reinforce the CC&Rs, specifying that a homeowner’s plans must be submitted for approval through the Architectural Committee on a case-by-case basis.

V. Administrative Law Judge’s Decision and Rationale

The ALJ’s conclusions of law provided a clear framework for the final order.

A. Burden of Proof

The ALJ established that in this proceeding, the petitioner (Foothills HOA) bore the burden of proving by a “preponderance of the evidence” that the Respondents had violated the governing documents. A preponderance of the evidence is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”

B. Core Conclusion on Violations

The ALJ found that the HOA had successfully met its burden of proof. The central conclusion of law states:

“The Administrative Law Judge concludes that Foothills has demonstrated Respondents’ violation of the community governing documents, as stated in CC&R Article 9, Sections 9.3, 9.4, and 9.5, because Respondents began to construct a modification, the Addition, to their existing home prior to obtaining approval from Foothills Architectural Committee and, further, Respondents continued to construct the Addition despite receiving a denial of approval from Foothills Architectural Committee.”

This finding affirmed that the Respondents committed two distinct violations: starting work without approval and continuing work after being explicitly denied approval.

VI. Final Order and Implications

Based on the findings of fact and conclusions of law, the ALJ issued a decisive order.

• Order:

• Binding Nature: The decision notes that the order is binding on both parties unless a rehearing is requested. Pursuant to A.R.S. § 41-1092.09, a request for rehearing must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of the order.

Study Guide: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust

This guide provides a detailed review of the Administrative Law Judge Decision in case No. 21F-H2120004-REL. It includes a short-answer quiz to test factual recall, essay questions for deeper analysis, and a comprehensive glossary of key terms found within the document.

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Short-Answer Quiz

Instructions: Answer the following ten questions in 2-3 sentences each, based on the information provided in the source document.

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

2. What was the single issue raised in the petition filed by Foothills Club West Homeowners Association?

3. According to the Petition, which specific articles and sections of the governing documents did the Respondents allegedly violate?

4. What action did the City of Phoenix take on November 7, 2018, regarding the Respondents’ construction project?

5. What reasons did the Foothills Architectural Committee provide for denying the Respondents’ application on February 22, 2019?

6. Prior to the hearing, what agreement did the parties reach in an attempt to resolve the dispute?

7. What was the Respondents’ primary argument for their actions and for their failure to comply with the association’s denial?

8. What is the legal standard of proof required in this case, and which party bore the burden of meeting it?

9. Explain the difference between the City of Phoenix’s approval and the Foothills Architectural Committee’s approval, as argued by the Petitioner.

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

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Answer Key

1. The Petitioner is the Foothills Club West Homeowners Association (“Foothills”). The Respondent is the Subrahmanyam & Sheila Sudhakar Living Trust. Their relationship is that of a homeowners’ association and a member homeowner residing within the planned community for 22 years.

2. The single issue raised was that the Respondents constructed an unauthorized and unapproved second-story addition to their property. The construction was completed even after the Foothills Architectural Committee had issued a denial of the project.

3. Foothills alleged that the Respondents violated the CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5. These articles pertain to the rights and obligations of the association and the architectural standards requiring prior approval for modifications.

4. On November 7, 2018, the City of Phoenix issued a stop-work order for the Respondents’ construction project. The order noted that the work being performed required a permit, which had not yet been obtained.

5. The Foothills Architectural Committee denied the application because it needed copies of the City permit, the plans were incomplete, and there was no documentation on the roof line or roofing materials. Furthermore, the denial stated that the project “Fails aesthetics of surrounding community.”

6. The parties came to an agreement wherein the Respondents would complete the demolition of the second-story addition. In exchange, Foothills agreed to waive the penalties that had been imposed on the Respondents for the violation.

7. The Respondents argued that they initially did not know what was required and that they cooperated with the association’s Board once notified. They claimed they did not understand what “Fails aesthetics” meant, did not receive a letter about an appeal process, and therefore did not feel they had received a final “denial.”

8. The legal standard of proof is a “preponderance of the evidence,” which is defined as proof that convinces the trier of fact that a contention is more probably true than not. The Petitioner, Foothills, bore the burden of proving the Respondents’ violation by this standard.

9. Foothills argued that approval from the City of Phoenix and approval from the association’s Architectural Committee were two different and separate matters. Even though the Respondents eventually received a City permit and a Certificate of Occupancy, this did not override the CC&R requirement to first obtain approval from Foothills.

10. The Administrative Law Judge ordered that the Respondents’ appeal be dismissed. The Judge deemed Foothills the prevailing party with regard to its petition, finding that Foothills had demonstrated the Respondents’ violation of the community’s governing documents.

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Essay Questions

Instructions: The following questions are designed for longer, more analytical responses. Formulate an essay-style answer for each, drawing evidence and support directly from the provided legal decision.

1. Analyze the arguments presented by both the Petitioner (Foothills) and the Respondents at the hearing. Discuss the key evidence and claims each party used to support their position and explain why the Administrative Law Judge ultimately found the Petitioner’s case more persuasive.

2. Explain the distinct roles and jurisdictions of the Homeowners Association’s Architectural Committee and the City of Phoenix regarding the Respondents’ construction project. Why was obtaining a City permit and a Certificate of Occupancy insufficient for the Respondents to proceed without violating the community’s governing documents?

3. Trace the procedural history of case No. 21F-H2120004-REL, from the filing of the initial petition to the final order. Discuss key filings, motions, and deadlines mentioned in the document, including the Respondents’ attempt to consolidate another case.

4. Discuss the significance of the “contract” between the parties, as defined in footnote 15. How do the CC&Rs and the amended Architectural Guidelines function as this contract, and which specific sections were central to the judge’s conclusion that a violation occurred?

5. Evaluate the Respondents’ attempt to justify their failure to demolish the addition as per their agreement with Foothills, citing COVID-19 issues. How did their request at the hearing to keep the addition conflict with their prior agreement, and what does this reveal about their position in the dispute?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Kay Abramsohn, who presides over administrative hearings at the Office of Administrative Hearings and issues decisions.

Architectural Committee

A committee appointed by the Foothills HOA, as established by CC&R Article 9, with the authority to review, approve, or disapprove plans for construction, modifications, and additions to properties within the community.

An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These are the governing documents that form a binding contract between the homeowners association and the property owners, outlining their rights and obligations.

Disclosure

The formal process by which parties in a legal case provide evidence, exhibits, and information to each other before a hearing. The deadline for disclosure in this case was September 29, 2020.

Governing Documents

The set of rules for the planned community, including the CC&Rs and the amended Architectural Guidelines, which have the same force and effect as association rules.

Petitioner

The party who initiates a legal proceeding by filing a petition. In this case, the Foothills Club West Homeowners Association.

Petition

The formal document filed with the Arizona Department of Real Estate to initiate a hearing concerning violations of community governing documents. In this case, it was a “single-issue petition.”

Preponderance of the Evidence

The standard of proof required in this administrative hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”

Respondent

The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Subrahmanyam & Sheila Sudhakar Living Trust.

Tribunal

The Arizona Office of Administrative Hearings, the state agency authorized by statute to hear and decide contested matters referred to it, such as this dispute.

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21F-H2120004-REL

1 source

This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings concerning a dispute between the Foothills Club West Homeowners Association and the Subrahmanyam & Sudhakar Living Trust. The Petitioner, the Foothills Club West Homeowners Association, filed a petition alleging that the Respondents constructed an unauthorized second-story addition to their property in violation of the association’s governing documents, specifically the CC&Rs Article 9, Sections 9.3, 9.4, and 9.5. The Administrative Law Judge determined that the Respondents violated these community documents by beginning construction prior to obtaining approval from the Foothills Architectural Committee and continuing the work despite receiving a denial. The judge ultimately concluded that Foothills was the prevailing party and dismissed the Respondents’ appeal, effectively upholding the violation finding.

1 source

What are the specific governing document violations alleged and proven against the homeowners?
How did the legal and administrative process address the unauthorized construction dispute?
What was the final resolution ordered regarding the unapproved second-story home addition?

Based on 1 source

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Case Participants

Petitioner Side

  • John Halk (HOA attorney)
    BROWN/OLCOTT, PLLC
    Represented Petitioner Foothills Club West Homeowners Association
  • Nathan Tennyson (HOA attorney)
    BROWN/OLCOTT, PLLC
    Counsel for Petitioner

Respondent Side

  • Mary T. Hone (Respondent attorney)
    Mary T. Hone, PLLC
    Counsel for Respondent Trustees Subrahmanyam & Sheila Sudhakar
  • Subrahmanyam Sudhakar (respondent)
    Subrahmanyam & Sheila Sudhakar Living Trust
    Trustee of the Respondent Living Trust
  • Sheila Sudhakar (respondent)
    Subrahmanyam & Sheila Sudhakar Living Trust
    Trustee of the Respondent Living Trust

Neutral Parties

  • Kay Abramsohn (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • LDettorre (Agency Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission of Order
  • AHansen (Agency Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission of Order
  • djones (Agency Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission of Order
  • DGardner (Agency Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission of Order
  • ncano (Agency Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission of Order

Donna M Bischoff v. Country Hills West Condominium Association, Inc.

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Case Summary

Case ID 20F-H2019033-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-03-30
Administrative Law Judge Antara Nath Rivera
Outcome The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Donna M Bischoff Counsel —
Respondent Country Hills West Condominium Association, Inc. Counsel —

Alleged Violations

A.R.S. § 33-1250(C)
A.R.S. § 33-1248(B)
Bylaws Article 3, Section 2

Outcome Summary

The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.

Key Issues & Findings

Voting; proxies; absentee ballots; applicability; definition

Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.

Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.

Filing fee: $1,500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1250(C)

Open meetings; exceptions

Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.

Orders: Petition upheld on this issue.

Filing fee: $1,500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1248(B)

Selection

Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.

Orders: Petition upheld on this issue.

Filing fee: $1,500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • Article 3, Section 2 of the Bylaws

Analytics Highlights

Topics: HOA Dispute, Condominium Association, Election Procedures, Annual Meeting, Statutory Violation, Bylaw Interpretation
Additional Citations:

  • A.R.S. § 33-1250(C)
  • A.R.S. § 33-1248(B)
  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Bylaws Article 3, Section 2
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

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Video Overview

Audio Overview

Decision Documents

20F-H2019033-REL Decision – 778923.pdf

Uploaded 2026-04-24T11:24:42 (108.5 KB)

20F-H2019033-REL Decision – 778923.pdf

Uploaded 2026-01-23T17:31:15 (108.5 KB)

Briefing Document: Bischoff v. Country Hills West Condominium Association

Executive Summary

This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.

The core violations upheld by the court are:

1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.

2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.

3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.

As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.

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I. Case Overview

The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.

Case Detail

Information

Case Name

Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent

Case Number

20F-H2019033-REL

Adjudicator

Administrative Law Judge Antara Nath Rivera

Hearing Date

March 10, 2020

Decision Date

March 30, 2020

Petitioner Representative

Donna M. Bischoff (on her own behalf)

Respondent Representative

Doug Meyer, President and Director

II. Petitioner’s Allegations

The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:

• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.

• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.

• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.

The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

III. Core Issues and Factual Findings

The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.

A. Failure to Hold the 2019 Annual Meeting

• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.

• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”

• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”

B. Denial of Access to Election Records

• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.

• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.

• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.

• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.

• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.

C. Improper Prohibition of Write-In Ballots

• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”

• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.

• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.

• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.

IV. Legal Conclusions and Final Order

The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.

Final Order:

Based on the foregoing conclusions, IT IS ORDERED that:

1. The Petition filed by Donna M. Bischoff is upheld on all issues.

2. The Petitioner is deemed the prevailing party in the matter.

3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.

4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.

5. No Civil Penalty is found to be appropriate in this matter.

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

Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.

This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.

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Short-Answer Quiz

Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.

1. Who were the primary parties in the legal dispute, and what were their roles?

2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?

3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?

4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?

5. What information did the Petitioner request from the October 2018 election, and what was the initial response?

6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?

7. What is the legal standard of proof the Petitioner was required to meet in this hearing?

8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?

9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?

10. What were the key components of the final Order issued by the Administrative Law Judge?

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Answer Key

1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.

2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.

3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.

4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.

5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.

6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.

7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.

8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.

9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.

10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.

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Essay Questions

Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.

1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.

2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?

3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.

4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.

5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.

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Glossary of Key Terms

Definition

Administrative Law Judge

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.

Arizona Department of Real Estate (Department)

The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.

Arizona Revised Statutes (A.R.S.)

The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).

Bylaws

The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.

Homeowners Association (HOA)

An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.

Office of Administrative Hearings

The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.

Petitioner

The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.

Preponderance of the evidence

The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”

Quorum

The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.

Respondent

The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.

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20F-H2019033-REL

1 source

This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.

1 source

What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?

Based on 1 source

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NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Donna M Bischoff (petitioner)
    Appeared on her own behalf

Respondent Side

  • Doug Meyer (president, director, witness)
    Country Hills West Condominium Association, Inc.
    Appeared and testified on behalf of Respondent

Neutral Parties

  • Antara Nath Rivera (ALJ)
    OAH
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Decision transmitted electronically to Commissioner

Michael Stoltenberg vs Rancho Del Oro Homeowners Association

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Case Summary

Case ID 19F-H1918038-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-04-03
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge denied the petition, concluding that the HOA acted in accordance with its governing documents (CC&Rs § 4.1) by imposing uniform assessments. The CC&Rs did not provide an exception for reduced assessments based on an owner's choice of landscaping (rock yard) or refusal of HOA maintenance services.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael Stoltenberg Counsel —
Respondent Rancho Del Oro Homeowners Association Counsel Nicole D. Payne

Alleged Violations

CC&Rs §§ 1.8, 1.9, 2.1, 3.1, 4.1, 4.2, 4.3, 5.1, and 14.2

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the HOA acted in accordance with its governing documents (CC&Rs § 4.1) by imposing uniform assessments. The CC&Rs did not provide an exception for reduced assessments based on an owner's choice of landscaping (rock yard) or refusal of HOA maintenance services.

Why this result: Petitioner failed to meet the burden of proof that the Respondent violated its CC&Rs, as CC&R § 4.1 requires uniform assessment and no provision requires or allows Respondent to assess Petitioner less due to his rock yard and refusal of maintenance.

Key Issues & Findings

HOA Assessment Uniformity Requirement

Petitioner, who had rock landscaping and refused HOA maintenance, alleged the HOA violated CC&Rs by assessing him uniform dues, arguing he should pay less since HOA expenditures on lawn maintenance were substantial and primarily benefited neighbors with grass yards.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&Rs § 4.1
  • CC&Rs § 5.1(a)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • Powell v. Washburn, 211 Ariz. 553
  • Vazanno v. Superior Court, 74 Ariz. 369

Analytics Highlights

Topics: HOA Assessment, Uniform Dues, CC&R Enforcement, Landscaping Maintenance
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Video Overview

Audio Overview

Decision Documents

19F-H1918038-REL Decision – 698869.pdf

Uploaded 2026-04-24T11:18:30 (141.7 KB)

19F-H1918038-REL Decision – 698869.pdf

Uploaded 2026-01-23T17:28:18 (141.7 KB)

Briefing Document: Stoltenberg v. Rancho Del Oro Homeowners Association

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Decision in case number 19F-H1918038-REL, concerning a dispute between homeowner Michael Stoltenberg and the Rancho Del Oro Homeowners Association (HOA). The core conflict centered on Mr. Stoltenberg’s claim that he should pay lower HOA assessments because his property has rock landscaping, while his neighbors have grass yards requiring more costly maintenance by the HOA.

The Administrative Law Judge ultimately denied the petition. The decision rested on an unambiguous interpretation of the HOA’s Covenants, Conditions, and Restrictions (CC&Rs). The Judge found that the CC&Rs explicitly obligate the HOA to maintain landscaping on all individual lots and, crucially, require assessments to be uniform for all members to cover these “common expenses.” The petitioner’s argument for a reduced assessment was unsupported by any provision in the governing documents. Furthermore, evidence showed that Mr. Stoltenberg had actively refused the HOA access to his property to install a community irrigation system and to perform the very landscaping maintenance that is a central component of the assessments.

Case Overview

• Case Number: 19F-H1918038-REL

• Parties Involved:

◦ Petitioner: Michael Stoltenberg, a homeowner at 11777 E. Calle Gaudi, Rancho Del Oro.

◦ Respondent: Rancho Del Oro Homeowners Association (HOA).

• Hearing Date: March 19, 2019

• Presiding Judge: Diane Mihalsky, Administrative Law Judge

• Core Allegation: On December 29, 2018, the Petitioner filed a petition alleging the HOA violated multiple sections of its CC&Rs (§§ 1.8, 1.9, 2.1, 3.1, 4.1, 4.2, 4.3, 5.1, and 14.2) by levying the same assessment fees on his property as on neighboring properties with grass lawns.

Petitioner’s Position and Evidence (Michael Stoltenberg)

The Petitioner’s case was built on the argument of fairness, contending that his assessment should be lower because his property does not utilize the HOA’s most expensive landscaping services.

• Primary Argument: It is inequitable for the HOA to charge him the same amount as neighbors with grass yards, given that his front yard is rock and does not receive the same level of maintenance.

• Financial Evidence: The Petitioner testified that in 2016, the HOA spent $54,000 on lawn maintenance and landscaping, which constituted 39% of its total budget.

• Refusal of Services: The Petitioner acknowledged that he refused to allow the HOA access to his property for two key purposes:

1. To install irrigation pipes connecting his lot to a new community well.

2. To perform any landscape maintenance on his front yard.

• Justification for Refusal: The Petitioner accused the HOA of previously killing his trees during maintenance activities and stated that he now undertakes all maintenance of his own yard.

Respondent’s Position and Evidence (Rancho Del Oro HOA)

The HOA’s defense was grounded in its adherence to the plain language of its governing documents, arguing that its actions were not only permissible but mandated by the CC&Rs.

• Primary Argument: The HOA is legally bound by its CC&Rs to levy uniform assessments on all members and is simultaneously obligated to maintain the landscaping on every individual lot.

• Key Testimony (Diana Crites, Property Manager):

◦ CC&R § 5.1(a) explicitly requires the HOA to maintain the yards of its members.

◦ CC&R § 4.1 requires all owners to be assessed uniformly, without regard to the type of landscaping they have chosen or whether they permit the HOA to perform its maintenance duties.

◦ The Petitioner’s property is one of eight constructed by a different developer, who did not originally install grass or an irrigation system.

◦ The HOA has since drilled a community well to address water costs and has offered to remove rock and install grass for these properties, an offer the Petitioner could accept.

• Supporting Evidence (Letter from Dawn Simpson, former bookkeeper):

◦ A 2013 HOA project was initiated to install a community well for landscaping and to connect all homes, including the Petitioner’s.

◦ The letter details an incident where the Petitioner “became very heated with [the] contractor” and “declared that no one was to enter his yard for any purpose.”

◦ This action directly halted all construction to connect his property to the irrigation system and ceased all landscaping services provided by the HOA.

Analysis of Governing Documents (CC&Rs)

The judge’s decision centered on the clear, unambiguous language of specific articles within the CC&Rs. The petitioner failed to identify any language that would permit or require a non-uniform assessment.

CC&R Section

Key Language

Implication & Ruling

Article IV, Section 4.1

Assessments “shall be used for the… common benefit… of the Owners” and “shall constitute common expenses for which the apartment owners shall be severally liable in proportion to their respective common interests.”

This establishes the principle of uniform, shared liability for common expenses, regardless of an individual owner’s specific use of a particular service.

Article V, Section 5.1(a)

“The Association shall maintain… landscaping… It shall also include maintenance of the landscaping on individual Lots outside of structures.”

This article imposes a direct obligation on the HOA to maintain all members’ landscaping, not merely an optional service.

Legal Conclusions and Final Order

• Burden of Proof: The decision established that the Petitioner, Mr. Stoltenberg, held the burden to prove by a “preponderance of the evidence” that the HOA had violated its CC&Rs.

• Interpretation of Covenants: In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties. The judge found the CC&Rs to be unambiguous, requiring a holistic interpretation. The documents clearly mandate that the HOA must maintain all yards and must assess all members equally to fund that maintenance.

• Final Ruling: The Petitioner did not meet his burden of proof. He failed to point to any provision within the CC&Rs that “allows, much less requires, Respondent to assess Petitioner less because he has a rock yard and will not allow Respondent to maintain his yard.”

• Order: The petition was denied. The HOA’s practice of charging uniform assessments was upheld as compliant with its governing documents.

Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association

This guide is designed to review the key facts, legal arguments, and conclusions presented in the Administrative Law Judge Decision for case number 19F-H1918038-REL, Michael Stoltenberg v. Rancho Del Oro Homeowners Association.

Short-Answer Quiz Questions

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

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

2. What was the central allegation in the petition filed by Michael Stoltenberg with the Arizona Department of Real Estate?

3. According to the Petitioner’s testimony, what was the financial basis for his claim of unfair assessment?

4. Describe the history of the water and irrigation system issue at the Petitioner’s property prior to 2013, as detailed in Dawn Simpson’s letter.

5. What action did the Petitioner take during the 2013 well construction project, and what were the consequences of this action?

6. According to Article V, Section 5.1(a) of the CC&Rs, what specific maintenance obligation does the homeowners’ association have regarding individual lots?

7. How did Diana Crites, the HOA’s property manager, justify the uniform assessment for all homeowners based on the CC&Rs?

8. What reason did Ms. Crites provide for why eight units, including the Petitioner’s, were originally landscaped with rock instead of grass?

9. What is the legal standard of proof required in this hearing, and on which party does the burden of proof rest?

10. What was the final order of the Administrative Law Judge, and what was the core legal reasoning for this decision?

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Answer Key

1. The primary parties are Michael Stoltenberg, the “Petitioner,” and the Rancho Del Oro Homeowners Association, the “Respondent.” Mr. Stoltenberg is a homeowner and member of the HOA who filed a complaint against the association. The Respondent is the governing HOA for the Rancho Del Oro community in Yuma, Arizona.

2. The Petitioner alleged that the Respondent violated multiple sections of its Covenants, Conditions, and Restrictions (CC&Rs). His central claim was that it was unfair for the HOA to charge him the same assessment fees as his neighbors because his property has rock landscaping, while his neighbors have grass yards that require more maintenance.

3. The financial basis for his claim was the HOA’s budget. The Petitioner testified that in 2016, the Respondent spent $54,000 on lawn maintenance and landscaping, which accounted for 39% of the total budget.

4. Prior to 2013, the Petitioner made several complaints that his home was not connected to the community water system. The HOA Board’s position was that the Petitioner knew his home was not connected to the system when he purchased it.

5. During the 2013 construction to install a well and connect all homes to an irrigation system, the Petitioner became “very heated” with the contractor. He declared that no one was to enter his yard for any purpose, which halted all construction in his backyard and all landscaping provided by the HOA for his front yard.

6. Section 5.1(a) of the CC&Rs states that the Association’s maintenance duties “shall also include maintenance of the landscaping on individual Lots outside of structures.” This obligates the HOA to maintain landscaping even on privately owned lots.

7. Diana Crites testified that CC&R Section 4.1 requires all owners to be assessed uniformly. She stated this uniformity applies regardless of the type of landscaping an owner has chosen or whether they permit the HOA onto their property to perform maintenance.

8. Ms. Crites testified that the eight units were built by a different developer after the original construction and were not equipped with an irrigation system or grass. She believed rock was used in the front yards of these lots due to the high cost of water, an issue later resolved by the installation of a community well.

9. The legal standard is “a preponderance of the evidence,” which means the evidence must be convincing enough to make the contention more probably true than not. The burden of proof to establish a CC&R violation rests on the Petitioner, Mr. Stoltenberg.

10. The Administrative Law Judge denied the Petitioner’s petition. The reasoning was that the Petitioner failed to bear his burden of proof because he could not point to any provision in the CC&Rs that allows or requires the HOA to assess him less than his neighbors based on his landscaping choice or his refusal to allow maintenance.

——————————————————————————–

Essay Questions

The following questions are designed for longer-form analysis. Formulate a detailed response for each, citing specific evidence and CC&R provisions from the case document.

1. Analyze the central conflict between the Petitioner’s concept of fairness and the Respondent’s interpretation of the CC&Rs. Use specific clauses from the CC&Rs (e.g., Articles IV and V) to support the analysis of each party’s position.

2. Discuss the significance of the “preponderance of the evidence” standard in this case. How did the evidence presented by both the Petitioner (e.g., budget figures) and the Respondent (e.g., witness testimony and CC&Rs) contribute to the judge’s final decision regarding this standard?

3. Trace the history of the water and irrigation issue at the Petitioner’s property, from his initial complaints to his refusal to allow construction access. How did these past events impact the central issue of the 2019 hearing?

4. Explain the legal principle that “restrictive covenants must be construed as a whole.” How did the Administrative Law Judge apply this principle by referencing both Section 4.1 (Assessments) and Section 5.1(a) (Maintenance) of the CC&Rs to reach her conclusion?

5. Evaluate the actions of the Petitioner, Mr. Stoltenberg. Based on the evidence presented, did his own actions—specifically, denying the HOA access to his property—undermine his legal argument for a reduced assessment? Explain your reasoning using facts from the hearing evidence.

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Glossary

Definition from Source Context

Administrative Law Judge (ALJ)

An official (Diane Mihalsky) who presides over hearings at the Office of Administrative Hearings, an independent state agency, and makes decisions in matters referred by state departments like the Arizona Department of Real Estate.

Assessments

Charges levied by the homeowners’ association on its members. According to CC&R § 4.1, they are used for promoting the recreation, health, safety, and welfare of owners, including property maintenance, and are to be proportioned to each owner’s respective common interests.

Burden of Proof

The obligation of a party in a legal case to establish their claim. In this matter, the Petitioner bears the burden of proof to establish that the Respondent violated its CC&Rs.

Common Area

Defined in CC&R § 1.8 as “those portions of the Project to which title is held by the Association for the common use and enjoyment of the Owners and excepting the individual units.”

Common Expenses

Defined in CC&R § 1.9 as the “actual and estimated expenses of operating the association,” including any reasonable reserves and all sums designated as Common Expense by project documents.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing documents for a planned community that outline the rules, obligations, and rights of the homeowners and the homeowners’ association.

Easements

A right of use over the property of another. CC&R § 2.1 grants every owner a “non-exclusive easement and equitable right of use and enjoyment in, to, and throughout the Common Area.”

Homeowners’ Association (HOA)

The governing body for a planned community (Rancho Del Oro Homeowners Association) whose members are the property owners within that community. It is responsible for managing common areas and enforcing the CC&Rs.

Petitioner

The party who files a petition initiating a legal action. In this case, Michael Stoltenberg, a homeowner in Rancho Del Oro.

Preponderance of the Evidence

The evidentiary standard required to win the case. The source defines it as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Respondent

The party against whom a petition is filed. In this case, the Rancho Del Oro Homeowners Association.

Restrictive Covenant

A provision in a deed or community document that limits the use of the property. The source notes that in Arizona, an unambiguous restrictive covenant is enforced to give effect to the intent of the parties and must be construed as a whole.

He Sued His HOA Over an ‘Unfair’ Fee—The Reason He Lost Is a Warning for Every Homeowner

Introduction: The HOA Fee Frustration

For many homeowners, the monthly or annual bill from the Homeowners Association (HOA) can be a source of constant frustration. It’s easy to look at the line items—landscaping, pool maintenance, common area repairs—and wonder if you’re truly getting your money’s worth, especially when you feel you aren’t using a particular service.

This was exactly the position of Michael Stoltenberg, a homeowner in Arizona who believed he had an open-and-shut case to lower his HOA fees. His argument seemed logical, fair, and simple. But the ultimate ruling in his case, Stoltenberg v. Rancho Del Oro Homeowners Association, reveals some surprising and crucial truths about how HOA rules actually work and serves as a powerful lesson for every person living in a planned community.

Takeaway 1: You Pay for the Service, Even If You Actively Refuse It

Michael Stoltenberg’s argument was straightforward: his front yard was landscaped with rocks, while his neighbors had grass. He pointed out that in 2016, lawn maintenance accounted for a significant 39% of the HOA’s total budget. He argued it was fundamentally unfair for him to pay the same assessment as his neighbors when he wasn’t consuming this costly service.

His sense of unfairness was rooted in the history of the development. His home was one of eight built by a different developer than the rest of the community. Likely due to high water costs at the time, these eight lots were constructed without irrigation systems or grass. From the very beginning, his property was different. This context makes the crucial twist in the case all the more telling. In 2013, the HOA undertook a community-wide project to drill a new well and install an irrigation system, an effort designed to rectify the inconsistency and bring these outlier properties up to the community standard. When the construction reached Stoltenberg’s property, he refused the workers access.

Testimony from the HOA’s former bookkeeper laid this fact bare:

At this time, [Petitioner] declared that no one was to enter his yard for any purpose. This was also to include his front yard. This halted all construction that was currently in place in his back yard, and all landscaping being provided by the HOA for the front yard.

Legally, this transformed the situation. Stoltenberg’s complaint was no longer about a service he didn’t need, but about a service he actively rejected. This case establishes a critical principle: HOA assessments are tied to your property ownership and membership in the community, not your individual consumption of services. By refusing the service, Mr. Stoltenberg did not absolve himself of the cost associated with its availability to the community.

Takeaway 2: “Common Benefit” Isn’t the Same as “Your Personal Benefit”

The legal foundation for the HOA’s position rested in the language of its Covenants, Conditions, and Restrictions (CC&Rs). Specifically, Section 4.1 states that assessments are to be used for the “common benefit, and enjoyment of the Owners.”

In an HOA context, “common benefit” is a broad concept. It means that well-maintained landscaping throughout the entire neighborhood enhances curb appeal, creates a cohesive community aesthetic, and supports the property values of all residents. This includes Mr. Stoltenberg, whose home value is supported by the beautiful, uniform appearance of the neighborhood, regardless of whether his specific yard has grass. It’s the same reason a homeowner without children still pays for the upkeep of a community playground; the amenity benefits the community as a whole.

Further testimony reinforced this point. The HOA’s property manager stated that the association was still willing to remove the rock and install grass on his property, just as they had already done for two other homeowners in a similar situation. The benefit was available to him; he simply continued to refuse it.

Takeaway 3: The Rules Are a Package Deal, Not an A La Carte Menu

Ultimately, the Administrative Law Judge’s role was not to rule on a general sense of fairness but to enforce the community’s governing documents as written. When examined together, two key clauses in the CC&Rs created a contractual vise, leaving the judge with no other legal option. The two clauses created a perfect, inescapable loop.

• Section 5.1(a): This clause states the HOA has an obligation that “shall also include maintenance of the landscaping on individual Lots outside of structures.” The HOA wasn’t just permitted to do the work; it was contractually required to.

• Section 4.1: This clause, which also defines assessments as being for the “common benefit,” requires that they “shall constitute common expenses for which the apartment owners shall be severally liable in proportion to their respective common interests.”

The documents legally obligated the HOA to maintain all yards and to charge every owner the same proportional amount for doing so. The CC&Rs provided no mechanism for a homeowner to opt-out of a service and receive a corresponding discount. The judge’s final ruling was decisive, emphasizing the absolute nature of this contractual obligation:

Because Petitioner has not pointed to any CC&R that allows, much less requires, Respondent to assess Petitioner less because he has a rock yard and will not allow Respondent to maintain his yard, Petitioner has not borne his burden in this matter.

Conclusion: The Contract You Live In

The case of Michael Stoltenberg is a powerful reminder that an HOA’s CC&Rs are not just a set of neighborhood rules; they are restrictive covenants that run with the land. When you buy the property, you are irrevocably buying into the contract that governs it. These documents are designed to prioritize the uniform application of standards for the collective good, and they supersede an individual’s personal preferences or interpretation of what seems “fair.”

This case forces every potential buyer to ask a critical question: Are you simply purchasing a dwelling, or are you prepared to become a party to the binding legal contract that governs the entire community?

Case Participants

Petitioner Side

  • Michael Stoltenberg (Petitioner)

Respondent Side

  • Rancho Del Oro Homeowners Association (Respondent Entity)
    Entity, not human
  • Nicole D. Payne (HOA Attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Represented Respondent
  • Diana Crites (Property Manager/Witness)
    Property manager for Respondent; testified
  • Dawn Simpson (Former Bookkeeper/Witness)
    Former bookkeeper for Respondent; provided a letter/testimony regarding history
  • Lydia A. Peirce Linsmeier (HOA Attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Received transmission of the Order

Neutral Parties

  • Diane Mihalsky (ALJ)
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
    Received transmission of the Order
  • Felicia Del Sol (Administrative Staff)
    Transmitted the decision

Loraine Brokaw vs. Sin Vacas Property Owners Association

Posted on by

Case Summary

Case ID 19F-H1918017-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-04-01
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied the Petitioner's request, finding that the HOA's action to uniformly assess all CR-1 Lots (including Petitioner's two uncombined lots) adhered to the Association Bylaws, which require uniform rates, and did not violate ARS § 33-1803. The governing documents took precedence over any prior reduced assessment granted by a previous Board Order.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

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

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

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

19F-H1918017-REL Decision – 698354.pdf

Uploaded 2026-04-24T11:16:43 (137.2 KB)

19F-H1918017-REL Decision – 698354.pdf

Uploaded 2026-01-23T17:26:53 (137.2 KB)

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

Executive Summary

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

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

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

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I. Case Overview

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

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

• Case Number: 19F-H1918017-REL.

• Presiding Judge: Administrative Law Judge Jenna Clark.

• Hearing Date: March 25, 2019.

• Decision Date: April 01, 2019.

II. Central Issue of the Dispute

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

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

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

III. Petitioner’s Position and Key Testimony

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

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

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

◦ 100%: For a home on a single lot.

◦ 25%: For an undeveloped vacant lot.

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

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

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

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

IV. Respondent’s Position

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

V. Analysis of Governing Documents

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

Document Section

Key Provision

Relevance to the Case

Bylaws Article I, Section 5

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

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

Bylaws Article IV, Section 6

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

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

Bylaws Article IV, Section 7

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

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

VI. Judge’s Findings and Conclusions of Law

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

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

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

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

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

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

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

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

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

VII. Final Order

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

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

Study Guide: Brokaw v. Sin Vacas Property Owners Association

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

Short-Answer Quiz

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

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

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

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

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

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

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

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

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

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

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

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Answer Key

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

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

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

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

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

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

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

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

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

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

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Essay Questions

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

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

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

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

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

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

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

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

Association

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

Assessment

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

Bylaws

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

CC&Rs (Covenants, Conditions, and Restrictions)

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

Department

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

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

OAH (Office of Administrative Hearings)

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

Petitioner

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

Planned Community

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

Preponderance of the evidence

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

Respondent

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

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19F-H1918017-REL

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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Loraine Brokaw (Petitioner) and the Sin Vacas Property Owners Association (Respondent). The Petitioner challenged the Association’s decision to raise her annual assessment, arguing that the increase was arbitrary and contravened a decades-long practice of assessing her two lots at a combined 150% rate, rather than the new 200% rate. The decision outlines the Findings of Fact and Conclusions of Law, confirming that the Association is governed by its Covenants, Conditions, and Restrictions (CC&Rs) and Bylaws, which require uniform assessment rates for all developed lots. Ultimately, the Administrative Law Judge concluded that the Petitioner failed to prove the Association violated any community documents or statutes, reasoning that the governing documents take precedence over any prior informal agreement, and denied the Petitioner’s request.

1 source

What was the core legal basis for rejecting the petitioner’s assessment challenge?
How did the Association’s governing documents dictate uniform assessment requirements?
What legal implications arose from the Board’s decision to change long-standing practice?

Based on 1 source

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Case Participants

Petitioner Side

  • Loraine Brokaw (petitioner)

Respondent Side

  • Jason Smith (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Counsel for Sin Vacas Property Owners Association
  • Sean Moynihan (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Counsel for Sin Vacas Property Owners Association

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Robert Brokaw (witness)
    Observed the hearing
  • Jack Juraco (witness)
    Observed the hearing