Janusz, David & Loree vs. Cresta Norte HOA

Posted on February 27, 2014 by [email protected]

Case Summary

Case ID	13F-H1314002-BFS
Agency	DFBLS
Tribunal	OAH
Decision Date	2014-02-27
Administrative Law Judge	M. Douglas
Outcome	no
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	David & Loree Janusz	Counsel	—
Respondent	Cresta Norte HOA	Counsel	Curtis S. Ekmark, Esq.; Molly J. Streiff, Esq.

Alleged Violations

Cresta Norte Guidelines Section N Miscellaneous (7)

Outcome Summary

The ALJ dismissed the petition, ruling that the HOA did not violate its CC&Rs or Design Guidelines by denying the homeowners' request to install exterior shutters. The guidelines required committee approval, which was properly denied.

Why this result: The petitioners failed to meet the burden of proof to show the HOA violated governing documents; the ALJ found the guidelines granted the HOA authority to approve or deny architectural changes.

Key Issues & Findings

Denial of architectural request for exterior shutters

Petitioners alleged the HOA violated design guidelines by denying their request to install exterior shutters. Petitioners argued the guidelines explicitly list 'shutters' as an example of exterior changes, implying they are permitted.

Orders: Petition dismissed; Cresta Norte deemed prevailing party.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

Cresta Norte Guidelines Section N Miscellaneous (7)
A.R.S. § 41-2198.01

Decision Documents

13F-H1314002-BFS Decision – 384508.pdf

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13F-H1314002-BFS Decision – 389432.pdf

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**Case Summary: David & Loree Janusz v. Cresta Norte HOA**
**Case No. 13F-H1314002-BFS**

**Forum and Parties**
This matter was heard before the Arizona Office of Administrative Hearings on February 18, 2014. The Petitioners, David and Loree Janusz, represent themselves against the Respondent, Cresta Norte Homeowners Association (HOA), regarding a dispute over architectural improvements.

**Background and Main Issues**
The Petitioners, homeowners in Scottsdale, Arizona, submitted an Architectural Change Request to install exterior shutters on their residence. The Cresta Norte Architectural Committee denied the request, and the HOA Board of Directors subsequently denied the Petitioners' appeal. The Petitioners filed a claim alleging the HOA violated the community’s Design Guidelines and CC&Rs by refusing the installation. The central issue was whether the guidelines, which mention shutters, mandated their approval or if the Board retained discretion to deny them based on community aesthetics.

**Hearing Proceedings and Key Arguments**
**Petitioners' Argument:**
David Janusz, a former Board President (2006–2010) and Architectural Committee chairman, testified that the guidelines were drafted to "encourage creativity and diversity". He argued that Section N Miscellaneous (7) of the guidelines specifically lists "shutters" as a type of exterior change, which he interpreted as explicit authorization for their installation. He asserted that during his tenure, the committee intended to offer shutters to allow homeowners to show individuality. He also testified that no neighbors opposed the project.

**Respondent's Argument:**
The HOA, represented by legal counsel, presented testimony from current Board members James Wooley and Brian McNamara. Mr. Wooley testified that the inclusion of the word "shutters" in the guidelines was merely an example of a potential change requiring review, not an express approval. He stated there was no intent to establish shutters as an approved feature and that the guidelines do not prohibit them but require approval. Mr. McNamara noted that no residences in Cresta Norte currently have exterior shutters and that the Board determined they were not a "desirable architectural feature" for the community.

**Legal Findings**
Administrative Law Judge M. Douglas analyzed the case under the "preponderance of the evidence" standard. The findings focused on the text of the 2011 Design Guidelines, which state: "Any change to the exterior appearance of the house (garage door, stone work, shutters, etc.) must be consistent with the design and color palette of the community. Architectural Committee written approval is

Case Participants

Petitioner Side

David Janusz (petitioner)
Cresta Norte HOA (former board member)
Appeared on own behalf; testified as witness
Loree Janusz (petitioner)
Cresta Norte HOA
Appeared on own behalf

Respondent Side

Curtis S. Ekmark (HOA attorney)
Ekmark & Ekmark LLC
Molly J. Streiff (HOA attorney)
Ekmark & Ekmark LLC
James A. Wooley (witness)
Cresta Norte HOA Board of Directors
Board member and Architectural Committee member
Brian McNamara (witness)
Cresta Norte HOA Board of Directors
Board member and Architectural Committee member

Neutral Parties

M. Douglas (ALJ)
Office of Administrative Hearings
Cliff J. Vanell (Director)
Office of Administrative Hearings
Certified the ALJ decision
Gene Palma (Director)
Department of Fire, Building and Life Safety
Joni Cage (agency staff)
Department of Fire, Building and Life Safety
Listed on mailing certificate c/o Gene Palma
Rosella J. Rodriguez (administrative staff)
Office of Administrative Hearings
Signed mailing certificate

Nelson, Paula J. vs. Landings Homeowners Association

Posted on February 14, 2014 by [email protected]

Case Summary

Case ID	13F-H1314003-BFS
Agency	Department of Fire, Building and Life Safety
Tribunal	OAH
Decision Date	2014-02-14
Administrative Law Judge	M. Douglas
Outcome	no
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Paula J. Nelson	Counsel	—
Respondent	Landings Homeowners Association	Counsel	Mark Saul

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Administrative Law Judge ruled in favor of the Respondent, Landings Homeowners Association. The Judge found that the Association made its records reasonably available for examination and was not required to produce documents (specifically roofing binders and photos) that it did not possess or that were privileged. The Petition was dismissed.

Why this result: The Petitioner failed to prove by a preponderance of the evidence that the Association violated A.R.S. § 33-1805(A). The evidence showed the Association made available the records it possessed, and the specific missing records (roofing binders created by a third party) were not proven to be in the Association's possession.

Key Issues & Findings

Failure to provide records

Petitioner alleged the Association failed to provide specific records, including roofing binders, photographs, and individual roof assessments, within the statutory timeframe. The Association argued it made records reasonably available and could not produce documents it did not possess.

Orders: The Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Decision Documents

13F-H1314003-BFS Decision – 382722.pdf

Uploaded 2026-01-25T15:29:18 (114.5 KB)

13F-H1314003-BFS Decision – 388443.pdf

Uploaded 2026-01-25T15:29:18 (59.2 KB)

**Case Summary: Nelson v. Landings Homeowners Association**
**Case No.** 13F-H1314003-BFS
**Forum:** Office of Administrative Hearings, Arizona
**Hearing Date:** January 31, 2014
**Decision Date:** February 14, 2014 (Certified Final March 31, 2014)

**Parties and Procedures**
Petitioner Paula J. Nelson filed a petition with the Department of Fire, Building and Life Safety against Respondent Landings Homeowners Association ("Landings"). The hearing was presided over by Administrative Law Judge M. Douglas,.

**Main Issue**
The central legal issue was whether Landings violated A.R.S. § 33-1805(A) by failing to provide Nelson with copies of requested association records—specifically roofing assessments and photographs—within ten business days of her request.

**Key Facts and Arguments**
* **Petitioner’s Claims:** Nelson submitted records requests beginning April 12, 2013, demanding the Association email her copies of specific documents. She alleged the Association withheld specific "binders" created by a former representative, Mr. Minor, which she believed contained comprehensive individual roof assessments and photographs,. Nelson admitted she refused to view the binders held by the Association’s attorney because she believed they were not the specific records she sought,.
* **Respondent’s Defense:** Landings argued it satisfied the statute by making records "reasonably available for inspection" at the management company’s office. The Association contended that A.R.S. § 33-1805(A) does not require emailing documents or providing them in a specific format chosen by the member. Regarding the "Minor binders," the Association maintained it could not produce records it did not possess.
* **Witness Testimony:**
* **Robyn McRae** testified she accompanied Nelson to the management office, noting some documents were missing or unavailable at that time,.
* **Robert Timmons** (contractor) testified regarding the roofing project. He stated he did not know if the specific photographs or records Nelson sought were ever in the Association's possession,.
* **Paula Nelson** acknowledged she did not schedule an appointment to review the binders offered by the Association's attorney.

**Legal Standards**
* **A.R.S. § 33-1805(A):** Requires associations to make financial and other records "reasonably available for examination" by a member within ten business days. It further allows associations to charge for copies.
* **Burden of Proof:** The burden falls on the Petitioner to prove the violation by a preponderance of the evidence.

**Findings and Conclusions**
The Administrative Law Judge (ALJ) reached the following conclusions:
1. **Possession of Records:** There was no credible evidence that Landings possessed the specific binders created by Mr. Minor that Nelson requested, other than the materials already offered for her review. The fact that the Association paid for the creation of such binders did not prove they were delivered or currently possessed in the format Nelson alleged.
2. **Compliance:** Landings complied with the request in a "reasonable manner" by attempting to schedule inspections and offering review of materials at the attorney's office.
3. **Privilege:** The Association was not required to disclose privileged communications between itself and its attorney.

**Outcome**
The ALJ determined that Nelson failed to satisfy her burden of proof. Landings was deemed the prevailing party, and the petition was dismissed. The decision became the final administrative decision of the Department of Fire, Building and Life Safety on March 31, 2014, after the Department took no action to modify or reject it within the statutory timeframe.

Case Participants

Petitioner Side

Paula J. Nelson (Petitioner)
Landings Homeowners Association (Member)
Appeared on her own behalf
Robyn McRae (Witness)
Drove Petitioner to management company; testified regarding document availability
Robert William Timmons (Witness)
Sprayfoam Southwest Inc.
Subpoenaed by Petitioner; representative for roofing contractor

Respondent Side

Mark K. Sahl (HOA Attorney)
Carpenter, Hazelwood, Delgado & Bolen, PLC
Listed as 'Mark Saul' in ALJ Decision appearances; 'Mark K. Sahl' in certification mailing list
Jo Seashols (Community Manager)
Landings Homeowners Association (Management Company)
Renee (Employee)
Management Company
Mentioned by management staff as having possession of photographs
Tom Minor (Former Representative)
Landings Homeowners Association
Former board member/representative on construction project

Neutral Parties

M. Douglas (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Cliff J. Vanell (Director)
Office of Administrative Hearings
Certified the ALJ decision
Gene Palma (Director)
Department of Fire, Building and Life Safety
Recipient of decision
Joni Cage (Agency Staff)
Department of Fire, Building and Life Safety
c/o for Gene Palma
Rosella J. Rodriguez (Clerk)
Office of Administrative Hearings
Mailed/processed the certification

Park, Denise vs. Montezuma Fairway Villas Homeowners Association

Posted on January 2, 2014 by [email protected]

Case Summary

Case ID	12F-H1213010-BFS-rhg
Agency	DFBLS
Tribunal	OAH
Decision Date	2014-01-17
Administrative Law Judge	M. Douglas
Outcome	partial
Filing Fees Refunded	$2,000.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Denise Park	Counsel	J. Roger Wood
Respondent	Montezuma Fairway Villas Homeowners Association	Counsel	Jonathon V. O’Steen

Alleged Violations

A.R.S. § 33-1247
A.R.S. § 33-1248
A.R.S. § 33-1250
A.R.S. § 33-1258

Outcome Summary

The Director accepted the ALJ's recommendation on rehearing. The Petitioner prevailed on claims regarding maintenance of common areas (weeds, wall) and failure to hold elections. The HOA was ordered to comply with statutes and prove weed control. Claims regarding open meetings were dismissed because the Petitioner failed to attend. Claims regarding financial records were dismissed due to the expiration of the one-year statute of limitations. The Respondent was ordered to reimburse half ($1,000) of the filing fee directly to the Petitioner.

Key Issues & Findings

Maintenance of common elements

Petitioner alleged the HOA failed to maintain common areas, citing overflowing trash, weeds, and a broken wall. The ALJ found the evidence established these failures.

Orders: Respondent ordered to comply with statute and provide proof that weeds in common areas have been eliminated or properly controlled.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 33-1247

Open meetings

Petitioner alleged the HOA failed to conduct open meetings. The HOA proved notice was mailed for the May 24, 2012 meeting.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_lose

Cited:

A.R.S. § 33-1248

Voting and proxies

Petitioner alleged the HOA failed to hold proper elections. The HOA admitted no election was held at the annual meeting because only three members attended.

Orders: Respondent ordered to comply with A.R.S. § 33-1250 in the future.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 33-1250

Association financial and other records

Petitioner requested financial records in August 2011 which were not provided until Jan/Feb 2012 (late).

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_lose

Cited:

A.R.S. § 33-1258
A.R.S. § 12-541(5)

Decision Documents

12F-H1213010-BFS-rhg Decision – 370568.pdf

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12F-H1213010-BFS-rhg Decision – 376532.pdf

Uploaded 2026-01-25T15:28:29 (212.0 KB)

**Case Summary: Park v. Montezuma Fairway Villas Homeowners Association**
**Case No.** 12F-H1213010-BFS-rhg
**Nature of Proceeding:** Administrative Rehearing

**Overview**
This summary addresses the **rehearing** of a dispute between Denise Park (Petitioner), a condominium owner, and the Montezuma Fairway Villas Homeowners Association (Respondent). While an original decision was issued in March 2013 finding the Respondent liable for three violations, the rehearing in November 2013 and subsequent Final Order modified these findings based on a statute of limitations defense,.

**Procedural History and Original Decision**
Petitioner originally alleged four statutory violations: failure to maintain common areas, failure to conduct open meetings, failure to hold elections, and failure to provide financial information.
* **Original Outcome:** In the March 28, 2013 decision, the Administrative Law Judge (ALJ) ruled in favor of the Petitioner on three counts (maintenance, elections, and financial records) and ordered the Respondent to reimburse $1,500 of the filing fee.

**Rehearing Proceedings and Legal Analysis**
The rehearing was conducted on November 20, 2013. The ALJ re-evaluated the evidence and new legal arguments regarding the four alleged violations,.

**1. Maintenance of Common Areas (A.R.S. § 33-1247)**
* **Issue:** Petitioner alleged the HOA failed to repair a broken wall, control weeds, and provide adequate trash services,.
* **Argument:** Respondent argued that maintenance was deferred because Petitioner and others failed to pay dues,.
* **Ruling:** **Violation Affirmed.** Evidence established the common areas were not maintained (broken wall, weeds, peeling paint). Although the Respondent performed repairs *after* the original hearing, the ALJ ruled that post-hearing remedial actions did not alter the fact that the violation existed at the time of the petition,.

**2. Open Meetings (A.R.S. § 33-1248)**
* **Issue:** Petitioner claimed she did not receive notice of the annual meeting.
* **Ruling:** **Violation Not Found.** The ALJ found that the Respondent mailed the notice in accordance with the statute. The Petitioner’s failure to attend or receive the notice did not constitute a violation by the HOA,. This upheld the original finding.

**3. Elections (A.R.S. § 33-1250)**
* **Issue:** The HOA failed to hold elections for officers.
* **Argument:** Respondent argued no election was required because only three members attended the meeting, and all agreed to continue in their current officer roles,.
* **Ruling:** **Violation Affirmed.** The ALJ ruled that the HOA failed to hold proper elections as required by state statute and the Association's Bylaws.

**4. Financial Records (A.R.S. § 3

Case Participants

Petitioner Side

Denise Park (Petitioner)
Owner of three condominium units
Kevin R. Harper (Attorney)
Harper Law, PLC
Receiving mail for Petitioner in Final Order; listed as Respondent's attorney in initial hearing decision text
J. Roger Wood (Attorney)
J. Roger Wood PLLC
Represented Petitioner in rehearing

Respondent Side

Carol Ann Klagge (Treasurer)
Montezuma Fairway Villas Homeowners Association
Board member; witness
Jay Klagge (Secretary)
Montezuma Fairway Villas Homeowners Association
Board member
Tony Sturgeon (Vice President)
Montezuma Fairway Villas Homeowners Association
Board member
Helen Bartels (Board Member)
Montezuma Fairway Villas Homeowners Association
Witness; became board member after March 28, 2013
Jonathon V. O’Steen (Attorney)
O’Steen & Harrison, PLC
Represented Respondent in rehearing and final order; listed as Petitioner's attorney in initial hearing decision text

Neutral Parties

M. Douglas (ALJ)
Office of Administrative Hearings
Gene Palma (Director)
Department of Fire, Building and Life Safety
Joni Cage (Complaint Program Manager)
Department of Fire, Building and Life Safety