The Administrative Law Judge issued a Final Order denying the Petitioner's claim on rehearing. The ALJ found that the Association did not violate CC&Rs Article III section 1 when its Board painted pickleball lines on one of the two existing tennis courts, as the action was within the Board's authority to manage Common Areas and did not infringe on members' nonexclusive perpetual easement rights.
Why this result: Petitioner failed to meet the burden of proof by a preponderance of the evidence, and the undisputed material facts supported the finding that the Association's actions were authorized by the governing documents (CC&Rs Articles II and VI) and did not deny or impede member access or use of the Common Areas.
Key Issues & Findings
Whether Canyon Mesa Townhouse Association violated community documents CC&Rs Article III, sec. 1.
Petitioner alleged that the Board's decision to paint pickleball lines on one of two tennis courts constituted an infringement or impediment of enjoyment rights for tennis players, thereby violating CC&Rs Article III section 1.
Orders: The ALJ denied the petition (on rehearing), concluding that Petitioner failed to sustain the burden of proof. The Association was authorized to manage and maintain Common Areas, and members' nonexclusive perpetual easement rights were not violated.
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. § 33-1243
ARIZ. REV. STAT. §§ 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119
Analytics Highlights
Topics: HOA Governance, CC&Rs Interpretation, Common Area Use, Easement Rights, Recreational Facilities, Pickleball
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. § 33-1243
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
ARIZ. REV. STAT. §§ 41-1092.04
ARIZ. REV. STAT. §§ 41-1092.05(D)
ARIZ. REV. STAT. §§ 41-1061(A)
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)
Decision Documents
20F-H2019026-REL Decision – 770924.pdf
Uploaded 2025-12-17T18:18:18 (153.6 KB)
Case Participants
Petitioner Side
Werner A Reis(petitioner) Appeared on his own behalf
Respondent Side
Edward O’Brien(attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP Counsel for Canyon Mesa Townhouse Association
Mark Sall(attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP Counsel for Canyon Mesa Townhouse Association; Mark Sahl is used in some electronic transmissions
Charles Mitchell(board member/witness) Canyon Mesa Townhouse Association Current Director of the Board; testified as a witness in the original hearing
Arland Averell(board member/witness) Canyon Mesa Townhouse Association Served on the Board for twenty years; testified as a witness in the original hearing
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) ADRE Commissioner of the Arizona Department of Real Estate
DGardner(department contact) ADRE Electronic contact for ADRE transmissions
c. serrano(staff/clerk) OAH Staff noted on document transmission
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2019026-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2020-07-14
Administrative Law Judge
Jenna Clark
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Werner A Reis
Counsel
—
Respondent
Canyon Mesa Townhouse Association
Counsel
Edward O’Brien, Esq.
Alleged Violations
CC&Rs Article III, section 1
Outcome Summary
The Administrative Law Judge issued a Final Order denying the Petitioner's claim on rehearing. The ALJ found that the Association did not violate CC&Rs Article III section 1 when its Board painted pickleball lines on one of the two existing tennis courts, as the action was within the Board's authority to manage Common Areas and did not infringe on members' nonexclusive perpetual easement rights.
Why this result: Petitioner failed to meet the burden of proof by a preponderance of the evidence, and the undisputed material facts supported the finding that the Association's actions were authorized by the governing documents (CC&Rs Articles II and VI) and did not deny or impede member access or use of the Common Areas.
Key Issues & Findings
Whether Canyon Mesa Townhouse Association violated community documents CC&Rs Article III, sec. 1.
Petitioner alleged that the Board's decision to paint pickleball lines on one of two tennis courts constituted an infringement or impediment of enjoyment rights for tennis players, thereby violating CC&Rs Article III section 1.
Orders: The ALJ denied the petition (on rehearing), concluding that Petitioner failed to sustain the burden of proof. The Association was authorized to manage and maintain Common Areas, and members' nonexclusive perpetual easement rights were not violated.
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. § 33-1243
ARIZ. REV. STAT. §§ 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119
Analytics Highlights
Topics: HOA Governance, CC&Rs Interpretation, Common Area Use, Easement Rights, Recreational Facilities, Pickleball
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. §§ 41-1092 et seq.
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Briefing Document: Reis v. Canyon Mesa Townhouse Association
Executive Summary
This document synthesizes the legal dispute between homeowner Werner A. Reis (Petitioner) and the Canyon Mesa Townhouse Association (Respondent) concerning the modification of a common area tennis court. The core of the dispute, adjudicated under case numbers 20F-H2019026-REL and 20F-H2019026-REL-RHG, was the Association’s decision in June 2019 to paint pickleball lines on one of its two community tennis courts. The Petitioner alleged this action violated Article III, section 1 of the community’s Covenants, Conditions, and Restrictions (CC&Rs), infringing upon his nonexclusive perpetual easement of use and enjoyment. The Association contended that its Board of Directors acted within its authority, as granted by the CC&Rs, to manage, maintain, and improve common areas for the benefit of all members.
Following an evidentiary hearing and a subsequent rehearing, Administrative Law Judge Jenna Clark ruled decisively in favor of the Association. The Judge found that the Petitioner failed to meet his burden of proof by a preponderance of the evidence. Key findings established that the Board was fully authorized to make the modification without a member vote, that tennis play was not restricted, and that the Petitioner’s easement rights were not violated. The Petitioner’s arguments, based on a potential future conflict rather than an actual experienced impediment, were deemed “unfounded” and “without merit.” The final order, issued on July 14, 2020, denied the petition, affirming the Association’s right to manage the recreational facilities in this manner.
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I. Case Overview
This matter involves a formal complaint by a homeowner against his townhouse association, brought before the Arizona Department of Real Estate and adjudicated by the Office of Administrative Hearings (OAH).
Whether the Canyon Mesa Townhouse Association violated community documents (CC&Rs Article III, section 1) by adding pickleball lines to one of two community tennis courts.
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II. Procedural History
The dispute progressed through a formal administrative hearing process, including a petition, a hearing, a decision, a request for rehearing, and a final order.
• November 18, 2019: Werner Reis files a single-issue petition with the Arizona Department of Real Estate.
• December 4, 2019: The Association files its ANSWER, denying all complaint items.
• January 31, 2020: An evidentiary hearing is held before ALJ Jenna Clark.
• February 20, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding he failed to sustain his burden of proof.
• March 26, 2020: The Petitioner submits a REQUEST FOR REHEARING to the Department.
• April 22, 2020: The Department grants the Petitioner’s request for a rehearing.
• May 20, 2020: During a prehearing conference, both parties stipulate that no factual dispute exists and agree to adopt the prior hearing record and submit written closing arguments in lieu of a new hearing.
• June 24, 2020: Deadline for written closing arguments. The Association submits a 17-page argument; the OAH receives no closing argument from the Petitioner.
• July 14, 2020: The ALJ issues a final decision, again denying the petition and ordering that the initial decision from February be the final order in the matter.
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III. Analysis of the Dispute
The central conflict was the interpretation of the Association’s CC&Rs regarding the Board’s authority to modify common areas versus a member’s right to their use and enjoyment.
Petitioner’s Position (Werner A. Reis)
The Petitioner’s case was built on the premise that adding pickleball as a competing use for a tennis court fundamentally diminished the rights of tennis-playing members.
• Core Allegation: The Association violated Article III, section 1 of the CC&Rs, which grants every member a “nonexclusive perpetual easement of use and enjoyment in and to the Common Areas.”
• Argument on Infringement: The Petitioner argued the Association created a situation where “Members have the right to play tennis unless pickleball is in play,” which he claimed “constitutes an infringement of tennis players’ right of use and enjoyment.”
• Impediment of Enjoyment: He contended that reducing the number of exclusively available tennis courts from two to one amounts to “an impediment of enjoyment rights.”
• Creation of Competition: He accused the Association of “creating a new class of people” (pickleball players) who could access the courts, creating new competition for members on a first-come, first-served basis.
• Hypothetical Conflict: The “crux” of his complaint was the possible future conflict between his desire to play two singles matches simultaneously and up to sixteen “outsiders playing a raucous game of pickleball on the other designated tennis court.”
• Requested Remedy: The Petitioner requested an order requiring the Association to designate the courts for tennis playing only.
Respondent’s Position (Canyon Mesa Townhouse Association)
The Association defended its decision as a reasonable exercise of the Board’s authority to manage community property for the benefit of all residents.
• Board Authority: The Board asserted that its decision was permitted by Article II, section 1 of the CC&Rs, which grants it the authority to “manage, maintain, repair, replace and improve the Common Areas” without requiring a member vote. Article VI further requires the Board to maintain and manage recreational facilities.
• Benefit to Community: The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests, and was also considered as a potential means to generate revenue.
• No Restriction of Use: The Association maintained that tennis play was not restricted. Both courts remained available seven days a week on a first-come, first-served basis, with no changes to the reservation system. One court remained available exclusively for tennis at all times.
• Nature of Modification: The modification involved painting lines and using portable nets, which must be detached after play. The permanent tennis nets on both courts remained in place.
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IV. Summary of Evidence and Testimony
Testimony from the Association’s representatives and the Petitioner established the key undisputed facts of the case.
Testimony for the Association (Charles Mitchell & Arland Averell)
• Board Authority Confirmed: Charles Mitchell, the Board Director, testified that CC&Rs Articles II and VI, along with the Association’s Articles of Incorporation, authorize the Board to manage and improve common areas, including painting lines on the tennis courts.
• Historical Context: Arland Averell, a 20-year Board member, explained that a taped pickleball court had existed in 2015 but was damaged. The Board decided in April 2019 to reestablish it with painted lines in response to requests from several families.
• Practical Use: Pickleball is generally played only by a few families, typically on Saturday mornings. When pickleball is being played on the modified court, the other tennis court is always available.
• No Denial of Access: Director Mitchell confirmed that the Petitioner had never been denied access to the tennis courts at any time.
Testimony of the Petitioner (Werner A. Reis)
• Recent Homeowner: The Petitioner described himself as a “snowbird” who had purchased his townhouse in November 2019, shortly before filing his complaint.
• Conflict is Hypothetical: He admitted that he “has not played tennis in ‘years'” and, as a result, “has not yet found himself facing any such actual conflict.”
• No Direct Observation: The Petitioner testified that he had not personally observed contemporaneous tennis and pickleball games being played. His concerns about safety and inconvenience were speculative.
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V. Administrative Law Judge’s Findings and Final Order
The Administrative Law Judge’s decisions consistently found the Petitioner’s arguments to be legally and factually unsupported.
Conclusions of Law
• Undisputed Facts: The Judge concluded that the material facts were not in dispute. The Association’s governing documents clearly authorize the Board to maintain, manage, and improve the Common Areas, including the recreational facilities.
• No Violation of Easement Rights: The ruling stated, “What the evidence of record reflects is that Petitioner’s easement rights have not been violated by the Association because the Board painted blue pickleball lines on one of two tennis courts.”
• Petitioner’s Arguments Dismissed: The Judge found the Petitioner’s arguments to be “unfounded” and “without merit.” Specifically, the claim that the availability of only one dedicated court was an “impediment of enjoyment rights” was rejected.
• Failure to Meet Burden of Proof: In both the initial decision and the final order, the Judge concluded that the “Petitioner has failed to sustain his burden of proof” by a preponderance of the evidence that the Association violated Article III, section 1 of the CC&Rs.
• Failure to Prosecute Rehearing: The final decision noted that the Petitioner “did not provide OAH with a closing argument in support of his request for rehearing.”
Final Disposition
IT IS ORDERED that Petitioner’s petition is denied.
The decision issued on July 14, 2020, affirmed the initial February 24, 2020, decision and was designated as the FINAL ORDER in the matter, binding on both parties.
Study Guide – 20F-H2019026-REL-RHG
Study Guide: Reis vs. Canyon Mesa Townhouse Association
Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, drawing exclusively from the information provided in the case documents.
1. What was the specific allegation made by the Petitioner, Werner A. Reis, in his petition filed on November 18, 2019?
2. On what grounds did the Canyon Mesa Townhouse Association’s Board of Directors justify its decision to add pickleball lines to a tennis court?
3. According to the testimony of Arland Averell, what prompted the Board to reestablish a pickleball court in April 2019, and what was a prior experience with a pickleball court?
4. Describe the central, or “crux,” of the Petitioner’s complaint as summarized in the hearing evidence.
5. What key admissions did the Petitioner make during his testimony regarding his own tennis activity and his personal experience with the alleged conflict?
6. According to Director Charles Mitchell’s testimony, what is the physical setup of the nets on the courts, and how does this differ between tennis and pickleball?
7. What was the legal standard of proof the Petitioner was required to meet, and how is that standard defined in the legal documents?
8. What was the outcome of the initial evidentiary hearing held on January 31, 2020, and on what basis did the Administrative Law Judge reach this conclusion?
9. Describe the procedural change that occurred for the rehearing after the parties’ prehearing conference on May 20, 2020.
10. What action, or lack thereof, by the Petitioner on June 24, 2020, contributed to the final ruling in the rehearing?
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Answer Key
1. The Petitioner alleged that the Association violated Article III, section 1 of the Covenants, Conditions, and Restrictions (CC&Rs). The specific violation claimed was the modification of one of the two existing tennis courts for use as a pickleball court.
2. The Association’s Board of Directors justified the decision as an improvement to the Common Areas for the benefit of the Association, which it was permitted to do under Article II, section 1 of the CC&Rs. The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests.
3. Arland Averell testified that in April 2019, the Board decided to reestablish the pickleball court with painted lines after several families requested it, and the Board also saw it as a way to generate additional revenue. A previous pickleball court established in 2015 had lines made of tape which were damaged approximately four months after being applied.
4. The crux of the Petitioner’s complaint was the possible future conflict between his personal desire to play two singles tennis matches on both courts simultaneously and the potential for up to sixteen “outsiders” to be playing a “raucous game of pickleball” on the modified court.
5. The Petitioner admitted that he had not played tennis in “years” and, as a result, had never actually faced the conflict he was complaining about. He also stated he had never been denied access to the courts and had not observed contemporaneous games of tennis and pickleball being played.
6. Director Mitchell testified that both tennis courts have fixed tennis nets. The pickleball court, however, has portable nets which must be attached for use and then detached at the end of play.
7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that the contention is more probably true than not, representing the greater weight of evidence.
8. Following the January 31, 2020, hearing, the Administrative Law Judge denied the Petitioner’s petition. The judge concluded that the Petitioner had failed to sustain his burden of proof and that the evidence showed his easement rights had not been violated, as one tennis court always remained available.
9. During the prehearing conference, the parties stipulated that no factual dispute existed. They agreed to vacate the scheduled rehearing, adopt the evidentiary record from the first hearing without presenting new evidence, and submit written closing arguments instead.
10. On the deadline of June 24, 2020, the Office of Administrative Hearings received a 17-page closing argument from the Respondent (the Association). The Petitioner, Werner A. Reis, failed to submit a closing argument, which was noted in the final decision denying his petition again.
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Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. Formulate your answers by synthesizing information from across the case documents. Answers are not provided.
1. Analyze the conflict between the rights granted to members under CC&Rs Article III, section 1 (“easement of use and enjoyment”) and the powers granted to the Board under CC&Rs Article II, section 1 (“manage, maintain, repair, replace and improve the Common Areas”). How did the Administrative Law Judge resolve this apparent tension in the final decision?
2. Discuss the concept of the “burden of proof” as it applied in this case. Explain why Werner Reis’s testimony and arguments ultimately failed to meet the “preponderance of the evidence” standard.
3. Trace the procedural history of this case from the initial petition on November 18, 2019, to the final order on July 14, 2020. Identify the key events and decisions at each stage, including the initial hearing, the request for rehearing, and the final disposition.
4. Evaluate the strength of the Petitioner’s case. Focus specifically on the evidence he presented versus the evidence presented by the Association’s witnesses, Charles Mitchell and Arland Averell.
5. The Petitioner argued that the availability of only one tennis court when pickleball is in play constituted an “impediment of enjoyment rights.” Explain the Association’s counter-arguments and why the Administrative Law Judge ultimately found the Petitioner’s argument to be “unfounded” and “without merit.”
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The presiding official (Jenna Clark) at the Office of Administrative Hearings who reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders and decisions.
ARIZ. REV. STAT.
Abbreviation for the Arizona Revised Statutes, the laws enacted by the Arizona state legislature that regulate planned communities and govern the administrative hearing process.
Association
The Canyon Mesa Townhouse Association, a non-profit Arizona corporation serving as the property owner’s association for the development. In this case, it is the Respondent.
Board of Directors (Board)
The governing body of the Association, empowered by the CC&Rs and Articles of Incorporation to manage, maintain, and improve the Common Areas.
Burden of Proof
The obligation of a party in a trial (in this case, the Petitioner) to produce the degree of evidence required to prove their case. The standard required here was “preponderance of the evidence.”
CC&Rs (Covenants, Conditions, and Restrictions)
The governing documents that form an enforceable contract between the Association and each property owner, controlling property use within the development. The Restated Declaration was recorded on June 8, 2015.
Common Areas
Property within the development, such as the tennis courts, for the mutual benefit of all owners. The Association’s Board is granted authority to manage and improve these areas.
Department
The Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings regarding disputes in planned communities.
Easement of use and enjoyment
A non-exclusive, perpetual right granted to every member of the Association to use and enjoy the Common Areas, as established in CC&Rs Article III, section 1.
OAH (Office of Administrative Hearings)
An independent state agency to which the Department refers cases for evidentiary hearings.
Petitioner
The party who filed the petition initiating the legal action. In this case, Werner A. Reis, a townhouse owner and member of the Association.
Preponderance of the evidence
The standard of proof in this case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and representing the “greater weight of the evidence.”
Respondent
The party against whom the petition is filed. In this case, the Canyon Mesa Townhouse Association.
Snowbird
A colloquial term used by the Petitioner to describe himself as an out-of-state retiree who resides in Arizona during the winter months.
Blog Post – 20F-H2019026-REL-RHG
5 Surprising Lessons from a Bizarre HOA Lawsuit Over a Pickleball Court
Introduction: The Battle for the Tennis Court
Disputes with a homeowner association (HOA) are a common feature of suburban life, often revolving around landscaping, paint colors, or parking. But when you combine the rigid world of HOA rules with the explosive popularity of pickleball, you get a conflict that is uniquely modern. In a real-life legal case from Sedona, Arizona, one homeowner took his HOA to court over the decision to add pickleball lines to one of the community’s two tennis courts.
What might seem like a minor neighborhood squabble became a formal legal challenge, complete with hearings, testimony, and an official judicial decision. The court documents from this case offer a surprisingly revealing look into community rules, personal grievances, and the peculiar nature of legal battles. More importantly, they reveal several counter-intuitive lessons for anyone living in a planned community.
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1. You Can Sue Over a Problem That Doesn’t Exist (But You Probably Won’t Win)
The core of the legal challenge was filed by Werner Reis, a new homeowner in the Canyon Mesa Townhouse Association. His complaint was over the modification of one of two community tennis courts to accommodate pickleball. The “crux” of his complaint was a concern over a possible future conflict: a hypothetical scenario where he might want to play two singles tennis matches while a large group of “outsiders” played a “raucous game of pickleball.”
This seems like a specific, if forward-thinking, concern. But the timeline and testimony revealed a truly bizarre situation. According to court records, Reis purchased his townhouse in November 2019 and filed his lawsuit on or about November 18, 2019—meaning he initiated a formal legal action within days or weeks of becoming a member of the community. Even more stunning was this fact from his own testimony:
Petitioner has not played tennis in “years.” As such, Petitioner has not yet found himself facing any such actual conflict.
The entire legal challenge—filed almost immediately upon moving in—was based on a hypothetical grievance for a sport the petitioner hadn’t even played in years. Unsurprisingly, the Administrative Law Judge found his argument “unfounded.” The lesson is clear: a legal claim based on “what if” is unlikely to succeed without any actual harm.
2. Your HOA’s Governing Documents Are a Legally Binding Contract
Many homeowners view their HOA’s rules as guidelines, but legally, they are a binding contract called Covenants, Conditions, and Restrictions (CC&Rs). When you buy a property, you agree to their terms.
In its defense, the HOA pointed directly to its governing documents. Article VI requires the Board to manage all recreational facilities, and Article II, section 1, gives it the explicit authority to “manage, maintain, repair, replace and improve the Common Areas” for the “general welfare and benefit of the Owners”—all without a member vote. This clause was the legal bedrock of the Board’s defense; in the eyes of the law, painting lines to accommodate a popular new sport is not a degradation of an amenity, but an improvement of it, squarely within the Board’s mandate.
The tennis courts are legally defined as “Common Areas.” This gave the Board the unambiguous right to paint new lines on them. This is an impactful takeaway for all homeowners: while you may feel a sense of personal ownership over shared amenities, the Board has broad, legally-defined powers to manage them for the entire community.
3. A Board’s Duty Is to Adapt to the Community’s Evolving Interests
The HOA Board’s decision wasn’t a whim; it was a response to a persistent community interest with a history. Testimony from a 20-year Board member, Arland Averell, revealed that in April 2019, the Board decided to reestablish a pickleball court “after several families requested they do so.” As a secondary benefit, the Board also saw it as a way to “generate additional revenue.”
But this wasn’t the community’s first foray into the sport. Court records show that back in 2015, the association had a pickleball court with taped lines, but it was damaged after only four months. This context is crucial. The 2019 decision to paint permanent lines was not just a reaction to new requests but an institutional lesson learned. It shows the Board was responding to a long-term, evolving interest and choosing a more durable solution, fulfilling its duty to adapt common resources to meet new demands.
4. An “Infringement” Requires an Actual Impediment
The petitioner’s legal argument was very specific. He claimed that adding pickleball “constitutes an infringement of tennis players’ right of use and enjoyment” and that having only one guaranteed tennis court is an “impediment of enjoyment rights.” He summarized his grievance with the line:
“Members have the right to play tennis unless pickleball is in play.”
However, the facts presented in court systematically dismantled this argument. The evidence showed:
• One of the two courts remained exclusively for tennis at all times.
• Both courts were still available for tennis on a first-come, first-served basis.
• The pickleball nets were portable and had to be detached at the end of play, leaving the court ready for tennis.
• Most critically, the petitioner himself testified that he had “never been denied access to the tennis courts at issue at any time.”
The judge determined that no violation occurred because the petitioner’s rights were never actually impeded. This reveals the critical legal distinction between an inconvenience and an infringement. The petitioner’s entire case rested on a hypothetical future inconvenience, but the law requires an actual, demonstrable impediment to rights. Since his own testimony confirmed one had never occurred, his claim was impossible to prove.
5. If You Demand a Rehearing, You Should Probably Show Up with an Argument
In a final, bizarre twist, the story doesn’t end with the initial ruling in February 2020. The petitioner filed a “REQUEST FOR REHEARING,” which the court granted, giving him a second chance to make his case.
To streamline the process, both parties agreed to skip a new evidentiary hearing and instead submit written “Closing Arguments” to the judge. The HOA’s legal team submitted a detailed, 17-page argument. What happened next was documented in the final court order:
OAH did not receive a closing argument from Petitioner.
The petitioner, who had initiated the entire legal process and successfully demanded a second chance, was given the final word. He had the opportunity to submit a closing argument that could have vindicated his entire complaint. Instead, he offered only silence. By ghosting his own rehearing, he left the judge with no choice but to conclude that he had once again “failed to sustain his burden of proof” and make the original ruling against him final.
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Conclusion: The Court of Community Opinion
This case is a fascinating lesson in the difference between a personal annoyance and an actual legal violation. It demonstrates that in the world of HOAs, feelings and hypothetical concerns carry little weight compared to the cold, hard text of the governing documents. Those documents give boards significant power, but also charge them with the difficult task of balancing the desires of all residents, not just the grievance of one.
As pickleball courts continue to replace shuffleboard courts and community gardens pop up in unused green spaces, this story leaves us with a critical question: As our communities change, how do we balance protecting the familiar traditions we love with making space for the new ones our neighbors are asking for?
Case Participants
Petitioner Side
Werner A Reis(petitioner) Appeared on his own behalf
Respondent Side
Edward O’Brien(attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP Counsel for Canyon Mesa Townhouse Association
Mark Sall(attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP Counsel for Canyon Mesa Townhouse Association (Also cited as Mark Sahl)
Charles Mitchell(board member, witness) Canyon Mesa Townhouse Association Current Director of the Association's Board
Arland Averell(board member, witness) Canyon Mesa Townhouse Association Served on the Board for the past twenty years
Neutral Parties
Jenna Clark(ALJ) OAH
Judy Lowe(commissioner) ADRE Commissioner of the Arizona Department of Real Estate
DGardner(department contact) ADRE Electronic contact for ADRE
c. serrano(staff) OAH Administrative staff/Clerk noted on document transmission
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918042-REL
Agency
ADRE
Tribunal
OAH
Decision Date
2020-01-15
Administrative Law Judge
Kay A. Abramsohn
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Joan A. Tober
Counsel
—
Respondent
Civano 1 Neighborhood 1 Homeowners Association
Counsel
Diana J. Elston
Alleged Violations
A.R.S. § 33-1805
Outcome Summary
The Administrative Law Judge concluded that the Civano 1 Neighborhood 1 Homeowners Association (HOA) was the prevailing party. The ALJ found that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B) because the specific attorney letter requested was privileged and could be withheld,, and Petitioner's request for additional 'background information' was unreasonably broad and unclarified,.
Why this result: Petitioner failed to establish a violation of A.R.S. § 33-1805(A) as the HOA lawfully withheld privileged documents under A.R.S. § 33-1805(B) and was not required to guess what records were requested due to the vague nature of the demand for 'any and all documentation'.
Key Issues & Findings
HOA violation of requirement to provide association records.
Petitioner alleged the HOA failed to provide all requested documentation, specifically an attorney letter concerning the North Ridge wall, and failed to comply with the 10-business day response period required for record requests.
Orders: The HOA was deemed the prevailing party on rehearing and Petitioner's appeal was dismissed. The HOA acted in compliance with A.R.S. § 33-1805(A) and (B). The requested attorney letter was privileged communication and could be withheld.
Briefing Document: Tober v. Civano 1 Homeowners Association
Executive Summary
This document synthesizes the legal proceedings and outcomes of the case Joan A. Tober v. Civano 1 Neighborhood 1 Homeowners Association (No. 19F-H1918042-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was Petitioner Joan A. Tober’s demand for records from her Homeowners Association (HOA), specifically a legal opinion letter concerning the “North Ridge wall.”
The Petitioner argued that the HOA violated Arizona statute A.R.S. § 33-1805 by failing to provide this letter and other “background information.” She contended the HOA waived attorney-client privilege by discussing the letter in an open board meeting and, in a subsequent rehearing, failed to provide records within the statutorily required 10-day timeframe.
The HOA maintained that the letter was a privileged communication with its attorney and therefore exempt from disclosure under A.R.S. § 33-1805(B). The HOA also argued that the Petitioner’s broader request for “any and all documentation” was overly vague and that she failed to clarify the request when asked.
Administrative Law Judge Kay Abramsohn ultimately ruled in favor of the HOA in both the initial hearing and a subsequent rehearing. The final decision affirmed that the legal letter was privileged and could be withheld. Crucially, the judge concluded the HOA did not violate the 10-day provision because the Petitioner’s request was “unreasonably broad” and she failed to respond to the HOA’s request for clarification, thereby preventing the HOA from being able to “reasonably make records available.” The HOA was declared the prevailing party in both instances.
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Case Overview
This matter involves a formal dispute between a homeowner and her homeowners’ association, brought before the Arizona Department of Real Estate and heard by the Office of Administrative Hearings (OAH).
Case Name
Joan A. Tober, Petitioner, vs. Civano 1 Neighborhood 1 Homeowners Association, Respondent.
Case Number
19F-H1918042-REL
Adjudicating Body
Office of Administrative Hearings (OAH)
Administrative Law Judge
Kay A. Abramsohn
Core Issue
Alleged violation of A.R.S. § 33-1805, which governs member access to association records.
Initial Hearing Date
June 5, 2019
Initial Decision Date
July 29, 2019
Rehearing Date
December 11, 2019
Final Decision Date
January 15, 2020
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Key Parties and Individuals
• Petitioner: Joan A. Tober
◦ A homeowner in the Civano 1 Neighborhood since 2001.
◦ Previously worked for the company that developed the land/homes in the association area.
◦ Has served as a past Board member for the HOA.
◦ Served as an alternate member on the Finance Committee in 2018.
◦ Exhibits a high level of engagement with HOA affairs, having taped and often transcribed every meeting since 2008.
• Respondent: Civano 1 Neighborhood 1 Homeowners Association (HOA)
◦ The governing body for the planned community.
◦ Represented by Diana J. Elston, Esq., of Jones, Skelton & Hochuli, P.L.C.
• Adjudicator: Kay Abramsohn
◦ The Administrative Law Judge for the Office of Administrative Hearings who presided over both the initial hearing and the rehearing.
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Chronology of the Dispute
Nov 20, 2018
At an HOA Board meeting, the Board President mentions receiving a letter (“the Letter”) from its attorney regarding the North Ridge wall, states it concerns the HOA’s legal responsibility, and suggests it can be sent out to residents.
Nov 26, 2018
Petitioner sends her first email request for a copy of the Letter.
Nov 27, 2018
Petitioner sends a second request. The HOA replies that it is waiting for clarification from its attorney.
Nov 29, 2018
At 4:58 a.m., Petitioner sends a third, formal request citing A.R.S. § 33-1805, demanding “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”
Nov 29, 2018
At 9:44 a.m., the HOA responds, stating the President misspoke and the Letter is a privileged legal opinion. The HOA asks if Petitioner needs a copy of “the original engineer report.” The judge later finds no evidence that Petitioner responded to this clarification query.
Dec 13, 2018
Petitioner writes to the Board, stating she will use “all means… to obtain the requested materials, to include a formal complaint.”
Dec 26, 2018
Petitioner files her single-issue petition with the Arizona Department of Real Estate.
Jan 15-16, 2019
The HOA forwards to Petitioner the “Civano historical erosion reports” (2013 and 2014) and an invoice related to the 2014 study.
June 5, 2019
The initial administrative hearing is held.
July 29, 2019
Initial Decision Issued: The Administrative Law Judge (ALJ) finds the Letter is privileged and the HOA is the prevailing party.
Aug 5, 2019
Petitioner files a request for rehearing, arguing the initial decision “did not address the timeliness aspect of the law.”
Aug 23, 2019
The Commissioner of the Arizona Department of Real Estate grants the rehearing request.
Dec 11, 2019
The rehearing is conducted.
Jan 15, 2020
Final Decision Issued: The ALJ again finds for the HOA, concluding it did not violate the statute because Petitioner’s request was overly broad and she failed to clarify it. The appeal is dismissed.
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Core Dispute and Arguments
Petitioner’s Position (Joan A. Tober)
1. Waiver of Privilege: The Petitioner’s central argument was that the HOA intentionally waived attorney-client privilege regarding the Letter when the Board President mentioned it in an open meeting and offered to distribute it, with the other Board members not objecting, thereby showing “unanimous consent to waive confidentiality.”
2. Right to “Background Information”: Petitioner argued that because the North Ridge wall issue had been ongoing since 2013, her request for “any and all documents” and “background information” was justified, and that more than just two prior engineering reports must exist.
3. Untimely Response (Rehearing Argument): In her request for rehearing, Petitioner’s primary argument shifted to timeliness, asserting that even if the HOA “eventually” provided some records, it failed to do so within the 10-business-day period mandated by A.R.S. § 33-1805(A).
Respondent’s Position (Civano 1 HOA)
1. Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which may be withheld from members under A.R.S. § 33-1805(B).
2. No Waiver: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of the attorney-client privilege.
3. Vague and Overly Broad Request: The HOA argued that the Petitioner’s request for “any and all” documents was too broad to know what she wanted.
4. Prior Possession of Documents: The HOA indicated that it could be determined from the Petitioner’s own exhibits that she had already received or possessed copies of key requested documents, such as the 2013 and 2014 erosion reports.
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Key Findings of Fact and Evidence
The Administrative Law Judge made several critical findings of fact based on the evidence presented across both hearings.
• The Nature of the “Letter”: The document at the center of the dispute was confirmed to be a legal opinion from the HOA’s attorney. It had been discussed by the Board in an executive session prior to the November 20, 2018 meeting. The letter advised that the HOA was responsible for the land below the wall and recommended hiring a “licensed bonded engineer.”
• Petitioner’s Pre-existing Knowledge: The Petitioner was well-informed on the North Ridge wall issue. She acknowledged at the rehearing that at the time of her November 29, 2018 request, she already possessed copies of the 2013 and 2014 engineering reports, which she had obtained from the city in 2014.
• Petitioner’s Request and Failure to Clarify:
◦ The Petitioner’s initial requests on November 26 and 27 were solely for the attorney’s Letter.
◦ Her formal request on November 29 expanded to “any and all documentation… and all background information.”
◦ On the same day, the HOA asked for clarification, specifically inquiring if she “still need[ed] a copy of the original engineer report.”
◦ The ALJ found “no document supporting” the Petitioner’s claim that she responded to this email. During the rehearing, the Petitioner was unable to produce such a response. This failure to clarify was a key factor in the final ruling.
• Lack of Other Documents: The hearing record contained no evidence of any other erosion reports besides the 2013 and 2014 reports. The HOA President, Mr. Mastrosimone, testified that “there were no documents other than the Letter that would have been responsive” to the request.
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Legal Rulings and Conclusions of Law
Initial Decision (July 29, 2019)
• Jurisdiction: The OAH confirmed its authority to hear the dispute under Arizona statutes.
• Privilege: The ALJ concluded that under A.R.S. § 33-1805(B), “privileged communication between an attorney for the association and the association” may be withheld. Therefore, the HOA was “not statutorily required to provide access or a copy of the Letter to Petitioner.”
• Outcome: The ALJ concluded that the HOA provided records in compliance with the statute and was deemed the prevailing party.
Final Decision on Rehearing (January 15, 2020)
• Issue for Rehearing: The sole issue on rehearing was whether the HOA violated A.R.S. § 33-1805 by failing to provide access to records within 10 business days.
• Privileged Communication: The ALJ reaffirmed that the Letter was privileged communication and the HOA was not required to provide it “within any time period.”
• Unreasonably Broad Request: The ALJ concluded that the Petitioner’s formal request was “unreasonably broad and remained unclarified.”
• Failure to Clarify: The ruling explicitly states: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available. An association is not required to guess what records are being requested.”
• No Violation of Timeliness: Because the request was unclarified, the ALJ found the HOA did not violate the 10-day rule in A.R.S. § 33-1805(A). The decision notes that the initial ruling “inartfully stated” that the HOA had provided records in compliance, and that it “should have simply stated that the HOA acted in compliance with A.R.S. § 33-1805.”
• Final Outcome: The ALJ concluded that the HOA acted in compliance with both subsections (A) and (B) of the statute. The HOA was again declared the prevailing party, and the Petitioner’s appeal was dismissed. The decision was declared binding on the parties, subject to judicial review in superior court.
Study Guide – 19F-H1918042-REL-RHG
Study Guide: Tober v. Civano 1 Neighborhood 1 Homeowners Association
This study guide provides a comprehensive review of the administrative case No. 19F-H1918042-REL, involving Petitioner Joan A. Tober and Respondent Civano 1 Neighborhood 1 Homeowners Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.
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Short Answer Quiz
Instructions: Answer the following questions in 2-3 sentences, using only information provided in the source documents.
1. What specific event prompted Joan Tober to first request documents from the HOA in November 2018?
2. What was the HOA’s primary legal justification for refusing to provide a copy of “the Letter” to the Petitioner?
3. According to Arizona statute A.R.S. § 33-1805(A), what is the required timeframe for an HOA to make records available to a member after a written request?
4. What was the Petitioner’s core argument for why the HOA had forfeited its right to keep “the Letter” confidential?
5. On what grounds did the Petitioner file her request for a rehearing after the initial decision on July 29, 2019?
6. How did the Petitioner’s document request evolve between her first communication on November 26, 2018, and her third request on November 29, 2018?
7. What crucial step did the Administrative Law Judge conclude the Petitioner failed to take after the HOA’s email on November 29, 2018?
8. Besides “the Letter,” what other key documents related to the North Ridge wall did the Petitioner already possess when she filed her formal request?
9. Describe the Petitioner’s long-standing involvement and activities within the Civano 1 HOA community.
10. What was the final ruling in the Administrative Law Judge Decision on Rehearing, issued January 15, 2020?
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Answer Key
1. The request was prompted by the HOA Board meeting on November 20, 2018. At this meeting, the Board President mentioned receiving a letter from the HOA’s attorney regarding the North Ridge wall, stated its legal conclusion, and indicated, “I believe we can … send it out … so people can have it.”
2. The HOA’s primary justification was that the document was a privileged attorney-client communication. The HOA argued that the letter contained legal analysis and advice to the Board and was therefore exempt from disclosure under Arizona statute A.R.S. § 33-1805(B).
3. A.R.S. § 33-1805(A) states that a homeowners association has “ten business days” to fulfill a written request for examination of its financial and other records.
4. The Petitioner argued that the HOA had intentionally waived confidentiality. She contended that because the Board President mentioned the letter in an open meeting and the other Board members did not object, they showed unanimous consent to waive the attorney-client privilege.
5. The Petitioner requested a rehearing on the grounds that the initial Administrative Law Judge ruling “did not address the timeliness aspect of the law.” She argued that while the HOA eventually provided access to some records, it had not done so within the required 10-business day period.
6. The Petitioner’s request evolved from a specific ask for a copy of “the Letter” on November 26 and 27 to a much broader request on November 29. Her third request asked for “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”
7. The Judge concluded that the Petitioner failed to respond to the HOA’s request for clarification in its November 29 email. The HOA had asked if she needed a copy of the “original engineer report,” and the Judge found no evidence in the hearing records that the Petitioner ever answered this question, thus preventing the HOA from being able to reasonably make records available.
8. The Petitioner already possessed the 2013 Engineering report and the 2014 report concerning erosion issues with the North Ridge wall. She acknowledged at the rehearing that she had obtained these from the city in 2014.
9. The Petitioner worked for the company that developed the land, purchased her home in 2001, and has been a past Board member. At the time of the dispute, she was an alternate member of the Finance Committee and had been taping and often transcribing every HOA meeting since 2008.
10. The final ruling was that the HOA was the prevailing party and had not violated A.R.S. § 33-1805. The Judge concluded the HOA was not required to provide the privileged letter and that its failure to provide other documents within 10 days was excused because the Petitioner’s request was “unreasonably broad” and she failed to clarify it. The Petitioner’s appeal was dismissed.
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Essay Questions
Instructions: The following questions are designed for a longer, essay-format response. No answers are provided.
1. Analyze the concept of “waiver” of attorney-client privilege as it was argued in this case. Discuss the Petitioner’s claim that the President’s public comments constituted a waiver and contrast this with the Administrative Law Judge’s implicit and explicit findings on the matter.
2. Trace the procedural history of this case, beginning with the initial petition filing on December 26, 2018, and concluding with the final notice of appeal rights in the January 15, 2020 order. Identify the key legal proceedings, decisions, and dates that marked the progression of the dispute.
3. Discuss the legal standard of “preponderance of the evidence” as defined in the court documents. Explain how the Administrative Law Judge applied this standard to the evidence presented by the Petitioner and why the Petitioner ultimately failed to meet her burden of proof in both the initial hearing and the rehearing.
4. Examine the role and interpretation of Arizona statute A.R.S. § 33-1805 in this dispute. How did the two key subsections, (A) and (B), create the central legal conflict between the Petitioner’s right to access records and the HOA’s right to withhold privileged information?
5. Evaluate the Administrative Law Judge’s reasoning that the Petitioner’s November 29, 2018 request was “unreasonably broad.” How did this determination, combined with the Petitioner’s alleged failure to clarify her request, become the deciding factor in the rehearing?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings and issues legal decisions and orders.
Arizona Department of Real Estate (“the Department”)
The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona.
A.R.S. § 33-1805
The Arizona Revised Statute governing access to homeowners’ association records. Subsection (A) requires records be made “reasonably available” within ten business days, while subsection (B) allows for withholding of privileged attorney-client communications.
Attorney-Client Privilege
A legal concept that allows for certain communications between an attorney and their client (in this case, the HOA) to be kept confidential. The HOA cited this privilege as the reason for withholding “the Letter.”
Burden of Proof
The obligation of a party in a legal proceeding to prove their allegations. In this case, the Petitioner bore the burden of proving by a preponderance of the evidence that the HOA violated statutes or community documents.
Executive Session
A private meeting of a board of directors. “The Letter” had been discussed by the HOA Board in an executive session prior to the public meeting where it was mentioned.
An acronym for Homeowners Association. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.
Office of Administrative Hearings (OAH)
The office with the legal authority to hear and decide contested cases involving disputes between homeowners and planned community associations in Arizona.
Petition
The formal, single-issue complaint filed by the Petitioner with the Department of Real Estate on December 26, 2018, which initiated the legal proceedings.
Petitioner
The party who files a petition initiating a legal action. In this case, the Petitioner is Joan A. Tober.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” and “the greater weight of the evidence.”
Rehearing
A second hearing granted to re-examine a legal case after an initial decision has been made. A rehearing was granted in this case to address the Petitioner’s claim that the initial ruling did not consider the “timeliness aspect of the law.”
Respondent
The party against whom a petition is filed. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.
The Letter
The specific document at the heart of the dispute: a privileged legal opinion letter from the HOA’s attorneys to the Board regarding the North Ridge wall, which was “disclosed and discussed” at the November 20, 2018, Board meeting.
Blog Post – 19F-H1918042-REL-RHG
She Recorded Every HOA Meeting for a Decade and Still Lost. Here’s What Every Homeowner Can Learn.
Introduction: The Fight for Information
Many homeowners have felt the frustration of seeking information from their Homeowners Association (HOA), only to feel that the board is being less than transparent. It’s a common story that often ends in resignation. But for one Arizona homeowner, it ended in a formal administrative hearing.
This is the story of Joan A. Tober, a remarkably dedicated resident who filed a petition against her HOA with the Arizona Department of Real Estate over access to documents related to a retaining wall. She was a former board member, sat on the finance committee, and, most astoundingly, had personally recorded and often transcribed every single HOA meeting for over a decade. Yet, despite her exhaustive personal record-keeping, her petition was denied. The surprising and counter-intuitive lessons from her story offer a masterclass for any homeowner navigating a dispute with their association.
1. Takeaway #1: The “Attorney-Client Privilege” Shield is Stronger Than You Think.
The central conflict revolved around a single document: a letter from the HOA’s attorney. During an open board meeting, the Board President mentioned the letter, which concerned the association’s responsibility for a retaining wall, and created an expectation of transparency, stating: “I believe we can … send it out … so people can have it.”
Ms. Tober argued that by openly discussing the letter and offering to distribute it, the board had waived its confidentiality, and she was therefore entitled to a copy. It seems like a logical assumption. However, the Administrative Law Judge (ALJ) disagreed, pointing directly to the law. Under Arizona law (A.R.S. § 33-1805(B)), “privileged communication between an attorney for the association and the association” can be legally withheld from members.
The tribunal found that the mere mention of the letter in a public meeting—even with the president’s comment—did not break that legal privilege. This is a critical point for homeowners to understand. The law protects the board’s ability to seek and receive candid legal advice to govern the association effectively. While it may feel like a lack of transparency, this shield is a fundamental and legally protected aspect of HOA operations.
2. Takeaway #2: Asking for “Everything” Can Get You Nothing.
Beyond the privileged letter, the evolution and wording of Ms. Tober’s request became a major factor in the denial of her petition. The timeline shows how a homeowner’s frustration can lead to a fatal strategic error. On November 26 and 27, 2018, she made two specific requests for the attorney’s letter. The HOA responded that it was seeking clarification from its attorney.
After this delay, Ms. Tober’s third request, dated November 29, escalated significantly. She now asked for: “any and all documentation to include the letter that was disclosed and discussed… and all background information.”
In response, the HOA asked for clarification, but according to the hearing record, Ms. Tober could not provide evidence that she ever replied to narrow her request. This failure proved fatal. The Administrative Law Judge found the request to be “unreasonably broad.” The judge’s decision on the matter was blunt and serves as a powerful warning:
An association is not required to guess what records are being requested.
The ultimate reason for the denial synthesized both issues: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available.” This demonstrates that the legal burden falls squarely on the homeowner to articulate a request the association can reasonably fulfill. As the ALJ noted, an association is not required to be a mind reader.
3. Takeaway #3: Diligence Alone Doesn’t Guarantee a Win.
What makes this story so compelling is the extraordinary diligence of the petitioner. Joan Tober was not a casual observer. The hearing records establish her deep involvement in the community: she was a former Board member, a member of the Finance Committee, and had even worked for the company that originally developed the community.
But one fact, noted in the ALJ’s decision, highlights her stunning level of dedication:
Since 2008, Petitioner has taped every meeting and she often creates a transcript of the meetings.
Despite this decade of meticulous personal record-keeping and her clear passion for the issue, her petition was denied—not just once, but twice, on the initial hearing and again on the rehearing. This presents a sobering reality for all homeowners. While passion, engagement, and even a mountain of personal documentation are valuable, they cannot overcome fundamental legal principles. The outcome of a formal hearing is determined by the strength of the legal argument, not the volume of personal effort expended.
Conclusion: Strategy Over Sheer Effort
The petition of Joan A. Tober is a powerful reminder that when dealing with an HOA, effectiveness is not always measured by effort. Her story provides three critical takeaways for every homeowner: attorney-client privilege provides HOAs with a strong legal shield, record requests must be specific and targeted to be enforceable, and meticulous personal diligence must be paired with a sound legal strategy to succeed in a formal dispute.
This case leaves every homeowner with a critical question: when you have a dispute, are you channeling your energy into the most effective strategy, or simply into the most effort?
Case Participants
Petitioner Side
Joan A. Tober(petitioner) Former Board member; current Finance Committee member
Respondent Side
Diana J. Elston(HOA attorney) Jones, Skelton & Hochuli, P.L.C.
Mr. Mastrosimone(Board President) Civano 1 Neighborhood 1 Homeowners Association Testified at rehearing
Neutral Parties
Kay A. Abramsohn(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
c. serrano(Clerk)
Felicia Del Sol(Clerk)
LDettorre(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
AHansen(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
djones(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
DGardner(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
ncano(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918042-REL
Agency
ADRE
Tribunal
OAH
Decision Date
2020-01-15
Administrative Law Judge
Kay A. Abramsohn
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Joan A. Tober
Counsel
—
Respondent
Civano 1 Neighborhood 1 Homeowners Association
Counsel
Diana J. Elston
Alleged Violations
A.R.S. § 33-1805
Outcome Summary
The Administrative Law Judge concluded, both in the original decision and the rehearing, that the HOA was the prevailing party. The final decision affirmed that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B), specifically ruling that privileged documents are exempt from disclosure timelines and that the Petitioner's request for 'all background information' was unreasonably broad and unclarified.
Why this result: Petitioner lost because she failed to meet the burden of proof that the HOA violated A.R.S. § 33-1805(A). The primary record sought was protected by attorney-client privilege, and her vague request for 'any and all documentation' made it impossible for the HOA to reasonably comply within the 10-day period.
Key Issues & Findings
HOA violation of requirement to provide association records within ten business days.
Petitioner alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide access to requested documents, including a privileged attorney letter and 'all background information', within the required 10-business day period. The rehearing focused specifically on the timeliness aspect.
Orders: The HOA was deemed the prevailing party in the rehearing, and Petitioner’s appeal was dismissed. The ALJ concluded the HOA acted in compliance with A.R.S. § 33-1805(A) and (B).
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1805(A)
A.R.S. § 33-1805(B)
A.R.S. § 32-2102
A.R.S. § 32-2199
A.R.S. § 32-2199.05
A.R.S. § 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
A.R.S. § 41-2198.01
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Analytics Highlights
Topics: Records Request, Attorney-Client Privilege, A.R.S. 33-1805, Planned Community, Rehearing, Unreasonably Broad Request, Timeliness of Disclosure
Additional Citations:
A.R.S. § 33-1805(A)
A.R.S. § 33-1805(B)
A.R.S. § 32-2102
A.R.S. § 32-2199
A.R.S. § 32-2199.05
A.R.S. § 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
A.R.S. § 41-2198.01
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Briefing Document: Tober v. Civano 1 Homeowners Association
Executive Summary
This document synthesizes the legal proceedings and outcomes of the case Joan A. Tober v. Civano 1 Neighborhood 1 Homeowners Association (No. 19F-H1918042-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was Petitioner Joan A. Tober’s demand for records from her Homeowners Association (HOA), specifically a legal opinion letter concerning the “North Ridge wall.”
The Petitioner argued that the HOA violated Arizona statute A.R.S. § 33-1805 by failing to provide this letter and other “background information.” She contended the HOA waived attorney-client privilege by discussing the letter in an open board meeting and, in a subsequent rehearing, failed to provide records within the statutorily required 10-day timeframe.
The HOA maintained that the letter was a privileged communication with its attorney and therefore exempt from disclosure under A.R.S. § 33-1805(B). The HOA also argued that the Petitioner’s broader request for “any and all documentation” was overly vague and that she failed to clarify the request when asked.
Administrative Law Judge Kay Abramsohn ultimately ruled in favor of the HOA in both the initial hearing and a subsequent rehearing. The final decision affirmed that the legal letter was privileged and could be withheld. Crucially, the judge concluded the HOA did not violate the 10-day provision because the Petitioner’s request was “unreasonably broad” and she failed to respond to the HOA’s request for clarification, thereby preventing the HOA from being able to “reasonably make records available.” The HOA was declared the prevailing party in both instances.
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Case Overview
This matter involves a formal dispute between a homeowner and her homeowners’ association, brought before the Arizona Department of Real Estate and heard by the Office of Administrative Hearings (OAH).
Case Name
Joan A. Tober, Petitioner, vs. Civano 1 Neighborhood 1 Homeowners Association, Respondent.
Case Number
19F-H1918042-REL
Adjudicating Body
Office of Administrative Hearings (OAH)
Administrative Law Judge
Kay A. Abramsohn
Core Issue
Alleged violation of A.R.S. § 33-1805, which governs member access to association records.
Initial Hearing Date
June 5, 2019
Initial Decision Date
July 29, 2019
Rehearing Date
December 11, 2019
Final Decision Date
January 15, 2020
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Key Parties and Individuals
• Petitioner: Joan A. Tober
◦ A homeowner in the Civano 1 Neighborhood since 2001.
◦ Previously worked for the company that developed the land/homes in the association area.
◦ Has served as a past Board member for the HOA.
◦ Served as an alternate member on the Finance Committee in 2018.
◦ Exhibits a high level of engagement with HOA affairs, having taped and often transcribed every meeting since 2008.
• Respondent: Civano 1 Neighborhood 1 Homeowners Association (HOA)
◦ The governing body for the planned community.
◦ Represented by Diana J. Elston, Esq., of Jones, Skelton & Hochuli, P.L.C.
• Adjudicator: Kay Abramsohn
◦ The Administrative Law Judge for the Office of Administrative Hearings who presided over both the initial hearing and the rehearing.
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Chronology of the Dispute
Nov 20, 2018
At an HOA Board meeting, the Board President mentions receiving a letter (“the Letter”) from its attorney regarding the North Ridge wall, states it concerns the HOA’s legal responsibility, and suggests it can be sent out to residents.
Nov 26, 2018
Petitioner sends her first email request for a copy of the Letter.
Nov 27, 2018
Petitioner sends a second request. The HOA replies that it is waiting for clarification from its attorney.
Nov 29, 2018
At 4:58 a.m., Petitioner sends a third, formal request citing A.R.S. § 33-1805, demanding “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”
Nov 29, 2018
At 9:44 a.m., the HOA responds, stating the President misspoke and the Letter is a privileged legal opinion. The HOA asks if Petitioner needs a copy of “the original engineer report.” The judge later finds no evidence that Petitioner responded to this clarification query.
Dec 13, 2018
Petitioner writes to the Board, stating she will use “all means… to obtain the requested materials, to include a formal complaint.”
Dec 26, 2018
Petitioner files her single-issue petition with the Arizona Department of Real Estate.
Jan 15-16, 2019
The HOA forwards to Petitioner the “Civano historical erosion reports” (2013 and 2014) and an invoice related to the 2014 study.
June 5, 2019
The initial administrative hearing is held.
July 29, 2019
Initial Decision Issued: The Administrative Law Judge (ALJ) finds the Letter is privileged and the HOA is the prevailing party.
Aug 5, 2019
Petitioner files a request for rehearing, arguing the initial decision “did not address the timeliness aspect of the law.”
Aug 23, 2019
The Commissioner of the Arizona Department of Real Estate grants the rehearing request.
Dec 11, 2019
The rehearing is conducted.
Jan 15, 2020
Final Decision Issued: The ALJ again finds for the HOA, concluding it did not violate the statute because Petitioner’s request was overly broad and she failed to clarify it. The appeal is dismissed.
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Core Dispute and Arguments
Petitioner’s Position (Joan A. Tober)
1. Waiver of Privilege: The Petitioner’s central argument was that the HOA intentionally waived attorney-client privilege regarding the Letter when the Board President mentioned it in an open meeting and offered to distribute it, with the other Board members not objecting, thereby showing “unanimous consent to waive confidentiality.”
2. Right to “Background Information”: Petitioner argued that because the North Ridge wall issue had been ongoing since 2013, her request for “any and all documents” and “background information” was justified, and that more than just two prior engineering reports must exist.
3. Untimely Response (Rehearing Argument): In her request for rehearing, Petitioner’s primary argument shifted to timeliness, asserting that even if the HOA “eventually” provided some records, it failed to do so within the 10-business-day period mandated by A.R.S. § 33-1805(A).
Respondent’s Position (Civano 1 HOA)
1. Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which may be withheld from members under A.R.S. § 33-1805(B).
2. No Waiver: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of the attorney-client privilege.
3. Vague and Overly Broad Request: The HOA argued that the Petitioner’s request for “any and all” documents was too broad to know what she wanted.
4. Prior Possession of Documents: The HOA indicated that it could be determined from the Petitioner’s own exhibits that she had already received or possessed copies of key requested documents, such as the 2013 and 2014 erosion reports.
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Key Findings of Fact and Evidence
The Administrative Law Judge made several critical findings of fact based on the evidence presented across both hearings.
• The Nature of the “Letter”: The document at the center of the dispute was confirmed to be a legal opinion from the HOA’s attorney. It had been discussed by the Board in an executive session prior to the November 20, 2018 meeting. The letter advised that the HOA was responsible for the land below the wall and recommended hiring a “licensed bonded engineer.”
• Petitioner’s Pre-existing Knowledge: The Petitioner was well-informed on the North Ridge wall issue. She acknowledged at the rehearing that at the time of her November 29, 2018 request, she already possessed copies of the 2013 and 2014 engineering reports, which she had obtained from the city in 2014.
• Petitioner’s Request and Failure to Clarify:
◦ The Petitioner’s initial requests on November 26 and 27 were solely for the attorney’s Letter.
◦ Her formal request on November 29 expanded to “any and all documentation… and all background information.”
◦ On the same day, the HOA asked for clarification, specifically inquiring if she “still need[ed] a copy of the original engineer report.”
◦ The ALJ found “no document supporting” the Petitioner’s claim that she responded to this email. During the rehearing, the Petitioner was unable to produce such a response. This failure to clarify was a key factor in the final ruling.
• Lack of Other Documents: The hearing record contained no evidence of any other erosion reports besides the 2013 and 2014 reports. The HOA President, Mr. Mastrosimone, testified that “there were no documents other than the Letter that would have been responsive” to the request.
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Legal Rulings and Conclusions of Law
Initial Decision (July 29, 2019)
• Jurisdiction: The OAH confirmed its authority to hear the dispute under Arizona statutes.
• Privilege: The ALJ concluded that under A.R.S. § 33-1805(B), “privileged communication between an attorney for the association and the association” may be withheld. Therefore, the HOA was “not statutorily required to provide access or a copy of the Letter to Petitioner.”
• Outcome: The ALJ concluded that the HOA provided records in compliance with the statute and was deemed the prevailing party.
Final Decision on Rehearing (January 15, 2020)
• Issue for Rehearing: The sole issue on rehearing was whether the HOA violated A.R.S. § 33-1805 by failing to provide access to records within 10 business days.
• Privileged Communication: The ALJ reaffirmed that the Letter was privileged communication and the HOA was not required to provide it “within any time period.”
• Unreasonably Broad Request: The ALJ concluded that the Petitioner’s formal request was “unreasonably broad and remained unclarified.”
• Failure to Clarify: The ruling explicitly states: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available. An association is not required to guess what records are being requested.”
• No Violation of Timeliness: Because the request was unclarified, the ALJ found the HOA did not violate the 10-day rule in A.R.S. § 33-1805(A). The decision notes that the initial ruling “inartfully stated” that the HOA had provided records in compliance, and that it “should have simply stated that the HOA acted in compliance with A.R.S. § 33-1805.”
• Final Outcome: The ALJ concluded that the HOA acted in compliance with both subsections (A) and (B) of the statute. The HOA was again declared the prevailing party, and the Petitioner’s appeal was dismissed. The decision was declared binding on the parties, subject to judicial review in superior court.
Study Guide – 19F-H1918042-REL-RHG
Study Guide: Tober v. Civano 1 Neighborhood 1 Homeowners Association
This study guide provides a comprehensive review of the administrative case No. 19F-H1918042-REL, involving Petitioner Joan A. Tober and Respondent Civano 1 Neighborhood 1 Homeowners Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.
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Short Answer Quiz
Instructions: Answer the following questions in 2-3 sentences, using only information provided in the source documents.
1. What specific event prompted Joan Tober to first request documents from the HOA in November 2018?
2. What was the HOA’s primary legal justification for refusing to provide a copy of “the Letter” to the Petitioner?
3. According to Arizona statute A.R.S. § 33-1805(A), what is the required timeframe for an HOA to make records available to a member after a written request?
4. What was the Petitioner’s core argument for why the HOA had forfeited its right to keep “the Letter” confidential?
5. On what grounds did the Petitioner file her request for a rehearing after the initial decision on July 29, 2019?
6. How did the Petitioner’s document request evolve between her first communication on November 26, 2018, and her third request on November 29, 2018?
7. What crucial step did the Administrative Law Judge conclude the Petitioner failed to take after the HOA’s email on November 29, 2018?
8. Besides “the Letter,” what other key documents related to the North Ridge wall did the Petitioner already possess when she filed her formal request?
9. Describe the Petitioner’s long-standing involvement and activities within the Civano 1 HOA community.
10. What was the final ruling in the Administrative Law Judge Decision on Rehearing, issued January 15, 2020?
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Answer Key
1. The request was prompted by the HOA Board meeting on November 20, 2018. At this meeting, the Board President mentioned receiving a letter from the HOA’s attorney regarding the North Ridge wall, stated its legal conclusion, and indicated, “I believe we can … send it out … so people can have it.”
2. The HOA’s primary justification was that the document was a privileged attorney-client communication. The HOA argued that the letter contained legal analysis and advice to the Board and was therefore exempt from disclosure under Arizona statute A.R.S. § 33-1805(B).
3. A.R.S. § 33-1805(A) states that a homeowners association has “ten business days” to fulfill a written request for examination of its financial and other records.
4. The Petitioner argued that the HOA had intentionally waived confidentiality. She contended that because the Board President mentioned the letter in an open meeting and the other Board members did not object, they showed unanimous consent to waive the attorney-client privilege.
5. The Petitioner requested a rehearing on the grounds that the initial Administrative Law Judge ruling “did not address the timeliness aspect of the law.” She argued that while the HOA eventually provided access to some records, it had not done so within the required 10-business day period.
6. The Petitioner’s request evolved from a specific ask for a copy of “the Letter” on November 26 and 27 to a much broader request on November 29. Her third request asked for “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”
7. The Judge concluded that the Petitioner failed to respond to the HOA’s request for clarification in its November 29 email. The HOA had asked if she needed a copy of the “original engineer report,” and the Judge found no evidence in the hearing records that the Petitioner ever answered this question, thus preventing the HOA from being able to reasonably make records available.
8. The Petitioner already possessed the 2013 Engineering report and the 2014 report concerning erosion issues with the North Ridge wall. She acknowledged at the rehearing that she had obtained these from the city in 2014.
9. The Petitioner worked for the company that developed the land, purchased her home in 2001, and has been a past Board member. At the time of the dispute, she was an alternate member of the Finance Committee and had been taping and often transcribing every HOA meeting since 2008.
10. The final ruling was that the HOA was the prevailing party and had not violated A.R.S. § 33-1805. The Judge concluded the HOA was not required to provide the privileged letter and that its failure to provide other documents within 10 days was excused because the Petitioner’s request was “unreasonably broad” and she failed to clarify it. The Petitioner’s appeal was dismissed.
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Essay Questions
Instructions: The following questions are designed for a longer, essay-format response. No answers are provided.
1. Analyze the concept of “waiver” of attorney-client privilege as it was argued in this case. Discuss the Petitioner’s claim that the President’s public comments constituted a waiver and contrast this with the Administrative Law Judge’s implicit and explicit findings on the matter.
2. Trace the procedural history of this case, beginning with the initial petition filing on December 26, 2018, and concluding with the final notice of appeal rights in the January 15, 2020 order. Identify the key legal proceedings, decisions, and dates that marked the progression of the dispute.
3. Discuss the legal standard of “preponderance of the evidence” as defined in the court documents. Explain how the Administrative Law Judge applied this standard to the evidence presented by the Petitioner and why the Petitioner ultimately failed to meet her burden of proof in both the initial hearing and the rehearing.
4. Examine the role and interpretation of Arizona statute A.R.S. § 33-1805 in this dispute. How did the two key subsections, (A) and (B), create the central legal conflict between the Petitioner’s right to access records and the HOA’s right to withhold privileged information?
5. Evaluate the Administrative Law Judge’s reasoning that the Petitioner’s November 29, 2018 request was “unreasonably broad.” How did this determination, combined with the Petitioner’s alleged failure to clarify her request, become the deciding factor in the rehearing?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings and issues legal decisions and orders.
Arizona Department of Real Estate (“the Department”)
The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona.
A.R.S. § 33-1805
The Arizona Revised Statute governing access to homeowners’ association records. Subsection (A) requires records be made “reasonably available” within ten business days, while subsection (B) allows for withholding of privileged attorney-client communications.
Attorney-Client Privilege
A legal concept that allows for certain communications between an attorney and their client (in this case, the HOA) to be kept confidential. The HOA cited this privilege as the reason for withholding “the Letter.”
Burden of Proof
The obligation of a party in a legal proceeding to prove their allegations. In this case, the Petitioner bore the burden of proving by a preponderance of the evidence that the HOA violated statutes or community documents.
Executive Session
A private meeting of a board of directors. “The Letter” had been discussed by the HOA Board in an executive session prior to the public meeting where it was mentioned.
An acronym for Homeowners Association. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.
Office of Administrative Hearings (OAH)
The office with the legal authority to hear and decide contested cases involving disputes between homeowners and planned community associations in Arizona.
Petition
The formal, single-issue complaint filed by the Petitioner with the Department of Real Estate on December 26, 2018, which initiated the legal proceedings.
Petitioner
The party who files a petition initiating a legal action. In this case, the Petitioner is Joan A. Tober.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” and “the greater weight of the evidence.”
Rehearing
A second hearing granted to re-examine a legal case after an initial decision has been made. A rehearing was granted in this case to address the Petitioner’s claim that the initial ruling did not consider the “timeliness aspect of the law.”
Respondent
The party against whom a petition is filed. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.
The Letter
The specific document at the heart of the dispute: a privileged legal opinion letter from the HOA’s attorneys to the Board regarding the North Ridge wall, which was “disclosed and discussed” at the November 20, 2018, Board meeting.
Blog Post – 19F-H1918042-REL-RHG
She Recorded Every HOA Meeting for a Decade and Still Lost. Here’s What Every Homeowner Can Learn.
Introduction: The Fight for Information
Many homeowners have felt the frustration of seeking information from their Homeowners Association (HOA), only to feel that the board is being less than transparent. It’s a common story that often ends in resignation. But for one Arizona homeowner, it ended in a formal administrative hearing.
This is the story of Joan A. Tober, a remarkably dedicated resident who filed a petition against her HOA with the Arizona Department of Real Estate over access to documents related to a retaining wall. She was a former board member, sat on the finance committee, and, most astoundingly, had personally recorded and often transcribed every single HOA meeting for over a decade. Yet, despite her exhaustive personal record-keeping, her petition was denied. The surprising and counter-intuitive lessons from her story offer a masterclass for any homeowner navigating a dispute with their association.
1. Takeaway #1: The “Attorney-Client Privilege” Shield is Stronger Than You Think.
The central conflict revolved around a single document: a letter from the HOA’s attorney. During an open board meeting, the Board President mentioned the letter, which concerned the association’s responsibility for a retaining wall, and created an expectation of transparency, stating: “I believe we can … send it out … so people can have it.”
Ms. Tober argued that by openly discussing the letter and offering to distribute it, the board had waived its confidentiality, and she was therefore entitled to a copy. It seems like a logical assumption. However, the Administrative Law Judge (ALJ) disagreed, pointing directly to the law. Under Arizona law (A.R.S. § 33-1805(B)), “privileged communication between an attorney for the association and the association” can be legally withheld from members.
The tribunal found that the mere mention of the letter in a public meeting—even with the president’s comment—did not break that legal privilege. This is a critical point for homeowners to understand. The law protects the board’s ability to seek and receive candid legal advice to govern the association effectively. While it may feel like a lack of transparency, this shield is a fundamental and legally protected aspect of HOA operations.
2. Takeaway #2: Asking for “Everything” Can Get You Nothing.
Beyond the privileged letter, the evolution and wording of Ms. Tober’s request became a major factor in the denial of her petition. The timeline shows how a homeowner’s frustration can lead to a fatal strategic error. On November 26 and 27, 2018, she made two specific requests for the attorney’s letter. The HOA responded that it was seeking clarification from its attorney.
After this delay, Ms. Tober’s third request, dated November 29, escalated significantly. She now asked for: “any and all documentation to include the letter that was disclosed and discussed… and all background information.”
In response, the HOA asked for clarification, but according to the hearing record, Ms. Tober could not provide evidence that she ever replied to narrow her request. This failure proved fatal. The Administrative Law Judge found the request to be “unreasonably broad.” The judge’s decision on the matter was blunt and serves as a powerful warning:
An association is not required to guess what records are being requested.
The ultimate reason for the denial synthesized both issues: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available.” This demonstrates that the legal burden falls squarely on the homeowner to articulate a request the association can reasonably fulfill. As the ALJ noted, an association is not required to be a mind reader.
3. Takeaway #3: Diligence Alone Doesn’t Guarantee a Win.
What makes this story so compelling is the extraordinary diligence of the petitioner. Joan Tober was not a casual observer. The hearing records establish her deep involvement in the community: she was a former Board member, a member of the Finance Committee, and had even worked for the company that originally developed the community.
But one fact, noted in the ALJ’s decision, highlights her stunning level of dedication:
Since 2008, Petitioner has taped every meeting and she often creates a transcript of the meetings.
Despite this decade of meticulous personal record-keeping and her clear passion for the issue, her petition was denied—not just once, but twice, on the initial hearing and again on the rehearing. This presents a sobering reality for all homeowners. While passion, engagement, and even a mountain of personal documentation are valuable, they cannot overcome fundamental legal principles. The outcome of a formal hearing is determined by the strength of the legal argument, not the volume of personal effort expended.
Conclusion: Strategy Over Sheer Effort
The petition of Joan A. Tober is a powerful reminder that when dealing with an HOA, effectiveness is not always measured by effort. Her story provides three critical takeaways for every homeowner: attorney-client privilege provides HOAs with a strong legal shield, record requests must be specific and targeted to be enforceable, and meticulous personal diligence must be paired with a sound legal strategy to succeed in a formal dispute.
This case leaves every homeowner with a critical question: when you have a dispute, are you channeling your energy into the most effective strategy, or simply into the most effort?
Case Participants
Petitioner Side
Joan A. Tober(petitioner) Former Board member; current Finance Committee member
Respondent Side
Diana J. Elston(HOA attorney) Jones, Skelton & Hochuli, P.L.C.
Mr. Mastrosimone(Board President) Civano 1 Neighborhood 1 Homeowners Association Testified at rehearing
Neutral Parties
Kay A. Abramsohn(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
c. serrano(Clerk)
Felicia Del Sol(Clerk)
LDettorre(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
AHansen(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
djones(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
DGardner(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
ncano(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
The Administrative Law Judge concluded, both in the original decision and the rehearing, that the HOA was the prevailing party. The final decision affirmed that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B), specifically ruling that privileged documents are exempt from disclosure timelines and that the Petitioner's request for 'all background information' was unreasonably broad and unclarified.
Why this result: Petitioner lost because she failed to meet the burden of proof that the HOA violated A.R.S. § 33-1805(A). The primary record sought was protected by attorney-client privilege, and her vague request for 'any and all documentation' made it impossible for the HOA to reasonably comply within the 10-day period.
Key Issues & Findings
HOA violation of requirement to provide association records within ten business days.
Petitioner alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide access to requested documents, including a privileged attorney letter and 'all background information', within the required 10-business day period. The rehearing focused specifically on the timeliness aspect.
Orders: The HOA was deemed the prevailing party in the rehearing, and Petitioner’s appeal was dismissed. The ALJ concluded the HOA acted in compliance with A.R.S. § 33-1805(A) and (B).
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1805(A)
A.R.S. § 33-1805(B)
A.R.S. § 32-2102
A.R.S. § 32-2199
A.R.S. § 32-2199.05
A.R.S. § 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
A.R.S. § 41-2198.01
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Analytics Highlights
Topics: Records Request, Attorney-Client Privilege, A.R.S. 33-1805, Planned Community, Rehearing, Unreasonably Broad Request, Timeliness of Disclosure
Additional Citations:
A.R.S. § 33-1805(A)
A.R.S. § 33-1805(B)
A.R.S. § 32-2102
A.R.S. § 32-2199
A.R.S. § 32-2199.05
A.R.S. § 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
A.R.S. § 41-2198.01
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
The ALJ concluded that the Petitioner failed to meet the required threshold of 21 valid signatures from eligible voters needed to compel the Association to call a special meeting under ARIZ. REV. STAT. § 33-1243. The petition was consequently denied.
Why this result: Petitioner failed to provide the minimum required 21 valid signatures from eligible unit owners (only 13 were valid) as required by the Association's Bylaws and state statute.
Key Issues & Findings
Alleged violation of failure to call a special meeting to remove a board member.
Petitioner filed a petition alleging the Association failed to call a special meeting to remove a board member after collecting what Petitioner believed were sufficient signatures (36 collected, 21 required). The Association countered that only 13 of those signatures were valid (excluding non-owners, duplicates, and delinquent members ineligible to vote).
Orders: Petitioner’s petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1243
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. § 33-1243(H)(4)
ARIZ. REV. STAT. § 33-1243(H)(4)(c)
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA, Condominium, Special Meeting, Board Member Removal, Petition Signature Validity, Voting Rights, Delinquency
Additional Citations:
ARIZ. REV. STAT. § 33-1243
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. § 33-1243(H)(4)
ARIZ. REV. STAT. § 33-1243(H)(4)(c)
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
19F-H1919060-REL Decision – 737890.pdf
Uploaded 2025-10-09T03:34:17 (142.6 KB)
Briefing Doc – 19F-H1919060-REL
Administrative Hearing Briefing: Kelly vs. Cortez Canyon Unit Owners Association
Executive Summary
This document summarizes the Administrative Law Judge Decision in case number 19F-H1919060-REL, a dispute between Petitioner John H. Kelly and the Respondent, Cortez Canyon Unit Owners Association (“the Association”). The core issue was whether the Association violated Arizona state law by refusing to call a special meeting to remove a board member, as demanded by a petition initiated by Mr. Kelly.
The Association’s bylaws require a petition signed by at least 25% of eligible voting members—in this case, 21 of the 84 unit owners—to compel such a meeting. Mr. Kelly submitted a petition with 36 signatures. However, upon review, the Association invalidated 23 signatures for specific reasons: 11 were from non-owner renters, 6 were duplicate signatures from units that had already signed, and 6 were from owners whose voting rights were suspended due to being over 15 days delinquent on payments.
This left only 13 valid signatures, well short of the 21 required. The Administrative Law Judge, Jenna Clark, concluded that the Petitioner failed to meet the burden of proof. The evidence clearly demonstrated that the number of valid signatures was insufficient to legally compel the Association to call a special meeting. Consequently, the judge ruled that the Association did not violate Arizona statute § 33-1243 and denied Mr. Kelly’s petition.
Case Overview
Parties Involved
Name / Entity
Details
Petitioner
John H. Kelly
A condominium owner and member of the Cortez Canyon Unit Owners Association. Appeared on his own behalf.
Respondent
Cortez Canyon Unit Owners Association
The homeowners’ association for the Cortez Canyon condominium development in Phoenix, AZ. Represented by Jonathan A. Dessaules, Esq.
Witness
Saundra Garcia
President of the Association’s Board of Directors.
Adjudicator
Jenna Clark
Administrative Law Judge, Arizona Office of Administrative Hearings.
Core Dispute
The central issue adjudicated was whether the Cortez Canyon Unit Owners Association violated Arizona Revised Statute § 33-1243 by failing to call a special meeting for the purpose of removing a board member after receiving a petition from unit owners. The Petitioner alleged that the required number of signatures had been collected, while the Respondent denied this claim, asserting that the petition lacked the requisite number of valid signatures from eligible voters.
Legal and Governance Framework
The dispute was governed by Arizona state law and the Association’s own internal documents.
• Arizona Revised Statute § 33-1243(H)(4): This statute mandates that an association with 1,000 or fewer members must call a special meeting to remove a board member upon receipt of a petition signed by at least 25% of the eligible voters in the association.
• Association Bylaws, Article II, Section 2: Mirrors the state statute, stipulating that a special meeting may be called by unit owners holding at least 25% of the votes in the Association.
• Association Bylaws, Article II, Section 7: Critically, this section states that a unit owner’s right to vote is automatically suspended if they are in arrears on payments (assessments, penalties, etc.) for a period of 15 days. This suspension remains until all payments are brought current.
Petitioner’s Position and Evidence (John H. Kelly)
Mr. Kelly initiated the petition to recall an Association board member. His position and the evidence he presented are summarized as follows:
• Petition Submission: Mr. Kelly, with assistance from others, collected 36 signatures and submitted them to the Association’s then-property management group, Golden Valley.
• Initial Confirmation: He testified that Golden Valley initially informed him that he had secured enough signatures to compel the special meeting.
• Reversal by New Management: A short time later, after the Association’s contract with Golden Valley expired on June 1, 2019, a new property management company informed him that the petition did not meet the signature threshold.
• Key Admission: Mr. Kelly testified that neither he nor his assistants verified whether the signatories were unit owners eligible to vote prior to submitting the petition.
• Argument at Hearing: Mr. Kelly argued that he had submitted a minimum of 23 valid signatures. This included the signature of Jeffery Law, an owner of six units, which Mr. Kelly contended should be counted six times. However, it was established that Mr. Law’s signature was secured after the initial submission and was never provided to the management company.
• Formal Allegation: In his April 29, 2019, filing with the Department, Mr. Kelly stated: “Cortez Canyon has 84 units and 25% is 21 units. Homeowners have collected more than the required 21 home-owner’s signatures. The Cortez Canyon HOA board has stated that they will not schedule the required special meeting.”
Respondent’s Position and Evidence (Cortez Canyon Association)
The Association, represented by its Board President Saundra Garcia, presented a detailed rebuttal based on a thorough review of the submitted petition.
• Receipt of Petition: The Association received the petition with 36 purported unit owner signatures on or about April 19, 2019.
• Signature Verification Process: Upon review, the Association determined that a significant number of signatures were invalid based on the community’s governing documents.
• Disqualification of Signatures: The Association provided a specific breakdown of the 23 signatures it disqualified:
◦ 11 signatures were removed because they were from non-owner renters or occupants.
◦ 6 signatures were removed because they were from units for which another owner’s signature had already been collected (only one vote is permitted per unit).
◦ 6 signatures were removed because the unit owner was ineligible to vote, being more than 15 days delinquent on fines, fees, or dues owed to the Association, as stipulated in the Bylaws.
• Final Tally: After removing the 23 invalid signatures from the 36 submitted, the Association concluded that the petition contained only 13 valid signatures.
• Conclusion: Since 13 signatures is below the required threshold of 21, the Association determined it was not obligated by law or its bylaws to call the special meeting. The signature from the multi-unit owner, Jeffrey Law, was not part of the petition received by the Association and was therefore not considered in its count.
Administrative Law Judge’s Findings and Ruling
The Administrative Law Judge, Jenna Clark, reviewed the evidence and testimony from both parties and issued a decision decisively in favor of the Respondent.
Conclusions of Law
• Burden of Proof: The Judge established that the Petitioner, John H. Kelly, bore the burden of proving by a “preponderance of the evidence” that the Association had violated the statute. A preponderance of evidence is defined as proof that convinces the trier of fact that a contention is more probably true than not.
• Undisputed Facts: The material facts of the case were not at issue. Both parties agreed that 21 valid signatures were required to compel the special meeting.
• Evidence of Record: The Judge found that the evidence presented demonstrated the Petitioner’s failure to meet the required threshold. The decision states, “While Petitioner is correct that he submitted more than twenty-one signatures to the Association, he is incorrect that all of signatures provided were valid.”
• Final Determination on Signatures: The ruling affirmed the Association’s count, concluding, “What the evidence of record reflects is that Petitioner only provided thirteen valid signatures along with his petition to the Association, which was not enough to compel the Association to call a special meeting.”
Final Order
Based on the failure of the Petitioner to sustain his burden of proof, the Administrative Law Judge issued the following order on September 13, 2019:
IT IS ORDERED that Petitioner’s petition be denied.
Study Guide – 19F-H1919060-REL
Study Guide: Kelly v. Cortez Canyon Unit Owners Association (Case No. 19F-H1919060-REL)
This study guide provides a comprehensive review of the Administrative Law Judge Decision in the matter between Petitioner John H. Kelly and Respondent Cortez Canyon Unit Owners Association. It is designed to test and reinforce understanding of the case’s facts, legal arguments, governing documents, and final outcome.
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Part I: Short-Answer Quiz
Instructions: Answer the following ten questions in two to three complete sentences, based solely on the information provided in the case document.
1. Who were the primary parties involved in this hearing, and what were their respective roles?
2. What was the specific violation of Arizona law alleged by the Petitioner in his initial petition to the Department of Real Estate?
3. How many condominium units are in the Cortez Canyon development, and what number of valid signatures was consequently required to compel a special meeting?
4. According to the Association’s Bylaws, what circumstances would cause a Unit Owner to have their voting rights suspended?
5. List the three categories of invalid signatures that the Association identified in its review of the Petitioner’s submission.
6. Who was Jeffery Law, and why was his signature ultimately not counted by the Association?
7. What was the initial assessment given to the Petitioner by the property management group, Golden Valley, and how did it differ from the Association’s final determination?
8. In this type of legal proceeding, who bears the “burden of proof,” and what standard of proof must be met?
9. What was the Administrative Law Judge’s final conclusion regarding the Petitioner’s claim?
10. What was the final ORDER issued by the Administrative Law Judge in this case?
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Part II: Answer Key
1. The primary parties were John H. Kelly, the “Petitioner,” who appeared on his own behalf, and the Cortez Canyon Unit Owners Association, the “Respondent,” which was represented by Jonathan A. Dessaules, Esq. Administrative Law Judge Jenna Clark presided over the hearing. Saundra Garcia, the Association’s Board President, appeared as a witness for the Respondent.
2. The Petitioner alleged that the Association violated ARIZ. REV. STAT. § 33-1243 by failing to call a special meeting for the purpose of removing a board member. He claimed to have collected the required number of signatures from homeowners to compel such a meeting.
3. The Cortez Canyon development has 84 units. Based on the requirement for signatures from 25% of the votes in the Association, a total of 21 valid Unit Owner signatures were required to compel a special meeting.
4. According to Bylaws Article II, Section 7, a Unit Owner’s right to vote is automatically suspended if the owner is in arrears in the payment of any Assessment, monetary penalties, or other fees for a period of fifteen days. This suspension remains in effect until all payments are brought current.
5. The Association determined that of the 36 submitted signatures, 23 were invalid. The categories for invalidation were: eleven signatures from non-owner renters or occupants, six signatures from units where another signature had already been collected, and six signatures from Unit Owners who were ineligible to vote due to being delinquent on payments.
6. Jeffery Law was an Association member and owner of six condominium units. His signature was not counted because the Petitioner secured it after submitting the petition to the management company and never provided it to the Association as part of the formal submission.
7. The former property management group, Golden Valley, initially informed the Petitioner that he had secured enough valid signatures to compel a special meeting. However, after the Association directly reviewed the petition, it determined that only 13 of the signatures were valid, far short of the required 21.
8. In this proceeding, the Petitioner, John H. Kelly, bore the burden of proof. The standard of proof required was a “preponderance of the evidence,” which means providing evidence that is more convincing and has superior weight than the evidence presented by the opposing side.
9. The Administrative Law Judge concluded that the Petitioner failed to sustain his burden of proof. The credible evidence demonstrated that the Petitioner submitted only thirteen valid signatures, which was insufficient to compel the Association to call a special meeting under its Bylaws and state law.
10. The final ORDER, based on the Findings of Fact and Conclusions of Law, was that the Petitioner’s petition be denied.
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Part III: Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. They require a deeper analysis of the case’s themes, legal principles, and procedural elements. Do not provide answers.
1. Analyze the concept of “burden of proof” as it applies to this case. Explain what “preponderance of the evidence” means in this context, who held the burden, and how the failure to meet this standard was the central reason for the judge’s final decision.
2. Discuss the critical importance of an association’s governing documents (CC&Rs and Bylaws) in resolving internal disputes. Use specific articles and sections from the Cortez Canyon Bylaws to illustrate how they definitively established the rules for calling a special meeting and determining voter eligibility, leaving little room for interpretation.
3. Evaluate the Petitioner’s strategy and execution in collecting signatures for his petition. Identify the critical errors he and his assistants made in the process, and outline the specific steps he could have taken to verify signatures and ensure his petition was valid before its submission.
4. Explain the legal and practical distinctions between a Unit Owner, an occupant/renter, and an “eligible voter” within the context of the Cortez Canyon Unit Owners Association. How did the Petitioner’s failure to understand these distinctions become the central point of failure for his petition?
5. Imagine you are advising the Cortez Canyon Board of Directors following this hearing. Based on the evidence and outcome of the case, what recommendations would you make regarding their procedures for validating petitions and their communication with Unit Owners about voting rights, petition requirements, and the consequences of financial delinquency?
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Part IV: Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official (Jenna Clark) who presides over hearings at the Office of Administrative Hearings, reviews evidence, and makes legal findings and conclusions.
Answer
The formal written response filed by the Respondent (the Association) on May 28, 2019, denying the Petitioner’s allegations.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. The specific statute at issue was § 33-1243.
Association
The Cortez Canyon Unit Owners Association, the governing body for the condominium development, comprised of all unit owners.
Board of Directors (the Board)
The group of individuals that oversees the Association, as empowered by the CC&Rs. The petition sought to remove a member of this board.
Burden of Proof
The legal obligation on one party in a dispute (in this case, the Petitioner) to provide sufficient evidence to prove their claim.
Bylaws
The set of rules adopted by the Association on June 14, 2000, that govern its internal operations, including meetings and voting rights.
Covenants, Conditions, and Restrictions (CC&Rs)
The primary governing documents for the development, recorded on May 9, 2000, which form an enforceable contract between the Association and each property owner.
Department
The Arizona Department of Real Estate, the state agency authorized to receive and decide petitions from members of homeowners’ associations.
Eligible Votes
A term defined in the Bylaws as the total number of votes that can be lawfully cast, excluding those from members whose voting rights are suspended.
Findings of Fact
The section of the legal decision that outlines the established, undisputed facts of the case based on the hearing evidence.
OAH (Office of Administrative Hearings)
An independent state agency where evidentiary hearings are conducted by Administrative Law Judges.
The final, legally binding command issued by the judge at the conclusion of the decision. In this case, the Order was to deny the petition.
Petitioner
The party who initiates a legal action by filing a petition. In this case, John H. Kelly.
Petition
The formal document filed by the Petitioner on April 29, 2019, with the Department to initiate the hearing process against the Association.
Preponderance of the Evidence
The standard of proof required in this case, meaning that the evidence must be sufficient to convince the judge that the contention is more probably true than not.
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, the Cortez Canyon Unit Owners Association.
Special Meeting
A meeting of Association members called for a specific purpose outside of the regularly scheduled meetings. The petition sought to compel a special meeting to remove a board member.
Unit Owner
An individual who holds legal title to a condominium within the Cortez Canyon development and is a member of the Association.
Blog Post – 19F-H1919060-REL
He Gathered 36 Signatures to Oust His HOA Board. Here’s Why Only 13 Counted.
Introduction: The Power and Pitfalls of Community Action
Many homeowners have felt the frustration of trying to enact change within their community, especially when it involves challenging the decisions of a Homeowners Association (HOA) board. It can feel like an uphill battle, but the right to petition and call for special meetings is a cornerstone of community governance.
However, a real-world case involving homeowner John H. Kelly and the Cortez Canyon Unit Owners Association serves as a critical cautionary tale. Mr. Kelly gathered what he believed were more than enough signatures to force a special meeting to remove a board member. Despite his significant effort, his petition failed spectacularly. This article breaks down the key legal and procedural reasons why, offering essential lessons for every homeowner.
1. Not All Signatures Are Created Equal: The Validity Gauntlet
The core of the issue began with a simple numbers game. The Cortez Canyon HOA has 84 units, meaning a petition required signatures from 25%, or 21, of the unit owners to compel a special meeting. Mr. Kelly successfully collected 36 signatures—a number that seemed to guarantee his success.
In a moment of false victory, the association’s property management company at the time, Golden Valley, informed Mr. Kelly that he had indeed secured enough signatures. But this assurance was short-lived. A new management company took over, and after a formal review, the association delivered devastating news: only 13 of the 36 signatures were valid. The petition was dead on arrival.
The association disqualified 23 signatures for specific, documented reasons:
• Non-Owners: Eleven signatures were from renters or other residential occupants who were not the legal owners of the unit.
• Duplicate Units: Six signatures were removed because another signature had already been collected from the same unit, upholding the “one vote per unit” principle.
• Ineligible Owners: Six signatures were from homeowners who were technically owners but were found to be ineligible to vote at the time they signed.
This reveals the petitioner’s first critical, and ultimately fatal, assumption: that the HOA would do the work of verifying his supporters. In reality, the burden of proof was his alone. The legal findings state it plainly: “Neither Petitioner nor his assistants verified if the signatures that were collected belonged to Unit Owners eligible to vote.” From a governance perspective, this initial culling of signatures is where most grassroots community efforts fail.
2. The Fine Print That Disenfranchises: “Good Standing” and Your Right to Vote
Here, we find the kind of boilerplate legal language that is often ignored by homeowners but wielded with immense power by boards. The ineligibility of six homeowners stemmed from a specific clause in the association’s bylaws related to financial standing.
The bylaw states:
“In the event any Unit Owner is in arrears in the payment of any Assessment, monetary penalties or other fees and charges due under the terms of the Condominium Documents for a period of fifteen (15) days, the Unit Owner’s right to vote as a member of the Association shall be automatically suspended…”
This single provision had a profound impact. Six of the signatures Mr. Kelly collected were from homeowners who were more than 15 days late on their dues or fines. Their voting rights were suspended, and their signatures were rendered invalid. This highlights a crucial preparatory step for any petitioner: confidentially requesting a list of members in good standing from the association before collecting signatures, if the governing documents allow, or at minimum, reminding potential signatories to ensure their accounts are current.
3. Process is Paramount: The Signature That Never Was
Facing a losing battle at the administrative hearing, the petitioner made a final argument to salvage his petition. He contended that he had also secured the signature of a member named Jeffrey Law, who owned six separate units. Mr. Kelly argued this single signature should count as six votes, which would have put him over the required threshold.
However, this argument failed due to a simple but fatal procedural error. According to the court’s findings, the signature from Mr. Law was never actually submitted with the petition to the association.
The Administrative Law Judge’s finding was unambiguous: “The signature Petitioner collected from the multiple unit owner, Jeffrey Law, was not a part of the petition received by the Association and therefore was not counted.” This procedural error, while seemingly minor, is an absolute bar to success in administrative law. Unlike a casual disagreement, there is no room for “I meant to” or “I thought I had.”
Conclusion: Knowledge is Power in an HOA
Because the petitioner could only provide 13 valid signatures instead of the required 21, the Administrative Law Judge denied his petition. The HOA was not required to call the special meeting, and the board member remained in place. Mr. Kelly’s story is a powerful reminder that enthusiasm and effort are not enough to navigate the complexities of community governance. The case provides three clear takeaways for any homeowner:
1. Quality Over Quantity: A short, verified list of eligible voters is infinitely more powerful than a long list of unverified names.
2. Bylaws are Your Battlefield: The governing documents contain the rules of engagement. Ignoring them—especially clauses on voter eligibility—is a unilateral surrender.
3. Documentation is Everything: If it wasn’t formally submitted to the correct party, it legally never happened. Your ability to prove submission is as important as the submission itself.
This case is a powerful reminder that enthusiasm and effort aren’t enough. The real question every homeowner should ask is: Do you truly know the rules that govern your rights in your own community?
Case Participants
Petitioner Side
John H. Kelly(petitioner)
Respondent Side
Jonathan A. Dessaules(attorney) Dessaules Law Group Appeared on behalf of Respondent
Saundra Garcia(board member) Cortez Canyon Unit Owners Association Called as a witness and testified as Board President
Jacob A. Kubert(attorney) Dessaules Law Group Counsel receiving notice of decision
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted to Commissioner
Other Participants
Jeffery Law(owner) Cortez Canyon Unit Owners Association Unit owner whose signature Petitioner secured but was not submitted to the Association
The ALJ concluded that the Petitioner failed to meet the required threshold of 21 valid signatures from eligible voters needed to compel the Association to call a special meeting under ARIZ. REV. STAT. § 33-1243. The petition was consequently denied.
Why this result: Petitioner failed to provide the minimum required 21 valid signatures from eligible unit owners (only 13 were valid) as required by the Association's Bylaws and state statute.
Key Issues & Findings
Alleged violation of failure to call a special meeting to remove a board member.
Petitioner filed a petition alleging the Association failed to call a special meeting to remove a board member after collecting what Petitioner believed were sufficient signatures (36 collected, 21 required). The Association countered that only 13 of those signatures were valid (excluding non-owners, duplicates, and delinquent members ineligible to vote).
Orders: Petitioner’s petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1243
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. § 33-1243(H)(4)
ARIZ. REV. STAT. § 33-1243(H)(4)(c)
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA, Condominium, Special Meeting, Board Member Removal, Petition Signature Validity, Voting Rights, Delinquency
Additional Citations:
ARIZ. REV. STAT. § 33-1243
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. § 33-1243(H)(4)
ARIZ. REV. STAT. § 33-1243(H)(4)(c)
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
19F-H1919060-REL Decision – 737890.pdf
Uploaded 2026-01-23T17:29:30 (142.6 KB)
Briefing Doc – 19F-H1919060-REL
Administrative Hearing Briefing: Kelly vs. Cortez Canyon Unit Owners Association
Executive Summary
This document summarizes the Administrative Law Judge Decision in case number 19F-H1919060-REL, a dispute between Petitioner John H. Kelly and the Respondent, Cortez Canyon Unit Owners Association (“the Association”). The core issue was whether the Association violated Arizona state law by refusing to call a special meeting to remove a board member, as demanded by a petition initiated by Mr. Kelly.
The Association’s bylaws require a petition signed by at least 25% of eligible voting members—in this case, 21 of the 84 unit owners—to compel such a meeting. Mr. Kelly submitted a petition with 36 signatures. However, upon review, the Association invalidated 23 signatures for specific reasons: 11 were from non-owner renters, 6 were duplicate signatures from units that had already signed, and 6 were from owners whose voting rights were suspended due to being over 15 days delinquent on payments.
This left only 13 valid signatures, well short of the 21 required. The Administrative Law Judge, Jenna Clark, concluded that the Petitioner failed to meet the burden of proof. The evidence clearly demonstrated that the number of valid signatures was insufficient to legally compel the Association to call a special meeting. Consequently, the judge ruled that the Association did not violate Arizona statute § 33-1243 and denied Mr. Kelly’s petition.
Case Overview
Parties Involved
Name / Entity
Details
Petitioner
John H. Kelly
A condominium owner and member of the Cortez Canyon Unit Owners Association. Appeared on his own behalf.
Respondent
Cortez Canyon Unit Owners Association
The homeowners’ association for the Cortez Canyon condominium development in Phoenix, AZ. Represented by Jonathan A. Dessaules, Esq.
Witness
Saundra Garcia
President of the Association’s Board of Directors.
Adjudicator
Jenna Clark
Administrative Law Judge, Arizona Office of Administrative Hearings.
Core Dispute
The central issue adjudicated was whether the Cortez Canyon Unit Owners Association violated Arizona Revised Statute § 33-1243 by failing to call a special meeting for the purpose of removing a board member after receiving a petition from unit owners. The Petitioner alleged that the required number of signatures had been collected, while the Respondent denied this claim, asserting that the petition lacked the requisite number of valid signatures from eligible voters.
Legal and Governance Framework
The dispute was governed by Arizona state law and the Association’s own internal documents.
• Arizona Revised Statute § 33-1243(H)(4): This statute mandates that an association with 1,000 or fewer members must call a special meeting to remove a board member upon receipt of a petition signed by at least 25% of the eligible voters in the association.
• Association Bylaws, Article II, Section 2: Mirrors the state statute, stipulating that a special meeting may be called by unit owners holding at least 25% of the votes in the Association.
• Association Bylaws, Article II, Section 7: Critically, this section states that a unit owner’s right to vote is automatically suspended if they are in arrears on payments (assessments, penalties, etc.) for a period of 15 days. This suspension remains until all payments are brought current.
Petitioner’s Position and Evidence (John H. Kelly)
Mr. Kelly initiated the petition to recall an Association board member. His position and the evidence he presented are summarized as follows:
• Petition Submission: Mr. Kelly, with assistance from others, collected 36 signatures and submitted them to the Association’s then-property management group, Golden Valley.
• Initial Confirmation: He testified that Golden Valley initially informed him that he had secured enough signatures to compel the special meeting.
• Reversal by New Management: A short time later, after the Association’s contract with Golden Valley expired on June 1, 2019, a new property management company informed him that the petition did not meet the signature threshold.
• Key Admission: Mr. Kelly testified that neither he nor his assistants verified whether the signatories were unit owners eligible to vote prior to submitting the petition.
• Argument at Hearing: Mr. Kelly argued that he had submitted a minimum of 23 valid signatures. This included the signature of Jeffery Law, an owner of six units, which Mr. Kelly contended should be counted six times. However, it was established that Mr. Law’s signature was secured after the initial submission and was never provided to the management company.
• Formal Allegation: In his April 29, 2019, filing with the Department, Mr. Kelly stated: “Cortez Canyon has 84 units and 25% is 21 units. Homeowners have collected more than the required 21 home-owner’s signatures. The Cortez Canyon HOA board has stated that they will not schedule the required special meeting.”
Respondent’s Position and Evidence (Cortez Canyon Association)
The Association, represented by its Board President Saundra Garcia, presented a detailed rebuttal based on a thorough review of the submitted petition.
• Receipt of Petition: The Association received the petition with 36 purported unit owner signatures on or about April 19, 2019.
• Signature Verification Process: Upon review, the Association determined that a significant number of signatures were invalid based on the community’s governing documents.
• Disqualification of Signatures: The Association provided a specific breakdown of the 23 signatures it disqualified:
◦ 11 signatures were removed because they were from non-owner renters or occupants.
◦ 6 signatures were removed because they were from units for which another owner’s signature had already been collected (only one vote is permitted per unit).
◦ 6 signatures were removed because the unit owner was ineligible to vote, being more than 15 days delinquent on fines, fees, or dues owed to the Association, as stipulated in the Bylaws.
• Final Tally: After removing the 23 invalid signatures from the 36 submitted, the Association concluded that the petition contained only 13 valid signatures.
• Conclusion: Since 13 signatures is below the required threshold of 21, the Association determined it was not obligated by law or its bylaws to call the special meeting. The signature from the multi-unit owner, Jeffrey Law, was not part of the petition received by the Association and was therefore not considered in its count.
Administrative Law Judge’s Findings and Ruling
The Administrative Law Judge, Jenna Clark, reviewed the evidence and testimony from both parties and issued a decision decisively in favor of the Respondent.
Conclusions of Law
• Burden of Proof: The Judge established that the Petitioner, John H. Kelly, bore the burden of proving by a “preponderance of the evidence” that the Association had violated the statute. A preponderance of evidence is defined as proof that convinces the trier of fact that a contention is more probably true than not.
• Undisputed Facts: The material facts of the case were not at issue. Both parties agreed that 21 valid signatures were required to compel the special meeting.
• Evidence of Record: The Judge found that the evidence presented demonstrated the Petitioner’s failure to meet the required threshold. The decision states, “While Petitioner is correct that he submitted more than twenty-one signatures to the Association, he is incorrect that all of signatures provided were valid.”
• Final Determination on Signatures: The ruling affirmed the Association’s count, concluding, “What the evidence of record reflects is that Petitioner only provided thirteen valid signatures along with his petition to the Association, which was not enough to compel the Association to call a special meeting.”
Final Order
Based on the failure of the Petitioner to sustain his burden of proof, the Administrative Law Judge issued the following order on September 13, 2019:
IT IS ORDERED that Petitioner’s petition be denied.
Study Guide – 19F-H1919060-REL
Study Guide: Kelly v. Cortez Canyon Unit Owners Association (Case No. 19F-H1919060-REL)
This study guide provides a comprehensive review of the Administrative Law Judge Decision in the matter between Petitioner John H. Kelly and Respondent Cortez Canyon Unit Owners Association. It is designed to test and reinforce understanding of the case’s facts, legal arguments, governing documents, and final outcome.
——————————————————————————–
Part I: Short-Answer Quiz
Instructions: Answer the following ten questions in two to three complete sentences, based solely on the information provided in the case document.
1. Who were the primary parties involved in this hearing, and what were their respective roles?
2. What was the specific violation of Arizona law alleged by the Petitioner in his initial petition to the Department of Real Estate?
3. How many condominium units are in the Cortez Canyon development, and what number of valid signatures was consequently required to compel a special meeting?
4. According to the Association’s Bylaws, what circumstances would cause a Unit Owner to have their voting rights suspended?
5. List the three categories of invalid signatures that the Association identified in its review of the Petitioner’s submission.
6. Who was Jeffery Law, and why was his signature ultimately not counted by the Association?
7. What was the initial assessment given to the Petitioner by the property management group, Golden Valley, and how did it differ from the Association’s final determination?
8. In this type of legal proceeding, who bears the “burden of proof,” and what standard of proof must be met?
9. What was the Administrative Law Judge’s final conclusion regarding the Petitioner’s claim?
10. What was the final ORDER issued by the Administrative Law Judge in this case?
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Part II: Answer Key
1. The primary parties were John H. Kelly, the “Petitioner,” who appeared on his own behalf, and the Cortez Canyon Unit Owners Association, the “Respondent,” which was represented by Jonathan A. Dessaules, Esq. Administrative Law Judge Jenna Clark presided over the hearing. Saundra Garcia, the Association’s Board President, appeared as a witness for the Respondent.
2. The Petitioner alleged that the Association violated ARIZ. REV. STAT. § 33-1243 by failing to call a special meeting for the purpose of removing a board member. He claimed to have collected the required number of signatures from homeowners to compel such a meeting.
3. The Cortez Canyon development has 84 units. Based on the requirement for signatures from 25% of the votes in the Association, a total of 21 valid Unit Owner signatures were required to compel a special meeting.
4. According to Bylaws Article II, Section 7, a Unit Owner’s right to vote is automatically suspended if the owner is in arrears in the payment of any Assessment, monetary penalties, or other fees for a period of fifteen days. This suspension remains in effect until all payments are brought current.
5. The Association determined that of the 36 submitted signatures, 23 were invalid. The categories for invalidation were: eleven signatures from non-owner renters or occupants, six signatures from units where another signature had already been collected, and six signatures from Unit Owners who were ineligible to vote due to being delinquent on payments.
6. Jeffery Law was an Association member and owner of six condominium units. His signature was not counted because the Petitioner secured it after submitting the petition to the management company and never provided it to the Association as part of the formal submission.
7. The former property management group, Golden Valley, initially informed the Petitioner that he had secured enough valid signatures to compel a special meeting. However, after the Association directly reviewed the petition, it determined that only 13 of the signatures were valid, far short of the required 21.
8. In this proceeding, the Petitioner, John H. Kelly, bore the burden of proof. The standard of proof required was a “preponderance of the evidence,” which means providing evidence that is more convincing and has superior weight than the evidence presented by the opposing side.
9. The Administrative Law Judge concluded that the Petitioner failed to sustain his burden of proof. The credible evidence demonstrated that the Petitioner submitted only thirteen valid signatures, which was insufficient to compel the Association to call a special meeting under its Bylaws and state law.
10. The final ORDER, based on the Findings of Fact and Conclusions of Law, was that the Petitioner’s petition be denied.
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Part III: Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. They require a deeper analysis of the case’s themes, legal principles, and procedural elements. Do not provide answers.
1. Analyze the concept of “burden of proof” as it applies to this case. Explain what “preponderance of the evidence” means in this context, who held the burden, and how the failure to meet this standard was the central reason for the judge’s final decision.
2. Discuss the critical importance of an association’s governing documents (CC&Rs and Bylaws) in resolving internal disputes. Use specific articles and sections from the Cortez Canyon Bylaws to illustrate how they definitively established the rules for calling a special meeting and determining voter eligibility, leaving little room for interpretation.
3. Evaluate the Petitioner’s strategy and execution in collecting signatures for his petition. Identify the critical errors he and his assistants made in the process, and outline the specific steps he could have taken to verify signatures and ensure his petition was valid before its submission.
4. Explain the legal and practical distinctions between a Unit Owner, an occupant/renter, and an “eligible voter” within the context of the Cortez Canyon Unit Owners Association. How did the Petitioner’s failure to understand these distinctions become the central point of failure for his petition?
5. Imagine you are advising the Cortez Canyon Board of Directors following this hearing. Based on the evidence and outcome of the case, what recommendations would you make regarding their procedures for validating petitions and their communication with Unit Owners about voting rights, petition requirements, and the consequences of financial delinquency?
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Part IV: Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official (Jenna Clark) who presides over hearings at the Office of Administrative Hearings, reviews evidence, and makes legal findings and conclusions.
Answer
The formal written response filed by the Respondent (the Association) on May 28, 2019, denying the Petitioner’s allegations.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. The specific statute at issue was § 33-1243.
Association
The Cortez Canyon Unit Owners Association, the governing body for the condominium development, comprised of all unit owners.
Board of Directors (the Board)
The group of individuals that oversees the Association, as empowered by the CC&Rs. The petition sought to remove a member of this board.
Burden of Proof
The legal obligation on one party in a dispute (in this case, the Petitioner) to provide sufficient evidence to prove their claim.
Bylaws
The set of rules adopted by the Association on June 14, 2000, that govern its internal operations, including meetings and voting rights.
Covenants, Conditions, and Restrictions (CC&Rs)
The primary governing documents for the development, recorded on May 9, 2000, which form an enforceable contract between the Association and each property owner.
Department
The Arizona Department of Real Estate, the state agency authorized to receive and decide petitions from members of homeowners’ associations.
Eligible Votes
A term defined in the Bylaws as the total number of votes that can be lawfully cast, excluding those from members whose voting rights are suspended.
Findings of Fact
The section of the legal decision that outlines the established, undisputed facts of the case based on the hearing evidence.
OAH (Office of Administrative Hearings)
An independent state agency where evidentiary hearings are conducted by Administrative Law Judges.
The final, legally binding command issued by the judge at the conclusion of the decision. In this case, the Order was to deny the petition.
Petitioner
The party who initiates a legal action by filing a petition. In this case, John H. Kelly.
Petition
The formal document filed by the Petitioner on April 29, 2019, with the Department to initiate the hearing process against the Association.
Preponderance of the Evidence
The standard of proof required in this case, meaning that the evidence must be sufficient to convince the judge that the contention is more probably true than not.
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, the Cortez Canyon Unit Owners Association.
Special Meeting
A meeting of Association members called for a specific purpose outside of the regularly scheduled meetings. The petition sought to compel a special meeting to remove a board member.
Unit Owner
An individual who holds legal title to a condominium within the Cortez Canyon development and is a member of the Association.
Blog Post – 19F-H1919060-REL
He Gathered 36 Signatures to Oust His HOA Board. Here’s Why Only 13 Counted.
Introduction: The Power and Pitfalls of Community Action
Many homeowners have felt the frustration of trying to enact change within their community, especially when it involves challenging the decisions of a Homeowners Association (HOA) board. It can feel like an uphill battle, but the right to petition and call for special meetings is a cornerstone of community governance.
However, a real-world case involving homeowner John H. Kelly and the Cortez Canyon Unit Owners Association serves as a critical cautionary tale. Mr. Kelly gathered what he believed were more than enough signatures to force a special meeting to remove a board member. Despite his significant effort, his petition failed spectacularly. This article breaks down the key legal and procedural reasons why, offering essential lessons for every homeowner.
1. Not All Signatures Are Created Equal: The Validity Gauntlet
The core of the issue began with a simple numbers game. The Cortez Canyon HOA has 84 units, meaning a petition required signatures from 25%, or 21, of the unit owners to compel a special meeting. Mr. Kelly successfully collected 36 signatures—a number that seemed to guarantee his success.
In a moment of false victory, the association’s property management company at the time, Golden Valley, informed Mr. Kelly that he had indeed secured enough signatures. But this assurance was short-lived. A new management company took over, and after a formal review, the association delivered devastating news: only 13 of the 36 signatures were valid. The petition was dead on arrival.
The association disqualified 23 signatures for specific, documented reasons:
• Non-Owners: Eleven signatures were from renters or other residential occupants who were not the legal owners of the unit.
• Duplicate Units: Six signatures were removed because another signature had already been collected from the same unit, upholding the “one vote per unit” principle.
• Ineligible Owners: Six signatures were from homeowners who were technically owners but were found to be ineligible to vote at the time they signed.
This reveals the petitioner’s first critical, and ultimately fatal, assumption: that the HOA would do the work of verifying his supporters. In reality, the burden of proof was his alone. The legal findings state it plainly: “Neither Petitioner nor his assistants verified if the signatures that were collected belonged to Unit Owners eligible to vote.” From a governance perspective, this initial culling of signatures is where most grassroots community efforts fail.
2. The Fine Print That Disenfranchises: “Good Standing” and Your Right to Vote
Here, we find the kind of boilerplate legal language that is often ignored by homeowners but wielded with immense power by boards. The ineligibility of six homeowners stemmed from a specific clause in the association’s bylaws related to financial standing.
The bylaw states:
“In the event any Unit Owner is in arrears in the payment of any Assessment, monetary penalties or other fees and charges due under the terms of the Condominium Documents for a period of fifteen (15) days, the Unit Owner’s right to vote as a member of the Association shall be automatically suspended…”
This single provision had a profound impact. Six of the signatures Mr. Kelly collected were from homeowners who were more than 15 days late on their dues or fines. Their voting rights were suspended, and their signatures were rendered invalid. This highlights a crucial preparatory step for any petitioner: confidentially requesting a list of members in good standing from the association before collecting signatures, if the governing documents allow, or at minimum, reminding potential signatories to ensure their accounts are current.
3. Process is Paramount: The Signature That Never Was
Facing a losing battle at the administrative hearing, the petitioner made a final argument to salvage his petition. He contended that he had also secured the signature of a member named Jeffrey Law, who owned six separate units. Mr. Kelly argued this single signature should count as six votes, which would have put him over the required threshold.
However, this argument failed due to a simple but fatal procedural error. According to the court’s findings, the signature from Mr. Law was never actually submitted with the petition to the association.
The Administrative Law Judge’s finding was unambiguous: “The signature Petitioner collected from the multiple unit owner, Jeffrey Law, was not a part of the petition received by the Association and therefore was not counted.” This procedural error, while seemingly minor, is an absolute bar to success in administrative law. Unlike a casual disagreement, there is no room for “I meant to” or “I thought I had.”
Conclusion: Knowledge is Power in an HOA
Because the petitioner could only provide 13 valid signatures instead of the required 21, the Administrative Law Judge denied his petition. The HOA was not required to call the special meeting, and the board member remained in place. Mr. Kelly’s story is a powerful reminder that enthusiasm and effort are not enough to navigate the complexities of community governance. The case provides three clear takeaways for any homeowner:
1. Quality Over Quantity: A short, verified list of eligible voters is infinitely more powerful than a long list of unverified names.
2. Bylaws are Your Battlefield: The governing documents contain the rules of engagement. Ignoring them—especially clauses on voter eligibility—is a unilateral surrender.
3. Documentation is Everything: If it wasn’t formally submitted to the correct party, it legally never happened. Your ability to prove submission is as important as the submission itself.
This case is a powerful reminder that enthusiasm and effort aren’t enough. The real question every homeowner should ask is: Do you truly know the rules that govern your rights in your own community?
Case Participants
Petitioner Side
John H. Kelly(petitioner)
Respondent Side
Jonathan A. Dessaules(attorney) Dessaules Law Group Appeared on behalf of Respondent
Saundra Garcia(board member) Cortez Canyon Unit Owners Association Called as a witness and testified as Board President
Jacob A. Kubert(attorney) Dessaules Law Group Counsel receiving notice of decision
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted to Commissioner
Other Participants
Jeffery Law(owner) Cortez Canyon Unit Owners Association Unit owner whose signature Petitioner secured but was not submitted to the Association
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
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
19F-H1918017-REL Decision – 698354.pdf
Uploaded 2025-10-09T03:33:35 (137.2 KB)
Briefing Doc – 19F-H1918017-REL
Briefing Document: Brokaw v. Sin Vacas Property Owners Association (Case No. 19F-H1918017-REL)
Executive Summary
This document synthesizes the findings of the Administrative Law Judge Decision in the case of Loraine Brokaw versus the Sin Vacas Property Owners Association (POA). The central conflict concerned the POA Board’s decision to increase Ms. Brokaw’s annual assessment from 150% to 200% for a single residence constructed across two separate lots.
The Petitioner, Ms. Brokaw, argued that this increase was unlawful and capricious, violating a nearly thirty-year practice that had been formalized by a 2003 Board decision granting her a reduced assessment. The POA contended that its action, taken on the advice of counsel, was necessary to comply with the Association’s governing documents, which mandate uniform assessments for all lots.
The Administrative Law Judge (ALJ) ultimately denied the homeowner’s petition. The decision established a critical legal precedent for the Association: the unambiguous language of the governing Covenants, Conditions, and Restrictions (CC&Rs) takes precedence over any past Board decisions, informal agreements, or long-standing practices, regardless of their duration. Because the Petitioner owns two distinct, legally unconsolidated lots, the ALJ found that the Board’s action to assess each lot at the full, uniform rate was not a violation, but rather a correct and required application of the community’s Bylaws.
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I. Case Overview
• Parties: Loraine Brokaw (Petitioner) vs. Sin Vacas Property Owners Association (Respondent).
• Jurisdiction: Office of Administrative Hearings (OAH), State of Arizona.
• Case Number: 19F-H1918017-REL.
• Presiding Judge: Administrative Law Judge Jenna Clark.
• Hearing Date: March 25, 2019.
• Decision Date: April 01, 2019.
II. Central Issue of the Dispute
The hearing was convened to address the following issue, as stated in the NOTICE OF HEARING:
“Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements based on utterly flawed legal theory, which, in fact, changed from attorney to attorney.”
The core of the dispute was the Association Board’s decision in 2017 to increase the annual assessment for the Petitioner’s property—a single home built across two adjacent lots—from 150% to 200% of the standard single-lot assessment rate. The Petitioner sought to compel the Board to revert to the 150% assessment schedule and reimburse her for costs associated with the petition.
III. Petitioner’s Position and Key Testimony
• Property History: The Petitioner testified that her husband first bought property in Sin Vacas in 1979. In 2003, the couple purchased an adjacent lot and constructed a new home that spanned across both properties (Lots 156 and 157).
• Claim of Lot Combination: The Petitioner claimed to have legally combined the two lots but presented no supporting documentation to the tribunal.
• Historical Assessment Practice: The Petitioner testified that as of 2003, the Association’s practice was to assess properties as follows:
◦ 100%: For a home on a single lot.
◦ 25%: For an undeveloped vacant lot.
◦ 150%: For a residence situated on two lots.
• 2003 Board Decision: On March 24, 2003, the Petitioner received written confirmation from the Board that it had voted to grant her a reduced assessment of 150%, formalizing the existing practice for her property.
• 2017 Assessment Change: On or about December 4, 2017, the Petitioner received a letter from the Association’s management company advising that the Board had decided to raise her assessment to 200%, citing “advice of counsel.”
• Rationale for Increase: The Petitioner stated she was given varying reasons for the change but was ultimately informed that the Board determined all plats needed to be assessed uniformly according to the Association’s governing documents. She was also told that to be assessed as a single lot, she would need to formally combine the lots on the county plat map, a process estimated to cost between $3,000 and $10,000 and require the permission of every other homeowner in the community.
IV. Respondent’s Position
The Sin Vacas Property Owners Association declined to present witnesses or exhibits. Its position at the hearing was that the dispute arose from differing interpretations of the language within the governing Bylaws. The Association’s counsel stated that the matter would be resolved based on the tribunal’s interpretation of the relevant governing texts.
V. Analysis of Governing Documents
The decision rested heavily on the interpretation of the Association’s Covenants, Conditions, and Restrictions (CC&Rs), recorded on April 13, 1978.
Document Section
Key Provision
Relevance to the Case
Bylaws Article I, Section 5
Defines a “Lot” as “any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties.”
This established that the Petitioner’s two properties, being separately numbered on the subdivision map, constitute two distinct lots for assessment purposes.
Bylaws Article IV, Section 6
“Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”
This clause was central to the Judge’s decision. It establishes a clear mandate for uniformity in assessments across all lots of the same type (CR-1), which the 150% rate violated by treating two CR-1 lots differently from others.
Bylaws Article IV, Section 7
States the Board of Directors shall “fix the amount of the annual assessment against each Lot.”
This empowers the Board to set assessments but reinforces that they must do so on a per-lot basis, consistent with the uniformity requirement.
VI. Judge’s Findings and Conclusions of Law
The Administrative Law Judge made the following key determinations, leading to the denial of the petition:
• Failure to Meet Burden of Proof: The Petitioner failed to prove by a preponderance of the evidence that the Association violated community documents or Arizona statutes.
• Undisputed Material Facts: The Judge found it undisputed that:
1. The Petitioner owns two distinct CR-1 lots (Lot 156 and Lot 157).
2. The lots have never been legally combined or consolidated on the Pima County Assessor’s plat map.
3. The Petitioner’s residence is constructed across both lots.
• Primacy of Governing Documents: The central conclusion of the decision was that the Association’s governing documents supersede any past Board decisions or long-standing informal agreements. The Judge stated:
• Uniformity is Mandatory: The Bylaws require that the Association assess all developed CR-1 lots at a uniform rate. By assessing both of the Petitioner’s lots at the same full rate as every other developed CR-1 lot, the Association was found to be complying with the Declaration.
• Board’s Action as Corrective: The 2017 Board’s action was not a breach of contract or an unlawful act. Instead, it was an appropriate correction of the previous Board’s 2003 order, which was inconsistent with the Bylaws’ uniformity mandate. The Petitioner’s argument that the 2003 order should supersede the 2017 order was deemed inaccurate.
VII. Final Order
Based on the findings and legal conclusions, the Administrative Law Judge ordered that the Petitioner’s petition be denied.
The decision affirmed that the Sin Vacas Property Owners Association Board’s action to uniformly assess all CR-1 lots did not violate Arizona state law (ARIZ. REV. STAT. § 33-1803) or the Association’s Bylaws.
Study Guide – 19F-H1918017-REL
Study Guide: Brokaw v. Sin Vacas Property Owners Association
This guide reviews the key facts, legal arguments, and final ruling in the administrative hearing case No. 19F-H1918017-REL, Loraine Brokaw v. Sin Vacas Property Owners Association.
Short-Answer Quiz
Answer each question in 2-3 sentences, based on the provided source document.
1. Who were the primary parties involved in the hearing, and what were their respective roles?
2. What specific relief did the Petitioner request from the Office of Administrative Hearings?
3. What specific action taken by the Respondent prompted the Petitioner to file her petition?
4. Describe the assessment practice that the Sin Vacas Board had in place for the Petitioner’s property from 2003 until the change in 2017.
5. What was the Association’s stated reason for increasing the Petitioner’s assessment from 150% to 200%?
6. According to the Association’s Bylaws, what is the rule for how special assessments must be fixed and apportioned?
7. On what grounds did the Administrative Law Judge determine that the Petitioner owned two separate lots?
8. What is the legal standard of proof required in this case, and did the Petitioner successfully meet it?
9. Why did the Judge rule that the 2003 Board Order reducing the Petitioner’s assessment was not a binding contract?
10. What was the final order issued by the Administrative Law Judge in this matter?
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Answer Key
1. The primary parties were Loraine Brokaw, the Petitioner, who brought the action, and the Sin Vacas Property Owners Association, the Respondent. The case was heard by Administrative Law Judge Jenna Clark from the Office of Administrative Hearings.
2. The Petitioner requested that the Association’s Board be compelled to honor the 30-year assessment schedule and charge her the 150% assessment rate. She also requested that the Board reimburse her for the costs of bringing the petition.
3. The Petitioner filed her petition after receiving a letter on or about December 4, 2017, from the Association’s management company. This letter advised her that the Board had decided to raise her assessment from 150% to 200% based on “advice of counsel.”
4. Beginning in 2003, the Association assessed a home on a single lot at 100%, an undeveloped vacant lot at 25%, and a residence spanning two lots, like the Petitioner’s, at 150%. The Petitioner received written confirmation of her reduced 150% assessment from the Board on March 24, 2003.
5. The Association’s Board increased the assessment after determining that all plats needed to be assessed uniformly, per the Association’s Restatement. The increase was meant to bring her two lots into compliance with the governing documents.
6. Bylaws Article IV, Section 6 states that “Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”
7. The Judge’s conclusion was based on the undisputed fact that the Petitioner’s two properties, Lots 156 and 157, have never been officially combined or consolidated into a single numbered lot on the Pima County Assessor’s Office plat map.
8. The required standard of proof was a “preponderance of the evidence,” which means proving a contention is more probably true than not. The Judge found that the Petitioner failed to sustain her burden of proof.
9. The Judge ruled that the 2003 Board Order was not a binding contract because the Petitioner provided no proof of consideration tendered to the Association. Therefore, the Association’s governing documents took precedence over the informal agreement.
10. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The Judge concluded that the Board’s action to uniformly assess all CR-1 lots did not violate state statutes or the Association’s Bylaws.
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Essay Questions
The following questions are designed for longer, more analytical responses. No answers are provided.
1. Analyze the legal reasoning behind the Administrative Law Judge’s decision. Discuss the hierarchy of authority between the Association’s governing documents (CC&Rs) and a Board Order, as interpreted in this case.
2. Explain the concept of “burden of proof” in the context of this hearing. How did the Petitioner’s failure to meet the “preponderance of the evidence” standard lead to the denial of her petition?
3. The Petitioner’s case relied heavily on past practice and a 2003 Board decision to grant her a reduced assessment. Discuss why this argument was ultimately insufficient to overcome the explicit language of the Association’s governing documents.
4. Examine the contractual nature of a homeowners’ association’s CC&Rs as described in the Findings of Fact. How does this contractual relationship between the Association and each property owner shape the obligations and rights of both parties?
5. The Respondent (Sin Vacas POA) declined to present witnesses or exhibits, taking a passive stance at the hearing. Discuss the potential legal strategy behind this approach and how the undisputed material facts of the case made this a viable option.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official, in this case Jenna Clark, who presides over administrative hearings, reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders.
Association
The Sin Vacas Property Owners Association, a homeowners’ association for the Sin Vacas subdivision in Tucson, Arizona, responsible for managing, maintaining, and improving the property.
Assessment
A fee levied by the Association on property owners to promote the recreation, health, safety, and welfare of residents and for the improvement and maintenance of common areas and private streets.
Bylaws
The specific articles and sections within the CC&Rs that govern the Association’s operations, including definitions, assessment rules, and voting procedures.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing documents for the Association, recorded with Pima County on April 13, 1978. They form an enforceable contract between the Association and each property owner.
Department
The Arizona Department of Real Estate, which is authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations.
Any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties, with the exception of the Common Area. This case deals specifically with CR-1 lots.
OAH (Office of Administrative Hearings)
An independent state agency to which the Department refers matters for evidentiary hearings. The OAH has the authority to hear and decide contested cases and interpret contracts between parties.
Petitioner
Loraine Brokaw, a property owner in the Sin Vacas subdivision and member of the Association who filed the petition against the Association.
Planned Community
A real estate development where owners of separately owned lots are mandatory members of a nonprofit association and are required to pay assessments for the purpose of managing, maintaining, or improving the property.
Preponderance of the evidence
The standard of proof required for the Petitioner to win her case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and represents the greater weight of evidence.
Respondent
The Sin Vacas Property Owners Association, the entity against whom the petition was filed.
Blog Post – 19F-H1918017-REL
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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.
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
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
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
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 2026-01-23T17:26:53 (137.2 KB)
Briefing Doc – 19F-H1918017-REL
Briefing Document: Brokaw v. Sin Vacas Property Owners Association (Case No. 19F-H1918017-REL)
Executive Summary
This document synthesizes the findings of the Administrative Law Judge Decision in the case of Loraine Brokaw versus the Sin Vacas Property Owners Association (POA). The central conflict concerned the POA Board’s decision to increase Ms. Brokaw’s annual assessment from 150% to 200% for a single residence constructed across two separate lots.
The Petitioner, Ms. Brokaw, argued that this increase was unlawful and capricious, violating a nearly thirty-year practice that had been formalized by a 2003 Board decision granting her a reduced assessment. The POA contended that its action, taken on the advice of counsel, was necessary to comply with the Association’s governing documents, which mandate uniform assessments for all lots.
The Administrative Law Judge (ALJ) ultimately denied the homeowner’s petition. The decision established a critical legal precedent for the Association: the unambiguous language of the governing Covenants, Conditions, and Restrictions (CC&Rs) takes precedence over any past Board decisions, informal agreements, or long-standing practices, regardless of their duration. Because the Petitioner owns two distinct, legally unconsolidated lots, the ALJ found that the Board’s action to assess each lot at the full, uniform rate was not a violation, but rather a correct and required application of the community’s Bylaws.
——————————————————————————–
I. Case Overview
• Parties: Loraine Brokaw (Petitioner) vs. Sin Vacas Property Owners Association (Respondent).
• Jurisdiction: Office of Administrative Hearings (OAH), State of Arizona.
• Case Number: 19F-H1918017-REL.
• Presiding Judge: Administrative Law Judge Jenna Clark.
• Hearing Date: March 25, 2019.
• Decision Date: April 01, 2019.
II. Central Issue of the Dispute
The hearing was convened to address the following issue, as stated in the NOTICE OF HEARING:
“Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements based on utterly flawed legal theory, which, in fact, changed from attorney to attorney.”
The core of the dispute was the Association Board’s decision in 2017 to increase the annual assessment for the Petitioner’s property—a single home built across two adjacent lots—from 150% to 200% of the standard single-lot assessment rate. The Petitioner sought to compel the Board to revert to the 150% assessment schedule and reimburse her for costs associated with the petition.
III. Petitioner’s Position and Key Testimony
• Property History: The Petitioner testified that her husband first bought property in Sin Vacas in 1979. In 2003, the couple purchased an adjacent lot and constructed a new home that spanned across both properties (Lots 156 and 157).
• Claim of Lot Combination: The Petitioner claimed to have legally combined the two lots but presented no supporting documentation to the tribunal.
• Historical Assessment Practice: The Petitioner testified that as of 2003, the Association’s practice was to assess properties as follows:
◦ 100%: For a home on a single lot.
◦ 25%: For an undeveloped vacant lot.
◦ 150%: For a residence situated on two lots.
• 2003 Board Decision: On March 24, 2003, the Petitioner received written confirmation from the Board that it had voted to grant her a reduced assessment of 150%, formalizing the existing practice for her property.
• 2017 Assessment Change: On or about December 4, 2017, the Petitioner received a letter from the Association’s management company advising that the Board had decided to raise her assessment to 200%, citing “advice of counsel.”
• Rationale for Increase: The Petitioner stated she was given varying reasons for the change but was ultimately informed that the Board determined all plats needed to be assessed uniformly according to the Association’s governing documents. She was also told that to be assessed as a single lot, she would need to formally combine the lots on the county plat map, a process estimated to cost between $3,000 and $10,000 and require the permission of every other homeowner in the community.
IV. Respondent’s Position
The Sin Vacas Property Owners Association declined to present witnesses or exhibits. Its position at the hearing was that the dispute arose from differing interpretations of the language within the governing Bylaws. The Association’s counsel stated that the matter would be resolved based on the tribunal’s interpretation of the relevant governing texts.
V. Analysis of Governing Documents
The decision rested heavily on the interpretation of the Association’s Covenants, Conditions, and Restrictions (CC&Rs), recorded on April 13, 1978.
Document Section
Key Provision
Relevance to the Case
Bylaws Article I, Section 5
Defines a “Lot” as “any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties.”
This established that the Petitioner’s two properties, being separately numbered on the subdivision map, constitute two distinct lots for assessment purposes.
Bylaws Article IV, Section 6
“Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”
This clause was central to the Judge’s decision. It establishes a clear mandate for uniformity in assessments across all lots of the same type (CR-1), which the 150% rate violated by treating two CR-1 lots differently from others.
Bylaws Article IV, Section 7
States the Board of Directors shall “fix the amount of the annual assessment against each Lot.”
This empowers the Board to set assessments but reinforces that they must do so on a per-lot basis, consistent with the uniformity requirement.
VI. Judge’s Findings and Conclusions of Law
The Administrative Law Judge made the following key determinations, leading to the denial of the petition:
• Failure to Meet Burden of Proof: The Petitioner failed to prove by a preponderance of the evidence that the Association violated community documents or Arizona statutes.
• Undisputed Material Facts: The Judge found it undisputed that:
1. The Petitioner owns two distinct CR-1 lots (Lot 156 and Lot 157).
2. The lots have never been legally combined or consolidated on the Pima County Assessor’s plat map.
3. The Petitioner’s residence is constructed across both lots.
• Primacy of Governing Documents: The central conclusion of the decision was that the Association’s governing documents supersede any past Board decisions or long-standing informal agreements. The Judge stated:
• Uniformity is Mandatory: The Bylaws require that the Association assess all developed CR-1 lots at a uniform rate. By assessing both of the Petitioner’s lots at the same full rate as every other developed CR-1 lot, the Association was found to be complying with the Declaration.
• Board’s Action as Corrective: The 2017 Board’s action was not a breach of contract or an unlawful act. Instead, it was an appropriate correction of the previous Board’s 2003 order, which was inconsistent with the Bylaws’ uniformity mandate. The Petitioner’s argument that the 2003 order should supersede the 2017 order was deemed inaccurate.
VII. Final Order
Based on the findings and legal conclusions, the Administrative Law Judge ordered that the Petitioner’s petition be denied.
The decision affirmed that the Sin Vacas Property Owners Association Board’s action to uniformly assess all CR-1 lots did not violate Arizona state law (ARIZ. REV. STAT. § 33-1803) or the Association’s Bylaws.
Study Guide – 19F-H1918017-REL
Study Guide: Brokaw v. Sin Vacas Property Owners Association
This guide reviews the key facts, legal arguments, and final ruling in the administrative hearing case No. 19F-H1918017-REL, Loraine Brokaw v. Sin Vacas Property Owners Association.
Short-Answer Quiz
Answer each question in 2-3 sentences, based on the provided source document.
1. Who were the primary parties involved in the hearing, and what were their respective roles?
2. What specific relief did the Petitioner request from the Office of Administrative Hearings?
3. What specific action taken by the Respondent prompted the Petitioner to file her petition?
4. Describe the assessment practice that the Sin Vacas Board had in place for the Petitioner’s property from 2003 until the change in 2017.
5. What was the Association’s stated reason for increasing the Petitioner’s assessment from 150% to 200%?
6. According to the Association’s Bylaws, what is the rule for how special assessments must be fixed and apportioned?
7. On what grounds did the Administrative Law Judge determine that the Petitioner owned two separate lots?
8. What is the legal standard of proof required in this case, and did the Petitioner successfully meet it?
9. Why did the Judge rule that the 2003 Board Order reducing the Petitioner’s assessment was not a binding contract?
10. What was the final order issued by the Administrative Law Judge in this matter?
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Answer Key
1. The primary parties were Loraine Brokaw, the Petitioner, who brought the action, and the Sin Vacas Property Owners Association, the Respondent. The case was heard by Administrative Law Judge Jenna Clark from the Office of Administrative Hearings.
2. The Petitioner requested that the Association’s Board be compelled to honor the 30-year assessment schedule and charge her the 150% assessment rate. She also requested that the Board reimburse her for the costs of bringing the petition.
3. The Petitioner filed her petition after receiving a letter on or about December 4, 2017, from the Association’s management company. This letter advised her that the Board had decided to raise her assessment from 150% to 200% based on “advice of counsel.”
4. Beginning in 2003, the Association assessed a home on a single lot at 100%, an undeveloped vacant lot at 25%, and a residence spanning two lots, like the Petitioner’s, at 150%. The Petitioner received written confirmation of her reduced 150% assessment from the Board on March 24, 2003.
5. The Association’s Board increased the assessment after determining that all plats needed to be assessed uniformly, per the Association’s Restatement. The increase was meant to bring her two lots into compliance with the governing documents.
6. Bylaws Article IV, Section 6 states that “Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”
7. The Judge’s conclusion was based on the undisputed fact that the Petitioner’s two properties, Lots 156 and 157, have never been officially combined or consolidated into a single numbered lot on the Pima County Assessor’s Office plat map.
8. The required standard of proof was a “preponderance of the evidence,” which means proving a contention is more probably true than not. The Judge found that the Petitioner failed to sustain her burden of proof.
9. The Judge ruled that the 2003 Board Order was not a binding contract because the Petitioner provided no proof of consideration tendered to the Association. Therefore, the Association’s governing documents took precedence over the informal agreement.
10. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The Judge concluded that the Board’s action to uniformly assess all CR-1 lots did not violate state statutes or the Association’s Bylaws.
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Essay Questions
The following questions are designed for longer, more analytical responses. No answers are provided.
1. Analyze the legal reasoning behind the Administrative Law Judge’s decision. Discuss the hierarchy of authority between the Association’s governing documents (CC&Rs) and a Board Order, as interpreted in this case.
2. Explain the concept of “burden of proof” in the context of this hearing. How did the Petitioner’s failure to meet the “preponderance of the evidence” standard lead to the denial of her petition?
3. The Petitioner’s case relied heavily on past practice and a 2003 Board decision to grant her a reduced assessment. Discuss why this argument was ultimately insufficient to overcome the explicit language of the Association’s governing documents.
4. Examine the contractual nature of a homeowners’ association’s CC&Rs as described in the Findings of Fact. How does this contractual relationship between the Association and each property owner shape the obligations and rights of both parties?
5. The Respondent (Sin Vacas POA) declined to present witnesses or exhibits, taking a passive stance at the hearing. Discuss the potential legal strategy behind this approach and how the undisputed material facts of the case made this a viable option.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official, in this case Jenna Clark, who presides over administrative hearings, reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders.
Association
The Sin Vacas Property Owners Association, a homeowners’ association for the Sin Vacas subdivision in Tucson, Arizona, responsible for managing, maintaining, and improving the property.
Assessment
A fee levied by the Association on property owners to promote the recreation, health, safety, and welfare of residents and for the improvement and maintenance of common areas and private streets.
Bylaws
The specific articles and sections within the CC&Rs that govern the Association’s operations, including definitions, assessment rules, and voting procedures.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing documents for the Association, recorded with Pima County on April 13, 1978. They form an enforceable contract between the Association and each property owner.
Department
The Arizona Department of Real Estate, which is authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations.
Any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties, with the exception of the Common Area. This case deals specifically with CR-1 lots.
OAH (Office of Administrative Hearings)
An independent state agency to which the Department refers matters for evidentiary hearings. The OAH has the authority to hear and decide contested cases and interpret contracts between parties.
Petitioner
Loraine Brokaw, a property owner in the Sin Vacas subdivision and member of the Association who filed the petition against the Association.
Planned Community
A real estate development where owners of separately owned lots are mandatory members of a nonprofit association and are required to pay assessments for the purpose of managing, maintaining, or improving the property.
Preponderance of the evidence
The standard of proof required for the Petitioner to win her case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and represents the greater weight of evidence.
Respondent
The Sin Vacas Property Owners Association, the entity against whom the petition was filed.
Blog Post – 19F-H1918017-REL
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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.
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
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
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918001-REL
Agency
ADRE
Tribunal
OAH
Decision Date
2019-03-25
Administrative Law Judge
Jenna Clark
Outcome
total
Filing Fees Refunded
$500.00
Civil Penalties
$250.00
Parties & Counsel
Petitioner
Jay A. Janicek
Counsel
Jake Kubert
Respondent
Sycamore Vista No. 8 Homeowners Association
Counsel
Evan Thompson
Alleged Violations
ARIZ. REV. STAT. § 33-1804(B); Association Bylaws Article III, Sections 3 & 4; Association Bylaws Article VIII, Section 1
Outcome Summary
The ALJ granted the petition, concluding that the HOA Board’s unilateral amendment of the Bylaws on November 20, 2017, was an invalid action taken without the required vote of the Association members and without statutory notice, violating ARIZ. REV. STAT. § 33-1804(B) and the Association’s governing documents. The amendment was invalidated, and the Respondent was ordered to refund the Petitioner's filing fee and pay a $250.00 civil penalty.
Key Issues & Findings
Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.
The Board of Directors attempted a third amendment to the Bylaws on November 20, 2017, specifically changing the requirements for the Association's financial review (audit, review, or compilation). The ALJ concluded that this action was invalid because it was taken in the absence of a quorum of Association members voting in favor of the amendment, violating both the Bylaws and statutory notice requirements.
Orders: The petition was granted. The third amendment to the Association Bylaws taken on November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner the filing fee required by ARIZ. REV. STAT. § 32-2199.01 and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.
Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association
Executive Summary
This document synthesizes the findings and legal conclusions from the administrative hearings regarding a dispute between Jay A. Janicek (“Petitioner”) and the Sycamore Vista No. 8 Homeowners Association (“Respondent” or “the Association”). The central issue was whether the Association’s Board of Directors acted outside its authority by unilaterally amending the Association’s Bylaws during a Board meeting on November 20, 2017, without a vote from the general membership.
The Administrative Law Judge (ALJ) determined that the Board’s action violated both the Association’s governing documents and Arizona Revised Statutes (A.R.S. § 33-1804). The ruling emphasized that the term “members” in the Bylaws refers specifically to the body of property owners, not the Board of Directors. Consequently, the third amendment to the Bylaws was invalidated, and the Association was ordered to pay a civil penalty and refund the Petitioner’s filing fees. A rehearing in March 2019 reconfirmed these findings, underscoring the necessity of transparency and membership participation in homeowners’ association governance.
The Department of Real Estate referred the matter to the Office of Administrative Hearings (OAH) following a petition filed by Mr. Janicek on July 25, 2018. The Respondent initially declined to present witnesses or exhibits, choosing to rely on a dispute over textual interpretation. Following an initial ruling in favor of the Petitioner, the Respondent requested a rehearing, which was granted but ultimately resulted in the same conclusion.
The Core Dispute: Bylaw Amendment Authority
The conflict arose from a Board meeting held on November 20, 2017. During this meeting, the Board voted to approve a third amendment to the Association’s Bylaws.
The Specific Amendment
The Board modified Article VIII, Section 6(d). The original text required the Board to:
• “…cause an annual audit of the Association books to be made by a public accountant at the completion of each fiscal year.”
The Board replaced this with language allowing for:
• “…an annual audit, review, or compilation of the Associations financial records to be made by a public accountant within 180 days after the end of the HOA’s fiscal year.”
Conflicting Interpretations of “Members”
The primary legal dispute centered on the interpretation of Bylaws Article XIII, Section 1, which states:
“These Bylaws may be amended at a regular or special meeting of the Board of Directors of the Association by a vote of a majority of a quorum of members present in person or by proxy.” (Emphasis added).
• Petitioner’s Position: “Members” refers to the general membership of the Association (property owners), as defined in Article II, Section 7 and the Declaration. Petitioner argued that the use of “proxy” in this section further proves it refers to members, as Board Directors are not permitted to vote by proxy.
• Respondent’s Position: “Members” refers to the members of the Board of Directors. The Association argued that because the word was not capitalized in Article XIII, it authorized the Board to amend Bylaws at their own meetings, provided a quorum of Directors was present.
Legal Analysis and Evidence
Governing Statutes and Case Law
The ALJ’s decision was informed by Arizona law and established legal principles:
• A.R.S. § 33-1804 (Open Meeting Law): This statute requires that notice of any meeting where a bylaw amendment is proposed must be sent to all members 10 to 50 days in advance. It also mandates that meetings of the board and association be open to all members.
• A.R.S. § 33-1804(F): The legislative intent of the Open Meeting Law is to promote transparency. Petitioner cited a message from Governor Ducey stating that such laws “provide residents the opportunity to resolve issues as a community rather than seek government intervention.”
• Powell v. Washburn (2006): The Arizona Supreme Court held that restrictive covenants (including Bylaws) must be interpreted to give effect to the intention of the parties based on the document in its entirety.
Findings of Fact regarding Authority
The ALJ identified several factors that invalidated the Board’s unilateral action:
1. Differentiated Terminology: The Bylaws consistently use “Directors” when referring to the Board and “Members” when referring to the homeowners. Article VI, Section 3 explicitly uses “Directors” to define a quorum for the Board, while Article XIII uses “members.”
2. Absence of Express Power: Article VII, which outlines the “Powers and Duties of the Board of Directors,” does not expressly grant the Board the authority to amend Bylaws. This power is reserved for the membership.
3. Lack of Notice: No Association members were present at the November 20, 2017, meeting, and no notice was provided to the general membership regarding a proposed amendment to the Bylaws as required by A.R.S. § 33-1804(B).
Conclusions of Law
The ALJ concluded that the Petitioner sustained the burden of proof by a preponderance of the evidence. The final legal determinations were:
• Avoidance of Absurdity: Bylaws must be construed to avoid an absurdity. The ALJ stated, “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”
• Violation of Statute: The Board’s action violated A.R.S. § 33-1804(B) due to the lack of transparency and failure to provide notice of a bylaw amendment.
• Violation of Governing Documents: The Board acted outside the authority granted to it by the Bylaws, specifically Article III and Article XIII.
Final Order and Penalties
The Administrative Law Judge issued the following orders:
1. Invalidation: The third amendment to the Association Bylaws, enacted on November 20, 2017, is null and void.
2. Restitution of Fees: The Respondent must pay the Petitioner the cost of his filing fee.
3. Civil Penalty: The Respondent was ordered to pay a sum of $250.00 to the Planned Community Hearing Office Fund as a penalty for the violations.
4. Binding Nature: Following the rehearing, the order became binding, with the only further recourse being judicial review in the Superior Court within 35 days.
Study Guide – 19F-H1918001-REL-RHG
Study Guide: Janicek v. Sycamore Vista No. 8 Homeowners Association
This study guide provides a comprehensive review of the legal proceedings between Jay A. Janicek and the Sycamore Vista No. 8 Homeowners Association. It examines the interpretation of governing documents, the application of Arizona Revised Statutes regarding homeowners’ associations, and the limits of a Board of Directors’ authority to amend bylaws.
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Part I: Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences based on the provided legal documents.
1. Who are the primary parties involved in this administrative hearing, and what is their relationship?
2. What specific action taken by the Board of Directors on November 20, 2017, triggered this dispute?
3. How did the Petitioner define the term “member” according to the Association’s governing documents?
4. What was the Respondent’s primary argument regarding the interpretation of Article XIII, Section 1 of the Bylaws?
5. According to ARIZ. REV. STAT. § 33-1804(B), what must a notice of a membership meeting include if a bylaw amendment is proposed?
6. Why did the Petitioner argue that the use of the word “proxy” in the Bylaws supported his interpretation that only general members could amend the Bylaws?
7. What is the legal significance of the Covenants, Conditions, and Restrictions (CC&Rs) in the context of the relationship between an HOA and a property owner?
8. What was the “preponderance of the evidence” standard used by the Administrative Law Judge to reach a decision?
9. What specific penalties and orders were issued against the Respondent in the final decision?
10. What reason did the Administrative Law Judge give for concluding that the Board’s interpretation of the Bylaws was incorrect?
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Part II: Answer Key
1. Who are the primary parties involved in this administrative hearing, and what is their relationship? The Petitioner is Jay A. Janicek, a property owner and member of the Sycamore Vista subdivision. The Respondent is the Sycamore Vista No. 8 Homeowners Association, the entity responsible for governing the residential development where the Petitioner’s property is located.
2. What specific action taken by the Board of Directors on November 20, 2017, triggered this dispute? The Board voted to approve a third amendment to the Association’s Bylaws during a regular meeting. This amendment replaced a requirement for a full annual audit by a public accountant with a choice of an audit, review, or compilation to be completed within 180 days of the fiscal year-end.
3. How did the Petitioner define the term “member” according to the Association’s governing documents? The Petitioner asserted that “Member” refers to those persons entitled to membership as defined in the Declaration, specifically every lot owner. He argued that this definition distinguishes general property owners from the “Directors” who serve on the Board.
4. What was the Respondent’s primary argument regarding the interpretation of Article XIII, Section 1 of the Bylaws? The Respondent argued that the term “members” in Article XIII referred specifically to members of the Board of Directors rather than the general membership. They contended that since the word was not capitalized, it authorized the Board to amend Bylaws at any meeting where a quorum of directors was present.
5. According to ARIZ. REV. STAT. § 33-1804(B), what must a notice of a membership meeting include if a bylaw amendment is proposed? The statute requires that notice be sent to every owner 10 to 50 days in advance of the meeting, stating the date, time, and place. Crucially, the notice must also state the purpose of the meeting, including the general nature of any proposed amendments to the declaration or bylaws.
6. Why did the Petitioner argue that the use of the word “proxy” in the Bylaws supported his interpretation that only general members could amend the Bylaws? The Petitioner noted that the Bylaws allow for voting by “proxy,” a mechanism defined in Article III as applying to votes of the general membership. He argued that because Board members are legally prohibited from voting by proxy, the inclusion of the term in the amendment section proved the section applied to general members.
7. What is the legal significance of the Covenants, Conditions, and Restrictions (CC&Rs) in the context of the relationship between an HOA and a property owner? The CC&Rs constitute an enforceable contract between the Association and each individual property owner. By purchasing a residential unit within the development, the buyer agrees to be bound by the terms, powers, and restrictions outlined in these recorded documents.
8. What was the “preponderance of the evidence” standard used by the Administrative Law Judge to reach a decision? This standard requires the Petitioner to prove that his contention is “more probably true than not.” It is defined as the greater weight of the evidence or evidence that possesses the most convincing force, rather than the absolute removal of all doubt.
9. What specific penalties and orders were issued against the Respondent in the final decision? The Administrative Law Judge invalidated the third amendment to the Bylaws and ordered the Respondent to pay a $250.00 civil penalty to the Planned Community Hearing Office Fund. Additionally, the Respondent was ordered to reimburse the Petitioner for his initial filing fee.
10. What reason did the Administrative Law Judge give for concluding that the Board’s interpretation of the Bylaws was incorrect? The Judge ruled that bylaws must be construed to avoid “absurdity” and that the “voices of few cannot speak for all” without express authority. The governing documents clearly differentiated between “members” (owners) and “directors,” and the Board lacked the power to act where authority was reserved for the membership.
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Part III: Essay Questions
Instructions: Use the provided source context to develop comprehensive responses to the following prompts.
1. The Distinction Between “Members” and “Directors”: Analyze how the specific terminology used in the Sycamore Vista No. 8 Bylaws (Articles II, III, VI, and XIII) influenced the Administrative Law Judge’s decision. How does the consistent use of these terms throughout the document prevent the Board from claiming the powers of the general membership?
2. Statutory Compliance and Transparency: Discuss the importance of ARIZ. REV. STAT. § 33-1804 (the Open Meeting Law) as it relates to this case. Use Governor Ducey’s message regarding H.B. 2411 to explain the legislative intent behind ensuring transparency and participation in HOA governance.
3. The Role of the Office of Administrative Hearings (OAH): Explain the procedural path of this dispute, from the initial petition to the Department of Real Estate to the final rehearing. What is the scope of the OAH’s authority in interpreting contracts between homeowners and associations?
4. Contractual Interpretation and the “Powell v. Washburn” Precedent: Discuss the significance of the Arizona Supreme Court’s holding in Powell v. Washburn regarding restrictive covenants. How does the requirement to give effect to the “intention of the parties” apply to the interpretation of HOA Bylaws?
5. Limits of Board Authority: Based on the Findings of Fact and Conclusions of Law, evaluate the boundaries of a Board of Directors’ power. Under what circumstances can a Board exercise “all powers, duties, and authority” of the Association, and what serves as the definitive limit to that power?
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Part IV: Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
A presiding officer who hears evidence and issues decisions in contested cases involving state agencies.
ARIZ. REV. STAT. § 33-1804
The Arizona statute governing open meetings, notice requirements, and transparency for planned community associations.
Bylaws
The internal rules and regulations that govern the administration and management of an association.
Covenants, Conditions, and Restrictions; the recorded legal documents that establish the rules for a planned community and create a contract between owners and the HOA.
Civil Penalty
A financial fine imposed by a government agency or tribunal as a punishment for a violation of statutes or regulations.
Declarant
The original developer or entity that established the residential subdivision and its governing documents.
Declaration
The primary governing document that defines membership and property rights within a homeowners’ association.
Member
Defined in the source context as a property owner within the Sycamore Vista subdivision who is entitled to membership in the Association.
The Office of Administrative Hearings; an independent state agency that conducts evidentiary hearings for contested cases.
Petitioner
The party who initiates a legal action or petition (in this case, Jay A. Janicek).
Preponderance of the Evidence
The legal standard of proof required in this case, meaning a contention is “more probably true than not.”
A written authorization allowing one person to act or vote on behalf of another, specifically used by Association members.
Quorum
The minimum number of members or directors required to be present at a meeting to legally transact business.
Respondent
The party against whom a legal action or petition is filed (in this case, Sycamore Vista No. 8 HOA).
Restrictive Covenants
Provisions in a deed or other recorded document that limit the use of property and are interpreted to give effect to the intention of the parties.
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“case”: {
“docket_no”: “19F-H1918001-REL-RHG”,
“case_title”: “Jay A. Janicek, Petitioner, vs. Sycamore Vista No. 8 Homeowners Association (FKA New Tucson Unit No. 8 Homeowners Association, Inc.), Respondent.”,
“decision_date”: “March 25, 2019”,
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“name”: “Jay A. Janicek”,
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{
“name”: “Caleb Rhodes”,
“role”: “observer”,
“side”: “unknown”,
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“notes”: “Observer present at initial hearing.”
},
{
“name”: “Jake Kubert”,
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{
“name”: “Judy Lowe”,
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},
{
“name”: “Andrew F. Vizcarra”,
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“side”: “respondent”,
“affiliation”: “Tucson Realty & Trust Co. Management”,
“notes”: “Listed as representative for service of process for Respondent HOA.”
},
{
“name”: “Maxwell T. Riddiough”,
“role”: “HOA attorney”,
“side”: “respondent”,
“affiliation”: “Thompson Krone, P.L.C.”,
“notes”: null
}
]
}
{ “case”: { “agency”: “ADRE”, “tribunal”: “OAH”, “docket_no”: “19F-H1918001-REL”, “case_title”: “Jay A. Janicek vs. Sycamore Vista No. 8 Homeowners Association”, “decision_date”: “2019-03-25”, “alj_name”: “Jenna Clark” }, “parties”: [ { “party_id”: “P1”, “role”: “petitioner”, “name”: “Jay A. Janicek”, “party_type”: “homeowner”, “email”: null, “phone”: null, “attorney_name”: “Jake Kubert”, “attorney_firm”: “Dessaules Law Group”, “attorney_email”: null, “attorney_phone”: null }, { “party_id”: “R1”, “role”: “respondent”, “name”: “Sycamore Vista No. 8 Homeowners Association”, “party_type”: “HOA”, “email”: null, “phone”: null, “attorney_name”: “Evan Thompson”, “attorney_firm”: “Thompson Krone, P.L.C.”, “attorney_email”: null, “attorney_phone”: null } ], “issues”: [ { “issue_id”: “ISS-001”, “type”: “statute_and_bylaws”, “citation”: “ARIZ. REV. STAT. § 33-1804(B); Association Bylaws Article III, Sections 3 & 4; Association Bylaws Article VIII, Section 1”, “caption”: “Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.”, “violation(s)”: “Violation of ARIZ. REV. STAT. § 33-1804(B) and Association Bylaws Article III by amending the Bylaws on November 20, 2017, without proper notice and a vote of the Association membership.”, “summary”: “The Board of Directors attempted a third amendment to the Bylaws on November 20, 2017, specifically changing the requirements for the Association’s financial review (audit, review, or compilation)12. The ALJ concluded that this action was invalid because it was taken in the absence of a quorum of Association members voting in favor of the amendment, violating both the Bylaws and statutory notice requirements34.”, “outcome”: “petitioner_win”, “filing_fee_paid”: 500.0, “filing_fee_refunded”: true, “civil_penalty_amount”: 250.0, “orders_summary”: “The petition was granted. The third amendment to the Association Bylaws taken on November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner the filing fee required by ARIZ. REV. STAT. § 32-2199.01 and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund56.”, “why_the_loss”: null, “cited”: [ “ARIZ. REV. STAT. § 33-1804(B)”, “Association Bylaws Article III” ] } ], “money_summary”: { “issues_count”: 1, “total_filing_fees_paid”: 500.0, “total_filing_fees_refunded”: 500.0, “total_civil_penalties”: 250.0 }, “outcomes”: { “petitioner_is_hoa”: false, “petitioner_win”: “total”, “summarize_judgement”: “The ALJ granted the petition, concluding that the HOA Board’s unilateral amendment of the Bylaws on November 20, 2017, was an invalid action taken without the required vote of the Association members and without statutory notice, violating ARIZ. REV. STAT. § 33-1804(B) and the Association’s governing documents47. The amendment was invalidated, and the Respondent was ordered to refund the Petitioner’s filing fee and pay a $250.00 civil penalty56.”, “why_the_loss”: null }, “analytics”: { “cited”: [ “ARIZ. REV. STAT. § 33-1804(B)”, “ARIZ. REV. STAT. § 32-2199.02(A)”, “ARIZ. REV. STAT. § 32-2199.05”, “Powell v. Washburn, 125 P.3d 373 (Ariz. 2006)”, “Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)” ], “tags”: [ “HOA Governance”, “Bylaws Amendment”, “Open Meeting Law”, “ARS 33-1804”, “Membership Vote”, “Filing Fee Refund” ] } }
{ “rehearing”:{ “is_rehearing”:true, “base_case_id”:”19F-H1918001-REL”, “original_decision_status”:”affirmed”, “original_decision_summary”:”The original ALJ decision, issued on September 25, 2018, granted the Petitioner’s request, finding that the Sycamore Vista No. 8 Homeowners Association Board violated ARIZ. REV. STAT. § 33-1804(B) and Association Bylaws by unilaterally amending the Bylaws on November 20, 2017, without first calling for a vote by the Association members1,2,3. The order invalidated the amendment, required the Respondent to refund the Petitioner’s filing fee, and imposed a civil penalty of $250.004,5.”, “rehearing_decision_summary”:”The Department granted Respondent’s request for a rehearing, which was held on March 5, 20196,7. The ALJ affirmed the original decision, concluding that the Board’s action on November 20, 2017, violated ARIZ. REV. STAT. § 33-1804(B) and Article III of the Association Bylaws because the action was taken in the absence of a quorum of Association members voting in favor of the proposed amendment8. The rehearing order re-granted the petition, invalidated the third amendment, and reaffirmed the orders for the filing fee refund and the $250.00 civil penalty8,9.”, “issues_challenged”:[ { “issue_id”: “ISS-001”, “summary”: “Whether the HOA Board violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1, and ARIZ. REV. STAT. § 33-1804(B) in an action taken to amend the Bylaws on November 20, 201710.”, “outcome”: “affirmed_petitioner_win” } ] } }
The matter, Jay A. Janicek vs. Sycamore Vista No. 8 Homeowners Association (Case No. 19F-H1918001-REL-RHG), involves a dispute over the validity of a Bylaw amendment passed by the homeowners’ association (HOA) Board of Directors12. The inclusion of ‘RHG’ in the case number confirms that the final decision resulted from a rehearing requested by the Respondent Association23.
Procedural History: The initial evidentiary hearing was held on September 5, 201824. The Administrative Law Judge (ALJ) issued a decision on September 24, 2018, granting the Petitioner’s request35. The Respondent requested and was granted a rehearing by the Department of Real Estate on November 7, 201836. The rehearing was held on March 5, 2019, where no new evidence was introduced, and the parties presented legal briefs and closing arguments2….
Key Facts and Core Issue: The dispute centered on the validity of the Board’s third amendment to the Association Bylaws, approved on November 20, 2017910. This amendment changed the financial oversight requirement from an annual audit by a public accountant to an annual audit, review, or compilation of financial records1112.
The main legal issue was whether the Board had the authority to unilaterally amend the Bylaws without a vote of the general membership and whether the Board violated ARIZ. REV. STAT. § 33-1804(B), concerning notice requirements for member meetings3…. The determination hinged on the interpretation of Bylaws Article XIII, Section 1, which permits amendments “by a vote of a majority of a quorum of members present in person or by proxy”1617.
Key Arguments: Petitioner Jay Janicek argued that the term “members” in Article XIII referred exclusively to the Association owners, as supported by the Bylaws’ definition of “Member” and the use of the term “proxy” (which applies to owners, not directors)14…. Petitioner asserted that since the Board acted without calling for a member vote and without statutory notice of the proposed amendment, the action was invalid and violated A.R.S. § 33-1804(B)14….
The Association argued that, based on reading the Bylaws in their entirety, the term “members” in Article XIII referred to the Board of Directors, particularly since the amendment was to occur at a meeting of the Board of Directors24….
Rehearing Decision and Outcome: In both the original decision and the rehearing decision, the ALJ reached the same conclusion, finding that the Petitioner sustained the burden of proof2728. The ALJ determined that the Association’s governing documents clearly differentiate between “members” (the body of owners) and “directors” (the elected Board)28…. The Board lacked the power to amend the Bylaws when that authority was delegated to the membership2930.
The ALJ concluded that the Board’s action on November 20, 2017, violated ARIZ. REV. STAT. § 33-1804(B) and Article III of the Association Bylaws because the amendment was adopted in the absence of a quorum of Association members voting in favor3132.
The final outcome of the rehearing was that the Petitioner’s petition was granted32. The Board’s third amendment to the Bylaws was invalidated532. Additionally, the Respondent Association was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.00 for the violation533.
Case Participants
Petitioner Side
Jay A. Janicek(petitioner) Appeared on own behalf at initial hearing; Observed at rehearing.
Jake Kubert(petitioner attorney) Dessaules Law Group
