Douglas E Kupel v. Hidden Valley Association

Case Summary

Case ID 21F-H2120006-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-10-30
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Douglas E. Kupel Counsel
Respondent Hidden Valley Association Counsel Timothy Butterfield, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The Administrative Law Judge concluded that the Association's conduct did not violate ARIZ. REV. STAT. § 33-1805 because the Petitioner did not prove by a preponderance of the evidence that the requested records were in existence and subject to disclosure.

Why this result: Petitioner failed to establish that the requested records (communications) were in existence and subject to disclosure.

Key Issues & Findings

Failing to fulfill Petitioner’s records request

Petitioner claimed the HOA failed to provide copies of all communications (written/electronic) related to information requests, open meeting law compliance, and changes to bylaws, arguing they were not exempt from disclosure under ARIZ. REV. STAT. § 33-1805(B). The HOA asserted no disclosable records existed.

Orders: Petitioner's petition and request for civil penalty are denied. Respondent shall not reimburse Petitioner's filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: HOA Records Request, Records Disclosure, ARIZ. REV. STAT. 33-1805, Burden of Proof, Preponderance of Evidence
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092

Decision Documents

21F-H2120006-REL Decision – 834142.pdf

Uploaded 2025-10-09T03:35:59 (147.6 KB)

Laura B Ganer v. Vincenz Homeowners Association

Case Summary

Case ID 20F-H2020060-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-16
Administrative Law Judge Velva Moses-Thompson
Outcome total_loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Laura B Ganer Counsel
Respondent Vincenz Homeowners Association Counsel Mark B. Sahl, Esq.

Alleged Violations

VHA CC&Rs Article 10 § 11, Article 7 § 3, and Article 12 § 2

Outcome Summary

The petition was dismissed because the Petitioner failed to prove that the Respondent HOA violated its CC&Rs (Article 7 § 3, Article 10 § 10.11, and Article 12 § 2) when adopting the new parking policy.

Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated its CC&Rs by a preponderance of the evidence.

Key Issues & Findings

Challenge to new HOA parking policy adoption

Petitioner alleged the VHA's new parking policy was unreasonable and improperly adopted without an amendment, violating specific CC&R sections.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 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)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Analytics Highlights

Topics: Parking Policy, CC&Rs, Board Authority, Burden of Proof, Dismissal
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 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)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Audio Overview

Decision Documents

20F-H2020060-REL Decision – 822882.pdf

Uploaded 2025-10-09T03:35:27 (108.6 KB)

Laura B Ganer v. Vincenz Homeowners Association

Case Summary

Case ID 20F-H2020060-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-16
Administrative Law Judge Velva Moses-Thompson
Outcome total_loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Laura B Ganer Counsel
Respondent Vincenz Homeowners Association Counsel Mark B. Sahl, Esq.

Alleged Violations

VHA CC&Rs Article 10 § 11, Article 7 § 3, and Article 12 § 2

Outcome Summary

The petition was dismissed because the Petitioner failed to prove that the Respondent HOA violated its CC&Rs (Article 7 § 3, Article 10 § 10.11, and Article 12 § 2) when adopting the new parking policy.

Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated its CC&Rs by a preponderance of the evidence.

Key Issues & Findings

Challenge to new HOA parking policy adoption

Petitioner alleged the VHA's new parking policy was unreasonable and improperly adopted without an amendment, violating specific CC&R sections.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 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)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Analytics Highlights

Topics: Parking Policy, CC&Rs, Board Authority, Burden of Proof, Dismissal
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 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)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Audio Overview

Decision Documents

20F-H2020060-REL Decision – 822882.pdf

Uploaded 2025-10-08T07:12:32 (108.6 KB)

Wendy Ellsworth v. Vincenz Homeowners’ Association

Case Summary

Case ID 20F-H2020043-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-08
Administrative Law Judge Velva Moses-Thompson
Outcome total_loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Wendy Ellsworth Counsel Brian Hatch
Respondent Vincenz Homeowners' Association Counsel Mark K. Sahl

Alleged Violations

VHA CC&R Article 10 § 10.11.1

Outcome Summary

The petition concerning the alleged violation of CC&R section 10.11.1 by the HOA was dismissed because the Petitioner failed to meet the burden of proof, and the tribunal lacked jurisdiction over the declaratory judgment request regarding waiver of enforcement.

Why this result: Petitioner failed to establish that VHA violated CC&R section 10.11.1 by a preponderance of the evidence. Furthermore, the tribunal lacked jurisdiction to rule on the declaratory judgment requested by the Petitioner regarding VHA's waiver of its enforcement rights.

Key Issues & Findings

Violation of CC&R Article 10, Section 10.11.1 regarding parking enforcement and waiver

Petitioner alleged VHA waived its right to enforce CC&R 10.11.1 (parking prohibition) because violations had been frequent since inception. The tribunal found Petitioner failed to establish VHA violated section 10.11.1, and the tribunal lacked jurisdiction regarding the requested declaratory judgment on waiver of enforcement.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Analytics Highlights

Topics: HOA Enforcement, CC&R Violation, Parking, Waiver, Jurisdiction
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Audio Overview

Decision Documents

20F-H2020043-REL Decision – 820839.pdf

Uploaded 2025-10-08T07:11:06 (95.4 KB)

Wendy Ellsworth v. Vincenz Homeowners’ Association

Case Summary

Case ID 20F-H2020043-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-08
Administrative Law Judge Velva Moses-Thompson
Outcome total_loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Wendy Ellsworth Counsel Brian Hatch
Respondent Vincenz Homeowners' Association Counsel Mark K. Sahl

Alleged Violations

VHA CC&R Article 10 § 10.11.1

Outcome Summary

The petition concerning the alleged violation of CC&R section 10.11.1 by the HOA was dismissed because the Petitioner failed to meet the burden of proof, and the tribunal lacked jurisdiction over the declaratory judgment request regarding waiver of enforcement.

Why this result: Petitioner failed to establish that VHA violated CC&R section 10.11.1 by a preponderance of the evidence. Furthermore, the tribunal lacked jurisdiction to rule on the declaratory judgment requested by the Petitioner regarding VHA's waiver of its enforcement rights.

Key Issues & Findings

Violation of CC&R Article 10, Section 10.11.1 regarding parking enforcement and waiver

Petitioner alleged VHA waived its right to enforce CC&R 10.11.1 (parking prohibition) because violations had been frequent since inception. The tribunal found Petitioner failed to establish VHA violated section 10.11.1, and the tribunal lacked jurisdiction regarding the requested declaratory judgment on waiver of enforcement.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Analytics Highlights

Topics: HOA Enforcement, CC&R Violation, Parking, Waiver, Jurisdiction
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Audio Overview

Decision Documents

20F-H2020043-REL Decision – 820839.pdf

Uploaded 2025-10-09T03:34:53 (95.4 KB)

John H. Kelly v. Cortez Canyon Unit Owners Association

Case Summary

Case ID 19F-H1919060-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-09-13
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John H. Kelly Counsel
Respondent Cortez Canyon Unit Owners Association Counsel Jonathan A. Dessaules

Alleged Violations

ARIZ. REV. STAT. § 33-1243

Outcome Summary

The ALJ concluded that the Petitioner failed to meet the required threshold of 21 valid signatures from eligible voters needed to compel the Association to call a special meeting under ARIZ. REV. STAT. § 33-1243. The petition was consequently denied.

Why this result: Petitioner failed to provide the minimum required 21 valid signatures from eligible unit owners (only 13 were valid) as required by the Association's Bylaws and state statute.

Key Issues & Findings

Alleged violation of failure to call a special meeting to remove a board member.

Petitioner filed a petition alleging the Association failed to call a special meeting to remove a board member after collecting what Petitioner believed were sufficient signatures (36 collected, 21 required). The Association countered that only 13 of those signatures were valid (excluding non-owners, duplicates, and delinquent members ineligible to vote).

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1243(H)(4)
  • ARIZ. REV. STAT. § 33-1243(H)(4)(c)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA, Condominium, Special Meeting, Board Member Removal, Petition Signature Validity, Voting Rights, Delinquency
Additional Citations:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1243(H)(4)
  • ARIZ. REV. STAT. § 33-1243(H)(4)(c)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Audio Overview

Decision Documents

19F-H1919060-REL Decision – 737890.pdf

Uploaded 2025-10-08T07:09:21 (142.6 KB)





Briefing Doc – 19F-H1919060-REL


Administrative Hearing Briefing: Kelly vs. Cortez Canyon Unit Owners Association

Executive Summary

This document summarizes the Administrative Law Judge Decision in case number 19F-H1919060-REL, a dispute between Petitioner John H. Kelly and the Respondent, Cortez Canyon Unit Owners Association (“the Association”). The core issue was whether the Association violated Arizona state law by refusing to call a special meeting to remove a board member, as demanded by a petition initiated by Mr. Kelly.

The Association’s bylaws require a petition signed by at least 25% of eligible voting members—in this case, 21 of the 84 unit owners—to compel such a meeting. Mr. Kelly submitted a petition with 36 signatures. However, upon review, the Association invalidated 23 signatures for specific reasons: 11 were from non-owner renters, 6 were duplicate signatures from units that had already signed, and 6 were from owners whose voting rights were suspended due to being over 15 days delinquent on payments.

This left only 13 valid signatures, well short of the 21 required. The Administrative Law Judge, Jenna Clark, concluded that the Petitioner failed to meet the burden of proof. The evidence clearly demonstrated that the number of valid signatures was insufficient to legally compel the Association to call a special meeting. Consequently, the judge ruled that the Association did not violate Arizona statute § 33-1243 and denied Mr. Kelly’s petition.

Case Overview

Parties Involved

Name / Entity

Details

Petitioner

John H. Kelly

A condominium owner and member of the Cortez Canyon Unit Owners Association. Appeared on his own behalf.

Respondent

Cortez Canyon Unit Owners Association

The homeowners’ association for the Cortez Canyon condominium development in Phoenix, AZ. Represented by Jonathan A. Dessaules, Esq.

Witness

Saundra Garcia

President of the Association’s Board of Directors.

Adjudicator

Jenna Clark

Administrative Law Judge, Arizona Office of Administrative Hearings.

Core Dispute

The central issue adjudicated was whether the Cortez Canyon Unit Owners Association violated Arizona Revised Statute § 33-1243 by failing to call a special meeting for the purpose of removing a board member after receiving a petition from unit owners. The Petitioner alleged that the required number of signatures had been collected, while the Respondent denied this claim, asserting that the petition lacked the requisite number of valid signatures from eligible voters.

Legal and Governance Framework

The dispute was governed by Arizona state law and the Association’s own internal documents.

Arizona Revised Statute § 33-1243(H)(4): This statute mandates that an association with 1,000 or fewer members must call a special meeting to remove a board member upon receipt of a petition signed by at least 25% of the eligible voters in the association.

Association Bylaws, Article II, Section 2: Mirrors the state statute, stipulating that a special meeting may be called by unit owners holding at least 25% of the votes in the Association.

Association Bylaws, Article II, Section 7: Critically, this section states that a unit owner’s right to vote is automatically suspended if they are in arrears on payments (assessments, penalties, etc.) for a period of 15 days. This suspension remains until all payments are brought current.

Petitioner’s Position and Evidence (John H. Kelly)

Mr. Kelly initiated the petition to recall an Association board member. His position and the evidence he presented are summarized as follows:

Petition Submission: Mr. Kelly, with assistance from others, collected 36 signatures and submitted them to the Association’s then-property management group, Golden Valley.

Initial Confirmation: He testified that Golden Valley initially informed him that he had secured enough signatures to compel the special meeting.

Reversal by New Management: A short time later, after the Association’s contract with Golden Valley expired on June 1, 2019, a new property management company informed him that the petition did not meet the signature threshold.

Key Admission: Mr. Kelly testified that neither he nor his assistants verified whether the signatories were unit owners eligible to vote prior to submitting the petition.

Argument at Hearing: Mr. Kelly argued that he had submitted a minimum of 23 valid signatures. This included the signature of Jeffery Law, an owner of six units, which Mr. Kelly contended should be counted six times. However, it was established that Mr. Law’s signature was secured after the initial submission and was never provided to the management company.

Formal Allegation: In his April 29, 2019, filing with the Department, Mr. Kelly stated: “Cortez Canyon has 84 units and 25% is 21 units. Homeowners have collected more than the required 21 home-owner’s signatures. The Cortez Canyon HOA board has stated that they will not schedule the required special meeting.”

Respondent’s Position and Evidence (Cortez Canyon Association)

The Association, represented by its Board President Saundra Garcia, presented a detailed rebuttal based on a thorough review of the submitted petition.

Receipt of Petition: The Association received the petition with 36 purported unit owner signatures on or about April 19, 2019.

Signature Verification Process: Upon review, the Association determined that a significant number of signatures were invalid based on the community’s governing documents.

Disqualification of Signatures: The Association provided a specific breakdown of the 23 signatures it disqualified:

11 signatures were removed because they were from non-owner renters or occupants.

6 signatures were removed because they were from units for which another owner’s signature had already been collected (only one vote is permitted per unit).

6 signatures were removed because the unit owner was ineligible to vote, being more than 15 days delinquent on fines, fees, or dues owed to the Association, as stipulated in the Bylaws.

Final Tally: After removing the 23 invalid signatures from the 36 submitted, the Association concluded that the petition contained only 13 valid signatures.

Conclusion: Since 13 signatures is below the required threshold of 21, the Association determined it was not obligated by law or its bylaws to call the special meeting. The signature from the multi-unit owner, Jeffrey Law, was not part of the petition received by the Association and was therefore not considered in its count.

Administrative Law Judge’s Findings and Ruling

The Administrative Law Judge, Jenna Clark, reviewed the evidence and testimony from both parties and issued a decision decisively in favor of the Respondent.

Conclusions of Law

Burden of Proof: The Judge established that the Petitioner, John H. Kelly, bore the burden of proving by a “preponderance of the evidence” that the Association had violated the statute. A preponderance of evidence is defined as proof that convinces the trier of fact that a contention is more probably true than not.

Undisputed Facts: The material facts of the case were not at issue. Both parties agreed that 21 valid signatures were required to compel the special meeting.

Evidence of Record: The Judge found that the evidence presented demonstrated the Petitioner’s failure to meet the required threshold. The decision states, “While Petitioner is correct that he submitted more than twenty-one signatures to the Association, he is incorrect that all of signatures provided were valid.”

Final Determination on Signatures: The ruling affirmed the Association’s count, concluding, “What the evidence of record reflects is that Petitioner only provided thirteen valid signatures along with his petition to the Association, which was not enough to compel the Association to call a special meeting.”

Final Order

Based on the failure of the Petitioner to sustain his burden of proof, the Administrative Law Judge issued the following order on September 13, 2019:

IT IS ORDERED that Petitioner’s petition be denied.


John H. Kelly v. Cortez Canyon Unit Owners Association

Case Summary

Case ID 19F-H1919060-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-09-13
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John H. Kelly Counsel
Respondent Cortez Canyon Unit Owners Association Counsel Jonathan A. Dessaules

Alleged Violations

ARIZ. REV. STAT. § 33-1243

Outcome Summary

The ALJ concluded that the Petitioner failed to meet the required threshold of 21 valid signatures from eligible voters needed to compel the Association to call a special meeting under ARIZ. REV. STAT. § 33-1243. The petition was consequently denied.

Why this result: Petitioner failed to provide the minimum required 21 valid signatures from eligible unit owners (only 13 were valid) as required by the Association's Bylaws and state statute.

Key Issues & Findings

Alleged violation of failure to call a special meeting to remove a board member.

Petitioner filed a petition alleging the Association failed to call a special meeting to remove a board member after collecting what Petitioner believed were sufficient signatures (36 collected, 21 required). The Association countered that only 13 of those signatures were valid (excluding non-owners, duplicates, and delinquent members ineligible to vote).

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1243(H)(4)
  • ARIZ. REV. STAT. § 33-1243(H)(4)(c)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA, Condominium, Special Meeting, Board Member Removal, Petition Signature Validity, Voting Rights, Delinquency
Additional Citations:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1243(H)(4)
  • ARIZ. REV. STAT. § 33-1243(H)(4)(c)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Audio Overview

Decision Documents

19F-H1919060-REL Decision – 737890.pdf

Uploaded 2025-10-09T03:34:17 (142.6 KB)





Briefing Doc – 19F-H1919060-REL


Administrative Hearing Briefing: Kelly vs. Cortez Canyon Unit Owners Association

Executive Summary

This document summarizes the Administrative Law Judge Decision in case number 19F-H1919060-REL, a dispute between Petitioner John H. Kelly and the Respondent, Cortez Canyon Unit Owners Association (“the Association”). The core issue was whether the Association violated Arizona state law by refusing to call a special meeting to remove a board member, as demanded by a petition initiated by Mr. Kelly.

The Association’s bylaws require a petition signed by at least 25% of eligible voting members—in this case, 21 of the 84 unit owners—to compel such a meeting. Mr. Kelly submitted a petition with 36 signatures. However, upon review, the Association invalidated 23 signatures for specific reasons: 11 were from non-owner renters, 6 were duplicate signatures from units that had already signed, and 6 were from owners whose voting rights were suspended due to being over 15 days delinquent on payments.

This left only 13 valid signatures, well short of the 21 required. The Administrative Law Judge, Jenna Clark, concluded that the Petitioner failed to meet the burden of proof. The evidence clearly demonstrated that the number of valid signatures was insufficient to legally compel the Association to call a special meeting. Consequently, the judge ruled that the Association did not violate Arizona statute § 33-1243 and denied Mr. Kelly’s petition.

Case Overview

Parties Involved

Name / Entity

Details

Petitioner

John H. Kelly

A condominium owner and member of the Cortez Canyon Unit Owners Association. Appeared on his own behalf.

Respondent

Cortez Canyon Unit Owners Association

The homeowners’ association for the Cortez Canyon condominium development in Phoenix, AZ. Represented by Jonathan A. Dessaules, Esq.

Witness

Saundra Garcia

President of the Association’s Board of Directors.

Adjudicator

Jenna Clark

Administrative Law Judge, Arizona Office of Administrative Hearings.

Core Dispute

The central issue adjudicated was whether the Cortez Canyon Unit Owners Association violated Arizona Revised Statute § 33-1243 by failing to call a special meeting for the purpose of removing a board member after receiving a petition from unit owners. The Petitioner alleged that the required number of signatures had been collected, while the Respondent denied this claim, asserting that the petition lacked the requisite number of valid signatures from eligible voters.

Legal and Governance Framework

The dispute was governed by Arizona state law and the Association’s own internal documents.

Arizona Revised Statute § 33-1243(H)(4): This statute mandates that an association with 1,000 or fewer members must call a special meeting to remove a board member upon receipt of a petition signed by at least 25% of the eligible voters in the association.

Association Bylaws, Article II, Section 2: Mirrors the state statute, stipulating that a special meeting may be called by unit owners holding at least 25% of the votes in the Association.

Association Bylaws, Article II, Section 7: Critically, this section states that a unit owner’s right to vote is automatically suspended if they are in arrears on payments (assessments, penalties, etc.) for a period of 15 days. This suspension remains until all payments are brought current.

Petitioner’s Position and Evidence (John H. Kelly)

Mr. Kelly initiated the petition to recall an Association board member. His position and the evidence he presented are summarized as follows:

Petition Submission: Mr. Kelly, with assistance from others, collected 36 signatures and submitted them to the Association’s then-property management group, Golden Valley.

Initial Confirmation: He testified that Golden Valley initially informed him that he had secured enough signatures to compel the special meeting.

Reversal by New Management: A short time later, after the Association’s contract with Golden Valley expired on June 1, 2019, a new property management company informed him that the petition did not meet the signature threshold.

Key Admission: Mr. Kelly testified that neither he nor his assistants verified whether the signatories were unit owners eligible to vote prior to submitting the petition.

Argument at Hearing: Mr. Kelly argued that he had submitted a minimum of 23 valid signatures. This included the signature of Jeffery Law, an owner of six units, which Mr. Kelly contended should be counted six times. However, it was established that Mr. Law’s signature was secured after the initial submission and was never provided to the management company.

Formal Allegation: In his April 29, 2019, filing with the Department, Mr. Kelly stated: “Cortez Canyon has 84 units and 25% is 21 units. Homeowners have collected more than the required 21 home-owner’s signatures. The Cortez Canyon HOA board has stated that they will not schedule the required special meeting.”

Respondent’s Position and Evidence (Cortez Canyon Association)

The Association, represented by its Board President Saundra Garcia, presented a detailed rebuttal based on a thorough review of the submitted petition.

Receipt of Petition: The Association received the petition with 36 purported unit owner signatures on or about April 19, 2019.

Signature Verification Process: Upon review, the Association determined that a significant number of signatures were invalid based on the community’s governing documents.

Disqualification of Signatures: The Association provided a specific breakdown of the 23 signatures it disqualified:

11 signatures were removed because they were from non-owner renters or occupants.

6 signatures were removed because they were from units for which another owner’s signature had already been collected (only one vote is permitted per unit).

6 signatures were removed because the unit owner was ineligible to vote, being more than 15 days delinquent on fines, fees, or dues owed to the Association, as stipulated in the Bylaws.

Final Tally: After removing the 23 invalid signatures from the 36 submitted, the Association concluded that the petition contained only 13 valid signatures.

Conclusion: Since 13 signatures is below the required threshold of 21, the Association determined it was not obligated by law or its bylaws to call the special meeting. The signature from the multi-unit owner, Jeffrey Law, was not part of the petition received by the Association and was therefore not considered in its count.

Administrative Law Judge’s Findings and Ruling

The Administrative Law Judge, Jenna Clark, reviewed the evidence and testimony from both parties and issued a decision decisively in favor of the Respondent.

Conclusions of Law

Burden of Proof: The Judge established that the Petitioner, John H. Kelly, bore the burden of proving by a “preponderance of the evidence” that the Association had violated the statute. A preponderance of evidence is defined as proof that convinces the trier of fact that a contention is more probably true than not.

Undisputed Facts: The material facts of the case were not at issue. Both parties agreed that 21 valid signatures were required to compel the special meeting.

Evidence of Record: The Judge found that the evidence presented demonstrated the Petitioner’s failure to meet the required threshold. The decision states, “While Petitioner is correct that he submitted more than twenty-one signatures to the Association, he is incorrect that all of signatures provided were valid.”

Final Determination on Signatures: The ruling affirmed the Association’s count, concluding, “What the evidence of record reflects is that Petitioner only provided thirteen valid signatures along with his petition to the Association, which was not enough to compel the Association to call a special meeting.”

Final Order

Based on the failure of the Petitioner to sustain his burden of proof, the Administrative Law Judge issued the following order on September 13, 2019:

IT IS ORDERED that Petitioner’s petition be denied.


Loraine Brokaw vs. Sin Vacas Property Owners Association

Case Summary

Case ID 19F-H1918017-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-04-01
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

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

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

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

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

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

Audio Overview

Decision Documents

19F-H1918017-REL Decision – 698354.pdf

Uploaded 2025-10-08T07:07:24 (137.2 KB)





Briefing Doc – 19F-H1918017-REL


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

Executive Summary

This document synthesizes the findings and final order from the Administrative Law Judge Decision in the matter of Loraine Brokaw (Petitioner) versus the Sin Vacas Property Owners Association (Respondent). The core dispute centered on the Association’s 2017 decision to increase the Petitioner’s annual property assessment from 150% to 200% of the standard rate for a single lot, thereby ending a practice that had been in place since 2003. The Petitioner owned a single residence constructed across two adjacent lots.

The Administrative Law Judge (ALJ) denied the Petitioner’s petition in its entirety. The central conclusion of the ruling is that the Association’s governing documents (CC&Rs) take legal precedence over any prior informal board decisions or long-standing practices. The CC&Rs mandate that assessments be fixed at a uniform rate for all lots of a specific type. Therefore, the Association’s action to charge the full assessment for each of the Petitioner’s two lots was not a violation, but rather a move to bring its billing practices into compliance with its own Declaration. The Petitioner failed to meet the burden of proof required to show that the Association’s action was arbitrary, capricious, or in violation of any community document or statute.

Case Overview

Parties:

Petitioner: Loraine Brokaw

Respondent: Sin Vacas Property Owners Association

Case Number: 19F-H1918017-REL

Tribunal: Arizona Office of Administrative Hearings

Administrative Law Judge: Jenna Clark

Hearing Date: March 25, 2019

Decision Date: April 01, 2019

Issue Presented for Hearing

The central legal question addressed by the hearing was:

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

Petitioner’s Position and Testimony

The Petitioner, Loraine Brokaw, initiated the action following the Association’s decision to increase her annual assessment.

Core Complaint: The Petitioner alleged that the Association unlawfully and selectively raised her assessment for a single residence built across two adjacent lots (Lots 156 and 157), which she and her husband purchased in 1979 and 2003, respectively.

Historical Assessment Practice: She testified that since 2003, the Association had assessed her property at 150% of the standard rate (100% for a home on a single lot, plus 50% for the adjacent lot). This reduced rate was granted by a Board vote, and she received written confirmation of this decision on March 24, 2003.

The Assessment Change: On or around December 4, 2017, the Petitioner received a letter from the Association’s management company informing her that the Board had decided to increase her assessment to 200% (a full assessment for each lot) based on “advice of counsel.”

Rationale and Repercussions: The Petitioner stated she was given varying reasons for the increase, but was ultimately told it was because all plats needed to be assessed uniformly. To be assessed for a single lot, she was informed she would have to officially combine her lots on the county’s plat map, a process she claimed would cost between $3,000 and $10,000 and require the permission of every other homeowner in the subdivision.

Requested Relief: The Petitioner requested that the Board be compelled to reinstate the 150% assessment schedule and reimburse her for the costs associated with filing the petition.

Respondent’s Position

The Sin Vacas Property Owners Association did not present witnesses or exhibits but cross-examined the Petitioner.

Interpretation Dispute: The Association’s position at the hearing was that the matter stemmed from differing interpretations of the governing Bylaws.

Compliance with Ruling: The Respondent indicated it would resolve the matter according to the tribunal’s interpretation and decision. The judge’s findings established that the Association’s action was based on its new interpretation that the CC&Rs required uniform assessment for each individual CR-1 lot.

Analysis of Governing Documents (CC&Rs)

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

Article & Section

Provision

Relevance to Case

Article I, Section 5

Defines a “[Lot]” as “any numbered lot shown upon any recorded subdivision map.”

This established that the Petitioner’s two properties were legally distinct “Lots” according to the governing documents, despite having one home built across them.

Article IV, Section 6 (“Special Assessments”)

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

Although concerning special assessments, this clause was cited by the ALJ as clear evidence of the document’s intent for uniform apportionment, which was applied to the annual assessments.

Article IV, Section 7 (“Annual Assessments”)

States that “The Board of Directors shall fix the amount of the annual assessment against each Lot at least thirty (30) days in advance of each annual assessment period.”

This provision empowers the Board to set the annual assessment amount for each individual lot, reinforcing the principle of lot-by-lot assessment.

Administrative Law Judge’s Findings and Ruling

The ALJ concluded that the Petitioner failed to sustain her burden of proof and denied the petition based on a strict interpretation of the Association’s governing documents.

Key Findings of Fact

• It is undisputed that the Petitioner owns two separate CR-1 lots: Lot 156 and Lot 157.

• Her residence is constructed across both lots.

• The lots have never been legally combined or consolidated into a single lot on the Pima County Assessor’s plat map. The Petitioner testified they were legally combined but presented no documentation to substantiate this claim.

Conclusions of Law

1. Governing Documents Supersede Past Practice: The central legal conclusion was that the Association’s formal CC&Rs take precedence over any informal agreement or prior Board order, regardless of the duration of that practice. The 2003 Board decision to grant a 150% assessment was deemed an informal agreement that could not override the plain language of the recorded Declaration.

2. No Binding Contract: The ALJ noted that the 2003 reduced assessment did not constitute a binding contract, as the “Petitioner provided no proof of consideration tendered to the Association.”

3. Uniform Assessment is Required: The Declaration requires the Association to assess all developed CR-1 lots at a uniform rate. By assessing both of the Petitioner’s lots at the same full rate as every other developed CR-1 lot, the Association was acting in compliance with its governing documents.

4. No Unlawful Action: The Petitioner did not establish that her assessments were raised selectively or unlawfully. The evidence showed she owned two distinct lots that were previously assessed at a non-uniform rate, and the Board’s action was to correct this by applying the uniform rate to both lots as required by the CC&Rs. The Board’s new interpretation of the Declaration was not found to be in error or a violation of statute.

A key excerpt from the decision states:

“In this case the governing documents for the Association take precedent over any informal agreement Petitioner had with the Board, regardless of the duration of that agreement.”

Final Order

Based on the findings and conclusions, the Administrative Law Judge issued the following order:

IT IS ORDERED that Petitioner’s petition be denied.


Loraine Brokaw vs. Sin Vacas Property Owners Association

Case Summary

Case ID 19F-H1918017-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-04-01
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

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

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

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

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

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

Audio Overview

Decision Documents

19F-H1918017-REL Decision – 698354.pdf

Uploaded 2025-10-09T03:33:35 (137.2 KB)





Briefing Doc – 19F-H1918017-REL


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

Executive Summary

This document synthesizes the findings and final order from the Administrative Law Judge Decision in the matter of Loraine Brokaw (Petitioner) versus the Sin Vacas Property Owners Association (Respondent). The core dispute centered on the Association’s 2017 decision to increase the Petitioner’s annual property assessment from 150% to 200% of the standard rate for a single lot, thereby ending a practice that had been in place since 2003. The Petitioner owned a single residence constructed across two adjacent lots.

The Administrative Law Judge (ALJ) denied the Petitioner’s petition in its entirety. The central conclusion of the ruling is that the Association’s governing documents (CC&Rs) take legal precedence over any prior informal board decisions or long-standing practices. The CC&Rs mandate that assessments be fixed at a uniform rate for all lots of a specific type. Therefore, the Association’s action to charge the full assessment for each of the Petitioner’s two lots was not a violation, but rather a move to bring its billing practices into compliance with its own Declaration. The Petitioner failed to meet the burden of proof required to show that the Association’s action was arbitrary, capricious, or in violation of any community document or statute.

Case Overview

Parties:

Petitioner: Loraine Brokaw

Respondent: Sin Vacas Property Owners Association

Case Number: 19F-H1918017-REL

Tribunal: Arizona Office of Administrative Hearings

Administrative Law Judge: Jenna Clark

Hearing Date: March 25, 2019

Decision Date: April 01, 2019

Issue Presented for Hearing

The central legal question addressed by the hearing was:

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

Petitioner’s Position and Testimony

The Petitioner, Loraine Brokaw, initiated the action following the Association’s decision to increase her annual assessment.

Core Complaint: The Petitioner alleged that the Association unlawfully and selectively raised her assessment for a single residence built across two adjacent lots (Lots 156 and 157), which she and her husband purchased in 1979 and 2003, respectively.

Historical Assessment Practice: She testified that since 2003, the Association had assessed her property at 150% of the standard rate (100% for a home on a single lot, plus 50% for the adjacent lot). This reduced rate was granted by a Board vote, and she received written confirmation of this decision on March 24, 2003.

The Assessment Change: On or around December 4, 2017, the Petitioner received a letter from the Association’s management company informing her that the Board had decided to increase her assessment to 200% (a full assessment for each lot) based on “advice of counsel.”

Rationale and Repercussions: The Petitioner stated she was given varying reasons for the increase, but was ultimately told it was because all plats needed to be assessed uniformly. To be assessed for a single lot, she was informed she would have to officially combine her lots on the county’s plat map, a process she claimed would cost between $3,000 and $10,000 and require the permission of every other homeowner in the subdivision.

Requested Relief: The Petitioner requested that the Board be compelled to reinstate the 150% assessment schedule and reimburse her for the costs associated with filing the petition.

Respondent’s Position

The Sin Vacas Property Owners Association did not present witnesses or exhibits but cross-examined the Petitioner.

Interpretation Dispute: The Association’s position at the hearing was that the matter stemmed from differing interpretations of the governing Bylaws.

Compliance with Ruling: The Respondent indicated it would resolve the matter according to the tribunal’s interpretation and decision. The judge’s findings established that the Association’s action was based on its new interpretation that the CC&Rs required uniform assessment for each individual CR-1 lot.

Analysis of Governing Documents (CC&Rs)

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

Article & Section

Provision

Relevance to Case

Article I, Section 5

Defines a “[Lot]” as “any numbered lot shown upon any recorded subdivision map.”

This established that the Petitioner’s two properties were legally distinct “Lots” according to the governing documents, despite having one home built across them.

Article IV, Section 6 (“Special Assessments”)

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

Although concerning special assessments, this clause was cited by the ALJ as clear evidence of the document’s intent for uniform apportionment, which was applied to the annual assessments.

Article IV, Section 7 (“Annual Assessments”)

States that “The Board of Directors shall fix the amount of the annual assessment against each Lot at least thirty (30) days in advance of each annual assessment period.”

This provision empowers the Board to set the annual assessment amount for each individual lot, reinforcing the principle of lot-by-lot assessment.

Administrative Law Judge’s Findings and Ruling

The ALJ concluded that the Petitioner failed to sustain her burden of proof and denied the petition based on a strict interpretation of the Association’s governing documents.

Key Findings of Fact

• It is undisputed that the Petitioner owns two separate CR-1 lots: Lot 156 and Lot 157.

• Her residence is constructed across both lots.

• The lots have never been legally combined or consolidated into a single lot on the Pima County Assessor’s plat map. The Petitioner testified they were legally combined but presented no documentation to substantiate this claim.

Conclusions of Law

1. Governing Documents Supersede Past Practice: The central legal conclusion was that the Association’s formal CC&Rs take precedence over any informal agreement or prior Board order, regardless of the duration of that practice. The 2003 Board decision to grant a 150% assessment was deemed an informal agreement that could not override the plain language of the recorded Declaration.

2. No Binding Contract: The ALJ noted that the 2003 reduced assessment did not constitute a binding contract, as the “Petitioner provided no proof of consideration tendered to the Association.”

3. Uniform Assessment is Required: The Declaration requires the Association to assess all developed CR-1 lots at a uniform rate. By assessing both of the Petitioner’s lots at the same full rate as every other developed CR-1 lot, the Association was acting in compliance with its governing documents.

4. No Unlawful Action: The Petitioner did not establish that her assessments were raised selectively or unlawfully. The evidence showed she owned two distinct lots that were previously assessed at a non-uniform rate, and the Board’s action was to correct this by applying the uniform rate to both lots as required by the CC&Rs. The Board’s new interpretation of the Declaration was not found to be in error or a violation of statute.

A key excerpt from the decision states:

“In this case the governing documents for the Association take precedent over any informal agreement Petitioner had with the Board, regardless of the duration of that agreement.”

Final Order

Based on the findings and conclusions, the Administrative Law Judge issued the following order:

IT IS ORDERED that Petitioner’s petition be denied.