The Administrative Law Judge granted the petition filed by the Cross Creek Ranch Community Association, finding that Turquoise Textures, LLC violated CC&Rs Article 3, Section 3.1.3 and Article 7, Section 7.5 by clear cutting old growth trees and vegetation in violation of approved plans. Respondent was ordered to reimburse the $500 filing fee and comply with governing documents.
Key Issues & Findings
Violation of Covenants, Conditions, and Restrictions (CC&Rs) by clear cutting old growth trees and vegetation contrary to approved plans.
Petitioner alleged Respondent clear cut approximately 30 old growth trees and native vegetation, violating approved plans and governing documents, and presenting a nuisance. The Administrative Law Judge concluded that Petitioner sustained its burden of proof that Respondent violated the Association’s governing documents, regardless of whether Respondent directed the general contractor, and granted the petition.
Orders: Respondent ordered to reimburse Petitioner's filing fee of $500.00 in certified funds and henceforth comply with the provisions of the governing documents.
Briefing Document: Cross Creek Ranch Community Association vs. Turquoise Textures, LLC
Executive Summary
This briefing document synthesizes the proceedings and outcome of the case Cross Creek Ranch Community Association vs. Turquoise Textures, LLC (No. 25F-H005-REL), heard by the Arizona Office of Administrative Hearings (OAH). The central dispute involved the unauthorized clear-cutting of approximately 30 old-growth trees and native vegetation from a lot owned by William D. Durham, principal of Turquoise Textures, LLC.
The Administrative Law Judge (ALJ), Nicole Robinson, ultimately ruled in favor of the Petitioner, the Cross Creek Ranch Community Association (HOA). The decision found that Mr. Durham violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) and Design Guidelines. While Mr. Durham’s primary defense was to blame his general contractor, the ALJ’s decision was based on credible testimony from the contractor implicating Mr. Durham, a documented pattern of non-compliance by Mr. Durham, and his own admission that the lot was cleared in violation of his approved plans.
The HOA sought a court order compelling Mr. Durham to plant 30 trees, 10-12 feet in height, by March 15, 2025. The final OAH order granted the HOA’s petition, requiring Mr. Durham to comply with the governing documents and reimburse the association’s $500 filing fee.
Case Overview
Parties Involved
Name / Entity
Key Role/Witness For
Petitioner
Cross Creek Ranch Community Association
Homeowners’ Association alleging violation of governing documents.
Respondent
Turquoise Textures, LLC (William D. Durham)
Property owner accused of violating governing documents.
Adjudicator
Nicole Robinson
Administrative Law Judge, Office of Administrative Hearings.
Witness
Greg Chambers
Petitioner; HOA Board Member.
Witness
Steve Germaine
Petitioner; Member of Architectural Review Committee (ARC), former ARC Chair.
Witness
Daniel Donahghue
Petitioner; Current ARC Chair and Board Member.
Witness
Jeffrey Penchina
Petitioner; Member of the ARC.
Witness
Timothy Smith
Petitioner; General Contractor hired by William Durham.
Core Allegation and Relief Sought
The HOA filed a petition on July 16, 2024, alleging that in September 2023, the Respondent clear-cut his lot of 20-30 old-growth trees (Junipers and Pinions) and native vegetation. This action was in direct violation of his ARC-approved plans, which were contingent on those plantings remaining in place. The HOA contended this violated:
• CC&Rs Article 3, Section 3.1.3: Pertaining to architectural approval and control.
• CC&Rs Article 7, Section 7.5: Pertaining to improper maintenance and use of lots.
The HOA argued that the clear-cutting was done to improve Mr. Durham’s view and detrimentally affected the community’s appearance and value. The specific relief requested was an order compelling Mr. Durham to plant 30 trees (10 to 12 feet in size) and replace additional vegetation by March 15, 2025.
Chronology of Key Events
• April 18, 2021: Prior to purchasing the lot, William Durham meets with ARC member Steve Germaine and is informed via a follow-up email that “The ARC does not approve the removal of trees… solely for the purpose of preserving or improving a view.”
• May 3, 2021: William Durham purchases Lot 62 in Cross Creek Ranch.
• July 7, 2022: Mr. Durham receives permission from the ARC to remove four specific dead trees.
• July 9, 2022: Mr. Germaine observes Mr. Durham removing more than the four approved dead trees and instructs him to stop.
• June 7, 2023: The ARC approves Mr. Durham’s residential and landscape plans, which show the preservation of existing trees and vegetation in the “transitional area.”
• August 29, 2023: A pre-construction meeting is held with Mr. Durham, his General Contractor (GC) Timothy Smith, and ARC members. ARC member Jeffrey Penchina testified that Mr. Durham personally assured him no trees outside the construction envelope would be removed.
• September 2023: Over approximately three days, Mr. Smith’s company clear-cuts the lot of 30+ old-growth trees and shrubs.
• October 2023: Following the discovery of the clearing, the ARC sends a letter to Mr. Durham to cease construction.
• October 6, 2023: Mr. Durham files a complaint with the Arizona Registrar of Contractors (ROC) against Tim Smith, blaming him for the tree removal.
• February 9, 2024: Mr. Durham transfers the property title to Turquoise Textures, LLC.
• July 16, 2024: The HOA files its petition with the Arizona Department of Real Estate.
• October 15, 2024: Mr. Durham submits a revised landscape plan to the HOA.
• November 4, 2024: The HOA responds to the plan, requiring 10-12 foot trees for remediation.
• November 11, 2024: Mr. Durham sends a detailed email responding to the HOA’s requirements.
• November 26, 2024: The OAH hearing is conducted virtually.
• December 16, 2024: The ALJ issues a final decision granting the HOA’s petition. A separate minute entry notes that documents filed by Mr. Durham after the hearing record closed would not be considered.
Key Testimony and Arguments
Petitioner’s Case (Cross Creek Ranch HOA)
The HOA presented a case built on documented warnings, contractual obligations, and direct eyewitness testimony.
• Established Pattern of Non-Compliance: Witness Steve Germaine testified that he warned Mr. Durham about the rules regarding tree removal for views even before the lot was purchased in April 2021. He further testified to the incident on July 9, 2022, where he witnessed Mr. Durham cutting down live trees without authorization, beyond the four dead trees he had permission for.
• Violation of Approved Plans: Daniel Donahghue and Jeffrey Penchina testified that during the pre-construction meeting on August 29, 2023, the rules were clearly explained. Mr. Penchina stated, “he assured me that nothing outside of the construction envelope would be removed.” The approved plans, entered as evidence, explicitly showed the preservation of the natural landscape in the transitional area.
• Direct Culpability via GC Testimony: The general contractor, Timothy Smith, provided critical testimony directly contradicting Mr. Durham’s defense.
◦ Mr. Smith stated that Mr. Durham directed the clear-cutting: “he started to point out at trees that were in disturbing the… surrounding views… I let him know, well, now we’re going outside of the construction envelope. And he said he doesn’t really care.”
◦ He testified that Mr. Durham was on-site during the three-day clearing process and that the business relationship fractured later over non-payment for subsequent work, not over the tree removal.
Respondent’s Defense (William D. Durham)
Mr. Durham admitted the plans were violated but placed all blame on his general contractor and portrayed the HOA as a hostile and unresponsive entity.
• Blame Assigned to General Contractor: Mr. Durham’s central argument was that his GC acted against instructions. He stated, “I was forced to have a GC that I didn’t need, and the GC insisted on doing all the initial work… He ignored all the directives from Mark and from me.” He testified that he “absolutely not” directed Mr. Smith to clear the land and claimed to be out of town for most of the clearing.
• Allegations of HOA Harassment and Inefficiency: Mr. Durham repeatedly described the HOA as slow, uncooperative, and corrupt.
◦ He claimed he was trying to remediate the issue but the HOA was “very very very slow to ever get back to me.”
◦ He accused the HOA of “moving the goalposts” by demanding 10-12 foot trees, a requirement he said was never mentioned until the hearing.
◦ He testified he was facing over “$40,000 in fines” and was being harassed by specific members. He stated, “There’s a degree of corruption and cronyism in this HOA that is deeply disturbing.”
• Proactive Remediation Efforts: Mr. Durham asserted he had been proactive, submitting a new landscape plan with 32 plants. He testified, “all I need is their input back that’s helpful to resolve everything.” He repeatedly requested a single liaison from the ARC to facilitate faster solutions.
Administrative Law Judge’s Decision
The ALJ’s decision, issued December 16, 2024, was a conclusive victory for the Petitioner.
Findings of Fact
The ALJ established a clear factual record that supported the HOA’s position, highlighting:
• The pre-purchase warning to Mr. Durham in April 2021 regarding tree removal.
• The unauthorized removal of viable trees in July 2022.
• The September 2023 clear-cutting incident, which the judge factually concluded occurred at Mr. Durham’s direction. Finding #15 states: “Mr. Smith, the general contractor, cleared Lot 64 of approximately 30 plus trees and shrubs that were not included in the approved plans per Respondent’s instruction.”
Conclusions of Law
Based on the evidence, the ALJ made the following legal conclusions:
• The Petitioner (HOA) successfully met its burden of proving by a preponderance of the evidence that the Respondent violated the governing documents.
• The ALJ identified a clear “pattern” of behavior, noting Mr. Durham began “failing to heed the ARC’s directions in July 2022.”
• Critically, the judge determined that even without the GC’s testimony, Mr. Durham’s own admission was sufficient for a finding of violation: “Respondent admitted what happened to his Lot was not a part of the approved plan and, hence, was a violation of Petitioner’s CC&Rs and Design Guidelines.”
Final Order
The OAH issued the following orders:
1. IT IS ORDERED that Petitioner’s petition be granted.
2. IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00.
3. IT IS FURTHER ORDERED that Respondent shall henceforth comply with the provisions of the governing documents.
Study Guide – 25F-H005-REL
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These sources document a legal dispute and administrative hearing between the Cross Creek Ranch Community Association and homeowner William Durham, operating as Turquoise Textures LLC. The association alleged that Durham violated community governing documents by clear-cutting approximately 30 protected old-growth trees to improve his property’s view, contradicting his approved landscape plans. While Durham blamed his general contractor for the unauthorized removal, testimony from the contractor and association members suggested Durham directed the clearing personally. The Office of Administrative Hearings ultimately ruled in favor of the association, finding Durham in violation of the CC&Rs and Design Guidelines. Consequently, the court ordered Durham to reimburse filing fees and mandated future compliance with community standards, which included a demand for the replanting of mature trees by March 2025.
What are the specific landscaping violations alleged by the Association?
How did the dispute over clear-cutting trees affect the build?
What final ruling did the Administrative Law Judge issue?
Thursday, February 12
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Today • 5:13 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Blog Post – 25F-H005-REL
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1246254.pdf
1246768.aac
1246769.aac
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1252586.pdf
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25F-H005-REL
5 sources
These sources document a legal dispute and administrative hearing between the Cross Creek Ranch Community Association and homeowner William Durham, operating as Turquoise Textures LLC. The association alleged that Durham violated community governing documents by clear-cutting approximately 30 protected old-growth trees to improve his property’s view, contradicting his approved landscape plans. While Durham blamed his general contractor for the unauthorized removal, testimony from the contractor and association members suggested Durham directed the clearing personally. The Office of Administrative Hearings ultimately ruled in favor of the association, finding Durham in violation of the CC&Rs and Design Guidelines. Consequently, the court ordered Durham to reimburse filing fees and mandated future compliance with community standards, which included a demand for the replanting of mature trees by March 2025.
What are the specific landscaping violations alleged by the Association?
How did the dispute over clear-cutting trees affect the build?
What final ruling did the Administrative Law Judge issue?
Thursday, February 12
Save to note
Today • 5:13 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
John Kalinich(representative) Cross Creek Ranch Community Association
Greg Chambers(board member / witness) Cross Creek Ranch Community Association
Daniel K. Donahghue(board member / witness) Cross Creek Ranch Community Association ARC Chair
Steven M. Germaine(ARC member / witness) Cross Creek Ranch Community Association
Jeffrey Panchina(ARC member / witness) Cross Creek Ranch Community Association
Timothy C. Smith(witness (GC)) Former General Contractor for Respondent
Respondent Side
William D. Durham(respondent (principal)) Turquoise Textures, LLC
Mountain Park Association CC&Rs Art. IV, Sec. 2; Keystone CC&Rs Art. V, Sec. 5.19; Rules (35% Frontage Limit)
Outcome Summary
The Petitioner (HOA) prevailed. The Respondent (Homeowner) was found in violation of Governing Documents for installing an unapproved driveway extension that exceeded 35% of the total yard frontage area. Respondent was ordered to pay the Petitioner the $1,500.00 filing fee and comply with all Governing Documents henceforth. No civil penalty was levied.
Why this result: Respondent failed to obtain prior written approval for the driveway alteration and failed to prove the affirmative defense of laches.
Key Issues & Findings
Unauthorized Driveway Extension Exceeding 35% of Total Yard Frontage Area
Petitioner alleged Respondent violated CC&Rs by installing a driveway extension exceeding 35% of the total yard frontage area without prior written approval. The ALJ found by a preponderance of the evidence that the violation occurred and the Respondent failed to establish the affirmative defense of laches.
Orders: Respondent ordered to pay Petitioner $1,500.00 for the filing fee and comply henceforth with the Governing Documents.
Filing fee: $1,500.00, Fee refunded: No
Disposition: petitioner_win
Cited:
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
A.R.S. § 32-2199.02
A.R.S. § 41-1092.09
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Westburne Supply, Inc. v. Diversified Design and Construction, Inc., 170 Ariz. 598, 600, 826 P.2d 1224, 1226 (Ct. App. 1992)
Can a sub-association enforce the rules and CC&Rs of the master association?
Short Answer
Yes, if the master association has assigned those enforcement rights to the sub-association.
Detailed Answer
A sub-association (like a specific neighborhood HOA within a larger master planned community) generally enforces its own documents. However, this decision clarifies that a sub-association may be authorized to enforce the master association's governing documents if there is a specific assignment agreement executing that transfer of authority.
Alj Quote
The Governing Documents authorize Petitioner to enforce the Governing Documents, as further memorialized by an executed Assignment Agreement by and between Mountain Park Association and Keystone Owners Association signed on August 16, 2023.
Legal Basis
Assignment Agreement / Governing Documents
Topic Tags
jurisdiction
sub-associations
master association
enforcement authority
Question
If I extend my driveway without approval, does the HOA have to prove I didn't get permission, or do I have to prove I did?
Short Answer
The absence of written evidence granting approval can be used to establish a violation.
Detailed Answer
While the HOA bears the initial burden of proof for the violation, the lack of testimonial or written evidence showing that the homeowner received approval helps establish that the modification was unauthorized.
Alj Quote
However, there was no testimonial or written evidence presented to establish that Respondent was granted approval to install a driveway that exceeded 35% of the total yard frontage area.
Legal Basis
Burden of Proof
Topic Tags
architectural approval
evidence
driveways
modifications
Question
What is the 'burden of proof' for an HOA to win a violation hearing?
Short Answer
The HOA must prove the violation by a 'preponderance of the evidence'.
Detailed Answer
The HOA does not need to prove a violation 'beyond a reasonable doubt' (the criminal standard). They must only show that their contention is 'more probably true than not' or carries superior evidentiary weight.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated CC&R § 7.9 by a preponderance of the evidence… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)
Topic Tags
legal standards
evidence
hearing procedures
Question
Can I use the defense that the HOA waited too long to enforce the rule (laches)?
Short Answer
Yes, but you bear the burden of proving that the delay was unreasonable and caused you prejudice.
Detailed Answer
Laches is an affirmative defense. It is not enough to simply show a delay; the homeowner must prove by a preponderance of the evidence that the delay was unreasonable and that it resulted in sufficient prejudice to deny the HOA's relief.
Alj Quote
Laches is an affirmative defense, and Respondent bears the burden of establishing the defense by a preponderance of the evidence… Respondent has not established by a preponderance of the evidence that there was unreasonable delay that has resulted in prejudice to Respondent sufficient to deny the relief Petitioner seeks…
Legal Basis
A.C.C. R2-19-119(B)(2); Flynn v. Rogers
Topic Tags
defenses
laches
enforcement delay
Question
If I lose the hearing, can the judge make me pay the HOA's filing fees?
Short Answer
Yes, the Administrative Law Judge can order the losing homeowner to reimburse the HOA's filing fee.
Detailed Answer
In this decision, the judge ordered the Respondent (homeowner) to pay the Petitioner's (HOA) filing fee of $1,500.00 directly to the Petitioner within 30 days.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioner its filing fee of $1,500.00, to be paid directly to Petitioner within thirty (30) days of this Order.
Legal Basis
Administrative Order
Topic Tags
fees
costs
penalties
Question
How do judges interpret the meaning of restrictive covenants (CC&Rs)?
Short Answer
They are interpreted as a whole, looking at the underlying purpose of the document.
Detailed Answer
Legal interpretation does not isolate single phrases but looks at the document in its entirety to understand the intent of the parties and the purpose of the restrictions.
Alj Quote
Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.
Legal Basis
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
Topic Tags
legal interpretation
CC&Rs
covenants
Question
Can the judge issue a civil penalty (fine) in addition to ordering me to fix the violation?
Short Answer
Yes, the judge has the authority to levy a civil penalty, though they may choose not to.
Detailed Answer
Under Arizona statute A.R.S. § 32-2199.02, the administrative law judge has the discretion to order compliance and also levy a civil penalty for each violation. In this specific case, the judge found no civil penalty was appropriate, but the authority exists.
Alj Quote
The administrative law judge may order any party to abide by the statute, condominium documents, community documents or contract provision at issue and may levy a civil penalty on the basis of each violation.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
civil penalties
fines
statutory authority
Case
Docket No
24F-H031-REL
Case Title
Keystone Owners Association vs. Bernadette M. Bennett
Decision Date
2024-12-09
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Questions
Question
Can a sub-association enforce the rules and CC&Rs of the master association?
Short Answer
Yes, if the master association has assigned those enforcement rights to the sub-association.
Detailed Answer
A sub-association (like a specific neighborhood HOA within a larger master planned community) generally enforces its own documents. However, this decision clarifies that a sub-association may be authorized to enforce the master association's governing documents if there is a specific assignment agreement executing that transfer of authority.
Alj Quote
The Governing Documents authorize Petitioner to enforce the Governing Documents, as further memorialized by an executed Assignment Agreement by and between Mountain Park Association and Keystone Owners Association signed on August 16, 2023.
Legal Basis
Assignment Agreement / Governing Documents
Topic Tags
jurisdiction
sub-associations
master association
enforcement authority
Question
If I extend my driveway without approval, does the HOA have to prove I didn't get permission, or do I have to prove I did?
Short Answer
The absence of written evidence granting approval can be used to establish a violation.
Detailed Answer
While the HOA bears the initial burden of proof for the violation, the lack of testimonial or written evidence showing that the homeowner received approval helps establish that the modification was unauthorized.
Alj Quote
However, there was no testimonial or written evidence presented to establish that Respondent was granted approval to install a driveway that exceeded 35% of the total yard frontage area.
Legal Basis
Burden of Proof
Topic Tags
architectural approval
evidence
driveways
modifications
Question
What is the 'burden of proof' for an HOA to win a violation hearing?
Short Answer
The HOA must prove the violation by a 'preponderance of the evidence'.
Detailed Answer
The HOA does not need to prove a violation 'beyond a reasonable doubt' (the criminal standard). They must only show that their contention is 'more probably true than not' or carries superior evidentiary weight.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated CC&R § 7.9 by a preponderance of the evidence… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)
Topic Tags
legal standards
evidence
hearing procedures
Question
Can I use the defense that the HOA waited too long to enforce the rule (laches)?
Short Answer
Yes, but you bear the burden of proving that the delay was unreasonable and caused you prejudice.
Detailed Answer
Laches is an affirmative defense. It is not enough to simply show a delay; the homeowner must prove by a preponderance of the evidence that the delay was unreasonable and that it resulted in sufficient prejudice to deny the HOA's relief.
Alj Quote
Laches is an affirmative defense, and Respondent bears the burden of establishing the defense by a preponderance of the evidence… Respondent has not established by a preponderance of the evidence that there was unreasonable delay that has resulted in prejudice to Respondent sufficient to deny the relief Petitioner seeks…
Legal Basis
A.C.C. R2-19-119(B)(2); Flynn v. Rogers
Topic Tags
defenses
laches
enforcement delay
Question
If I lose the hearing, can the judge make me pay the HOA's filing fees?
Short Answer
Yes, the Administrative Law Judge can order the losing homeowner to reimburse the HOA's filing fee.
Detailed Answer
In this decision, the judge ordered the Respondent (homeowner) to pay the Petitioner's (HOA) filing fee of $1,500.00 directly to the Petitioner within 30 days.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioner its filing fee of $1,500.00, to be paid directly to Petitioner within thirty (30) days of this Order.
Legal Basis
Administrative Order
Topic Tags
fees
costs
penalties
Question
How do judges interpret the meaning of restrictive covenants (CC&Rs)?
Short Answer
They are interpreted as a whole, looking at the underlying purpose of the document.
Detailed Answer
Legal interpretation does not isolate single phrases but looks at the document in its entirety to understand the intent of the parties and the purpose of the restrictions.
Alj Quote
Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.
Legal Basis
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
Topic Tags
legal interpretation
CC&Rs
covenants
Question
Can the judge issue a civil penalty (fine) in addition to ordering me to fix the violation?
Short Answer
Yes, the judge has the authority to levy a civil penalty, though they may choose not to.
Detailed Answer
Under Arizona statute A.R.S. § 32-2199.02, the administrative law judge has the discretion to order compliance and also levy a civil penalty for each violation. In this specific case, the judge found no civil penalty was appropriate, but the authority exists.
Alj Quote
The administrative law judge may order any party to abide by the statute, condominium documents, community documents or contract provision at issue and may levy a civil penalty on the basis of each violation.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
civil penalties
fines
statutory authority
Case
Docket No
24F-H031-REL
Case Title
Keystone Owners Association vs. Bernadette M. Bennett
Decision Date
2024-12-09
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Erica L. Mortenson(attorney) Goodman Law Group HOA attorney
Harry Whitel(board member/witness) Keystone Owners Association Secretary of the Board
Tim Seyfarth(board member/president) Keystone Owners Association Board President
Glenn Steinman(board member) Keystone Owners Association Board Vice President
Debbie Burch(board member) Keystone Owners Association Board Treasurer
Cherry Collins(board member) Keystone Owners Association Member at large; Architectural Advisory Committee member
Joe Getti(ARC member/former board member) Keystone Owners Association Architectural Advisory Committee member
Mary Hamilton(ARC member) Keystone Owners Association Architectural Advisory Committee member
Dan(attorney/staff) Goodman Law Group
Respondent Side
Bernadette M. Bennett(respondent) Lot Owner
Thomas A. Walcott(attorney) Provident Lawyers Respondent attorney
Noah Alvarado(staff) Staff/assistant for Respondent's Counsel
Christopher J. Charles(attorney/staff) Provident Lawyers
Neutral Parties
Velva Moses-Thompson(ALJ) OAH Administrative Law Judge
Amy Haley(ALJ) OAH Administrative Law Judge (prior to VMT)
Susan Nicolson(Commissioner) Arizona Department of Real Estate
Other Participants
Isabella(property manager) Vision Management Keystone Property Manager who was asked for documents
Annette Wthbon(property management agent) City Management Former Property Management Agent
Carla Garvin(property management agent) City Management Former Property Management Agent
The Administrative Law Judge found the Respondent HOA in violation of A.R.S. § 33-1215(A)(1) for failing to contain the name of the association in the Declaration. The Petitioner was deemed the prevailing party and awarded the $500.00 filing fee, but no civil penalty was imposed.
Key Issues & Findings
Declaration requirements for naming the condominium and association.
Petitioner claimed the Declaration failed to comply with A.R.S. § 33-1215(A)(1) because it lacked the formal name of the association. Respondent argued the existing reference to the 'Council of Co-owners' was sufficient because case law established the current association was the successor entity. The Tribunal found the Declaration did not contain the name of the association as required.
Orders: Respondent shall pay Petitioner the filing fee of $500.00 within thirty (30) days and shall comply with A.R.S. § 33-1215(A)(1) going forward.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1215(A)(1)
A.R.S. § 12-550
A.R.S. § 33-1202(15)
A.R.S. § 33-1219(A)
London v Carrick
Schaefer v Pro Keanti AZ2 LP
Eli v Cro County A
Analytics Highlights
Topics: HOA, Condominium Act, Declaration, Statute of Limitations
Additional Citations:
A.R.S. § 33-1215(A)(1)
A.R.S. § 12-550
A.R.S. § 33-1202(15)
A.R.S. § 33-1219(A)
A.R.S. § 32-2199
A.R.S. § 41-1092
London v Carrick
Schaefer v Pro Keanti AZ2 LP
Eli v Cro County A
Audio Overview
Decision Documents
25F-H001-REL Decision – 1235116.pdf
Uploaded 2026-01-23T18:12:40 (44.0 KB)
25F-H001-REL Decision – 1241814.pdf
Uploaded 2026-01-23T18:12:47 (115.8 KB)
Briefing Doc – 25F-H001-REL
Briefing on Administrative Hearing Case No. 25F-H001-REL
Executive Summary
This briefing document synthesizes the proceedings and outcome of the administrative hearing case R.L. Whitmer v. Hilton Casitas Council of Homeowners (No. 25F-H001-REL). The central issue was whether the Respondent Homeowners Association’s (HOA) governing Declaration complied with Arizona Revised Statutes (A.R.S.) § 33-1215(A)(1), which mandates that the Declaration contain both the name of the condominium (with the word “condominium”) and the specific name of the association.
In a decision issued on November 12, 2024, Administrative Law Judge (ALJ) Samuel Fox ruled in favor of the Petitioner, R.L. Whitmer. The ALJ found that while the Declaration’s associated plat satisfied the requirement for the condominium’s name, the Declaration failed to contain the association’s actual, current legal name, “Hilton Casitas Council of Homeowners.”
The Respondent HOA advanced three primary defenses, all of which were rejected by the tribunal:
1. Constructive Compliance: The HOA argued that the Declaration’s reference to its predecessor entity (“Council of Co-owners”), combined with numerous court rulings affirming the current HOA as its legal successor, constituted compliance. The ALJ dismissed this, stating the statute requires the actual name to be present and that “constructive compliance” is not sufficient.
2. Statute of Limitations: The HOA claimed the petition was barred by a four-year statute of limitations (A.R.S. § 12-550), as the Petitioner had notice of the Declaration’s contents since 2014. The ALJ ruled that this statute applies only to “actions” in a “court,” and that proceedings before the Office of Administrative Hearings (OAH), an executive branch agency, do not qualify.
3. Impossibility of Unilateral Action: The HOA contended that it could not be ordered to amend the Declaration because such an action requires a membership vote and is not unilaterally achievable. The ALJ found this was not a valid legal defense, as the procedural requirements for achieving statutory compliance do not excuse non-compliance.
The final order declared the Petitioner the prevailing party, ordered the Respondent to pay the Petitioner’s $500 filing fee, and mandated that the Respondent comply with A.R.S. § 33-1215(A)(1). No civil penalty was imposed.
Case Overview
• Case Number: 25F-H001-REL
• Forum: Office of Administrative Hearings (OAH), State of Arizona
• Petitioner: R.L. Whitmer
• Respondent: Hilton Casitas Council of Homeowners
• Presiding Judge: Administrative Law Judge Samuel Fox
• Respondent’s Counsel: Emily H. Mann
• Core Legal Issue: Whether the Respondent’s Declaration of Horizontal Property Regime for Hilton Casitas violates A.R.S. § 33-1215(A)(1), which states:
Procedural History
• Petition Filed: On or about June 27, 2024, R.L. Whitmer filed a petition with the Arizona Department of Real Estate alleging the violation.
• Motion to Dismiss: On October 1, 2024, the Respondent filed a motion for summary judgment (or to dismiss), which was denied by the OAH on October 18, 2024.
• Evidentiary Hearing: A hearing was held on October 25, 2024, though the hearing transcript is dated October 26, 2024.
• ALJ Decision Issued: The final Administrative Law Judge Decision was issued on November 12, 2024.
Analysis of Key Arguments and Rulings
The case centered on three distinct legal arguments presented by the Respondent HOA and the subsequent rulings by the ALJ.
1. Statutory Compliance of the Declaration
The fundamental dispute was whether the Declaration, as written, satisfied the plain language of A.R.S. § 33-1215(A)(1).
Argument / Position
Supporting Evidence / Rationale
Petitioner (Whitmer)
The Declaration is non-compliant because the legal name “Hilton Casitas Council of Homeowners” is not present anywhere in the document.
The Declaration refers to the “Council of Co-owners,” an unincorporated association created in 1972. The current non-profit corporation, formed in 1994, is not named. The Petitioner argued, “It’s just not there.”
Respondent (HOA)
The Declaration is compliant when its constituent parts are read together with established case law.
1. Condominium Name: The plat, which is legally part of the Declaration per A.R.S. § 33-1219(A), contains the phrase “HILTON CASITAS A CONDOMINIUM DEVELOPMENT.” 2. Association Name: Section 1.4 of the Declaration defines “Council” as the “Council of Co-owners.” Multiple Arizona Court of Appeals decisions have held that the “Hilton Casitas Council of Homeowners” is the legal successor entity to the “Council of Co-owners.” Therefore, a reference to the old name legally constitutes a reference to the current name.
ALJ Ruling
Violation Established. The Declaration does not contain the name of the association as required.
The ALJ agreed with the Respondent that the plat satisfied the condominium name requirement. However, the judge rejected the “successor entity” argument for the association’s name, concluding: > “The statute requires ‘the name of the association,’ not merely a reference to it. Even if the current association was the entity with standing, its name was not present in the Declaration. Assuming that there is some purpose for the statutory requirement, a reader should be able to identify the association from the declaration. Accordingly, the Tribunal is not willing to accept constructive compliance.”
2. The Statute of Limitations Defense
The Respondent argued that even if a violation existed, the Petitioner’s claim was filed too late.
Argument / Position
Supporting Evidence / Rationale
Petitioner (Whitmer)
The statute of limitations does not apply because the violation is a continuous act.
The Petitioner framed the non-compliant Declaration as a “cloud on the title,” a type of defect to which a statute of limitations is never a bar.
Respondent (HOA)
The claim is time-barred by the four-year default statute of limitations under A.R.S. § 12-550.
The Petitioner acquired his property in August 2014 and thus had constructive notice of the Declaration’s contents. The four-year period to file a claim expired in August 2018, making the 2024 petition six years too late.
ALJ Ruling
Defense Rejected. The statute of limitations does not apply to OAH proceedings.
The ALJ performed a statutory analysis, noting that A.R.S. § 12-550 applies to an “action” which is defined as “any matter or proceeding in a court.” Because the OAH is an agency of the executive branch and not a court, its proceedings are not “actions” under the statute. Therefore, the general statute of limitations is inapplicable.
3. The “Impossibility” of Unilateral Compliance
The Respondent argued that the relief sought by the Petitioner—an order to amend the Declaration—was not something the tribunal could grant because the HOA Board could not comply on its own.
Argument / Position
Supporting Evidence / Rationale
Petitioner (Whitmer)
The HOA has a clear path to compliance.
The Petitioner stated that the HOA simply needs to “call the election, amend the… or propose an amendment that cures this problem and ask the membership to approve it.” He offered to stipulate that he would not seek a contempt order if the HOA made a good-faith effort.
Respondent (HOA)
An order to amend would be inappropriate because the HOA cannot unilaterally amend the Declaration.
Amending the Declaration requires a vote of the membership (either 51% or 67%) and consent from an entity referred to as “the corporation.” If a vote failed, the HOA could not comply with the order, exposing it to further litigation from the Petitioner seeking to hold it in contempt.
ALJ Ruling
Defense Rejected. Procedural requirements for compliance do not constitute a legal defense against non-compliance.
The ALJ noted that it is ordinary for an HOA board or membership to have to vote to enact compliance with a statute. The ruling states: > “Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.” The tribunal’s role is to determine compliance and order it where it is lacking.
Final Order
The Administrative Law Judge Decision concluded with the following orders:
1. Prevailing Party: The Petitioner, R.L. Whitmer, is deemed the prevailing party.
2. Filing Fee: The Respondent must pay the Petitioner the filing fee of $500.00 within thirty days of the order.
3. Compliance: The Respondent shall comply with A.R.S. § 33-1215(A)(1) going forward.
4. Civil Penalty: No civil penalty was found to be appropriate in the matter.
The decision is binding unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days.
Study Guide – 25F-H001-REL
{ “case”: { “docket_no”: “25F-H001-REL”, “case_title”: “R.L. Whitmer v. Hilton Casitas Council of Homeowners”, “decision_date”: “2024-11-12”, “alj_name”: “Samuel Fox”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the 4-year statute of limitations for civil lawsuits apply to HOA disputes filed with the Arizona Department of Real Estate?”, “short_answer”: “No. The general statute of limitations applies to court ‘actions,’ and administrative hearings are not considered court actions.”, “detailed_answer”: “The Administrative Law Judge ruled that the general 4-year statute of limitations (A.R.S. § 12-550) does not apply to petitions filed with the Department of Real Estate/OAH. This is because the Office of Administrative Hearings is part of the executive branch, not the judicial branch, and its proceedings are not defined as ‘actions’ by the legislature.”, “alj_quote”: “Accordingly, proceedings before OAH are not ‘actions’ as defined by the legislature, and the general statute of limitations does not apply.”, “legal_basis”: “A.R.S. § 12-550; A.R.S. § 1-215”, “topic_tags”: [ “statute of limitations”, “jurisdiction”, “filing deadlines” ] }, { “question”: “Must the HOA’s Declaration explicitly state the full legal name of the Association?”, “short_answer”: “Yes. The Declaration must contain the actual name of the association, not just a definition or reference like ‘The Council’.”, “detailed_answer”: “State law requires the Declaration to contain the specific name of the association. The Judge rejected the argument that defining a term like ‘Council’ to mean the association was sufficient. The actual name must appear to ensure a reader can identify the association from the document.”, “alj_quote”: “The statute requires ‘the name of the association,’ not merely a reference to it. The name of the association as stated in the defined term ‘Council’ is not the name of the association.”, “legal_basis”: “A.R.S. § 33-1215(A)(1)”, “topic_tags”: [ “CC&Rs”, “governing documents”, “HOA name” ] }, { “question”: “Can an HOA avoid an order to amend its documents by claiming it requires a vote of the membership?”, “short_answer”: “No. Procedural difficulties, such as needing a membership vote, are not a valid legal defense for non-compliant documents.”, “detailed_answer”: “An HOA cannot use the difficulty of obtaining a membership vote as a defense against a violation finding. If the documents are non-compliant with state law, the Tribunal can order compliance regardless of the internal procedures required to fix them.”, “alj_quote”: “Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.”, “legal_basis”: “Administrative Authority”, “topic_tags”: [ “amendments”, “voting”, “defenses” ] }, { “question”: “If I win my case against the HOA, will I be reimbursed for the filing fee?”, “short_answer”: “Yes, the Judge can order the HOA to reimburse the $500 filing fee to the prevailing homeowner.”, “detailed_answer”: “When a homeowner prevails in proving a violation, the Administrative Law Judge has the authority to order the Respondent (HOA) to pay the filing fee directly to the Petitioner.”, “alj_quote”: “IT IS ORDERED that Respondent pay Petitioner the filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.”, “legal_basis”: “Administrative Remedy”, “topic_tags”: [ “fees”, “remedies”, “costs” ] }, { “question”: “Does proving an HOA violation automatically result in a civil penalty (fine) against the Association?”, “short_answer”: “No. A violation does not automatically trigger a civil penalty unless the Judge deems it appropriate.”, “detailed_answer”: “Even if a homeowner proves that the HOA violated a statute or the community documents, the Judge has discretion regarding civil penalties. In this case, despite finding a violation regarding the naming in the Declaration, the Judge decided no civil penalty was necessary.”, “alj_quote”: “No Civil Penalty is found to be appropriate in this matter.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “fines”, “civil penalties”, “enforcement” ] }, { “question”: “What is the burden of proof for a homeowner filing a petition against their HOA?”, “short_answer”: “The homeowner must prove the violation by a ‘preponderance of the evidence’.”, “detailed_answer”: “The petitioner (homeowner) is responsible for providing enough evidence to show that their contention is ‘more probably true than not.'”, “alj_quote”: “Petitioner bore the burden of proof to establish that Respondent violated applicable statutes by a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119(A)”, “topic_tags”: [ “evidence”, “burden of proof”, “legal standards” ] } ] }
Blog Post – 25F-H001-REL
{ “case”: { “docket_no”: “25F-H001-REL”, “case_title”: “R.L. Whitmer v. Hilton Casitas Council of Homeowners”, “decision_date”: “2024-11-12”, “alj_name”: “Samuel Fox”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the 4-year statute of limitations for civil lawsuits apply to HOA disputes filed with the Arizona Department of Real Estate?”, “short_answer”: “No. The general statute of limitations applies to court ‘actions,’ and administrative hearings are not considered court actions.”, “detailed_answer”: “The Administrative Law Judge ruled that the general 4-year statute of limitations (A.R.S. § 12-550) does not apply to petitions filed with the Department of Real Estate/OAH. This is because the Office of Administrative Hearings is part of the executive branch, not the judicial branch, and its proceedings are not defined as ‘actions’ by the legislature.”, “alj_quote”: “Accordingly, proceedings before OAH are not ‘actions’ as defined by the legislature, and the general statute of limitations does not apply.”, “legal_basis”: “A.R.S. § 12-550; A.R.S. § 1-215”, “topic_tags”: [ “statute of limitations”, “jurisdiction”, “filing deadlines” ] }, { “question”: “Must the HOA’s Declaration explicitly state the full legal name of the Association?”, “short_answer”: “Yes. The Declaration must contain the actual name of the association, not just a definition or reference like ‘The Council’.”, “detailed_answer”: “State law requires the Declaration to contain the specific name of the association. The Judge rejected the argument that defining a term like ‘Council’ to mean the association was sufficient. The actual name must appear to ensure a reader can identify the association from the document.”, “alj_quote”: “The statute requires ‘the name of the association,’ not merely a reference to it. The name of the association as stated in the defined term ‘Council’ is not the name of the association.”, “legal_basis”: “A.R.S. § 33-1215(A)(1)”, “topic_tags”: [ “CC&Rs”, “governing documents”, “HOA name” ] }, { “question”: “Can an HOA avoid an order to amend its documents by claiming it requires a vote of the membership?”, “short_answer”: “No. Procedural difficulties, such as needing a membership vote, are not a valid legal defense for non-compliant documents.”, “detailed_answer”: “An HOA cannot use the difficulty of obtaining a membership vote as a defense against a violation finding. If the documents are non-compliant with state law, the Tribunal can order compliance regardless of the internal procedures required to fix them.”, “alj_quote”: “Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.”, “legal_basis”: “Administrative Authority”, “topic_tags”: [ “amendments”, “voting”, “defenses” ] }, { “question”: “If I win my case against the HOA, will I be reimbursed for the filing fee?”, “short_answer”: “Yes, the Judge can order the HOA to reimburse the $500 filing fee to the prevailing homeowner.”, “detailed_answer”: “When a homeowner prevails in proving a violation, the Administrative Law Judge has the authority to order the Respondent (HOA) to pay the filing fee directly to the Petitioner.”, “alj_quote”: “IT IS ORDERED that Respondent pay Petitioner the filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.”, “legal_basis”: “Administrative Remedy”, “topic_tags”: [ “fees”, “remedies”, “costs” ] }, { “question”: “Does proving an HOA violation automatically result in a civil penalty (fine) against the Association?”, “short_answer”: “No. A violation does not automatically trigger a civil penalty unless the Judge deems it appropriate.”, “detailed_answer”: “Even if a homeowner proves that the HOA violated a statute or the community documents, the Judge has discretion regarding civil penalties. In this case, despite finding a violation regarding the naming in the Declaration, the Judge decided no civil penalty was necessary.”, “alj_quote”: “No Civil Penalty is found to be appropriate in this matter.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “fines”, “civil penalties”, “enforcement” ] }, { “question”: “What is the burden of proof for a homeowner filing a petition against their HOA?”, “short_answer”: “The homeowner must prove the violation by a ‘preponderance of the evidence’.”, “detailed_answer”: “The petitioner (homeowner) is responsible for providing enough evidence to show that their contention is ‘more probably true than not.'”, “alj_quote”: “Petitioner bore the burden of proof to establish that Respondent violated applicable statutes by a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119(A)”, “topic_tags”: [ “evidence”, “burden of proof”, “legal standards” ] } ] }
Case Participants
Petitioner Side
R.L. Whitmer(petitioner) fulcrumgroup.biz
Respondent Side
Emily H. Mann Phillips(HOA attorney) Phillips, Maceyko & Battock, PLLC
Robert Westbrook(HOA president) Hilton Casitas Council of Homeowners
Neutral Parties
Samuel Fox(ALJ) Office of Administrative Hearings
Susan Nicolson(Commissioner) Arizona Department of Real Estate (ADRE)
The Administrative Law Judge denied the petition, concluding that the Association was in compliance with ARIZ. REV. STAT. § 33-1812(7) by providing the electronic data lists received from the voting vendor (Vote HOA Now), as the statute requires storage of 'electronic votes' not necessarily 'electronic ballots' (images).
Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Key Issues & Findings
Failure to provide voting records (electronic ballots) for inspection
Petitioner alleged the Association failed to provide all voting materials, specifically images of each actual online ballot, in response to the February 28, 2024, inspection request, arguing this violated ARIZ. REV. STAT. § 33-1812(A)(7).
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1812(A)(7)
ARIZ. REV. STAT. § 10-3708(F)
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 33-1258
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.
Analytics Highlights
Topics: Voting Records, Electronic Voting, HOA Records Inspection, Statutory Interpretation, ARS 33-1812
Additional Citations:
ARIZ. REV. STAT. § 33-1812(A)(7)
ARIZ. REV. STAT. § 10-3708(F)
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 33-1258
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 41-1092.09
ARIZ. REV. STAT. § 32-2199.04
Video Overview
Audio Overview
Decision Documents
24F-H047-REL-RMD Decision – 1240168.pdf
Uploaded 2026-01-23T18:10:22 (184.8 KB)
24F-H047-REL-RMD Decision – 1330098.pdf
Uploaded 2026-01-23T18:10:26 (48.9 KB)
24F-H047-REL-RMD Decision – 1330115.pdf
Uploaded 2026-01-23T18:10:30 (6.2 KB)
24F-H047-REL-RMD Decision – 1338932.pdf
Uploaded 2026-01-23T18:10:35 (56.6 KB)
24F-H047-REL-RMD Decision – 1340272.pdf
Uploaded 2026-01-23T18:10:38 (53.7 KB)
24F-H047-REL-RMD Decision – 1357165.pdf
Uploaded 2026-01-23T18:10:42 (59.5 KB)
24F-H047-REL-RMD Decision – 1358023.pdf
Uploaded 2026-01-23T18:10:50 (12.1 KB)
Questions
Question
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Questions
Question
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
John F. Sullivan(Petitioner Attorney) AZNH Revocable Trust Counsel for Susan Sullivan/AZNH Trust
Susan Sullivan(Petitioner Trustee) AZNH Revocable Trust
Respondent Side
Chad M. Gallacher(Respondent Attorney) Sunland Springs Village Homeowners Association Affiliated with MAXWELL & MORGAN, P.C.
Kathy Fowers(General Manager/Witness) Sunland Springs Village Homeowners Association Custodian of Records
Cathy Braun(Association Secretary/Treasurer) Sunland Springs Village Homeowners Association Referenced in emails regarding documents inspection
Paul Minda(Board President/Board Member) Sunland Springs Village Homeowners Association Present at rehearing
Mar(Board Vice President/Board Member) Sunland Springs Village Homeowners Association Partial name only; present at rehearing
Mrs. Holden(Affiliate/Witness) Sunland Springs Village Homeowners Association Present at Superior Court argument
Neutral Parties
Kay A. Abramsohn(ALJ) Office of Administrative Hearings
Judge McKish(Superior Court Judge) Maricopa County Superior Court Presided over appeal/remand process
Susan Nicolson(ADRE Commissioner) Arizona Department of Real Estate
Other Participants
vnunez(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
djones(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
labril(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
mneat(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
lrecchia(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
gosborn(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
The Administrative Law Judge denied the petition, concluding that the Association was in compliance with ARIZ. REV. STAT. § 33-1812(7) by providing the electronic data lists received from the voting vendor (Vote HOA Now), as the statute requires storage of 'electronic votes' not necessarily 'electronic ballots' (images).
Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Key Issues & Findings
Failure to provide voting records (electronic ballots) for inspection
Petitioner alleged the Association failed to provide all voting materials, specifically images of each actual online ballot, in response to the February 28, 2024, inspection request, arguing this violated ARIZ. REV. STAT. § 33-1812(A)(7).
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1812(A)(7)
ARIZ. REV. STAT. § 10-3708(F)
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 33-1258
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.
Analytics Highlights
Topics: Voting Records, Electronic Voting, HOA Records Inspection, Statutory Interpretation, ARS 33-1812
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Questions
Question
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
John F. Sullivan(Attorney) AZNH Revocable Trust Counsel for Petitioner
Susan Sullivan(Petitioner Trustee) AZNH Revocable Trust Filed motion for peremptory change of judge
Respondent Side
Chad M. Gallacher(HOA attorney) MAXWELL & MORGAN, P.C. Counsel for Sunland Springs Village Homeowners Association
Kathy Fowers(General Manager) Sunland Springs Village Homeowners Association Custodian of Records; Present at hearing
Paul Minda(board member) Sunland Springs Village Homeowners Association Board President
Mar(board member) Sunland Springs Village Homeowners Association Vice President (Partial name identified)
Cathy Braun(Association Secretary/Treasurer) Sunland Springs Village Homeowners Association Exchanged emails with Petitioner regarding inspection request
Neutral Parties
Kay A. Abramsohn(ALJ) OAH Administrative Law Judge
Susan Nicolson(ADRE Commissioner) Arizona Department of Real Estate
Judge McKish(Judge) Superior Court Superior Court Judge who handled remand; also referred to as Judge McKittish
Other Participants
Mrs. Holden(witness) Present at Superior Court argument with Respondent representatives
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
24F-H047-REL
Agency
ADRE
Tribunal
OAH
Decision Date
2024-11-05
Administrative Law Judge
Kay A. Abramsohn
Outcome
loss
Filing Fees Refunded
$500.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
AZNH Revocable Trust
Counsel
John F. Sullivan
Respondent
Sunland Springs Village Homeowners Association
Counsel
Chad M. Gallacher
Alleged Violations
A.R.S. § 33-1812(A)(7)
Outcome Summary
The ALJ denied the petition, concluding that the Association complied with A.R.S. § 33-1812(A)(7) by providing the electronic data lists from the voting software company, which met the requirement for retaining electronic records of votes.
Why this result: The tribunal ruled that A.R.S. § 10-3708(F) requires the storage of 'electronic votes', not exact visual images of electronic ballots. The voting data lists adequately documented each member's vote in compliance with the law.
Key Issues & Findings
Records Inspection
Petitioner alleged the Association failed to produce all voting materials from a February 2024 election, specifically arguing that images of the actual online ballots were not provided.
Orders: Petition denied. The Association was found to be in compliance by retaining and providing the electronic voting data lists.
Case Summary: AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Explicit Notice: This summary covers both the original administrative decision (Case No. 24F-H047-REL) and the subsequent rehearing proceedings (Case No. 24F-H047-REL-RHG). The procedural history, issues, and outcomes of the two proceedings are distinct and outlined separately below to prevent conflation.
I. Original Proceeding (Case No. 24F-H047-REL)
Key Facts: The Petitioner, AZNH Revocable Trust, requested to inspect election documents from the Respondent, Sunland Springs Village Homeowners Association (HOA), concerning a February 2024 election. The HOA utilized a third-party vendor, “Vote HOA Now,” to conduct electronic voting. In response to the inspection request, the HOA provided paper ballots, absentee envelopes, and data tally lists verifying the electronic votes cast via the vendor.
Main Issue: The Petitioner argued that the HOA violated A.R.S. § 33-1812(A)(7) by failing to produce an actual image of each electronic ballot as seen and voted on by the members, asserting that data lists were insufficient for a valid recount or inspection.
Outcome: On November 5, 2024, the Administrative Law Judge (ALJ) denied the petition. The ALJ concluded that the HOA complied with statutory requirements, determining that retaining the data lists demonstrating the electronic votes satisfied the requirement to keep records “in electronic format”. The ALJ noted that A.R.S. § 10-3708(F)(4) mandates the storage of “electronic votes,” not necessarily visual images of electronic ballots.
II. Procedural History & Rehearing (Case No. 24F-H047-REL-RHG)
Procedural History: Following the original decision, the Petitioner appealed to the Maricopa County Superior Court. The Superior Court remanded the matter to the Arizona Department of Real Estate to conduct an evidentiary hearing to address “additional evidence” proposed by the Petitioner (specifically, an electronic ballot allegedly in the HOA’s custody). Consequently, the Department granted a rehearing, leading to the RHG docket.
Rehearing Proceedings & Key Arguments: The rehearing was scheduled for September 26, 2025. At 12:13 a.m. on the day of the hearing, the Petitioner electronically filed a “Peremptory Change of Administrative Law Judge” alongside a request for a continuance. The Petitioner invoked a newly revised statute (A.R.S. § 41-1092.07), effective that same day, which entitles a party to one peremptory change of judge.
Prior to going on the record, the ALJ and the OAH Interim Director determined that the Petitioner’s filing was a “motion” and was untimely under Arizona Administrative Code R2-19-106. Because the filing was deemed untimely, the ALJ retained the case. The Petitioner’s attorney argued that the peremptory change was an absolute statutory right—not a discretionary “motion”—and subsequently refused to participate, leaving the hearing room before the proceedings officially went on the record.
Rehearing Outcome: Because the Petitioner’s counsel left and failed to present evidence or argument, the HOA moved to dismiss the matter. On October 9, 2025, the ALJ formally granted the dismissal based on the Petitioner’s failure to proceed with the case.
Note: Following the dismissal of the rehearing, the Petitioner filed an Original Special Action Complaint in Superior Court (CV2025-036466) against the ALJ, OAH, and the HOA. The Petitioner is seeking a judgment declaring that the peremptory change of judge was immediate and incontrovertible by legislative fiat, and that the ALJ exceeded her legal authority by dismissing the rehearing
Study Guide – 24F-H047-REL-RHG
Case Summary: AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Explicit Notice: This summary covers both the original administrative decision (Case No. 24F-H047-REL) and the subsequent rehearing proceedings (Case No. 24F-H047-REL-RHG). The procedural history, issues, and outcomes of the two proceedings are distinct and outlined separately below to prevent conflation.
I. Original Proceeding (Case No. 24F-H047-REL)
Key Facts: The Petitioner, AZNH Revocable Trust, requested to inspect election documents from the Respondent, Sunland Springs Village Homeowners Association (HOA), concerning a February 2024 election. The HOA utilized a third-party vendor, “Vote HOA Now,” to conduct electronic voting. In response to the inspection request, the HOA provided paper ballots, absentee envelopes, and data tally lists verifying the electronic votes cast via the vendor.
Main Issue: The Petitioner argued that the HOA violated A.R.S. § 33-1812(A)(7) by failing to produce an actual image of each electronic ballot as seen and voted on by the members, asserting that data lists were insufficient for a valid recount or inspection.
Outcome: On November 5, 2024, the Administrative Law Judge (ALJ) denied the petition. The ALJ concluded that the HOA complied with statutory requirements, determining that retaining the data lists demonstrating the electronic votes satisfied the requirement to keep records “in electronic format”. The ALJ noted that A.R.S. § 10-3708(F)(4) mandates the storage of “electronic votes,” not necessarily visual images of electronic ballots.
II. Procedural History & Rehearing (Case No. 24F-H047-REL-RHG)
Procedural History: Following the original decision, the Petitioner appealed to the Maricopa County Superior Court. The Superior Court remanded the matter to the Arizona Department of Real Estate to conduct an evidentiary hearing to address “additional evidence” proposed by the Petitioner (specifically, an electronic ballot allegedly in the HOA’s custody). Consequently, the Department granted a rehearing, leading to the RHG docket.
Rehearing Proceedings & Key Arguments: The rehearing was scheduled for September 26, 2025. At 12:13 a.m. on the day of the hearing, the Petitioner electronically filed a “Peremptory Change of Administrative Law Judge” alongside a request for a continuance. The Petitioner invoked a newly revised statute (A.R.S. § 41-1092.07), effective that same day, which entitles a party to one peremptory change of judge.
Prior to going on the record, the ALJ and the OAH Interim Director determined that the Petitioner’s filing was a “motion” and was untimely under Arizona Administrative Code R2-19-106. Because the filing was deemed untimely, the ALJ retained the case. The Petitioner’s attorney argued that the peremptory change was an absolute statutory right—not a discretionary “motion”—and subsequently refused to participate, leaving the hearing room before the proceedings officially went on the record.
Rehearing Outcome: Because the Petitioner’s counsel left and failed to present evidence or argument, the HOA moved to dismiss the matter. On October 9, 2025, the ALJ formally granted the dismissal based on the Petitioner’s failure to proceed with the case.
Note: Following the dismissal of the rehearing, the Petitioner filed an Original Special Action Complaint in Superior Court (CV2025-036466) against the ALJ, OAH, and the HOA. The Petitioner is seeking a judgment declaring that the peremptory change of judge was immediate and incontrovertible by legislative fiat, and that the ALJ exceeded her legal authority by dismissing the rehearing
Blog Post – 24F-H047-REL-RHG
Case Summary: AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Explicit Notice: This summary covers both the original administrative decision (Case No. 24F-H047-REL) and the subsequent rehearing proceedings (Case No. 24F-H047-REL-RHG). The procedural history, issues, and outcomes of the two proceedings are distinct and outlined separately below to prevent conflation.
I. Original Proceeding (Case No. 24F-H047-REL)
Key Facts: The Petitioner, AZNH Revocable Trust, requested to inspect election documents from the Respondent, Sunland Springs Village Homeowners Association (HOA), concerning a February 2024 election. The HOA utilized a third-party vendor, “Vote HOA Now,” to conduct electronic voting. In response to the inspection request, the HOA provided paper ballots, absentee envelopes, and data tally lists verifying the electronic votes cast via the vendor.
Main Issue: The Petitioner argued that the HOA violated A.R.S. § 33-1812(A)(7) by failing to produce an actual image of each electronic ballot as seen and voted on by the members, asserting that data lists were insufficient for a valid recount or inspection.
Outcome: On November 5, 2024, the Administrative Law Judge (ALJ) denied the petition. The ALJ concluded that the HOA complied with statutory requirements, determining that retaining the data lists demonstrating the electronic votes satisfied the requirement to keep records “in electronic format”. The ALJ noted that A.R.S. § 10-3708(F)(4) mandates the storage of “electronic votes,” not necessarily visual images of electronic ballots.
II. Procedural History & Rehearing (Case No. 24F-H047-REL-RHG)
Procedural History: Following the original decision, the Petitioner appealed to the Maricopa County Superior Court. The Superior Court remanded the matter to the Arizona Department of Real Estate to conduct an evidentiary hearing to address “additional evidence” proposed by the Petitioner (specifically, an electronic ballot allegedly in the HOA’s custody). Consequently, the Department granted a rehearing, leading to the RHG docket.
Rehearing Proceedings & Key Arguments: The rehearing was scheduled for September 26, 2025. At 12:13 a.m. on the day of the hearing, the Petitioner electronically filed a “Peremptory Change of Administrative Law Judge” alongside a request for a continuance. The Petitioner invoked a newly revised statute (A.R.S. § 41-1092.07), effective that same day, which entitles a party to one peremptory change of judge.
Prior to going on the record, the ALJ and the OAH Interim Director determined that the Petitioner’s filing was a “motion” and was untimely under Arizona Administrative Code R2-19-106. Because the filing was deemed untimely, the ALJ retained the case. The Petitioner’s attorney argued that the peremptory change was an absolute statutory right—not a discretionary “motion”—and subsequently refused to participate, leaving the hearing room before the proceedings officially went on the record.
Rehearing Outcome: Because the Petitioner’s counsel left and failed to present evidence or argument, the HOA moved to dismiss the matter. On October 9, 2025, the ALJ formally granted the dismissal based on the Petitioner’s failure to proceed with the case.
Note: Following the dismissal of the rehearing, the Petitioner filed an Original Special Action Complaint in Superior Court (CV2025-036466) against the ALJ, OAH, and the HOA. The Petitioner is seeking a judgment declaring that the peremptory change of judge was immediate and incontrovertible by legislative fiat, and that the ALJ exceeded her legal authority by dismissing the rehearing
Case Participants
Petitioner Side
John F. Sullivan(attorney) AZNH Revocable Trust Attorney and Trustee for AZNH Revocable Trust.
Susan Sullivan(petitioner) AZNH Revocable Trust Trustee of AZNH Revocable Trust.
Respondent Side
Chad M. Gallacher(HOA attorney) Maxwell & Morgan, P.C. Represented Sunland Springs Village Homeowners Association.
Cathy Braun(board member) Sunland Springs Village Homeowners Association Association Secretary/Treasurer.
Kathy Fowers(property manager) Sunland Springs Village Homeowners Association General Manager and Custodian of Records.
Paul Minda(board member) Sunland Springs Village Homeowners Association Board President.
B Austin Baillio(HOA attorney) Sunland Springs Village Homeowners Association Listed on the minute entry and notice of hearing.
Neutral Parties
Kay A. Abramsohn(ALJ) OAH Administrative Law Judge who initially decided the case and was later the subject of a peremptory change request.
Susan Nicolson(commissioner) ADRE
Tammy Eigenheer(director) OAH Interim Director of the Arizona Office of Administrative Hearings.
Joseph P. Mikitish(judge) Maricopa County Superior Court Judge who handled the appeal LC2025-000025-001 DT.
Scott Blaney(judge) Maricopa County Superior Court Judge assigned to the Original Special Action CV2025-036466.
Deanie Reh(attorney) Attorney General's Office Counsel for Arizona Department of Real Estate.
Raya Gardner(attorney) Attorney General's Office Counsel for Arizona Department of Real Estate.
Kara Karlson(attorney) Attorney General's Office Counsel for Defendants Eigenheer & Abramsohn.
Mandy Neat(deputy commissioner) ADRE Signed the Department's Order and Notice of Hearing.
Lynette Evans(attorney) Listed on the minute entry for the Maricopa County Superior Court.
N. Johnson(clerk) Maricopa County Superior Court Deputy clerk.
J. Thampy(clerk) Maricopa County Superior Court Deputy clerk.
Petitioner failed to meet the burden of proof showing Respondent violated its Community Documents concerning the determination of structural damage required for shared cost repair under CC&R 11.2.
Why this result: Petitioner failed to demonstrate by a preponderance of the evidence that the Board was unreasonable when determining the wall at issue was structurally damaged.
Key Issues & Findings
Dispute regarding cost sharing for common wall repair (structural damage determination)
Petitioner claimed the wall only required cosmetic repair (HOA responsibility per CC&R 11.2) rather than structural replacement (shared cost). The HOA relied on contractor assessment indicating structural damage. The ALJ found Petitioner failed to meet the burden of proof to show the HOA violated the CC&Rs or acted unreasonably in ordering the repair.
Orders: Respondent deemed the prevailing party.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199
A.R.S. § 32-2199.01
A.R.S. § 32-2199.02
Analytics Highlights
Topics: Structural Damage, HOA Maintenance, Cost Sharing, HOA Discretion
Additional Citations:
CC&Rs Article 11, Section 11.2
A.R.S. § 32-2199
A.R.S. § 32-2199.01
A.R.S. § 32-2199.02
Audio Overview
Decision Documents
24F-H056-REL Decision – 1211424.pdf
Uploaded 2026-01-23T18:12:24 (55.5 KB)
24F-H056-REL Decision – 1235391.pdf
Uploaded 2026-01-23T18:12:30 (125.4 KB)
Briefing Doc – 24F-H056-REL
Briefing Document: Sheakley v. Arizona Hillcrest Community Association
Executive Summary
This document synthesizes the key facts, arguments, and legal outcome of the dispute between homeowner Justin R. Sheakley (Petitioner) and the Arizona Hillcrest Community Association (Respondent). The central conflict revolves around the required repairs for a common boundary wall at the Petitioner’s property and the associated cost-sharing obligations under the community’s Covenants, Conditions, and Restrictions (CC&Rs).
The Petitioner alleged the wall only required cosmetic repairs (stucco and paint) and that the Association’s demand for a complete rebuild, with costs split 50/50, constituted a violation of the CC&Rs and was an act of retaliation for his previous opposition to a larger community project. He supported his position with a structural engineer’s report stating there was “no structural reason for the wall to be replaced.”
The Respondent countered that the wall possessed genuine structural damage, including cracking, leaning, and deflection, which necessitated a rebuild rather than a surface-level patch. The Association argued its actions were consistent with CC&R Article 11, Section 11.2, which mandates a 50/50 cost split for repairs involving structural damage. They presented expert testimony from a construction defect specialist and maintained that the Board of Directors acted within its discretionary authority to determine the appropriate level of maintenance.
The matter was adjudicated by the Office of Administrative Hearings. On October 21, 2024, an Administrative Law Judge issued a decision finding that the Petitioner failed to demonstrate by a preponderance of the evidence that the Association had violated its Community Documents. The judge ruled that the Board’s determination of structural damage was not unreasonable and that it had the authority to order the repairs and require payment from the homeowner. The Respondent was deemed the prevailing party.
Case Overview
Details
Case Number
24F-H056-REL
Petitioner
Justin R. Sheakley (Owner of 3234 W. Bajada Dr., Lot 52)
Respondent
Arizona Hillcrest Community Association
Respondent’s Attorney
Quinten Cupps, Vial Fotheringham, LLP
Presiding Judge
Samuel Fox, Office of Administrative Hearings
Hearing Date
September 30, 2024
Decision Date
October 21, 2024
Core Legal Issue
Alleged violation of CC&Rs, Article 11, Section 11.2, concerning maintenance and repair responsibilities for a common wall.
The Central Dispute: The Common Wall at Lot 52
The conflict originated from the Arizona Hillcrest Community Association’s determination that a section of the common boundary wall adjacent to Justin Sheakley’s property (Lot 52) required a complete teardown and rebuild due to structural damage. The Association proposed to undertake the repair through its chosen contractor, Elite Construction and Painting, at a total cost of approximately 4,900,andinvoicedMr.Sheakleyfor502,450), citing cost-sharing provisions for structural damage in the CC&Rs.
Mr. Sheakley disputed the classification of the damage as “structural,” arguing the issues were cosmetic. This disagreement over the scope of necessary work and the interpretation of the CC&Rs formed the basis of his petition to the Arizona Department of Real Estate, leading to the hearing.
Petitioner’s Position and Arguments (Justin R. Sheakley)
Mr. Sheakley’s case was built on the following key arguments:
• Damage is Cosmetic, Not Structural: He contended that the wall’s issues were limited to “stucco delamination” and peeling paint on the bottom courses, which did not compromise its structural integrity. His position was that the wall simply needed to be “restuckled and repainted.”
• Contradictory Assessments: He highlighted that an initial 2020 assessment by a licensed structural engineering firm, Criterium-Kessler Engineers, recommended only “routine repair of sub repair and painting” for his specific wall. He argued the Association improperly shifted its reliance from this professional engineering opinion to the opinions of general contractors (Evolution Construction and Elite Construction) who advocated for a more drastic and expensive rebuild.
• Retaliation: Mr. Sheakley testified that he believed the Association’s actions were “a retaliation for me stopping the construction in 2020 to the sum of $100,000.” This refers to his successful effort to organize residents to pause a large-scale wall repair project at the beginning of the COVID-19 pandemic.
• Potential Conflict of Interest: He raised concerns about the relationship between the contractors, noting that the owner of Elite Construction, Peter Alesi, was a former employee of Evolution Construction. He stated, “I would suspect that evolution construction was looked over and had this grow report written by the same person that owns the Elite Construction of Painting.”
• Supporting Expert Evidence: Mr. Sheakley commissioned his own report from Bringham Engineering Consultants, dated July 27, 2024, which concluded: “It is our opinion that flaking paint and discoloration of the paint has not affected the structural integrity of the wall. There is no structural reason for the wall to be replace.”
Respondent’s Position and Arguments (Arizona Hillcrest Community Association)
The Association, represented by Quinten Cupps, presented the following defense:
• Presence of Structural Damage: The Association maintained the wall suffered from significant structural issues beyond surface cosmetics. Their expert witness, Peter Alesi, testified to observing a lean towards the homeowner’s property, “deflection” (side-to-side movement), and a linear crack at the bottom course of blocks. He asserted that any simple stucco patch would “just pop right back off due to the deflection of that panel.”
• Authority Under CC&Rs: Their central legal argument rested on Article 11, Section 11.2 of the CC&Rs, which states: “In the case of destruction of both sides of such wall or structural damage, the Owner(s) owning Lots adjacent to the wall shall be responsible for one half of the cost of replacement or repair of the wall and the Association shall be responsible for the other one-half.”
• Board Discretion and Due Process: Community Manager Melanie Page testified that the Board followed a deliberate process. They obtained reports, bids, reviewed a “matrix” from Evolution mapping the damage, personally walked the community to inspect the walls, and held a vote during a board meeting to approve the repairs. The CC&Rs grant the Board sole discretion in determining the appropriate level of maintenance.
• Jurisdictional Challenge: The Association’s counsel argued that the OAH was not the proper forum for the dispute, stating, “it’s not about not a violation of 11.2, it’s an issue of whether or not we should be repairing the wall. And that’s not what for this court to decide in our opinion.” They claimed the Association was actively trying to comply with its maintenance obligations under the CC&Rs.
• Homeowner Contribution to Damage: During cross-examination, it was established that Mr. Sheakley had planted Ficus trees in January 2022 and anchored them to the wall with cables drilled into the structure. Their expert noted that Ficus trees have “very aggressive roots” that can compromise walls, and photos showed the trees touching the wall and support columns.
Key Evidence and Testimony
Witness Testimony
• Justin R. Sheakley (Petitioner): Testified about the history of the wall issue, the 2020 Criterium-Kessler report, his opposition to the initial project, his belief that the current action is retaliatory, and presented his own engineering report from Bringham Engineering.
• Melanie Page (Community Manager for AAM): Described the HOA’s multi-year process of assessing the walls, obtaining bids, and the Board’s review and approval process. She confirmed that multiple notices were sent to Mr. Sheakley regarding the planned repairs and his financial obligation.
• Peter Alesi (Owner, Elite Construction and Painting): Provided expert testimony as a general contractor with 24 years of experience, including 18 years as a certified construction defect expert. He detailed the specific structural failings of the wall, including movement, cracking, and a lean of up to 3/4 of an inch. He stated that a simple stucco repair would not fix the underlying problem.
Documentary and Physical Evidence
• CC&Rs, Article 11, Section 11.2: The foundational document governing the dispute, outlining cost-sharing responsibilities for walls with structural damage.
• Criterium-Kessler Engineers Report (2020): A structural engineering report that identified various wall issues in the community but recommended only “routine repair” for Mr. Sheakley’s lot.
• Evolution Construction Report/Matrix (2022): A report by a general contractor that mapped wall damage lot-by-lot, identifying “moderate damage” and “block cracks” at Lot 52. Mr. Sheakley used this document to point out inconsistencies, such as Elite Construction rebuilding a wall at Lot 111 that Evolution had deemed in “good condition.”
• Bringham Engineering Consultants Report (2024): Commissioned by Mr. Sheakley, this report concluded there was no structural reason to replace the wall, focusing on paint and discoloration. The judge later noted this report did not address the visible cracking.
• Photographs: Both parties submitted photographs showing stucco delamination, peeling paint, a linear crack at the base of the wall, Ficus trees anchored to the wall, and measurements demonstrating the wall’s lean.
• Google Earth Images: Mr. Sheakley presented images from 2011 and 2019 to show the wall had long-standing issues, predating his planting of the Ficus trees.
Legal Proceedings and Final Decision
The hearing was held on September 30, 2024, before Administrative Law Judge Samuel Fox. After hearing testimony and reviewing all evidence, the judge issued a decision on October 21, 2024.
Conclusions of Law
1. Burden of Proof: The Petitioner, Mr. Sheakley, bore the burden to prove by a preponderance of the evidence that the Association violated its Community Documents.
2. Definition of “Structural Damage”: As the term was not defined in the CC&Rs, the judge assigned it its ordinary meaning: “damage to the integrity of a structure that is more serious than mere cosmetic damage… damaged beyond the surface.” The judge noted that the documents do not require a specific severity of damage to trigger the repair clauses.
3. Board Authority: The Community Documents grant the Board “significant discretion and authority over walls” and other common areas.
4. Failure to Meet Burden: The judge concluded, “Petitioner did not demonstrate by a preponderance of the evidence that the Board was unreasonable when determining the wall at issue was structurally damaged.”
5. No Violation Found: The final conclusion was that “the preponderance of the evidence established that Petitioner failed to meet his burden that Respondent failed to abide by its Community Documents.”
Based on these conclusions, the judge issued the following order:
“IT IS ORDERED that Respondent be deemed the prevailing party in this matter.”
Study Guide – 24F-H056-REL
{
“case”: {
“docket_no”: “24F-H056-REL”,
“case_title”: “Justin R. Sheakley v. Arizona Hillcrest Community Association”,
“decision_date”: “2024-10-21”,
“alj_name”: “Samuel Fox”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“questions”: [
{
“question”: “Who is responsible for paying to repair a shared wall between my home and the common area?”,
“short_answer”: “Costs are split 50/50 if the damage is structural, but surface maintenance is individual.”,
“detailed_answer”: “According to the decision, standard surface maintenance (like painting) is the responsibility of the party facing that side of the wall. However, if there is ‘structural damage’ or destruction of the wall, the cost of repair or replacement is shared equally between the homeowner and the HOA.”,
“alj_quote”: “In the case of destruction of both sides of such wall or structural damage, the Owner(s) owning Lots adjacent to the wall shall be responsible for one half of the cost of replacement or repair of the wall and the Association shall be responsible for the other one-half.”,
“legal_basis”: “CC&Rs Article 11, Section 11.2”,
“topic_tags”: [
“maintenance”,
“shared walls”,
“assessments”
]
},
{
“question”: “What is the legal definition of ‘structural damage’ if it isn’t defined in the CC&Rs?”,
“short_answer”: “It means damage to the integrity of the structure that goes beyond mere cosmetic issues.”,
“detailed_answer”: “The ALJ determined that undefined terms should be given their ordinary meaning. Structural damage does not require the structure to be ‘fatally flawed’ or about to collapse; it simply means the damage affects the integrity of the structure and is more serious than surface-level cosmetic issues.”,
“alj_quote”: “Structural damage means damage to the integrity of a structure that is more serious than mere cosmetic damage. … Structural damage does not mean that the structure is fatally flawed; it means that the structure is damaged beyond the surface.”,
“legal_basis”: “Ordinary Meaning / Judicial Interpretation”,
“topic_tags”: [
“definitions”,
“maintenance”,
“legal interpretation”
]
},
{
“question”: “Who has the burden of proof when a homeowner sues their HOA?”,
“short_answer”: “The homeowner (Petitioner) must prove the violation occurred.”,
“detailed_answer”: “The homeowner filing the petition bears the burden of proving that the HOA violated the statutes, CC&Rs, or Bylaws. They must prove this by a ‘preponderance of the evidence,’ meaning it is more likely than not that the violation occurred.”,
“alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.”,
“legal_basis”: “A.A.C. R2-19-119(A) and (B)(1)”,
“topic_tags”: [
“procedural”,
“burden of proof”,
“evidence”
]
},
{
“question”: “Can the Administrative Law Judge order the HOA to pay for other damages or remediation?”,
“short_answer”: “No, the ALJ’s authority is limited to ordering compliance with documents and levying civil penalties.”,
“detailed_answer”: “The tribunal has limited jurisdiction. It can order a party to abide by the statute or community documents and can levy civil penalties for those specific violations, but it cannot order other types of remediation or penalties for conduct outside that scope.”,
“alj_quote”: “This Tribunal is not authorized to order other remediation or order civil penalties for other conduct.”,
“legal_basis”: “A.R.S. § 32-2199.02”,
“topic_tags”: [
“jurisdiction”,
“remedies”,
“penalties”
]
},
{
“question”: “Does the HOA Board have the authority to decide when a repair is necessary?”,
“short_answer”: “Yes, Boards typically have significant discretion to determine maintenance needs.”,
“detailed_answer”: “Unless the governing documents state otherwise, the Board has significant discretion and authority to determine the appropriate level of maintenance and when repairs or replacements are necessary for areas the Association is responsible for.”,
“alj_quote”: “The Community Documents in the record … grant the Board significant discretion and authority over walls and other areas that Respondent is responsible for maintaining.”,
“legal_basis”: “Community Documents / Board Discretion”,
“topic_tags”: [
“board authority”,
“governance”,
“maintenance”
]
},
{
“question”: “If I hire an engineer who says repairs aren’t needed, will that override the HOA’s decision?”,
“short_answer”: “Not necessarily, if the HOA’s decision was reasonable and supported by evidence.”,
“detailed_answer”: “Even if a homeowner provides a conflicting report, they must prove the Board acted unreasonably. In this case, the homeowner’s report focused on cosmetic issues (paint), while the HOA’s decision was based on evidence of structural damage. The homeowner failed to prove the Board’s determination was unreasonable.”,
“alj_quote”: “Petitioner did not demonstrate by a preponderance of the evidence that the Board was unreasonable when determining the wall at issue was structurally damaged.”,
“legal_basis”: “Preponderance of Evidence”,
“topic_tags”: [
“expert testimony”,
“disputes”,
“evidence”
]
}
]
}
Blog Post – 24F-H056-REL
{
“case”: {
“docket_no”: “24F-H056-REL”,
“case_title”: “Justin R. Sheakley v. Arizona Hillcrest Community Association”,
“decision_date”: “2024-10-21”,
“alj_name”: “Samuel Fox”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“questions”: [
{
“question”: “Who is responsible for paying to repair a shared wall between my home and the common area?”,
“short_answer”: “Costs are split 50/50 if the damage is structural, but surface maintenance is individual.”,
“detailed_answer”: “According to the decision, standard surface maintenance (like painting) is the responsibility of the party facing that side of the wall. However, if there is ‘structural damage’ or destruction of the wall, the cost of repair or replacement is shared equally between the homeowner and the HOA.”,
“alj_quote”: “In the case of destruction of both sides of such wall or structural damage, the Owner(s) owning Lots adjacent to the wall shall be responsible for one half of the cost of replacement or repair of the wall and the Association shall be responsible for the other one-half.”,
“legal_basis”: “CC&Rs Article 11, Section 11.2”,
“topic_tags”: [
“maintenance”,
“shared walls”,
“assessments”
]
},
{
“question”: “What is the legal definition of ‘structural damage’ if it isn’t defined in the CC&Rs?”,
“short_answer”: “It means damage to the integrity of the structure that goes beyond mere cosmetic issues.”,
“detailed_answer”: “The ALJ determined that undefined terms should be given their ordinary meaning. Structural damage does not require the structure to be ‘fatally flawed’ or about to collapse; it simply means the damage affects the integrity of the structure and is more serious than surface-level cosmetic issues.”,
“alj_quote”: “Structural damage means damage to the integrity of a structure that is more serious than mere cosmetic damage. … Structural damage does not mean that the structure is fatally flawed; it means that the structure is damaged beyond the surface.”,
“legal_basis”: “Ordinary Meaning / Judicial Interpretation”,
“topic_tags”: [
“definitions”,
“maintenance”,
“legal interpretation”
]
},
{
“question”: “Who has the burden of proof when a homeowner sues their HOA?”,
“short_answer”: “The homeowner (Petitioner) must prove the violation occurred.”,
“detailed_answer”: “The homeowner filing the petition bears the burden of proving that the HOA violated the statutes, CC&Rs, or Bylaws. They must prove this by a ‘preponderance of the evidence,’ meaning it is more likely than not that the violation occurred.”,
“alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.”,
“legal_basis”: “A.A.C. R2-19-119(A) and (B)(1)”,
“topic_tags”: [
“procedural”,
“burden of proof”,
“evidence”
]
},
{
“question”: “Can the Administrative Law Judge order the HOA to pay for other damages or remediation?”,
“short_answer”: “No, the ALJ’s authority is limited to ordering compliance with documents and levying civil penalties.”,
“detailed_answer”: “The tribunal has limited jurisdiction. It can order a party to abide by the statute or community documents and can levy civil penalties for those specific violations, but it cannot order other types of remediation or penalties for conduct outside that scope.”,
“alj_quote”: “This Tribunal is not authorized to order other remediation or order civil penalties for other conduct.”,
“legal_basis”: “A.R.S. § 32-2199.02”,
“topic_tags”: [
“jurisdiction”,
“remedies”,
“penalties”
]
},
{
“question”: “Does the HOA Board have the authority to decide when a repair is necessary?”,
“short_answer”: “Yes, Boards typically have significant discretion to determine maintenance needs.”,
“detailed_answer”: “Unless the governing documents state otherwise, the Board has significant discretion and authority to determine the appropriate level of maintenance and when repairs or replacements are necessary for areas the Association is responsible for.”,
“alj_quote”: “The Community Documents in the record … grant the Board significant discretion and authority over walls and other areas that Respondent is responsible for maintaining.”,
“legal_basis”: “Community Documents / Board Discretion”,
“topic_tags”: [
“board authority”,
“governance”,
“maintenance”
]
},
{
“question”: “If I hire an engineer who says repairs aren’t needed, will that override the HOA’s decision?”,
“short_answer”: “Not necessarily, if the HOA’s decision was reasonable and supported by evidence.”,
“detailed_answer”: “Even if a homeowner provides a conflicting report, they must prove the Board acted unreasonably. In this case, the homeowner’s report focused on cosmetic issues (paint), while the HOA’s decision was based on evidence of structural damage. The homeowner failed to prove the Board’s determination was unreasonable.”,
“alj_quote”: “Petitioner did not demonstrate by a preponderance of the evidence that the Board was unreasonable when determining the wall at issue was structurally damaged.”,
“legal_basis”: “Preponderance of Evidence”,
“topic_tags”: [
“expert testimony”,
“disputes”,
“evidence”
]
}
]
}
Case Participants
Petitioner Side
Justin R. Sheakley(petitioner) Homeowner at 3234 W. Bajada Dr.
Respondent Side
Quinten Cupps(attorney) VIal Fotheringham, LLP
Melanie Veach(community manager, witness) Half management (AAM) Testified for Respondent. Identified herself as Melanie Page during testimony.
Peter Alesi(witness) Elite Construction and Painting Owner of Elite Construction and Painting, testified regarding structural issues.
Neutral Parties
Samuel Fox(ALJ) Office of Administrative Hearings ALJ for the September 30, 2024 hearing and decision.
Sondra J. Vanella(ALJ) Office of Administrative Hearings Signed the Order Granting Continuance on August 14, 2024.
Susan Nicolson(commissioner) Arizona Department of Real Estate
A.R.S. § 33-1258(A) A.R.S. § 33-1248 (A), (D), (E), and (F); and Tara CC&Rs Section 9(E)
Outcome Summary
Petitioner prevailed on the 'Records' issue (A.R.S. § 33-1258), resulting in a $500.00 filing fee reimbursement. Respondent prevailed on the 'Example 13' issue (A.R.S. § 33-1248 and CC&Rs § 9(E)).
Why this result: The Administrative Law Judge concluded that Petitioner failed to sustain her burden regarding the Open Meeting Law allegations, finding that TARA conducted meetings in compliance and the specific volunteer work referenced was not statutorily or contractually required to be placed on an agenda for formal action.
Key Issues & Findings
Records Access Violation
TARA failed to timely provide access to TARA HOA records it possessed, violating the ten business day fulfillment requirement for examination requests.
Orders: TARA was ordered to reimburse Petitioner $500.00.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1258
A.R.S. § 33-1258(A)
Open Meeting Law Violation (Example 13)
Petitioner alleged open meeting violations concerning volunteer work and projects not placed on agendas or formally voted upon by the board (Example 13).
Orders: Petitioner's Petition was dismissed as to alleged violations of A.R.S. § 33-1248(A), (D), (E), and (F) and/or Tara CC&Rs Section 9(E).
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1248(A)
A.R.S. § 33-1248(D)
A.R.S. § 33-1248(E)
A.R.S. § 33-1248(F)
Tara CC&Rs Section 9(E)
Analytics Highlights
Topics: HOA Records, Open Meeting Law, Partial Victory, Filing Fee Reimbursement, Condominium Association
Additional Citations:
A.R.S. § 32-2199
A.R.S. § 32-2199.01
A.R.S. § 32-2199.02
A.R.S. § 32-2199.04
A.R.S. § 32-2199.05
A.R.S. § 33-1248
A.R.S. § 33-1258
A.R.S. § 33-1801 et seq.
A.R.S. § 41-1092.09
Tara CC&Rs Section 9(E)
Audio Overview
Decision Documents
24F-H054-REL Decision – 1212274.pdf
Uploaded 2026-01-23T18:11:34 (70.4 KB)
24F-H054-REL Decision – 1212281.pdf
Uploaded 2026-01-23T18:11:41 (12.4 KB)
24F-H054-REL Decision – 1216809.pdf
Uploaded 2026-01-23T18:11:49 (50.9 KB)
24F-H054-REL Decision – 1225818.pdf
Uploaded 2026-01-23T18:11:58 (168.1 KB)
24F-H054-REL Decision – 1226250.pdf
Uploaded 2026-01-23T18:12:08 (41.9 KB)
Briefing Doc – 24F-H054-REL
Briefing Document: Marx v. Tara Condominium Association
Executive Summary
This document provides a comprehensive analysis of the administrative case Lisa Marx v. Tara Condominium Association (No. 24F-H054-REL), adjudicated by the Arizona Office of Administrative Hearings. The dispute centers on two primary allegations brought by homeowner and former board member Lisa Marx against the Tara Condominium Association (TARA): (1) violations of Arizona state law regarding access to association records, and (2) violations of the state’s Open Meeting Law.
The case culminated in a split decision by the Administrative Law Judge (ALJ). TARA was found to have violated A.R.S. § 33-1258 by failing to provide timely access to its financial and other records as requested by the petitioner. However, the petitioner failed to prove her second claim that TARA violated the open meeting provisions of A.R.S. § 33-1248 when board members and volunteers performed maintenance and repair projects on common areas without formal agenda items and board votes.
Consequently, the ALJ sustained the petition on the records violation and dismissed it on the open meeting violation. TARA was ordered to reimburse Ms. Marx $500, representing the filing fee for the single issue on which she prevailed. A subsequent request for rehearing filed by Ms. Marx was procedurally rejected for being submitted to the incorrect agency.
Case Background and Procedural History
Parties and Context
• Petitioner: Lisa Marx, a homeowner in the Tara Condominium Association and a former board member who served in various capacities, including Secretary, Chairperson, and Vice-Chairperson, from 2021 until her resignation in January 2024.
• Respondent: Tara Condominium Association (TARA), a 50-unit nonprofit management association, represented at the hearing by its Chairman, Mark Gottmann.
The dispute arose following a change in board leadership in early 2024, with Ms. Marx alleging the new board was operating without transparency and in violation of state statutes and the association’s governing documents.
Chronology of Key Events
Jan 2024
Lisa Marx resigns from the TARA board two weeks after being elected for a fourth term.
Feb 1, 2024
Mark Gottmann assumes the role of Chairman of the Board.
Feb–Apr 2024
Marx makes a series of five requests for association records, which are either partially or fully denied by the TARA board.
May 29, 2024
Marx files an HOA Dispute Process Petition with the Arizona Department of Real Estate, alleging two categories of violations and paying a 1,000filingfee(500 per issue).
Aug 8, 2024
TARA files an Amended Response, admitting to several of the alleged violations, offering to reimburse Marx’s $1,000 filing fee, and requesting that the hearing be vacated.
Aug 8, 2024
Marx files a reply rejecting the offer, stating that the “numerous” issues required “a ruling that is binding and definite” to “hopefully prevent further violations.”
Aug 16, 2024
The ALJ issues an order requiring Marx to narrow her petition to two specific issues, categorizing the five records-request instances as one “records” issue and requiring her to select one of the thirteen alleged open-meeting violations.
Aug 19, 2024
Marx selects “Example 13” from her petition as her second issue.
Aug 29, 2024
An administrative hearing is held before ALJ Kay A. Abramsohn.
Sep 20, 2024
The ALJ issues a final decision.
Sep 23, 2024
The ALJ issues a Minute Entry rejecting a request for rehearing filed by Marx, as it was sent to the Office of Administrative Hearings instead of the Commissioner of the Arizona Department of Real Estate.
Analysis of Disputed Issues and Testimony
The hearing focused on two central issues as narrowed by the ALJ’s order.
Issue 1: Access to Association Records (A.R.S. § 33-1258)
This issue consolidated five instances across multiple dates where Marx alleged she was improperly denied access to or provision of TARA’s records.
Petitioner’s Position (Lisa Marx):
• Marx testified that she made multiple written requests for documents including vouchers, contracts, financial reports (General Ledger, AP Distribution), architectural change forms, and violation letters.
• The board’s responses were statutorily invalid. For example, a February 22, 2024 response stated: “A member of the Association is entitled to see reasonable financial information only. A member does not have a right to see contracts entered into by the Board nor information concerning specific members. We respectfully refuse your request…” Another denial was based on her being “no longer a board member.”
• Marx argued this refusal to provide records blocks transparency, creates distrust, and prevents homeowners from ensuring the governing documents are being enforced impartially. She asserted that all requested documents, such as financial records and contracts related to common areas, are records homeowners are entitled to examine.
Respondent’s Position (Tara Condominium Association):
• Mark Gottmann testified that the board was new and that any mistakes were made out of “enthusiasm” and a desire to better the community, not malicious intent.
• He stated the board acted on advice from outside sources, including a trade association, which led them to believe they were “over-providing” documents compared to their CC&Rs, which only mandate semi-annual financial statements.
• TARA experienced delays in receiving financial reports from its management company, Colby, after it was acquired by another entity, which in turn delayed distribution to homeowners.
• Gottmann argued that some requested documents did not exist (e.g., contracts for volunteer work), while others were justifiably withheld because they contained private information about individual homeowners (e.g., violation letters, architectural change forms).
Issue 2: Open Meeting Law Violations (A.R.S. § 33-1248)
This issue centered on “Example 13” of the petition, which alleged the board undertook several projects without adhering to open meeting requirements.
Petitioner’s Position (Lisa Marx):
• Marx alleged that several projects were performed on common property without being included on a meeting agenda and without a formal vote by the board in an open meeting. These projects included:
◦ Board members spraying weeds.
◦ Board members digging up grass around trees and laying mulch.
◦ A board member refinishing wood shutters.
• She argued these actions violated A.R.S. § 33-1248 and TARA’s own CC&Rs (Section 9(E)), which states, “A majority vote of the Managers shall entitle the Board to carry out action on behalf of the owners of the units.”
• The failure to discuss these items in an open meeting denied members the right to provide input before the board took action on community property.
Respondent’s Position (Tara Condominium Association):
• Gottmann characterized the projects as ongoing operational responsibilities and good-faith efforts by volunteers to save the association money.
• The weed spraying was described as an “experiment” at no cost to TARA. The mulching was done with donated materials in response to a homeowner’s suggestion. The shutter repair was done by volunteers for a nominal cost of less than $150 for materials, which was within the monthly maintenance budget.
• He argued these were not formal actions requiring a board vote but were undertaken with an “enthusiasm and desire to make our community a better place.” TARA’s CC&Rs (Section 12, Part D) grant the board the power “to use and expend the assessments collected to maintain, care for, and preserve the common elements.”
Administrative Law Judge’s Decision and Order
The ALJ’s decision, issued on September 20, 2024, delivered a split verdict, finding for each party on one of the two core issues.
Finding on Records Violation (A.R.S. § 33-1258):
• Verdict: TARA violated the statute.
• Reasoning: The ALJ concluded that TARA failed to provide access to records it possessed within the statutorily required ten-day timeframe. While TARA had a potential defense for delays related to its management company and a valid reason to withhold records containing personal information of other members, the overall evidence demonstrated a failure to comply with the law.
• Outcome: The petitioner was deemed the prevailing party on this issue.
Finding on Open Meeting Violation (A.R.S. § 33-1248):
• Verdict: TARA did not violate the statute.
• Reasoning: The ALJ found that the petitioner failed to sustain her burden of proof. The evidence showed that TARA conducted its formal meetings in compliance with open meeting laws, providing notice and agendas. The ALJ concluded there was “no evidence in the hearing record that… those work circumstances… were required by statute or the CC&Rs to be placed on a TARA agenda for discussion and/or for ‘formal action’ by the Board.”
• Outcome: The respondent was deemed the prevailing party on this issue.
Final Order
Based on the findings, the ALJ issued the following orders:
1. Petitioner’s Petition is sustained as to the TARA violation of A.R.S. § 33-1258 (Records).
2. Petitioner’s Petition is dismissed as to the alleged violations by TARA of A.R.S. § 33-1248 (Open Meetings).
3. TARA is ordered to reimburse Petitioner in the amount of $500.00, representing the filing fee for the single successful claim.
Study Guide – 24F-H054-REL
{ “case”: { “docket_no”: “24F-H054-REL”, “case_title”: “Lisa Marx v. Tara Condominium Association”, “decision_date”: “2024-09-20”, “alj_name”: “Kay A. Abramsohn”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can my HOA refuse to provide financial records because they are waiting to receive them from their third-party management company?”, “short_answer”: “No. The HOA is responsible for providing access to records within the statutory 10-day timeframe, regardless of management company delays.”, “detailed_answer”: “The ALJ ruled that waiting for a management company to provide monthly reports does not excuse the association from its statutory obligation to make records reasonably available within 10 business days. Even if the HOA acts in good faith while waiting for a vendor, failure to provide existing records violates the statute.”, “alj_quote”: “TARA has a defense, although unsupported, regarding the time frame only as to the financial documents for which TARA was waiting from its management company. … Overall, as to A.R.S. § 33-1258, there is no evidence that, within the ten day time frame, TARA provided access to the TARA HOA records it did have and which were required to have been provided to Petitioner; therefore, the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “records request”, “financial records”, “management company” ] }, { “question”: “Does a group of board members or volunteers doing unpaid maintenance work require an open meeting and a formal vote?”, “short_answer”: “Not necessarily. If the work is volunteer-based and doesn’t require a specific contract or expenditure necessitating a vote under the CC&Rs or statutes, it may not trigger open meeting requirements.”, “detailed_answer”: “The ALJ determined that volunteer work performed by board members (like weeding or painting) to save money did not constitute ‘formal action’ that required placement on an agenda or a formal vote in an open meeting, provided no statute or governing document specifically required it.”, “alj_quote”: “There is no evidence in the hearing record that, prior to the volunteer work described in Example 13, that those work circumstances, or any projected volunteer work circumstances, were required by statute or the CC&Rs to be placed on a TARA agenda for discussion and/or for ‘formal action’ by the Board at the TARA monthly meetings.”, “legal_basis”: “A.R.S. § 33-1248”, “topic_tags”: [ “open meetings”, “volunteer work”, “board authority” ] }, { “question”: “Can the HOA withhold violation letters or architectural change forms concerning other homeowners?”, “short_answer”: “Yes, if those documents contain personal information about specific members.”, “detailed_answer”: “The decision affirms that HOAs can refuse to provide records related to specific units, such as violation notices or contracts containing personal data, under the statutory exception for personal, health, or financial records of individual members.”, “alj_quote”: “A.R.S. § 33-1258(B)(4) provides an exception to the requirement to provide records for ‘personal, health or financial records of an individual member’ … In this case, because some of the requested ‘repair’ contract information for repairs at certain addresses may have contained personal information of another member, TARA was likely within its statutory authority to refuse to provide that particular information.”, “legal_basis”: “A.R.S. § 33-1258(B)(4)”, “topic_tags”: [ “privacy”, “violation letters”, “records request” ] }, { “question”: “Can the board deny my records request because I am no longer a board member?”, “short_answer”: “No. The right to examine records belongs to all members of the association.”, “detailed_answer”: “The ALJ found the HOA in violation when it declined to provide information on the grounds that the requester was ‘no longer a Board member.’ The statute requires records be made available to ‘any member.'”, “alj_quote”: “TARA declined to provide such, stating that Petitioner was no longer a Board member. … TARA failed to comply with A.R.S. § 33-1258 regarding provision of access to TARA HOA records.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “homeowner rights”, “records access”, “board membership” ] }, { “question”: “If I file a petition with two issues and only win one, do I get my filing fee back?”, “short_answer”: “You may receive a partial reimbursement. The tribunal may order the HOA to reimburse the portion of the fee related to the successful claim.”, “detailed_answer”: “In this case, the petitioner paid 1,000fortwoissues(500 per issue). Since the petitioner prevailed on the records issue but failed on the open meeting issue, the ALJ ordered the HOA to reimburse only $500.”, “alj_quote”: “IT IS ORDERED that TARA reimburse Petitioner in the amount of $500.00. … The Administrative Law Judge concludes TARA is the prevailing party regarding the ‘Example 13’ issue and Petitioner bears the filing fee on this issue.”, “legal_basis”: “A.R.S. § 32-2199.01”, “topic_tags”: [ “filing fees”, “dispute resolution”, “penalties” ] }, { “question”: “Does being a ‘new board’ or ‘learning the ropes’ excuse the HOA from following state laws?”, “short_answer”: “No. Ignorance of the law or being a new board is not a valid defense for violating statutes.”, “detailed_answer”: “The HOA argued they were a new board acting in the best interest of the community and learning better governing practices. The ALJ acknowledged this explanation but still ruled that the failure to provide records was a violation of state statute.”, “alj_quote”: “TARA explained that the Board was a new Board and, believing it was acting in the Board’s best interest, was in the process of learning the procedures for better governing practices. … the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “board duties”, “legal compliance”, “defenses” ] } ] }
Blog Post – 24F-H054-REL
{ “case”: { “docket_no”: “24F-H054-REL”, “case_title”: “Lisa Marx v. Tara Condominium Association”, “decision_date”: “2024-09-20”, “alj_name”: “Kay A. Abramsohn”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can my HOA refuse to provide financial records because they are waiting to receive them from their third-party management company?”, “short_answer”: “No. The HOA is responsible for providing access to records within the statutory 10-day timeframe, regardless of management company delays.”, “detailed_answer”: “The ALJ ruled that waiting for a management company to provide monthly reports does not excuse the association from its statutory obligation to make records reasonably available within 10 business days. Even if the HOA acts in good faith while waiting for a vendor, failure to provide existing records violates the statute.”, “alj_quote”: “TARA has a defense, although unsupported, regarding the time frame only as to the financial documents for which TARA was waiting from its management company. … Overall, as to A.R.S. § 33-1258, there is no evidence that, within the ten day time frame, TARA provided access to the TARA HOA records it did have and which were required to have been provided to Petitioner; therefore, the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “records request”, “financial records”, “management company” ] }, { “question”: “Does a group of board members or volunteers doing unpaid maintenance work require an open meeting and a formal vote?”, “short_answer”: “Not necessarily. If the work is volunteer-based and doesn’t require a specific contract or expenditure necessitating a vote under the CC&Rs or statutes, it may not trigger open meeting requirements.”, “detailed_answer”: “The ALJ determined that volunteer work performed by board members (like weeding or painting) to save money did not constitute ‘formal action’ that required placement on an agenda or a formal vote in an open meeting, provided no statute or governing document specifically required it.”, “alj_quote”: “There is no evidence in the hearing record that, prior to the volunteer work described in Example 13, that those work circumstances, or any projected volunteer work circumstances, were required by statute or the CC&Rs to be placed on a TARA agenda for discussion and/or for ‘formal action’ by the Board at the TARA monthly meetings.”, “legal_basis”: “A.R.S. § 33-1248”, “topic_tags”: [ “open meetings”, “volunteer work”, “board authority” ] }, { “question”: “Can the HOA withhold violation letters or architectural change forms concerning other homeowners?”, “short_answer”: “Yes, if those documents contain personal information about specific members.”, “detailed_answer”: “The decision affirms that HOAs can refuse to provide records related to specific units, such as violation notices or contracts containing personal data, under the statutory exception for personal, health, or financial records of individual members.”, “alj_quote”: “A.R.S. § 33-1258(B)(4) provides an exception to the requirement to provide records for ‘personal, health or financial records of an individual member’ … In this case, because some of the requested ‘repair’ contract information for repairs at certain addresses may have contained personal information of another member, TARA was likely within its statutory authority to refuse to provide that particular information.”, “legal_basis”: “A.R.S. § 33-1258(B)(4)”, “topic_tags”: [ “privacy”, “violation letters”, “records request” ] }, { “question”: “Can the board deny my records request because I am no longer a board member?”, “short_answer”: “No. The right to examine records belongs to all members of the association.”, “detailed_answer”: “The ALJ found the HOA in violation when it declined to provide information on the grounds that the requester was ‘no longer a Board member.’ The statute requires records be made available to ‘any member.'”, “alj_quote”: “TARA declined to provide such, stating that Petitioner was no longer a Board member. … TARA failed to comply with A.R.S. § 33-1258 regarding provision of access to TARA HOA records.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “homeowner rights”, “records access”, “board membership” ] }, { “question”: “If I file a petition with two issues and only win one, do I get my filing fee back?”, “short_answer”: “You may receive a partial reimbursement. The tribunal may order the HOA to reimburse the portion of the fee related to the successful claim.”, “detailed_answer”: “In this case, the petitioner paid 1,000fortwoissues(500 per issue). Since the petitioner prevailed on the records issue but failed on the open meeting issue, the ALJ ordered the HOA to reimburse only $500.”, “alj_quote”: “IT IS ORDERED that TARA reimburse Petitioner in the amount of $500.00. … The Administrative Law Judge concludes TARA is the prevailing party regarding the ‘Example 13’ issue and Petitioner bears the filing fee on this issue.”, “legal_basis”: “A.R.S. § 32-2199.01”, “topic_tags”: [ “filing fees”, “dispute resolution”, “penalties” ] }, { “question”: “Does being a ‘new board’ or ‘learning the ropes’ excuse the HOA from following state laws?”, “short_answer”: “No. Ignorance of the law or being a new board is not a valid defense for violating statutes.”, “detailed_answer”: “The HOA argued they were a new board acting in the best interest of the community and learning better governing practices. The ALJ acknowledged this explanation but still ruled that the failure to provide records was a violation of state statute.”, “alj_quote”: “TARA explained that the Board was a new Board and, believing it was acting in the Board’s best interest, was in the process of learning the procedures for better governing practices. … the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “board duties”, “legal compliance”, “defenses” ] } ] }
Case Participants
Petitioner Side
Lisa Marx(petitioner) Tara Condominium Association (Homeowner) Also former HOA Secretary, Vice-Chairperson, and Chairperson.
Brenda Spielder(observer) Tara Condominium Association (Member) Attended hearing with Petitioner.
Cynthia Poland(observer) Tara Condominium Association (Member) Attended hearing with Petitioner.
Respondent Side
Mark Gottmann(board member) Tara Condominium Association Chairman of the Board; represented Tara at the hearing.
Chandler W. Travis(HOA attorney) Travis Law Firm PLC Counsel for Tara Condominium Association until August 27, 2024.
Stephanie Bushart(board member) Tara Condominium Association
Tina Marie Shepherd(board member) Tara Condominium Association Resigned as Chairperson on January 31, 2024.
Dennis Anderson(board member) Tara Condominium Association Involved in volunteer work (weed spraying, trench digging, shutter refinishing).
Judy Rice(board member) Tara Condominium Association Treasurer and CPA.
Ted(board member) Tara Condominium Association Involved in volunteer trench work.
Nikki(volunteer) Tara Condominium Association Involved in volunteer shutter repair.
Neutral Parties
Kay A. Abramsohn(ALJ) Office of Administrative Hearings
Susan Nicolson(Commissioner) Arizona Department of Real Estate
Other Participants
Renee Snow(volunteer) Tara Condominium Association Volunteered for landscaping committee.
The Administrative Law Judge denied the HOA's petition, finding the HOA failed to meet its burden of proving a violation. The homeowner justifiably relied on the ARC's approval, which was granted rapidly and without clarification requests, despite the lack of detail on the wall height, effectively granting an exception to the Guidelines.
Why this result: The HOA (Petitioner) failed to prove the violation by a preponderance of the evidence, primarily because the Architectural Review Committee (ARC) approved the plans after multiple rounds of review, and the homeowner relied on that approval. The delay in the stop construction notice was also deemed unreasonable.
Key Issues & Findings
Construction of unapproved structures/patio walls in excess of permitted height
Petitioner (HOA) alleged Respondent (homeowner) violated community documents by constructing walls around a courtyard in excess of the 42-inch height limit set by the Guidelines Section 2.24, and without sufficient prior approval (CC&R Section 5.22). The constructed wall was approximately 8 feet high.
Orders: Petitioner’s petition in this matter is denied. Respondent shall not reimburse Petitioner’s filing fee.
Arroyo Mountain Estate HOA vs. Goebel: A Dispute Over Architectural Approval
Executive Summary
This document provides a comprehensive overview of the dispute between the Arroyo Mountain Estate Homeowners Association (HOA) and homeowners Rick and Elizabeth Goebel, culminating in an administrative law hearing on August 28, 2024. The central conflict revolves around the construction of a courtyard wall at the Goebels’ property, which the HOA alleged was unapproved and in violation of community guidelines.
The Goebels maintained that they followed all required procedures, submitting multiple revised applications at the HOA’s request, and ultimately received explicit, unconditional approval from the Architectural Review Committee (ARC) before commencing work. They argued that they built a “courtyard wall” in conformance with section 2.9 of the guidelines, which does not specify a height limit, and not a “pony wall,” which is restricted to 42 inches under section 2.24.
The HOA contended that the Goebels’ application was misleading due to a lack of critical details, specifically the wall’s 8-foot 8-inch height and a three-foot overhead hood. Key members of the ARC testified they understood the application to be for landscaping only and would have denied it had the full scope been clear. The HOA argued the constructed wall violates the spirit and letter of the guidelines intended to maintain community aesthetic uniformity.
The case concluded with a definitive ruling by an Administrative Law Judge on September 11, 2024. The judge denied the HOA’s petition, finding that they had not met their burden of proof. The decision highlighted that the Goebels had followed the prescribed process, justifiably relied on the ARC’s formal approval, and that the HOA’s month-long delay in issuing a stop-construction notice was unreasonable. The ruling deemed the ARC’s approval “tantamount to an exception to the Guidelines.”
The Core Dispute: The Courtyard Wall
The conflict centers on improvements made at the Goebels’ property, located at 5408 North Prescott Court (incorrectly listed multiple times in HOA documents as 5408 North Carson Court). The primary structure in question is a wall enclosing a front courtyard area, which the Goebels’ plans identified as a “courtyard wall.”
Alleged Violations by the HOA
The HOA’s petition alleged that the Goebels were in violation of two primary governing documents:
1. CC&Rs Article V, Section 5.22: This section requires homeowners to receive ARC approval before beginning any construction that alters the exterior appearance of a property, demanding that requests “Specify in detail the nature and extent of construction.”
2. Architectural and Landscape Design Guidelines, Section 2.24: This section governs “Pony Walls and Courtyards,” stating that pony walls constructed in a front yard to form a courtyard “should be no higher than 42 inches.”
The HOA argued that the wall built by the Goebels, which reaches a height of approximately 8 feet 8 inches, is functionally a pony wall and therefore violates the 42-inch height restriction.
The Homeowner’s (Goebel) Position and Timeline
The Goebels’ defense was anchored in their assertion of procedural compliance, reliance on a formal approval, and a belief that they were being unfairly targeted.
Application and Approval Process
The timeline of the application process was a key element of the Goebels’ case:
Dec 30, 2022
Initial consolidated application for all improvements submitted via email.
Jan 3, 2023
Initial application denied with the instruction to “please resubmit separate applications for the different projects.”
Jan 3, 2023
Revised, separate applications submitted to the community manager, Katie Sand.
Jan 3, 2023
Additional comments received from Katie Sand requesting further changes.
Jan 3, 2023
Final revised applications submitted at 4:14 p.m. and notice of acceptance received at 4:26 p.m.
Jan 5, 2023
The ARC formally approved the applications, within 48 hours of submission, without requesting additional information.
Argument of Good Faith and Procedural Adherence
Mr. Goebel argued that he diligently followed the HOA’s process and could not have done more to ensure compliance.
“I follow the requirement of the architectural community prepared the application submitted the application via the appropriate application approval process and received approval. It’s unclear what I’m being violated for. It is unclear as to how I violated any part of the approval or constructed improvements not identified on the plan.” – Rick Goebel
He emphasized that the ARC, under its own guidelines, had the power to request more information if the application was deemed incomplete but chose not to, instead granting full approval. Elizabeth Goebel further stated, “they approved the application and we move forward with our approval… We still got the approval. We moved forward in good faith and constructed what we had done.”
Construction Timeline and HOA Response
• March 21, 2023: Engineering drawings submitted to Maricopa County.
• March 24, 2023: Technical approvals and permits issued by the county.
• April 7, 2023: Construction commenced.
• April 19, 2023: The wall reached its full height.
• May 12, 2023: Nearly one month after the wall was completed, the Goebels received a stop-construction notice from the HOA.
Claims of Targeted Harassment
Mr. Goebel testified that he felt his family and home were being targeted by board members, leading to significant distress and financial cost.
“Over the past 12 months, I’ve had to deal with continued harassment from our board… People drive past my home, take pictures of my home. John Conalo has driven past my home multiple times taking pictures of my home… I have people to drive by my home, take photos and post these photos online and generally disrupt the reasonable enjoyment of my property. I am of the opinion that me and my home are being targeted for these improvements by members of the board who are utilizing funds to support the basic attack.” – Rick Goebel
The Homeowners Association’s (HOA) Position
The HOA’s case, presented by attorney Daniel Francom, focused on the argument that the Goebels’ application was deficient and that any approval granted was therefore invalid for the wall as constructed.
Insufficient Detail and Misleading Application
The HOA argued the Goebels “failed to provide sufficient details” in their application.
• Wall Height: The plans did not specify the wall would be 8 feet 8 inches high.
• Overhead Hood: The plans did not clearly indicate a three-foot deep overhead structure above the gate.
• County Plans: The detailed plans submitted to Maricopa County, which included engineering reports and the exact wall height, were never provided to the HOA.
Board President John Consalvo testified that the application “showed nothing about a construction wall showing landscape application turned in.”
Architectural Committee’s Interpretation
ARC member Judy Oliver provided crucial testimony for the HOA, stating that the committee was misled by the application’s presentation.
• She testified that since the application was titled “revamping of landscaping,” she and other members “assumed that this was regarding landscaping only.”
• Regarding the wall itself, she stated, “I felt that that wall wasn’t even up for discussion at the time.”
• Crucially, she asserted that had the Goebels provided specifics for an 8-foot wall, the committee would have denied the project as it “counters the architectural guidelines.”
Violation of Guideline 2.24 (“Pony Walls”)
The HOA’s legal argument rested on classifying the Goebels’ structure under section 2.24. They argued that because the wall creates a courtyard, it should be considered a “pony wall” and is therefore subject to the 42-inch height limit, regardless of what the Goebels labeled it in their plans. They argued the wall “sticks out like a sore thumb” and that there are no other similar walls in the community.
Key Witness Testimony
Ms. Rozzo’s testimony significantly undermined the HOA’s position.
• Admission of Error: When asked if she noted the courtyard wall, she stated, “No, I absolutely missed it. I am completely honest about that. I have missed it just like we’ve missed other ones and nothing’s done about it.”
• Precedent of Inaction: She testified that the ARC had mistakenly approved “at least 15 to 20 homes” with non-compliant improvements and that “the HOA has never pursued them.” She cited unapproved walls, pavers, and concrete pads at other properties.
• Challenge to HOA’s Pursuit: She expressed surprise that the HOA was pursuing this case, stating that when she told John Consalvo that pursuing the Goebels meant they should pursue all other erroneous approvals, he “chuckled and said, ‘Mike, my neighbor,'” implying a neighbor of the board president also had unapproved improvements.
• Board Vote: Ms. Rozzo, who was also a board member for a short time, revealed that the decision to take action against the Goebels was not unanimous, with two of the five board members voting “no.”
Mr. Consalvo testified that the board’s function is to maintain the community and enforce HOA rules. He stated that the Goebels’ application did not provide the required detail for the courtyard wall, its height, or the overhead gate structure. He confirmed he took photos of the property and that, in his view, the wall as built did not conform to any approved application and should have been limited to 42 inches.
Ms. Oliver testified she had been on the ARC since 2017. She stated that the application was understood to be for landscaping and that the wall was not considered for approval due to the lack of detail. She testified that had the 8-foot height been specified, the application would have been denied.
The Final Decision: Administrative Law Judge Ruling
On September 11, 2024, Administrative Law Judge Adam D. Stone issued a final, binding decision in the case (No. 24F-H050-REL).
Ruling
The Petitioner’s (HOA’s) petition was denied. The judge found that the HOA failed to prove its case by a preponderance of the evidence.
Reasoning for the Decision
The judge provided a clear, multi-point rationale for siding with the Goebels:
1. Procedural Compliance: “Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC.”
2. Justifiable Reliance on Approval: The ARC had multiple opportunities to question the plans and did so on other matters. The judge concluded that Ms. Rozzo’s approval, even if she “missed it,” was a formal action on which the “Respondent justifiably relied… and moved ahead with construction.”
3. Approval as an Exception: The judge stated the formal approval “was tantamount to an exception to the Guidelines as the project was approved.”
4. Unreasonable Delay by HOA: The judge found that for the HOA “to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.”
5. Inconsistent Enforcement: The judge noted that “this was not the first time the ARC had approved projects that were not within the Guidelines,” referencing the testimony about other unpursued violations in the community.
Final Order
• The HOA’s petition was formally denied.
• The Respondent (Goebels) was not required to reimburse the HOA’s $500 filing fee.
Study Guide – 24F-H050-REL
{
“case”: {
“docket_no”: “24F-H050-REL”,
“case_title”: “Arroyo Mountain Estate Homeowners Association v. Goebel”,
“decision_date”: “2024-09-11”,
“alj_name”: “Adam D. Stone”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“questions”: [
{
“question”: “If the HOA approves my architectural application, can they later claim a violation because they ‘missed’ details in the plan?”,
“short_answer”: “No. If the HOA approves the application, the homeowner can justifiably rely on that approval to proceed, even if the committee claims they missed specific details during review.”,
“detailed_answer”: “The ALJ ruled that once an application is approved, the homeowner has the right to rely on that approval to begin construction. Even if an Architectural Committee member testifies later that they ‘missed’ a detail (like a wall height) during their review, the approval stands. The HOA cannot penalize the homeowner for the committee’s oversight after approval has been granted.”,
“alj_quote”: “Ms. Rozzo testified that while she may have “missed it”, the Application was nonetheless approved, and Respondent justifiably relied on the approval and moved ahead with construction.”,
“legal_basis”: “Justifiable Reliance”,
“topic_tags”: [
“architectural approval”,
“committee oversight”,
“homeowner reliance”
]
},
{
“question”: “Can an approved application serve as a valid exception to written architectural guidelines?”,
“short_answer”: “Yes. An approved application can be considered tantamount to an exception to the community’s design guidelines.”,
“detailed_answer”: “In this case, the HOA argued the construction violated height guidelines. However, because the specific project plans were submitted and approved by the committee, the ALJ determined that this approval effectively acted as an exception to the general guidelines, making the construction permissible.”,
“alj_quote”: “This was tantamount to an exception to the Guidelines as the project was approved.”,
“legal_basis”: “Exception to Guidelines”,
“topic_tags”: [
“guidelines”,
“exceptions”,
“compliance”
]
},
{
“question”: “Is it reasonable for an HOA to issue a stop work notice after I have already completed my project?”,
“short_answer”: “No. Waiting until a project is completed to issue a stop construction notice is considered unreasonable.”,
“detailed_answer”: “The ALJ found that the HOA failed to act in a timely manner. Issuing a stop construction notice nearly a month after the homeowner had already finished building the structure was deemed unreasonable behavior by the association.”,
“alj_quote”: “Moreover, for Petitioner to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.”,
“legal_basis”: “Reasonableness / Laches”,
“topic_tags”: [
“enforcement timing”,
“stop work order”,
“construction”
]
},
{
“question”: “Who has to prove that a violation occurred during an HOA hearing?”,
“short_answer”: “The HOA (the Petitioner) bears the burden of proof.”,
“detailed_answer”: “When an HOA petitions for a hearing regarding a violation, they must prove their case by a ‘preponderance of the evidence.’ This means they must convince the judge that their claim is more likely true than not. If they fail to meet this burden, the homeowner prevails.”,
“alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1803.”,
“legal_basis”: “Burden of Proof”,
“topic_tags”: [
“legal procedure”,
“evidence”,
“burden of proof”
]
},
{
“question”: “Does it matter if the HOA has allowed other non-compliant projects in the neighborhood?”,
“short_answer”: “Yes. Evidence that the HOA has previously approved other projects that did not meet guidelines can support the homeowner’s defense.”,
“detailed_answer”: “The ALJ noted that the evidence showed this was not an isolated incident; the Architectural Committee had previously approved other projects that were not compliant with the Guidelines. This pattern weakens the HOA’s position in enforcing the rule against the current homeowner.”,
“alj_quote”: “Further, as the evidence provided, this was not the first time the ARC had approved projects that were not within the Guidelines.”,
“legal_basis”: “Arbitrary Enforcement / Precedent”,
“topic_tags”: [
“selective enforcement”,
“consistency”,
“precedent”
]
},
{
“question”: “If I submit an application and answer the committee’s questions, do I have to ensure they asked about every single detail?”,
“short_answer”: “No. If you follow the submission process and the committee has the opportunity to ask questions but doesn’t, the responsibility lies with them.”,
“detailed_answer”: “The homeowner followed the CC&R process by submitting the application. The committee had multiple chances to ask for clarification or details (like height) but failed to do so before approving. The judge ruled the homeowner followed the proper process.”,
“alj_quote”: “Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC. The ARC had many opportunities thereafter to question Respondent about the project”,
“legal_basis”: “Due Process / Procedural Compliance”,
“topic_tags”: [
“application process”,
“due diligence”,
“homeowner obligations”
]
},
{
“question”: “Do I have to pay the HOA’s filing fees if they sue me and lose?”,
“short_answer”: “No. If the HOA’s petition is denied, the homeowner is not required to reimburse the filing fee.”,
“detailed_answer”: “The ALJ explicitly ordered that because the petition was denied, the respondent (homeowner) was not required to pay back the $500 filing fee that the HOA paid to the Department.”,
“alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee”,
“legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”,
“topic_tags”: [
“fees”,
“penalties”,
“costs”
]
}
]
}
Blog Post – 24F-H050-REL
{
“case”: {
“docket_no”: “24F-H050-REL”,
“case_title”: “Arroyo Mountain Estate Homeowners Association v. Goebel”,
“decision_date”: “2024-09-11”,
“alj_name”: “Adam D. Stone”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“questions”: [
{
“question”: “If the HOA approves my architectural application, can they later claim a violation because they ‘missed’ details in the plan?”,
“short_answer”: “No. If the HOA approves the application, the homeowner can justifiably rely on that approval to proceed, even if the committee claims they missed specific details during review.”,
“detailed_answer”: “The ALJ ruled that once an application is approved, the homeowner has the right to rely on that approval to begin construction. Even if an Architectural Committee member testifies later that they ‘missed’ a detail (like a wall height) during their review, the approval stands. The HOA cannot penalize the homeowner for the committee’s oversight after approval has been granted.”,
“alj_quote”: “Ms. Rozzo testified that while she may have “missed it”, the Application was nonetheless approved, and Respondent justifiably relied on the approval and moved ahead with construction.”,
“legal_basis”: “Justifiable Reliance”,
“topic_tags”: [
“architectural approval”,
“committee oversight”,
“homeowner reliance”
]
},
{
“question”: “Can an approved application serve as a valid exception to written architectural guidelines?”,
“short_answer”: “Yes. An approved application can be considered tantamount to an exception to the community’s design guidelines.”,
“detailed_answer”: “In this case, the HOA argued the construction violated height guidelines. However, because the specific project plans were submitted and approved by the committee, the ALJ determined that this approval effectively acted as an exception to the general guidelines, making the construction permissible.”,
“alj_quote”: “This was tantamount to an exception to the Guidelines as the project was approved.”,
“legal_basis”: “Exception to Guidelines”,
“topic_tags”: [
“guidelines”,
“exceptions”,
“compliance”
]
},
{
“question”: “Is it reasonable for an HOA to issue a stop work notice after I have already completed my project?”,
“short_answer”: “No. Waiting until a project is completed to issue a stop construction notice is considered unreasonable.”,
“detailed_answer”: “The ALJ found that the HOA failed to act in a timely manner. Issuing a stop construction notice nearly a month after the homeowner had already finished building the structure was deemed unreasonable behavior by the association.”,
“alj_quote”: “Moreover, for Petitioner to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.”,
“legal_basis”: “Reasonableness / Laches”,
“topic_tags”: [
“enforcement timing”,
“stop work order”,
“construction”
]
},
{
“question”: “Who has to prove that a violation occurred during an HOA hearing?”,
“short_answer”: “The HOA (the Petitioner) bears the burden of proof.”,
“detailed_answer”: “When an HOA petitions for a hearing regarding a violation, they must prove their case by a ‘preponderance of the evidence.’ This means they must convince the judge that their claim is more likely true than not. If they fail to meet this burden, the homeowner prevails.”,
“alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1803.”,
“legal_basis”: “Burden of Proof”,
“topic_tags”: [
“legal procedure”,
“evidence”,
“burden of proof”
]
},
{
“question”: “Does it matter if the HOA has allowed other non-compliant projects in the neighborhood?”,
“short_answer”: “Yes. Evidence that the HOA has previously approved other projects that did not meet guidelines can support the homeowner’s defense.”,
“detailed_answer”: “The ALJ noted that the evidence showed this was not an isolated incident; the Architectural Committee had previously approved other projects that were not compliant with the Guidelines. This pattern weakens the HOA’s position in enforcing the rule against the current homeowner.”,
“alj_quote”: “Further, as the evidence provided, this was not the first time the ARC had approved projects that were not within the Guidelines.”,
“legal_basis”: “Arbitrary Enforcement / Precedent”,
“topic_tags”: [
“selective enforcement”,
“consistency”,
“precedent”
]
},
{
“question”: “If I submit an application and answer the committee’s questions, do I have to ensure they asked about every single detail?”,
“short_answer”: “No. If you follow the submission process and the committee has the opportunity to ask questions but doesn’t, the responsibility lies with them.”,
“detailed_answer”: “The homeowner followed the CC&R process by submitting the application. The committee had multiple chances to ask for clarification or details (like height) but failed to do so before approving. The judge ruled the homeowner followed the proper process.”,
“alj_quote”: “Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC. The ARC had many opportunities thereafter to question Respondent about the project”,
“legal_basis”: “Due Process / Procedural Compliance”,
“topic_tags”: [
“application process”,
“due diligence”,
“homeowner obligations”
]
},
{
“question”: “Do I have to pay the HOA’s filing fees if they sue me and lose?”,
“short_answer”: “No. If the HOA’s petition is denied, the homeowner is not required to reimburse the filing fee.”,
“detailed_answer”: “The ALJ explicitly ordered that because the petition was denied, the respondent (homeowner) was not required to pay back the $500 filing fee that the HOA paid to the Department.”,
“alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee”,
“legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”,
“topic_tags”: [
“fees”,
“penalties”,
“costs”
]
}
]
}
Case Participants
Petitioner Side
Daniel S. Francom(HOA attorney) Goodman Law Represented Arroyo Mountain Estate Homeowners Association.
John Consalvo(board president, witness) Arroyo Mountain Estate Homeowners Association Board President of the Association's Board; testified for Petitioner.
Judy Oliver(architectural committee member, witness) Arroyo Mountain Estate Homeowners Association Architectural Committee Testified for Petitioner; member of the ARC.
Respondent Side
Rick Goebel Jr.(respondent, homeowner) Testified on his own behalf; also referred to as Mr. Gobel/Goebel.
Elizabeth Goebel(respondent, homeowner) Testified on her own behalf; also referred to as Ms. Goebel.
Nancy Rozzo(architectural committee member, witness, former board member) Arroyo Mountain Estate Homeowners Association Architectural Committee Approved Respondent's plans; testified for Respondent. Referred to as Ms. Brazo/Rozo.
Neutral Parties
Adam D. Stone(ALJ) OAH Administrative Law Judge assigned to the hearing.
Susan Nicolson(Commissioner) ADRE Commissioner of the Arizona Department of Real Estate.
V. Nunez(ADRE staff) ADRE Recipient of the decision for transmission (derived from email [email protected]).
D. Jones(ADRE staff) ADRE Recipient of the decision for transmission (derived from email [email protected]).
L. Abril(ADRE staff) ADRE Recipient of the decision for transmission (derived from email [email protected]).
M. Neat(ADRE staff) ADRE Recipient of the decision for transmission (derived from email [email protected]).
L. Recchia(ADRE staff) ADRE Recipient of the decision for transmission (derived from email [email protected]).
G. Osborn(ADRE staff) ADRE Recipient of the decision for transmission (derived from email [email protected]).
Other Participants
Katie Sand(property manager) Vision Community Management Former employee/property manager involved in initial communications; also referred to as Katie Tam and Katie Pan.
The Administrative Law Judge denied the HOA's petition, finding the HOA failed to meet its burden of proving a violation. The homeowner justifiably relied on the ARC's approval, which was granted rapidly and without clarification requests, despite the lack of detail on the wall height, effectively granting an exception to the Guidelines.
Why this result: The HOA (Petitioner) failed to prove the violation by a preponderance of the evidence, primarily because the Architectural Review Committee (ARC) approved the plans after multiple rounds of review, and the homeowner relied on that approval. The delay in the stop construction notice was also deemed unreasonable.
Key Issues & Findings
Construction of unapproved structures/patio walls in excess of permitted height
Petitioner (HOA) alleged Respondent (homeowner) violated community documents by constructing walls around a courtyard in excess of the 42-inch height limit set by the Guidelines Section 2.24, and without sufficient prior approval (CC&R Section 5.22). The constructed wall was approximately 8 feet high.
Orders: Petitioner’s petition in this matter is denied. Respondent shall not reimburse Petitioner’s filing fee.
Arroyo Mountain Estate HOA vs. Goebel: A Dispute Over Architectural Approval
Executive Summary
This document provides a comprehensive overview of the dispute between the Arroyo Mountain Estate Homeowners Association (HOA) and homeowners Rick and Elizabeth Goebel, culminating in an administrative law hearing on August 28, 2024. The central conflict revolves around the construction of a courtyard wall at the Goebels’ property, which the HOA alleged was unapproved and in violation of community guidelines.
The Goebels maintained that they followed all required procedures, submitting multiple revised applications at the HOA’s request, and ultimately received explicit, unconditional approval from the Architectural Review Committee (ARC) before commencing work. They argued that they built a “courtyard wall” in conformance with section 2.9 of the guidelines, which does not specify a height limit, and not a “pony wall,” which is restricted to 42 inches under section 2.24.
The HOA contended that the Goebels’ application was misleading due to a lack of critical details, specifically the wall’s 8-foot 8-inch height and a three-foot overhead hood. Key members of the ARC testified they understood the application to be for landscaping only and would have denied it had the full scope been clear. The HOA argued the constructed wall violates the spirit and letter of the guidelines intended to maintain community aesthetic uniformity.
The case concluded with a definitive ruling by an Administrative Law Judge on September 11, 2024. The judge denied the HOA’s petition, finding that they had not met their burden of proof. The decision highlighted that the Goebels had followed the prescribed process, justifiably relied on the ARC’s formal approval, and that the HOA’s month-long delay in issuing a stop-construction notice was unreasonable. The ruling deemed the ARC’s approval “tantamount to an exception to the Guidelines.”
The Core Dispute: The Courtyard Wall
The conflict centers on improvements made at the Goebels’ property, located at 5408 North Prescott Court (incorrectly listed multiple times in HOA documents as 5408 North Carson Court). The primary structure in question is a wall enclosing a front courtyard area, which the Goebels’ plans identified as a “courtyard wall.”
Alleged Violations by the HOA
The HOA’s petition alleged that the Goebels were in violation of two primary governing documents:
1. CC&Rs Article V, Section 5.22: This section requires homeowners to receive ARC approval before beginning any construction that alters the exterior appearance of a property, demanding that requests “Specify in detail the nature and extent of construction.”
2. Architectural and Landscape Design Guidelines, Section 2.24: This section governs “Pony Walls and Courtyards,” stating that pony walls constructed in a front yard to form a courtyard “should be no higher than 42 inches.”
The HOA argued that the wall built by the Goebels, which reaches a height of approximately 8 feet 8 inches, is functionally a pony wall and therefore violates the 42-inch height restriction.
The Homeowner’s (Goebel) Position and Timeline
The Goebels’ defense was anchored in their assertion of procedural compliance, reliance on a formal approval, and a belief that they were being unfairly targeted.
Application and Approval Process
The timeline of the application process was a key element of the Goebels’ case:
Dec 30, 2022
Initial consolidated application for all improvements submitted via email.
Jan 3, 2023
Initial application denied with the instruction to “please resubmit separate applications for the different projects.”
Jan 3, 2023
Revised, separate applications submitted to the community manager, Katie Sand.
Jan 3, 2023
Additional comments received from Katie Sand requesting further changes.
Jan 3, 2023
Final revised applications submitted at 4:14 p.m. and notice of acceptance received at 4:26 p.m.
Jan 5, 2023
The ARC formally approved the applications, within 48 hours of submission, without requesting additional information.
Argument of Good Faith and Procedural Adherence
Mr. Goebel argued that he diligently followed the HOA’s process and could not have done more to ensure compliance.
“I follow the requirement of the architectural community prepared the application submitted the application via the appropriate application approval process and received approval. It’s unclear what I’m being violated for. It is unclear as to how I violated any part of the approval or constructed improvements not identified on the plan.” – Rick Goebel
He emphasized that the ARC, under its own guidelines, had the power to request more information if the application was deemed incomplete but chose not to, instead granting full approval. Elizabeth Goebel further stated, “they approved the application and we move forward with our approval… We still got the approval. We moved forward in good faith and constructed what we had done.”
Construction Timeline and HOA Response
• March 21, 2023: Engineering drawings submitted to Maricopa County.
• March 24, 2023: Technical approvals and permits issued by the county.
• April 7, 2023: Construction commenced.
• April 19, 2023: The wall reached its full height.
• May 12, 2023: Nearly one month after the wall was completed, the Goebels received a stop-construction notice from the HOA.
Claims of Targeted Harassment
Mr. Goebel testified that he felt his family and home were being targeted by board members, leading to significant distress and financial cost.
“Over the past 12 months, I’ve had to deal with continued harassment from our board… People drive past my home, take pictures of my home. John Conalo has driven past my home multiple times taking pictures of my home… I have people to drive by my home, take photos and post these photos online and generally disrupt the reasonable enjoyment of my property. I am of the opinion that me and my home are being targeted for these improvements by members of the board who are utilizing funds to support the basic attack.” – Rick Goebel
The Homeowners Association’s (HOA) Position
The HOA’s case, presented by attorney Daniel Francom, focused on the argument that the Goebels’ application was deficient and that any approval granted was therefore invalid for the wall as constructed.
Insufficient Detail and Misleading Application
The HOA argued the Goebels “failed to provide sufficient details” in their application.
• Wall Height: The plans did not specify the wall would be 8 feet 8 inches high.
• Overhead Hood: The plans did not clearly indicate a three-foot deep overhead structure above the gate.
• County Plans: The detailed plans submitted to Maricopa County, which included engineering reports and the exact wall height, were never provided to the HOA.
Board President John Consalvo testified that the application “showed nothing about a construction wall showing landscape application turned in.”
Architectural Committee’s Interpretation
ARC member Judy Oliver provided crucial testimony for the HOA, stating that the committee was misled by the application’s presentation.
• She testified that since the application was titled “revamping of landscaping,” she and other members “assumed that this was regarding landscaping only.”
• Regarding the wall itself, she stated, “I felt that that wall wasn’t even up for discussion at the time.”
• Crucially, she asserted that had the Goebels provided specifics for an 8-foot wall, the committee would have denied the project as it “counters the architectural guidelines.”
Violation of Guideline 2.24 (“Pony Walls”)
The HOA’s legal argument rested on classifying the Goebels’ structure under section 2.24. They argued that because the wall creates a courtyard, it should be considered a “pony wall” and is therefore subject to the 42-inch height limit, regardless of what the Goebels labeled it in their plans. They argued the wall “sticks out like a sore thumb” and that there are no other similar walls in the community.
Key Witness Testimony
Ms. Rozzo’s testimony significantly undermined the HOA’s position.
• Admission of Error: When asked if she noted the courtyard wall, she stated, “No, I absolutely missed it. I am completely honest about that. I have missed it just like we’ve missed other ones and nothing’s done about it.”
• Precedent of Inaction: She testified that the ARC had mistakenly approved “at least 15 to 20 homes” with non-compliant improvements and that “the HOA has never pursued them.” She cited unapproved walls, pavers, and concrete pads at other properties.
• Challenge to HOA’s Pursuit: She expressed surprise that the HOA was pursuing this case, stating that when she told John Consalvo that pursuing the Goebels meant they should pursue all other erroneous approvals, he “chuckled and said, ‘Mike, my neighbor,'” implying a neighbor of the board president also had unapproved improvements.
• Board Vote: Ms. Rozzo, who was also a board member for a short time, revealed that the decision to take action against the Goebels was not unanimous, with two of the five board members voting “no.”
Mr. Consalvo testified that the board’s function is to maintain the community and enforce HOA rules. He stated that the Goebels’ application did not provide the required detail for the courtyard wall, its height, or the overhead gate structure. He confirmed he took photos of the property and that, in his view, the wall as built did not conform to any approved application and should have been limited to 42 inches.
Ms. Oliver testified she had been on the ARC since 2017. She stated that the application was understood to be for landscaping and that the wall was not considered for approval due to the lack of detail. She testified that had the 8-foot height been specified, the application would have been denied.
The Final Decision: Administrative Law Judge Ruling
On September 11, 2024, Administrative Law Judge Adam D. Stone issued a final, binding decision in the case (No. 24F-H050-REL).
Ruling
The Petitioner’s (HOA’s) petition was denied. The judge found that the HOA failed to prove its case by a preponderance of the evidence.
Reasoning for the Decision
The judge provided a clear, multi-point rationale for siding with the Goebels:
1. Procedural Compliance: “Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC.”
2. Justifiable Reliance on Approval: The ARC had multiple opportunities to question the plans and did so on other matters. The judge concluded that Ms. Rozzo’s approval, even if she “missed it,” was a formal action on which the “Respondent justifiably relied… and moved ahead with construction.”
3. Approval as an Exception: The judge stated the formal approval “was tantamount to an exception to the Guidelines as the project was approved.”
4. Unreasonable Delay by HOA: The judge found that for the HOA “to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.”
5. Inconsistent Enforcement: The judge noted that “this was not the first time the ARC had approved projects that were not within the Guidelines,” referencing the testimony about other unpursued violations in the community.
Final Order
• The HOA’s petition was formally denied.
• The Respondent (Goebels) was not required to reimburse the HOA’s $500 filing fee.
Questions
Question
If the HOA approves my architectural application, can they later claim a violation because they 'missed' details in the plan?
Short Answer
No. If the HOA approves the application, the homeowner can justifiably rely on that approval to proceed, even if the committee claims they missed specific details during review.
Detailed Answer
The ALJ ruled that once an application is approved, the homeowner has the right to rely on that approval to begin construction. Even if an Architectural Committee member testifies later that they 'missed' a detail (like a wall height) during their review, the approval stands. The HOA cannot penalize the homeowner for the committee's oversight after approval has been granted.
Alj Quote
Ms. Rozzo testified that while she may have “missed it”, the Application was nonetheless approved, and Respondent justifiably relied on the approval and moved ahead with construction.
Legal Basis
Justifiable Reliance
Topic Tags
architectural approval
committee oversight
homeowner reliance
Question
Can an approved application serve as a valid exception to written architectural guidelines?
Short Answer
Yes. An approved application can be considered tantamount to an exception to the community's design guidelines.
Detailed Answer
In this case, the HOA argued the construction violated height guidelines. However, because the specific project plans were submitted and approved by the committee, the ALJ determined that this approval effectively acted as an exception to the general guidelines, making the construction permissible.
Alj Quote
This was tantamount to an exception to the Guidelines as the project was approved.
Legal Basis
Exception to Guidelines
Topic Tags
guidelines
exceptions
compliance
Question
Is it reasonable for an HOA to issue a stop work notice after I have already completed my project?
Short Answer
No. Waiting until a project is completed to issue a stop construction notice is considered unreasonable.
Detailed Answer
The ALJ found that the HOA failed to act in a timely manner. Issuing a stop construction notice nearly a month after the homeowner had already finished building the structure was deemed unreasonable behavior by the association.
Alj Quote
Moreover, for Petitioner to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.
Legal Basis
Reasonableness / Laches
Topic Tags
enforcement timing
stop work order
construction
Question
Who has to prove that a violation occurred during an HOA hearing?
Short Answer
The HOA (the Petitioner) bears the burden of proof.
Detailed Answer
When an HOA petitions for a hearing regarding a violation, they must prove their case by a 'preponderance of the evidence.' This means they must convince the judge that their claim is more likely true than not. If they fail to meet this burden, the homeowner prevails.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1803.
Legal Basis
Burden of Proof
Topic Tags
legal procedure
evidence
burden of proof
Question
Does it matter if the HOA has allowed other non-compliant projects in the neighborhood?
Short Answer
Yes. Evidence that the HOA has previously approved other projects that did not meet guidelines can support the homeowner's defense.
Detailed Answer
The ALJ noted that the evidence showed this was not an isolated incident; the Architectural Committee had previously approved other projects that were not compliant with the Guidelines. This pattern weakens the HOA's position in enforcing the rule against the current homeowner.
Alj Quote
Further, as the evidence provided, this was not the first time the ARC had approved projects that were not within the Guidelines.
Legal Basis
Arbitrary Enforcement / Precedent
Topic Tags
selective enforcement
consistency
precedent
Question
If I submit an application and answer the committee's questions, do I have to ensure they asked about every single detail?
Short Answer
No. If you follow the submission process and the committee has the opportunity to ask questions but doesn't, the responsibility lies with them.
Detailed Answer
The homeowner followed the CC&R process by submitting the application. The committee had multiple chances to ask for clarification or details (like height) but failed to do so before approving. The judge ruled the homeowner followed the proper process.
Alj Quote
Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC. The ARC had many opportunities thereafter to question Respondent about the project
Legal Basis
Due Process / Procedural Compliance
Topic Tags
application process
due diligence
homeowner obligations
Question
Do I have to pay the HOA's filing fees if they sue me and lose?
Short Answer
No. If the HOA's petition is denied, the homeowner is not required to reimburse the filing fee.
Detailed Answer
The ALJ explicitly ordered that because the petition was denied, the respondent (homeowner) was not required to pay back the $500 filing fee that the HOA paid to the Department.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
fees
penalties
costs
Case
Docket No
24F-H050-REL
Case Title
Arroyo Mountain Estate Homeowners Association v. Goebel
Decision Date
2024-09-11
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
If the HOA approves my architectural application, can they later claim a violation because they 'missed' details in the plan?
Short Answer
No. If the HOA approves the application, the homeowner can justifiably rely on that approval to proceed, even if the committee claims they missed specific details during review.
Detailed Answer
The ALJ ruled that once an application is approved, the homeowner has the right to rely on that approval to begin construction. Even if an Architectural Committee member testifies later that they 'missed' a detail (like a wall height) during their review, the approval stands. The HOA cannot penalize the homeowner for the committee's oversight after approval has been granted.
Alj Quote
Ms. Rozzo testified that while she may have “missed it”, the Application was nonetheless approved, and Respondent justifiably relied on the approval and moved ahead with construction.
Legal Basis
Justifiable Reliance
Topic Tags
architectural approval
committee oversight
homeowner reliance
Question
Can an approved application serve as a valid exception to written architectural guidelines?
Short Answer
Yes. An approved application can be considered tantamount to an exception to the community's design guidelines.
Detailed Answer
In this case, the HOA argued the construction violated height guidelines. However, because the specific project plans were submitted and approved by the committee, the ALJ determined that this approval effectively acted as an exception to the general guidelines, making the construction permissible.
Alj Quote
This was tantamount to an exception to the Guidelines as the project was approved.
Legal Basis
Exception to Guidelines
Topic Tags
guidelines
exceptions
compliance
Question
Is it reasonable for an HOA to issue a stop work notice after I have already completed my project?
Short Answer
No. Waiting until a project is completed to issue a stop construction notice is considered unreasonable.
Detailed Answer
The ALJ found that the HOA failed to act in a timely manner. Issuing a stop construction notice nearly a month after the homeowner had already finished building the structure was deemed unreasonable behavior by the association.
Alj Quote
Moreover, for Petitioner to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.
Legal Basis
Reasonableness / Laches
Topic Tags
enforcement timing
stop work order
construction
Question
Who has to prove that a violation occurred during an HOA hearing?
Short Answer
The HOA (the Petitioner) bears the burden of proof.
Detailed Answer
When an HOA petitions for a hearing regarding a violation, they must prove their case by a 'preponderance of the evidence.' This means they must convince the judge that their claim is more likely true than not. If they fail to meet this burden, the homeowner prevails.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1803.
Legal Basis
Burden of Proof
Topic Tags
legal procedure
evidence
burden of proof
Question
Does it matter if the HOA has allowed other non-compliant projects in the neighborhood?
Short Answer
Yes. Evidence that the HOA has previously approved other projects that did not meet guidelines can support the homeowner's defense.
Detailed Answer
The ALJ noted that the evidence showed this was not an isolated incident; the Architectural Committee had previously approved other projects that were not compliant with the Guidelines. This pattern weakens the HOA's position in enforcing the rule against the current homeowner.
Alj Quote
Further, as the evidence provided, this was not the first time the ARC had approved projects that were not within the Guidelines.
Legal Basis
Arbitrary Enforcement / Precedent
Topic Tags
selective enforcement
consistency
precedent
Question
If I submit an application and answer the committee's questions, do I have to ensure they asked about every single detail?
Short Answer
No. If you follow the submission process and the committee has the opportunity to ask questions but doesn't, the responsibility lies with them.
Detailed Answer
The homeowner followed the CC&R process by submitting the application. The committee had multiple chances to ask for clarification or details (like height) but failed to do so before approving. The judge ruled the homeowner followed the proper process.
Alj Quote
Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC. The ARC had many opportunities thereafter to question Respondent about the project
Legal Basis
Due Process / Procedural Compliance
Topic Tags
application process
due diligence
homeowner obligations
Question
Do I have to pay the HOA's filing fees if they sue me and lose?
Short Answer
No. If the HOA's petition is denied, the homeowner is not required to reimburse the filing fee.
Detailed Answer
The ALJ explicitly ordered that because the petition was denied, the respondent (homeowner) was not required to pay back the $500 filing fee that the HOA paid to the Department.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
fees
penalties
costs
Case
Docket No
24F-H050-REL
Case Title
Arroyo Mountain Estate Homeowners Association v. Goebel
