Robert L Greco v. Bellasera Community Association, Inc.

Posted on January 30, 2020 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	20F-H2019018-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-01-29
Administrative Law Judge	Tammy L. Eigenheer
Outcome	none
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Robert L Greco	Counsel	—
Respondent	Bellasera Community Association, Inc.	Counsel	Nathan Tennyson

Alleged Violations

A.R.S. § 33-1803(B)

Outcome Summary

The Administrative Law Judge concluded that Bellasera Community Association, Inc. did not violate A.R.S. § 33-1803(B) because the homeowner received constructive notice of the violation and fine structure, satisfying statutory requirements. The petition was dismissed.

Why this result: Petitioner failed to meet the burden of proving Respondent violated A.R.S. § 33-1803(B), as the evidence showed Petitioner received sufficient constructive notice of the alleged violation and had an opportunity to be heard or appeal.

Key Issues & Findings

Whether the HOA violated statutory requirements regarding notice and imposition of monetary penalties/late fees, resulting in suspension of privileges.

Petitioner alleged the HOA violated A.R.S. § 33-1803(B) by imposing fines and suspending gate/clubhouse access without providing adequate (actual) notice of the violation and hearing opportunity, and by improperly imposing late fees. The ALJ found the HOA provided constructive notice, satisfying the statute, and was entitled to impose cumulative fines for the ongoing violation.

Orders: Petitioner’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1803(B)
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
BLACK'S LAW DICTIONARY 1220
BLACK'S LAW DICTIONARY 1090

Analytics Highlights

Topics: HOA fines, Constructive notice, Statutory violation, Access suspension, Maintenance violation

Additional Citations:

A.R.S. § 33-1803(B)
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119

Audio Overview

Decision Documents

20F-H2019018-REL Decision – 766844.pdf

Uploaded 2025-10-08T07:10:10 (133.7 KB)

Vicky Glover v. Foothills Community Association

Posted on May 30, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1919046-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-05-30
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Vicky Glover	Counsel	—
Respondent	Foothills Community Association	Counsel	B. Austin Baillio

Alleged Violations

A.R.S. § 33-1804

Outcome Summary

The Administrative Law Judge denied the petition, concluding that Petitioner failed to establish any violation of A.R.S. § 33-1804 regarding both the DRC's restriction on speaking during specific deliberations and the use of email communications for non-regularly scheduled committee business.

Why this result: The Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804, specifically because the DRC's restrictions on speaking were deemed reasonable, and email communications were not considered 'regularly scheduled committee meetings' requiring public access.

Key Issues & Findings

Open Meetings and Member Right to Speak (DRC and Email Meetings)

Petitioner alleged Respondent violated A.R.S. § 33-1804 by denying her the ability to speak at DRC meetings on other members’ requests, and by conducting deliberations and making decisions via email outside of regularly scheduled meetings.

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: respondent_win

Cited:

A.R.S. § 33-1804
A.R.S. Title 33, Chapter 16, Sections 33-1801 to 33-1818

Analytics Highlights

Topics: HOA, Design Review Committee, Open Meetings, Right to Speak, Email Meetings, A.R.S. 33-1804

Additional Citations:

A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
A.R.S. § 33-1804
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09

Audio Overview

Decision Documents

19F-H1919046-REL Decision – 712028.pdf

Uploaded 2025-10-09T03:34:06 (94.0 KB)

Briefing Doc – 19F-H1919046-REL

Administrative Law Judge Decision: Glover v. Foothills Community Association

Executive Summary

On May 30, 2019, an Administrative Law Judge (ALJ) for the State of Arizona denied a petition filed by homeowner Vicky Glover against the Foothills Community Association (FCA). The decision concluded that the FCA’s Design Review Committee (DRC) did not violate Arizona’s open meeting law, A.R.S. § 33-1804.

The petition centered on two core allegations: 1) that the DRC improperly held “email meetings” to decide on non-emergency matters, and 2) that it unlawfully prevented members from speaking at appropriate times during its meetings.

The ALJ’s ruling rested on a strict interpretation of the statute’s plain language. The judge determined that the specific right for members to speak on an agenda item before a formal vote applies exclusively to Board of Directors meetings, not committee meetings like the DRC. For committee meetings, the statute only requires allowing members to speak at an “appropriate time,” and the DRC’s decision to restrict Ms. Glover from speaking about another member’s application was deemed reasonable. Regarding the email communications, the ALJ concluded they do not constitute “regularly scheduled committee meetings” and are therefore not subject to the open meeting requirements stipulated in the statute. The general state policy favoring open meetings was found insufficient to override these specific statutory provisions.

Case Overview

Details

Case Name

Vicky Glover, Petitioner, vs. Foothills Community Association, Respondent

Case Number

19F-H1919046-REL

Jurisdiction

Arizona Office of Administrative Hearings

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Hearing Date

May 10, 2019

Decision Date

May 30, 2019

Petitioner’s Allegations

Vicky Glover filed a petition with the Arizona Department of Real Estate on January 23, 2019, alleging that the Foothills Community Association violated state statutes governing planned communities (A.R.S. Title 33, Chapter 16). The specific allegations against the association’s Design Review Committee (DRC) were:

1. Unlawful Meetings: The DRC held unannounced email meetings to vote on non-emergency matters, violating open-meeting statutes.

2. Denial of Speech: The DRC refused to allow community members to speak at appropriate times during its regularly scheduled meetings.

Factual Background

The parties did not dispute the underlying events of the case. The established facts are as follows:

• Organizational Structure:

◦ The Foothills Community Association (FCA) is a homeowners association in Phoenix, Arizona.

◦ Its Board of Directors consists of seven members and meets on the fourth Wednesday of the month.

◦ The Design Review Committee (DRC) is appointed by the Board, consists of five members (two of whom are also on the Board), and holds its meetings on the second Wednesday of the month.

• Incidents Leading to Petition:

◦ On December 13, 2018, and January 9, 2019, Petitioner Vicky Glover attended and recorded DRC meetings.

◦ During these meetings, Ms. Glover was not permitted to speak about other members’ pending requests being discussed by the committee.

• Committee Practices:

◦ During meetings, DRC members were heard discussing plans to share additional information on certain requests via email after the meeting.

◦ Based on this emailed information, members could then approve or deny the request.

◦ Any decisions made via email between meetings were subsequently “ratified” at the next formal DRC meeting.

◦ The FCA Manager, Pat Wontor, denied that the DRC took initial action via email, stating the practice was only for gathering information on matters already discussed in a meeting.

Legal Framework and Statutory Interpretation

The central legal issue was the interpretation of Arizona’s open meeting law for planned communities, A.R.S. § 33-1804. The burden of proof was on the Petitioner to show a violation by a preponderance of the evidence.

The Relevant Statute: A.R.S. § 33-1804

The ALJ’s decision focused on two key subsections of the statute:

• A.R.S. § 33-1804(A): “Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members… and all members or designated representatives so desiring shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings. The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or member’s designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item…”

• A.R.S. § 33-1804(F): States that it is the policy of the state that all meetings “be conducted openly” and that the provisions of the section should be construed “in favor of open meetings.”

Analysis of the Right to Speak

The ALJ concluded that the DRC did not violate the statute by preventing Ms. Glover from speaking.

• Distinction Between Board and Committee Meetings: The judge’s interpretation hinged on the “plain language” of the statute. While members must be allowed to speak at an “appropriate time” at all open meetings, the specific right to speak after the discussion of an agenda item but before a formal vote is taken applies only to the Board of Directors, not to committees.

• “Appropriate Time” Determination: The statute does not define what constitutes an “appropriate time” for committee meetings. The ALJ found it was “reasonable for the DRC to determine that deliberation regarding a different member’s request was not an appropriate time for Petitioner to speak.”

• Conclusion: The DRC’s actions during the December 2018 and January 2019 meetings were not a violation of A.R.S. § 33-1804.

Analysis of “Email Meetings”

The ALJ concluded that the DRC’s email communications were not subject to the open meeting law.

• “Regularly Scheduled” Requirement: A.R.S. § 33-1804(A) explicitly applies to “regularly scheduled committee meetings.”

• Email Communications Did Not Qualify: The judge reasoned that email deliberations and decisions do not constitute “regularly scheduled” meetings because they “do not occur at a set time on a weekly, monthly, quarterly, or annual basis.”

• General Policy vs. Specific Language: While acknowledging the statute’s general policy statement in favor of open meetings (Subsection F), the ALJ ruled that this “does not override the specific provisions of A.R.S. § 33-1804(A) that only ‘regularly scheduled’ committee meetings must be open to the members.”

• Conclusion: The email communications, even if considered a “meeting of the DRC,” did not fall under the open meeting requirements of the statute.

Final Order and Conclusion

The Administrative Law Judge concluded that the Petitioner, Vicky Glover, “did not establish any violation of A.R.S. § 33-1804.” Based on this finding, the judge issued the following order:

IT IS ORDERED that Petitioner’s petition is denied.

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

Vicky Glover v. Foothills Community Association

Posted on May 30, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1919046-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-05-30
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Vicky Glover	Counsel	—
Respondent	Foothills Community Association	Counsel	B. Austin Baillio

Alleged Violations

A.R.S. § 33-1804

Outcome Summary

Key Issues & Findings

Open Meetings and Member Right to Speak (DRC and Email Meetings)

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: respondent_win

Cited:

A.R.S. § 33-1804
A.R.S. Title 33, Chapter 16, Sections 33-1801 to 33-1818

Analytics Highlights

Topics: HOA, Design Review Committee, Open Meetings, Right to Speak, Email Meetings, A.R.S. 33-1804

Additional Citations:

A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
A.R.S. § 33-1804
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09

Audio Overview

Decision Documents

19F-H1919046-REL Decision – 712028.pdf

Uploaded 2025-10-08T07:08:53 (94.0 KB)

Briefing Doc – 19F-H1919046-REL

Administrative Law Judge Decision: Glover v. Foothills Community Association

Executive Summary

Case Overview

Details

Case Name

Vicky Glover, Petitioner, vs. Foothills Community Association, Respondent

Case Number

19F-H1919046-REL

Jurisdiction

Arizona Office of Administrative Hearings

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Hearing Date

May 10, 2019

Decision Date

May 30, 2019

Petitioner’s Allegations

1. Unlawful Meetings: The DRC held unannounced email meetings to vote on non-emergency matters, violating open-meeting statutes.

2. Denial of Speech: The DRC refused to allow community members to speak at appropriate times during its regularly scheduled meetings.

Factual Background

The parties did not dispute the underlying events of the case. The established facts are as follows:

• Organizational Structure:

◦ The Foothills Community Association (FCA) is a homeowners association in Phoenix, Arizona.

◦ Its Board of Directors consists of seven members and meets on the fourth Wednesday of the month.

◦ The Design Review Committee (DRC) is appointed by the Board, consists of five members (two of whom are also on the Board), and holds its meetings on the second Wednesday of the month.

• Incidents Leading to Petition:

◦ On December 13, 2018, and January 9, 2019, Petitioner Vicky Glover attended and recorded DRC meetings.

◦ During these meetings, Ms. Glover was not permitted to speak about other members’ pending requests being discussed by the committee.

• Committee Practices:

◦ During meetings, DRC members were heard discussing plans to share additional information on certain requests via email after the meeting.

◦ Based on this emailed information, members could then approve or deny the request.

◦ Any decisions made via email between meetings were subsequently “ratified” at the next formal DRC meeting.

◦ The FCA Manager, Pat Wontor, denied that the DRC took initial action via email, stating the practice was only for gathering information on matters already discussed in a meeting.

Legal Framework and Statutory Interpretation

The Relevant Statute: A.R.S. § 33-1804

The ALJ’s decision focused on two key subsections of the statute:

Analysis of the Right to Speak

The ALJ concluded that the DRC did not violate the statute by preventing Ms. Glover from speaking.

• Conclusion: The DRC’s actions during the December 2018 and January 2019 meetings were not a violation of A.R.S. § 33-1804.

Analysis of “Email Meetings”

The ALJ concluded that the DRC’s email communications were not subject to the open meeting law.

• “Regularly Scheduled” Requirement: A.R.S. § 33-1804(A) explicitly applies to “regularly scheduled committee meetings.”

• Conclusion: The email communications, even if considered a “meeting of the DRC,” did not fall under the open meeting requirements of the statute.

Final Order and Conclusion

The Administrative Law Judge concluded that the Petitioner, Vicky Glover, “did not establish any violation of A.R.S. § 33-1804.” Based on this finding, the judge issued the following order:

IT IS ORDERED that Petitioner’s petition is denied.

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

Scott Servilla & Heidi H Servilla vs. Village of Oakcreek Association

Posted on January 9, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1817018-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2019-01-09
Administrative Law Judge	Tammy L. Eigenheer
Outcome	none
Filing Fees Refunded	$1,500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Scott Servilla & Heidi H Servilla	Counsel	—
Respondent	Village of Oakcreek Association	Counsel	Mark K. Sahl

Alleged Violations

A.R.S. § 33-1817(A)(1)
A.R.S. § 33-1812(B)(2)
By-Laws Section 8, Article VIII

Outcome Summary

The Administrative Law Judge denied the entire petition. Issues one and three were denied because Petitioner failed to prove those claims. Issue two, concerning the alleged violation of A.R.S. § 33-1812(B)(2) regarding the ballot, was denied based on the doctrine of waiver, as Petitioner did not object to the known procedural issue prior to the vote.

Why this result: Petitioner failed to prove Issues 1 and 3; Issue 2 failed due to waiver based on the precedent set in Zajac v. City of Casa Grande, because Petitioner allowed the defective vote to proceed without objection.

Key Issues & Findings

Validity of 2016 declaration amendment vote regarding required majority

Petitioner claimed the November 10, 2016 vote failed to meet the required 1173 votes necessary to amend the declaration, and requested an order that the amendment is invalid.

Orders: Petitioner's claim was denied after the ALJ found Petitioner failed to prove the claim.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Improper written ballot bundling multiple proposed actions

Petitioner claimed the written ballot used for the November 10, 2016 vote improperly grouped multiple proposed actions (Leasing and Schedule of Fines) and failed to provide a separate opportunity to vote for or against each, violating the statute.

Orders: The ALJ initially found a statutory violation but determined no remedy could be ordered; upon rehearing, the claim was denied based on the doctrine of waiver.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

Zajac v. City of Casa Grande
Allen v. State

Imposing fines in excess of $50 per violation

Petitioner alleged Respondent violated the By-Laws by imposing fines in excess of $50 per violation.

Orders: Petitioner's request for an order prohibiting fines in excess of $50 per violation and imposing a civil penalty was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Analytics Highlights

Topics: Waiver Doctrine, HOA Election Procedure, Ballot Requirements, Fines and Penalties, Administrative Law Judge Decision, Rehearing

Additional Citations:

A.R.S. § 33-1817(1)
A.R.S. § 33-1812(B)(2)
A.R.S. § 33-1812(A)
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297 (2004)
Allen v. State, 14 Ariz. 458, 130 P. 1114 (1913)

Decision Documents

18F-H1817018-REL-RHG Decision – 673729.pdf

Uploaded 2025-10-08T07:03:47 (40.8 KB)

18F-H1817018-REL-RHG Decision – 673828.pdf

Uploaded 2025-10-08T07:03:48 (48.5 KB)

18F-H1817018-REL-RHG Decision – 680738.pdf

Uploaded 2025-10-08T07:03:48 (103.5 KB)

Briefing Doc – 18F-H1817018-REL-RHG

Briefing Document: Servilla v. Village of Oakcreek Association (Case No. 18F-H1817018-REL-RHG)

Executive Summary

This briefing document analyzes the Administrative Law Judge Decision in the case of Scott Servilla versus the Village of Oakcreek Association. The final order, issued on January 9, 2019, after a rehearing, denied the Petitioner’s petition in its entirety. The central finding was that the Petitioner, Scott Servilla, had waived his right to challenge procedural defects in a November 10, 2016, homeowners association vote because he failed to raise his objections prior to the vote being held.

The core of the dispute involved a ballot that combined two distinct proposed amendments—one concerning leasing restrictions and another regarding a schedule of fines—into a single up-or-down vote. While an initial decision found that this ballot format violated Arizona statute A.R.S. § 33-1812(A)(2), it concluded no remedy could be ordered. After a rehearing was granted, the Administrative Law Judge (ALJ) based the final denial on the legal doctrine of waiver, citing the Arizona Supreme Court precedent in Zajac v. City of Casa Grande. The ALJ concluded that since Servilla received the ballot over a month before the vote, he had ample opportunity to object to its format but did not. He could not, therefore, wait to see the unfavorable result before lodging his complaint. This decision is binding on the parties, with any appeal required to be filed in superior court.

Case Overview and Participants

This matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed with the Arizona Department of Real Estate.

Case Detail

Information

Case Name

Scott Servilla & Heidi H Servilla vs. Village of Oakcreek Association

Case Number

18F-H1817018-REL-RHG

Hearing Body

Office of Administrative Hearings

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Key Participants

• Petitioner: Scott S. Servilla, who appeared on his own behalf.

• Respondent: Village of Oakcreek Association, an Arizona association of 2436 homeowners, represented by Mark K. Sahl of Carpenter, Hazlewood, Delgado & Bolen LLP.

Procedural History and Allegations

The case involved a petition filed on November 13, 2017, which evolved to encompass three distinct allegations after the Petitioner paid an additional filing fee. Following an initial hearing, the Petitioner requested and was granted a rehearing by the Commissioner for the Arizona Department of Real Estate on or about September 21, 2018. The rehearing took place on November 29, 2018, after which the record was held open until December 20, 2018, for the Petitioner to file a response.

Petitioner’s Three Core Allegations

The Petitioner’s claims, as set forth in the petition, were:

1. Improper Vote Count: The vote on November 10, 2016, allegedly violated A.R.S. § 33-1817(A)(1) and the Master Declaration because it failed to achieve the 1173 votes required for a majority to amend the declaration.

2. Improper Ballot Format: The written ballot for the November 10, 2016, vote violated A.R.S. § 33-1812(B)(2) because it “did not provide a separate opportunity to vote for or against each proposed action.” This was the central issue of the rehearing.

3. Illegal Fines: The Association allegedly violated its By-Laws (Section 8, Article VIII) by imposing fines greater than $50 per violation, particularly after members had voted against an amendment to raise this limit.

In the initial decision, the ALJ found the Petitioner failed to prove his claims on issues one and three. While the ALJ found a statutory violation regarding issue two (the ballot format), it was initially determined that no remedy could be ordered, which prompted the successful request for a rehearing.

The Disputed Vote of November 10, 2016

The case centered on a vote taken at a Special Meeting of Members to approve a “Leasing and Schedule of Fines Assessment.”

• Combined Proposals: The absentee ballot presented members with a single proposed amendment that bundled two separate changes to the Master Declaration:

◦ Leasing Restrictions: The addition of a new section, 4.23, which established a minimum lease term of 30 days and prohibited leases of less than an entire lot or unit.

◦ Schedule of Fines: The complete replacement of an existing section, 5.08, which permitted the association’s committee to adopt a schedule specifying fines for violations.

• Ballot Format: The ballot provided a single choice for members to vote either “FOR THE LEASING AND SCHEDULE OF FINES AMENDMENT” or “AGAINST THE LEASING AND SCHEDULE OF FINES AMENDMENT.”

• Vote Results:

◦ Total Ballots: 1067 were received (approximately 44% of members).

◦ Outcome: 564 voted in favor of the amendment (approximately 53% of votes cast).

Central Legal Analysis and Ruling

The final decision after the rehearing did not revisit the merits of whether the ballot was statutorily compliant. Instead, it was based entirely on the legal doctrine of waiver, which precluded the Petitioner from bringing his claim.

The Doctrine of Waiver

The ALJ’s conclusion rested on the precedent set by the Arizona Supreme Court in Zajac v. City of Casa Grande and Allen v. State. This legal principle holds that a party who is aware of a procedural defect in an election or vote prior to its occurrence cannot remain silent, wait for the outcome, and then challenge the process if the result is unfavorable.

The decision quotes the principle from Zajac: “one cannot knowingly let a defective vote proceed only to complain and seek redress if the results are not to the individual’s liking.”

Application to the Petitioner

The ALJ applied this doctrine directly to the facts of the case:

1. Awareness of the Defect: The Petitioner acknowledged receiving the absentee ballot on or about October 4, 2016.

2. Opportunity to Object: The vote was not held until November 10, 2016, giving the Petitioner over a month to raise an objection to the ballot’s format.

3. Failure to Object: The Petitioner did not raise any objections to the manner of the vote until April 2017, long after the vote had concluded. The petition itself was not filed until November 13, 2017.

4. Conclusion of Waiver: Having failed to object in a timely manner, the Petitioner was deemed to have waived his right to challenge the ballot. The ALJ stated, “He cannot have it both ways; that is, he cannot allow the [vote] to proceed without objection, and then be permitted thereafter to assert his protest.”

Because the Petitioner’s claim was barred by the doctrine of waiver, the ALJ concluded that his petition must fail.

Final Order and Implications

Based on the foregoing conclusions of law, the Administrative Law Judge issued a definitive order.

• The Order: “IT IS ORDERED that Petitioner’s petition is denied.”

• Binding Nature: The decision notes that as an order issued as a result of a rehearing, it is binding on the parties pursuant to A.R.S. § 32-2199.02(B).

• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.

Scott Servilla & Heidi H Servilla vs. Village of Oakcreek Association

Posted on January 9, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1817018-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2019-01-09
Administrative Law Judge	Tammy L. Eigenheer
Outcome	none
Filing Fees Refunded	$1,500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Scott Servilla & Heidi H Servilla	Counsel	—
Respondent	Village of Oakcreek Association	Counsel	Mark K. Sahl

Alleged Violations

A.R.S. § 33-1817(A)(1)
A.R.S. § 33-1812(B)(2)
By-Laws Section 8, Article VIII

Outcome Summary

Key Issues & Findings

Validity of 2016 declaration amendment vote regarding required majority

Petitioner claimed the November 10, 2016 vote failed to meet the required 1173 votes necessary to amend the declaration, and requested an order that the amendment is invalid.

Orders: Petitioner's claim was denied after the ALJ found Petitioner failed to prove the claim.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Improper written ballot bundling multiple proposed actions

Orders: The ALJ initially found a statutory violation but determined no remedy could be ordered; upon rehearing, the claim was denied based on the doctrine of waiver.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

Zajac v. City of Casa Grande
Allen v. State

Imposing fines in excess of $50 per violation

Petitioner alleged Respondent violated the By-Laws by imposing fines in excess of $50 per violation.

Orders: Petitioner's request for an order prohibiting fines in excess of $50 per violation and imposing a civil penalty was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Analytics Highlights

Topics: Waiver Doctrine, HOA Election Procedure, Ballot Requirements, Fines and Penalties, Administrative Law Judge Decision, Rehearing

Additional Citations:

A.R.S. § 33-1817(1)
A.R.S. § 33-1812(B)(2)
A.R.S. § 33-1812(A)
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297 (2004)
Allen v. State, 14 Ariz. 458, 130 P. 1114 (1913)

Decision Documents

18F-H1817018-REL-RHG Decision – 673729.pdf

Uploaded 2025-10-09T03:32:15 (40.8 KB)

18F-H1817018-REL-RHG Decision – 673828.pdf

Uploaded 2025-10-09T03:32:15 (48.5 KB)

18F-H1817018-REL-RHG Decision – 680738.pdf

Uploaded 2025-10-09T03:32:15 (103.5 KB)

Briefing Doc – 18F-H1817018-REL-RHG

Briefing Document: Servilla v. Village of Oakcreek Association (Case No. 18F-H1817018-REL-RHG)

Executive Summary

Case Overview and Participants

This matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed with the Arizona Department of Real Estate.

Case Detail

Information

Case Name

Scott Servilla & Heidi H Servilla vs. Village of Oakcreek Association

Case Number

18F-H1817018-REL-RHG

Hearing Body

Office of Administrative Hearings

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Key Participants

• Petitioner: Scott S. Servilla, who appeared on his own behalf.

• Respondent: Village of Oakcreek Association, an Arizona association of 2436 homeowners, represented by Mark K. Sahl of Carpenter, Hazlewood, Delgado & Bolen LLP.

Procedural History and Allegations

Petitioner’s Three Core Allegations

The Petitioner’s claims, as set forth in the petition, were:

The Disputed Vote of November 10, 2016

The case centered on a vote taken at a Special Meeting of Members to approve a “Leasing and Schedule of Fines Assessment.”

• Combined Proposals: The absentee ballot presented members with a single proposed amendment that bundled two separate changes to the Master Declaration:

◦ Leasing Restrictions: The addition of a new section, 4.23, which established a minimum lease term of 30 days and prohibited leases of less than an entire lot or unit.

◦ Schedule of Fines: The complete replacement of an existing section, 5.08, which permitted the association’s committee to adopt a schedule specifying fines for violations.

• Vote Results:

◦ Total Ballots: 1067 were received (approximately 44% of members).

◦ Outcome: 564 voted in favor of the amendment (approximately 53% of votes cast).

Central Legal Analysis and Ruling

The Doctrine of Waiver

The decision quotes the principle from Zajac: “one cannot knowingly let a defective vote proceed only to complain and seek redress if the results are not to the individual’s liking.”

Application to the Petitioner

The ALJ applied this doctrine directly to the facts of the case:

1. Awareness of the Defect: The Petitioner acknowledged receiving the absentee ballot on or about October 4, 2016.

2. Opportunity to Object: The vote was not held until November 10, 2016, giving the Petitioner over a month to raise an objection to the ballot’s format.

Because the Petitioner’s claim was barred by the doctrine of waiver, the ALJ concluded that his petition must fail.

Final Order and Implications

Based on the foregoing conclusions of law, the Administrative Law Judge issued a definitive order.

• The Order: “IT IS ORDERED that Petitioner’s petition is denied.”

• Binding Nature: The decision notes that as an order issued as a result of a rehearing, it is binding on the parties pursuant to A.R.S. § 32-2199.02(B).

• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.

Annette Cohen vs. CBS 136 Homeowners Association

Posted on June 26, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1818033-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-06-26
Administrative Law Judge	Tammy L. Eigenheer
Outcome	partial
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Annette Cohen	Counsel	—
Respondent	CBS 136 Homeowners Association	Counsel	Brian E. Ditsch

Alleged Violations

A.R.S. § 33-1258(A)

Outcome Summary

Petitioner was deemed the prevailing party because Respondent established a technical violation of A.R.S. § 33-1258(A) by failing to provide requested documents within the 10-day limit. However, the Administrative Law Judge found a civil penalty was not appropriate given the circumstances.

Key Issues & Findings

Failure to provide requested association records within 10 business days

Petitioner requested sign-in sheets for the January 10, 2018, and February 15, 2018, CBS HOA meetings. Respondent acknowledged a technical violation of the statute by failing to provide the requested documents within the required 10-day timeframe, although they were ultimately provided prior to the hearing.

Orders: Respondent must comply with the applicable provisions of A.R.S. § 33-1258(A) in the future, and pay Petitioner her filing fee of $500.00 within thirty (30) days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 33-1258
A.R.S. § 33-1258(A)

Analytics Highlights

Topics: records request, failure to provide documents, condominium owners association, filing fee refund

Additional Citations:

A.R.S. § 32-2199 et seq.
A.R.S. § 33-1258
A.A.C. R2-19-119
A.R.S. § 33-1258(A)
A.R.S. §32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09

Audio Overview

Decision Documents

18F-H1818033-REL Decision – 642888.pdf

Uploaded 2025-10-08T07:05:13 (74.5 KB)

18F-H1818033-REL Decision – 655537.pdf

Uploaded 2025-10-08T07:05:13 (83.3 KB)

Briefing Doc – 18F-H1818033-REL

Administrative Hearing Briefing: Cohen v. CBS 136 Homeowners Association

Executive Summary

This document synthesizes the findings and decision from the administrative hearing case Annette Cohen v. CBS 136 Homeowners Association (No. 18F-H1818033-REL). The core of the dispute was the Homeowners Association’s (HOA) failure to provide requested documents—specifically, meeting sign-in sheets—to a member, Annette Cohen, within the ten-business-day timeframe mandated by Arizona statute A.R.S. § 33-1258.

At the hearing, the Respondent HOA acknowledged this “technical violation,” attributing the delay to operational difficulties arising from a recent change in management companies. The Petitioner, Ms. Cohen, argued the delay was intentional and warranted a civil penalty.

The Administrative Law Judge, Tammy L. Eigenheer, found that the HOA did violate the statute. In the final order, the Judge declared Ms. Cohen the prevailing party and mandated future compliance by the HOA. While a civil penalty was deemed inappropriate under the circumstances, the Judge ordered the HOA to reimburse Ms. Cohen’s $500 filing fee.

Case Overview

Entity / Individual

Petitioner

Annette Cohen

Respondent

CBS 136 Homeowners Association (CBS)

Respondent’s Counsel

Brian Ditsch, Sacks Tierney P.A.

Respondent’s Mgmt. Co.

Key Witness

Susan Rubin (PRM)

Adjudicating Body

Office of Administrative Hearings, Phoenix, Arizona

Administrative Law Judge

Tammy L. Eigenheer

Case Number

18F-H1818033-REL

Hearing Date

June 6, 2018

Decision Date

June 26, 2018

Chronology of the Dispute

The dispute centered on two separate sets of document requests made by Petitioner Annette Cohen.

• Request 1 (January 10 Meeting):

◦ On or about Jan. 10, 2018: Ms. Cohen requested the sign-in sheets from the annual meeting held on this date.

◦ Jan. 2018: The management company PRM took over management of the CBS 136 HOA.

◦ Feb. 15, 2018: After more than a month, and after two scheduled review appointments were cancelled by the management company, the sign-in sheets were finally provided to Ms. Cohen by email.

• Request 2 (February 15 Meeting):

◦ Feb. 19, 2018: Ms. Cohen requested the sign-in sheets from the February 15, 2018 HOA meeting. Receipt of this request was acknowledged by PRM.

◦ Feb. 21, 26, 27 & March 5, 2018: Ms. Cohen made repeated follow-up requests for the same information.

• Formal Proceedings:

◦ March 9, 2018: Ms. Cohen filed a formal petition with the Arizona Department of Real Estate.

◦ April 10, 2018: The Respondent HOA filed an answer denying all allegations.

◦ June 6, 2018: An administrative hearing was held. The documents had been provided to Ms. Cohen at some point prior to this hearing.

◦ June 26, 2018: The Administrative Law Judge issued the final decision.

Core Allegation and Legal Framework

Petitioner’s Allegation

Annette Cohen alleged that the CBS 136 Homeowners Association violated A.R.S. Title 33, Chapter 16, Section 33-1258 by failing to provide association records for review and copying within the statutorily required timeframe.

Governing Statute: A.R.S. § 33-1258(A)

The legal basis for the petition is Arizona Revised Statute § 33-1258(A), which governs a member’s right to access association records. The statute states, in relevant part:

“all financial and other records of the association shall be made reasonably available for examination by any member… The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member… the association shall have ten business days to provide copies of the requested records. An association may charge a fee for making copies of not more than fifteen cents per page.”

The petitioner bears the burden of proving a violation by a preponderance of the evidence, defined as evidence that “shows that the fact sought to be proved is more probable than not.”

Arguments and Evidence Presented at Hearing

Once the Respondent acknowledged the delay, the hearing focused solely on determining the appropriate remedy.

Petitioner’s Position (Annette Cohen)

• Intentional Negligence: Ms. Cohen argued that the Respondent “intentionally ignored her request for the documents.”

• Request for Penalty: Based on the belief of intentional neglect, she asserted that a civil penalty was an appropriate remedy.

• Unreasonable Delay: She noted that the documents “could have easily been emailed to her within the 10 day deadline,” but that the HOA’s management company did not present this as an option until after the deadline had already passed.

Respondent’s Position (CBS 136 HOA)

• Acknowledged Violation: At the June 6, 2018 hearing, the Respondent “acknowledged that the requested documents were not provided within the 10 day timeframe set forth in statute.”

• Mitigating Circumstances: The defense centered on testimony from Susan Rubin of the management company, PRM. Ms. Rubin testified to the following:

◦ No requests are “ever purposefully ignored.”

◦ PRM had only taken over management of the HOA in January 2018.

◦ At the time of the requests, PRM was “still getting documents from the former management company.”

◦ The delay was not due to ignoring the request, but because it “took a little longer than expected to provide the documents.”

Administrative Law Judge’s Decision and Order

Findings and Conclusions

• Violation Established: The Judge concluded there was “no dispute that Respondent failed to provide the requested documents within 10 days.” Therefore, the Petitioner “established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”

• Rejection of Civil Penalty: Despite the Petitioner’s argument, the Administrative Law Judge did “not find such a penalty to be appropriate given the circumstances in this matter.”

Final Order

The Judge issued a three-part order binding on the parties:

1. Prevailing Party: The Petitioner, Annette Cohen, is “deemed the prevailing party.”

2. Future Compliance: The Respondent, CBS 136 Homeowners Association, is ordered to “comply with the applicable provisions of A.R.S. § 33-1258(A) in the future.”

3. Reimbursement of Filing Fee: The Respondent must pay the Petitioner her filing fee of $500.00 directly to her within thirty (30) days of the order.

Annette Cohen vs. CBS 136 Homeowners Association

Posted on June 26, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1818033-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-06-26
Administrative Law Judge	Tammy L. Eigenheer
Outcome	partial
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Annette Cohen	Counsel	—
Respondent	CBS 136 Homeowners Association	Counsel	Brian E. Ditsch

Alleged Violations

A.R.S. § 33-1258(A)

Outcome Summary

Key Issues & Findings

Failure to provide requested association records within 10 business days

Orders: Respondent must comply with the applicable provisions of A.R.S. § 33-1258(A) in the future, and pay Petitioner her filing fee of $500.00 within thirty (30) days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 33-1258
A.R.S. § 33-1258(A)

Analytics Highlights

Topics: records request, failure to provide documents, condominium owners association, filing fee refund

Additional Citations:

A.R.S. § 32-2199 et seq.
A.R.S. § 33-1258
A.A.C. R2-19-119
A.R.S. § 33-1258(A)
A.R.S. §32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09

Audio Overview

Decision Documents

18F-H1818033-REL Decision – 642888.pdf

Uploaded 2025-10-09T03:32:41 (74.5 KB)

18F-H1818033-REL Decision – 655537.pdf

Uploaded 2025-10-09T03:32:42 (83.3 KB)

Briefing Doc – 18F-H1818033-REL

Administrative Hearing Briefing: Cohen v. CBS 136 Homeowners Association

Executive Summary

Case Overview

Entity / Individual

Petitioner

Annette Cohen

Respondent

CBS 136 Homeowners Association (CBS)

Respondent’s Counsel

Brian Ditsch, Sacks Tierney P.A.

Respondent’s Mgmt. Co.

Key Witness

Susan Rubin (PRM)

Adjudicating Body

Office of Administrative Hearings, Phoenix, Arizona

Administrative Law Judge

Tammy L. Eigenheer

Case Number

18F-H1818033-REL

Hearing Date

June 6, 2018

Decision Date

June 26, 2018

Chronology of the Dispute

The dispute centered on two separate sets of document requests made by Petitioner Annette Cohen.

• Request 1 (January 10 Meeting):

◦ On or about Jan. 10, 2018: Ms. Cohen requested the sign-in sheets from the annual meeting held on this date.

◦ Jan. 2018: The management company PRM took over management of the CBS 136 HOA.

◦ Feb. 15, 2018: After more than a month, and after two scheduled review appointments were cancelled by the management company, the sign-in sheets were finally provided to Ms. Cohen by email.

• Request 2 (February 15 Meeting):

◦ Feb. 19, 2018: Ms. Cohen requested the sign-in sheets from the February 15, 2018 HOA meeting. Receipt of this request was acknowledged by PRM.

◦ Feb. 21, 26, 27 & March 5, 2018: Ms. Cohen made repeated follow-up requests for the same information.

• Formal Proceedings:

◦ March 9, 2018: Ms. Cohen filed a formal petition with the Arizona Department of Real Estate.

◦ April 10, 2018: The Respondent HOA filed an answer denying all allegations.

◦ June 6, 2018: An administrative hearing was held. The documents had been provided to Ms. Cohen at some point prior to this hearing.

◦ June 26, 2018: The Administrative Law Judge issued the final decision.

Core Allegation and Legal Framework

Petitioner’s Allegation

Governing Statute: A.R.S. § 33-1258(A)

The legal basis for the petition is Arizona Revised Statute § 33-1258(A), which governs a member’s right to access association records. The statute states, in relevant part:

The petitioner bears the burden of proving a violation by a preponderance of the evidence, defined as evidence that “shows that the fact sought to be proved is more probable than not.”

Arguments and Evidence Presented at Hearing

Once the Respondent acknowledged the delay, the hearing focused solely on determining the appropriate remedy.

Petitioner’s Position (Annette Cohen)

• Intentional Negligence: Ms. Cohen argued that the Respondent “intentionally ignored her request for the documents.”

• Request for Penalty: Based on the belief of intentional neglect, she asserted that a civil penalty was an appropriate remedy.

Respondent’s Position (CBS 136 HOA)

• Acknowledged Violation: At the June 6, 2018 hearing, the Respondent “acknowledged that the requested documents were not provided within the 10 day timeframe set forth in statute.”

• Mitigating Circumstances: The defense centered on testimony from Susan Rubin of the management company, PRM. Ms. Rubin testified to the following:

◦ No requests are “ever purposefully ignored.”

◦ PRM had only taken over management of the HOA in January 2018.

◦ At the time of the requests, PRM was “still getting documents from the former management company.”

◦ The delay was not due to ignoring the request, but because it “took a little longer than expected to provide the documents.”

Administrative Law Judge’s Decision and Order

Findings and Conclusions

• Rejection of Civil Penalty: Despite the Petitioner’s argument, the Administrative Law Judge did “not find such a penalty to be appropriate given the circumstances in this matter.”

Final Order

The Judge issued a three-part order binding on the parties:

1. Prevailing Party: The Petitioner, Annette Cohen, is “deemed the prevailing party.”

2. Future Compliance: The Respondent, CBS 136 Homeowners Association, is ordered to “comply with the applicable provisions of A.R.S. § 33-1258(A) in the future.”

3. Reimbursement of Filing Fee: The Respondent must pay the Petitioner her filing fee of $500.00 directly to her within thirty (30) days of the order.

John Paul Holyoak vs. Camelback Country Club Estates I & II

Posted on May 25, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1818030-REL, 18F-H1818031-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-05-25
Administrative Law Judge	Tammy L. Eigenheer
Outcome	partial
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Jon Paul Holyoak	Counsel	—
Respondent	Camelback Country Club Estates I & II Homeowners Association	Counsel	Diana J. Elston, J. Gary Linder

Alleged Violations

CC&Rs Section 12

Outcome Summary

The Administrative Law Judge denied the petition related to landscaping (18F-H1818030-REL), but deemed Petitioner the prevailing party and ordered the refund of the $500 filing fee regarding the petition concerning the additional mailbox (18F-H1818031-REL) because the HOA improperly based the fine on CC&R Section 12.

Why this result: Petitioner failed to prove the olive tree was alive, and a dead tree could be reasonably considered a violation of CC&R Section 28 requiring neatly trimmed/properly cultivated plantings (Case 18F-H1818030-REL).

Key Issues & Findings

Improper fine regarding additional freestanding mailbox

Petitioner challenged fines for an additional mailbox lacking architectural approval. The ALJ found that CC&R Section 12 (related to 'building') could not be applied to a mailbox, rendering the fine imposed under that section a violation by the Respondent. Petitioner was deemed the prevailing party in this docket number (18F-H1818031-REL).

Orders: Respondent ordered to pay Petitioner $500.00 filing fee refund within thirty days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 32-2199 et seq.
A.R.S. § 33-1805(A)
A.A.C. R2-19-119
CC&Rs Section 8
CC&Rs Section 12
CC&Rs Section 27

Analytics Highlights

Topics: landscape_maintenance, architectural_review, fines, mailbox, ccrs, consolidated_cases, prevailing_party

Additional Citations:

A.R.S. § 32-2199 et seq.
A.R.S. § 33-1805(A)
A.A.C. R2-19-119
CC&Rs Section 8
CC&Rs Section 12
CC&Rs Section 27
CC&Rs Section 28

Audio Overview

Decision Documents

18F-H1818030-REL Decision – 636748.pdf

Uploaded 2025-10-08T07:04:57 (130.5 KB)

18F-H1818030-REL Decision – 637227.pdf

Uploaded 2025-10-08T07:04:57 (57.9 KB)

18F-H1818030-REL Decision – 637433.pdf

Uploaded 2025-10-08T07:04:58 (56.5 KB)

Briefing Doc – 18F-H1818030-REL

Briefing Document: Holyoak v. Camelback Country Club Estates HOA

Executive Summary

This briefing document synthesizes the findings and conclusions from an Administrative Law Judge Decision concerning two consolidated petitions filed by homeowner Jon Paul Holyoak against the Camelback Country Club Estates I & II Homeowners Association (HOA). The disputes centered on HOA-issued violations for landscaping maintenance and the presence of a freestanding mailbox.

The final judgment produced a split decision. The Petitioner, Mr. Holyoak, failed to prove the HOA acted improperly in the landscaping case and his petition was denied. However, he was deemed the prevailing party in the mailbox case, with the judge concluding the HOA had violated its own community documents (CC&Rs) by imposing a fine based on an inapplicable section. As the prevailing party in one of the two matters, Mr. Holyoak was awarded his $500 filing fee, to be paid by the HOA. The initial decision document required two subsequent nunc pro tunc orders to correct typographical errors.

Key Takeaways:

• Landscaping Petition (Denied): Mr. Holyoak was cited for failing to remove a “dead” olive tree. He argued the tree was merely “in distress.” The judge ruled that a reasonable person would consider the tree dead and that Mr. Holyoak failed to provide sufficient evidence to the contrary. A dead tree was found to be a potential violation of CC&R Section 28, which requires plantings to be “neatly trimmed” and “properly cultivated.”

• Mailbox Petition (Upheld): Mr. Holyoak was cited for an “additional mailbox” that was present when he purchased the property in 2012. The judge found the HOA’s enforcement problematic for two primary reasons:

1. The HOA cited three different CC&R sections across multiple notices.

2. The fine was ultimately based on Section 12, which pertains to “buildings” and was deemed inapplicable to a mailbox.

• Final Order: The HOA was ordered to pay the Petitioner’s $500 filing fee. The decision is binding on the parties.

——————————————————————————–

Case Overview

The matter involves two petitions filed on February 2, 2018, by Petitioner Jon Paul Holyoak with the Arizona Department of Real Estate against the Respondent, Camelback Country Club Estates I & II Homeowners Association. The petitions alleged that the HOA had improperly cited Mr. Holyoak for violations of the community’s Conditions, Covenants, and Restrictions (CC&Rs). The two cases were consolidated for a single hearing.

Detail

Information

Case Numbers

18F-H1818030-REL (Landscaping)
18F-H1818031-REL (Mailbox)

Petitioner

Jon Paul Holyoak

Respondent

Camelback Country Club Estates I & II Homeowners Association (represented by Gary Linder and Diana Elston)

Hearing Date

May 2, 2018

Decision Date

May 25, 2018

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Legal Framework

The Petitioner bore the burden of proving by a preponderance of the evidence that the Respondent violated the community CC&Rs and A.R.S. § 33-1805(A).

——————————————————————————–

Petition 1: Landscaping Violations (Case No. 18F-H1818030-REL)

This petition alleged that the HOA improperly cited Mr. Holyoak for violating Section 28 of the CC&Rs, which governs landscape maintenance.

HOA Actions and Timeline

The HOA, through its inspection team Associa Arizona, issued a series of notices regarding the landscaping on Mr. Holyoak’s property.

Notice Type

Description

Oct 17, 2017

Courtesy Notice

“Please remove the dead foliage on your lot.”

Dec 13, 2017

Courtesy Notice

“Please remove the dead olive tree in the front yard.”

Dec 13, 2017

Courtesy Notice

“There are several other trees that need to be removed as they have dead branches including the cassia…”

Jan 25, 2018

Notice of Violation

“2nd notice…There are several other trees that need to be removed as they have dead branches…” (Included photo of backyard).

Arguments Presented

• Petitioner’s Position (Holyoak):

◦ The olive tree in the front yard was not “dead” but rather “in distress,” and he was actively trying to nurse it back to health. He eventually had the tree removed on April 25, 2018, after months of effort.

◦ Regarding the backyard photo attached to the fine notice, he argued that the olive tree visible was healthy and that no dead trees were depicted.

◦ He requested that the fine be abated.

• Respondent’s Position (HOA):

◦ Board member Terry Rogers testified that the front yard olive tree had no leaves, appeared dead from the roadway, and was therefore not “properly trimmed” as required.

◦ He stated the backyard notice referred to a eucalyptus tree with several dead branches visible from the sidewalk bordering the property.

Administrative Law Judge’s Findings and Conclusion

The judge ruled in favor of the HOA in this matter.

• Burden of Proof: The Petitioner failed to present sufficient evidence, beyond “his self-serving statements,” that the olive tree was alive.

• Reasonable Interpretation: The judge concluded that “Any reasonable person viewing the olive tree, as depicted in the photographs presented, would understand the tree to be dead.”

• Violation of CC&Rs: A dead tree could reasonably be considered as not being “neatly trimmed” or “properly cultivated” in accordance with Section 28.

• Verdict: The Petitioner’s petition was denied. The judge found that the HOA had not improperly fined him for the landscaping violation.

——————————————————————————–

Petition 2: Unapproved Structure/Mailbox (Case No. 18F-H1818031-REL)

This petition alleged that the HOA improperly cited Mr. Holyoak for having an “additional mailbox” in violation of the CC&Rs.

HOA Actions and Timeline

The HOA’s notices for the mailbox cited three different sections of the CC&Rs over time.

Notice Type

Description

CC&R Section Cited

Oct 17, 2017

Courtesy Notice

“Please remove the additional mailbox on your lot.”

Section 27

Dec 14, 2017

Courtesy Notice

“…there is an additional mailbox on your lot. In research of our files, there is no architectural application on file for the modification.”

Section 12

Jan 25, 2018

Notice of Violation

“2nd notice…Please remove the mailbox or provide the approved architectural application.” (Mailbox was painted bright pink and yellow at this time).

Section 12

Jan 25, 2018¹

Notice of Violation

“3rd notice…Please remove the mailbox or provide the approved architectural application.”

Section 8

¹The decision document states this notice was sent on January 25, 2018, but references a violation noted on March 15, 2018. The judge’s conclusions later clarify a notice referencing Section 8 was issued April 11, 2018, and was not properly before the tribunal.

Arguments Presented

• Petitioner’s Position (Holyoak):

◦ The freestanding mailbox was already in place when he purchased the home in 2012.

◦ At the time of purchase, he received a statement that there were no known covenant violations on the property.

◦ He argued the mailbox is required by the United States Postal Service (USPS), which no longer provides walking delivery and requires mailboxes to be reachable from a vehicle. The home’s other mailbox, built into a monument, is approximately 15 feet from the curb.

◦ A USPS mail carrier had confirmed this delivery requirement.

• Respondent’s Position (HOA):

◦ Board member Terry Rogers testified that the USPS mail carrier told him he would prefer to deliver to the permanent monument mailbox because the freestanding one was not secure.

◦ The mailbox had become an “eyesore,” as it was faded, peeling, and “listing to one side.”

◦ Of the 61 homes in the community, only three have freestanding mailboxes, and the Petitioner is the only one with two mailboxes.

Administrative Law Judge’s Findings and Conclusion

The judge ruled in favor of the Petitioner in this matter.

• Inconsistent Enforcement: The judge found it “problematic” that the HOA relied on three different sections of the CC&Rs in its notices.

• Pre-existing Structure: The Petitioner established that the mailbox was present at the time of his 2012 home purchase and that he was told of no existing violations. Therefore, the HOA’s argument regarding the lack of an architectural approval was “without merit.”

• Inapplicable CC&R Section: The fine was imposed based on Section 12 of the CC&Rs. The judge determined the plain language of this section relates to a “building” and “cannot be read to apply to Petitioner’s mailbox.”

• Violation by HOA: By imposing a fine based on an inapplicable section, the HOA was in violation of the CC&Rs.

• Verdict: The Petitioner was deemed the prevailing party. The judge noted that the HOA could potentially impose fines for failure to maintain the mailbox or for painting it without approval, but those specific violations were not before the court.

——————————————————————————–

Final Order and Subsequent Corrections

• Order of May 25, 2018:

1. Petitioner’s petition in Case Number 18F-H1818030-REL (Landscaping) is denied.

2. Petitioner is deemed the prevailing party in Case Number 18F-H1818031-REL (Mailbox).

3. Respondent (HOA) is ordered to pay Petitioner his $500.00 filing fee within thirty days.

• Order Nunc Pro Tunc of May 30, 2018:

◦ This order corrected a typographical error in the original decision. The original text mistakenly stated the petition for the mailbox case (31-REL) was denied.

◦ Correction: The denial was correctly applied to the landscaping case: “it is ORDERED that Petitioner’s petition in Case Number 18F-H1818031-REL 18F-H1818030-REL is denied.”

• Order Nunc Pro Tunc of May 31, 2018:

◦ This order corrected a typographical error in the May 30 order, which had misstated the date of the original decision.

◦ Correction: “On April 26 May 25, 2018, the Administrative Law Judge issued the Administrative Law Judge Decision…”

——————————————————————————–

Key CC&R Sections Cited

• Section 8 (Architectural Control): Requires written approval from the Committee before any “building or other structure” is erected, altered, or repaired. This includes exterior finish, color, and architectural style.

• Section 12 (Buildings): States that “No building may be erected or maintained upon any Lot except one single family dwelling with private appurtenant garage and customary outbuildings” without prior written approval.

• Section 27 (Maintenance): Prohibits any building or structure from falling into disrepair and requires owners to keep them in good condition and adequately painted.

• Section 28 (Landscaping): Requires the owner of each lot to “at all times keep shrubs, trees, grass and plantings of every kind, on his lot mostly trimmed, properly cultivated, and free of trash, weeds and other unsightly material.”

John Paul Holyoak vs. Camelback Country Club Estates I & II

Posted on May 25, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1818030-REL, 18F-H1818031-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-05-25
Administrative Law Judge	Tammy L. Eigenheer
Outcome	partial
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Jon Paul Holyoak	Counsel	—
Respondent	Camelback Country Club Estates I & II Homeowners Association	Counsel	Diana J. Elston, J. Gary Linder

Alleged Violations

CC&Rs Section 12

Outcome Summary

Key Issues & Findings

Improper fine regarding additional freestanding mailbox

Orders: Respondent ordered to pay Petitioner $500.00 filing fee refund within thirty days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 32-2199 et seq.
A.R.S. § 33-1805(A)
A.A.C. R2-19-119
CC&Rs Section 8
CC&Rs Section 12
CC&Rs Section 27

Analytics Highlights

Topics: landscape_maintenance, architectural_review, fines, mailbox, ccrs, consolidated_cases, prevailing_party

Additional Citations:

A.R.S. § 32-2199 et seq.
A.R.S. § 33-1805(A)
A.A.C. R2-19-119
CC&Rs Section 8
CC&Rs Section 12
CC&Rs Section 27
CC&Rs Section 28

Audio Overview

Decision Documents

18F-H1818030-REL Decision – 636748.pdf

Uploaded 2025-10-09T03:32:37 (130.5 KB)

18F-H1818030-REL Decision – 637227.pdf

Uploaded 2025-10-09T03:32:37 (57.9 KB)

18F-H1818030-REL Decision – 637433.pdf

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Briefing Doc – 18F-H1818030-REL

Briefing Document: Holyoak v. Camelback Country Club Estates HOA

Executive Summary

Key Takeaways:

1. The HOA cited three different CC&R sections across multiple notices.

2. The fine was ultimately based on Section 12, which pertains to “buildings” and was deemed inapplicable to a mailbox.

• Final Order: The HOA was ordered to pay the Petitioner’s $500 filing fee. The decision is binding on the parties.

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Case Overview

Detail

Information

Case Numbers

18F-H1818030-REL (Landscaping)
18F-H1818031-REL (Mailbox)

Petitioner

Jon Paul Holyoak

Respondent

Camelback Country Club Estates I & II Homeowners Association (represented by Gary Linder and Diana Elston)

Hearing Date

May 2, 2018

Decision Date

May 25, 2018

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Legal Framework

The Petitioner bore the burden of proving by a preponderance of the evidence that the Respondent violated the community CC&Rs and A.R.S. § 33-1805(A).

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Petition 1: Landscaping Violations (Case No. 18F-H1818030-REL)

This petition alleged that the HOA improperly cited Mr. Holyoak for violating Section 28 of the CC&Rs, which governs landscape maintenance.

HOA Actions and Timeline

The HOA, through its inspection team Associa Arizona, issued a series of notices regarding the landscaping on Mr. Holyoak’s property.

Notice Type

Description

Oct 17, 2017

Courtesy Notice

“Please remove the dead foliage on your lot.”

Dec 13, 2017

Courtesy Notice

“Please remove the dead olive tree in the front yard.”

Dec 13, 2017

Courtesy Notice

“There are several other trees that need to be removed as they have dead branches including the cassia…”

Jan 25, 2018

Notice of Violation

“2nd notice…There are several other trees that need to be removed as they have dead branches…” (Included photo of backyard).

Arguments Presented

• Petitioner’s Position (Holyoak):

◦ Regarding the backyard photo attached to the fine notice, he argued that the olive tree visible was healthy and that no dead trees were depicted.

◦ He requested that the fine be abated.

• Respondent’s Position (HOA):

◦ Board member Terry Rogers testified that the front yard olive tree had no leaves, appeared dead from the roadway, and was therefore not “properly trimmed” as required.

◦ He stated the backyard notice referred to a eucalyptus tree with several dead branches visible from the sidewalk bordering the property.

Administrative Law Judge’s Findings and Conclusion

The judge ruled in favor of the HOA in this matter.

• Burden of Proof: The Petitioner failed to present sufficient evidence, beyond “his self-serving statements,” that the olive tree was alive.

• Reasonable Interpretation: The judge concluded that “Any reasonable person viewing the olive tree, as depicted in the photographs presented, would understand the tree to be dead.”

• Violation of CC&Rs: A dead tree could reasonably be considered as not being “neatly trimmed” or “properly cultivated” in accordance with Section 28.

• Verdict: The Petitioner’s petition was denied. The judge found that the HOA had not improperly fined him for the landscaping violation.

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Petition 2: Unapproved Structure/Mailbox (Case No. 18F-H1818031-REL)

This petition alleged that the HOA improperly cited Mr. Holyoak for having an “additional mailbox” in violation of the CC&Rs.

HOA Actions and Timeline

The HOA’s notices for the mailbox cited three different sections of the CC&Rs over time.

Notice Type

Description

CC&R Section Cited

Oct 17, 2017

Courtesy Notice

“Please remove the additional mailbox on your lot.”

Section 27

Dec 14, 2017

Courtesy Notice

“…there is an additional mailbox on your lot. In research of our files, there is no architectural application on file for the modification.”

Section 12

Jan 25, 2018

Notice of Violation

“2nd notice…Please remove the mailbox or provide the approved architectural application.” (Mailbox was painted bright pink and yellow at this time).

Section 12

Jan 25, 2018¹

Notice of Violation

“3rd notice…Please remove the mailbox or provide the approved architectural application.”

Section 8

Arguments Presented

• Petitioner’s Position (Holyoak):

◦ The freestanding mailbox was already in place when he purchased the home in 2012.

◦ At the time of purchase, he received a statement that there were no known covenant violations on the property.

◦ A USPS mail carrier had confirmed this delivery requirement.

• Respondent’s Position (HOA):

◦ Board member Terry Rogers testified that the USPS mail carrier told him he would prefer to deliver to the permanent monument mailbox because the freestanding one was not secure.

◦ The mailbox had become an “eyesore,” as it was faded, peeling, and “listing to one side.”

◦ Of the 61 homes in the community, only three have freestanding mailboxes, and the Petitioner is the only one with two mailboxes.

Administrative Law Judge’s Findings and Conclusion

The judge ruled in favor of the Petitioner in this matter.

• Inconsistent Enforcement: The judge found it “problematic” that the HOA relied on three different sections of the CC&Rs in its notices.

• Violation by HOA: By imposing a fine based on an inapplicable section, the HOA was in violation of the CC&Rs.

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Final Order and Subsequent Corrections

• Order of May 25, 2018:

1. Petitioner’s petition in Case Number 18F-H1818030-REL (Landscaping) is denied.

2. Petitioner is deemed the prevailing party in Case Number 18F-H1818031-REL (Mailbox).

3. Respondent (HOA) is ordered to pay Petitioner his $500.00 filing fee within thirty days.

• Order Nunc Pro Tunc of May 30, 2018:

◦ This order corrected a typographical error in the original decision. The original text mistakenly stated the petition for the mailbox case (31-REL) was denied.

◦ Correction: The denial was correctly applied to the landscaping case: “it is ORDERED that Petitioner’s petition in Case Number 18F-H1818031-REL 18F-H1818030-REL is denied.”

• Order Nunc Pro Tunc of May 31, 2018:

◦ This order corrected a typographical error in the May 30 order, which had misstated the date of the original decision.

◦ Correction: “On April 26 May 25, 2018, the Administrative Law Judge issued the Administrative Law Judge Decision…”

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Key CC&R Sections Cited

• Section 27 (Maintenance): Prohibits any building or structure from falling into disrepair and requires owners to keep them in good condition and adequately painted.

Gary W. Moselle vs. Desert Mountain Master Association

Posted on May 10, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1817005-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2018-05-10
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Gary W. Moselle	Counsel	—
Respondent	Desert Mountain Master Association	Counsel	Curtis Ekmark

Alleged Violations

A.R.S. § 33-1804

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the respondent HOA did not violate A.R.S. § 33-1804 because the committee meeting in question was not a “regularly scheduled committee meeting” required to be open to all members.

Why this result: The specific language of A.R.S. § 33-1804(A) only requires 'regularly scheduled committee meetings' to be open, and the committee in question did not meet at regular intervals.

Key Issues & Findings

Whether the DMMA Communications Committee meeting was subject to the open meetings law.

Petitioner, a member/homeowner, alleged the HOA violated the open meetings statute by closing a September 6, 2017, committee meeting. The ALJ determined the committee did not hold 'regularly scheduled' meetings and thus was not subject to the open meetings law.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1804

Analytics Highlights

Topics: Open Meetings Law, Committee Meetings, Statutory Interpretation, Regularly Scheduled

Additional Citations:

A.R.S. § 33-1804
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
State ex rel. Thomas v. Contes
Marsoner v. Pima County

Audio Overview

Decision Documents

18F-H1817005-REL-RHG Decision – 634096.pdf

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Briefing Doc – 18F-H1817005-REL-RHG

Briefing Document: Moselle v. Desert Mountain Master Association

Executive Summary

This document summarizes the Administrative Law Judge Decision in case number 18F-H1817005-REL-RHG, a dispute between homeowner Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (DMMA/Respondent). The central issue was whether a “closed” meeting of the DMMA Communications Committee on September 6, 2017, violated Arizona’s open meetings law for planned communities, A.R.S. § 33-1804.

The case hinged on the interpretation of the phrase “regularly scheduled committee meetings.” The Petitioner argued this meant any meeting scheduled in a normal fashion, while the Respondent contended it applied only to meetings occurring at fixed, regular intervals. The Respondent provided evidence that the committee in question met infrequently and without a set schedule.

The Administrative Law Judge ultimately ruled in favor of the Respondent, concluding that “regularly scheduled” refers to meetings held at regular intervals. The judge found that the specific language of the statute requiring only “regularly scheduled” committee meetings to be open superseded the statute’s general policy statement in favor of open meetings. The Petitioner’s petition was denied.

Case Background and Timeline

The dispute originated from a petition filed by Gary W. Moselle with the Arizona Department of Real Estate, alleging that the DMMA violated state law by holding a closed committee meeting. The case progressed through an initial hearing, a decision, a successful request for a rehearing based on new evidence, and a final binding decision.

September 1, 2017

Gary W. Moselle files a petition with the Arizona Department of Real Estate.

September 5, 2017

The Department issues a notice to DMMA regarding the petition.

September 6, 2017

The DMMA Communications Committee holds a closed meeting, which Moselle is not permitted to attend.

September 18, 2017

DMMA files an answer to the petition, denying all allegations.

November 17, 2017

The initial hearing is held before the Office of Administrative Hearings.

December 7, 2017

The Administrative Law Judge issues an initial decision denying the petition.

January 4, 2018

Moselle files a request for a rehearing, citing newly discovered material evidence.

January 26, 2017

The Department grants the request for a rehearing.

April 20, 2018

A rehearing is conducted.

May 10, 2018

The Administrative Law Judge issues a final, binding decision denying the Petitioner’s petition.

The Central Legal Question: Interpretation of A.R.S. § 33-1804

The core of the dispute was the correct interpretation of Arizona Revised Statute § 33-1804(A), which governs open meetings for planned communities. The key statutory language under scrutiny was:

“…all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”

The case required the Administrative Law Judge to define the term “regularly scheduled” in the context of homeowners’ association committee meetings.

Arguments Presented

Petitioner’s Position (Gary W. Moselle)

The Petitioner’s case was built on a broad interpretation of the statute, emphasizing the legislative intent for transparency.

• Definition of “Regularly Scheduled”: Moselle argued that “regularly scheduled” should be interpreted to mean “scheduled in a normal fashion,” rather than strictly meaning meetings held at fixed intervals (e.g., monthly or quarterly).

• Legislative Policy: He pointed to A.R.S. § 33-1804(F), which states a broad policy that “all meetings of a planned community… be conducted openly.” He argued this policy statement should guide the interpretation of subsection (A) in favor of openness for all committee meetings.

• Committee Practices: In his prehearing brief, Moselle asserted that five of the six “functioning DMMA committees” meet “at the request of the chair,” implying this was the normal scheduling method and should fall under the statute.

Respondent’s Position (Desert Mountain Master Association)

The Respondent advocated for a narrower, more literal interpretation of the statute.

• Definition of “Regularly Scheduled”: DMMA argued the phrase meant meetings that “occurred at regular intervals, such as on the third Thursday of every month, quarterly, or even annually.”

• Evidence of Infrequent Meetings: DMMA presented testimony that the Communications Committee met infrequently and without a fixed interval. The committee held only four meetings in 2016 and 2017: two in April 2016, one in June 2017, and the contested meeting on September 6, 2017.

• Lack of Board Action: To support the claim that the committee was not conducting core business of the Board, DMMA asserted that a recommendation made by the committee (to send an email blast) was not acted upon by the DMMA Board of Directors.

Judicial Findings and Legal Conclusions

The Administrative Law Judge, Tammy L. Eigenheer, denied the petition, siding with the Respondent’s interpretation of the statute. The decision was based on principles of statutory construction and the evidence presented.

1. Statutory Interpretation and Plain Language

The primary goal in construing a statute is to ascertain legislative intent by first looking at the plain language. The Judge concluded that the plain language of A.R.S. § 33-1804(A) supports the interpretation that “regularly scheduled committee meetings” are those that “occur at regular intervals.” While acknowledging that the phrase could have multiple meanings, this did not preclude an interpretation based on its plain language.

2. Petitioner’s Contradictory Testimony

A key factor in the decision was the Petitioner’s own testimony during cross-examination. When asked about his assertion that five DMMA committees meet at the request of the chair, the Judge noted:

“Petitioner stated that five of the committees listed in the Volunteer Request page ‘meet at the request of the chair and they’re not regularly scheduled.'” (Hearing record 30:52 – 31:15)

The Judge found that in this statement, the Petitioner himself used the phrase “not regularly scheduled” to describe meetings that were called as needed rather than held at fixed intervals, thereby undermining his own legal argument.

3. Specific Language Overrides General Policy

The Judge addressed the Petitioner’s argument regarding the statute’s broad policy statement in favor of open meetings (A.R.S. § 33-1804(F)). The decision explicitly states:

“The general policy statement in favor of open meetings set forth in A.R.S. § 33-1804(F) does not override the specific provisions of A.R.S. § 33-1804(A) that only ‘regularly scheduled’ committee meetings must be open to the members.”

This conclusion establishes that the specific qualifier “regularly scheduled” in subsection (A) creates a deliberate exception to the general policy for certain committee meetings.

Final Order and Implications

Order: The Administrative Law Judge ordered that the Petitioner’s petition be denied.

Conclusion: The Judge concluded that at the time of the September 6, 2017 meeting, the DMMA Communication Committee did not hold “regularly scheduled” meetings as defined by the statute. Therefore, the Respondent’s decision to hold a closed meeting was not a violation of A.R.S. § 33-1804.

This decision, issued on May 10, 2018, is binding on the parties. Any appeal must be filed with the superior court within thirty-five days from the date of service.