Tag Archives: 2019

Tom Barrs v. Desert Ranch Homeowners Association

Posted on April 10, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918037-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2019-09-12
Administrative Law Judge	Jenna Clark
Outcome	full
Filing Fees Refunded	$500.00
Civil Penalties	$500.00

Parties & Counsel

Petitioner	Tom Barrs	Counsel	Jonathan A. Dessaules
Respondent	Desert Ranch Homeowners Association	Counsel	B. Austin Baillio

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge concluded that the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide the full requested documentation relating to EDC actions and communications. The Petitioner's request for relief was granted, resulting in the reimbursement of the $500 filing fee and the imposition of a $500 civil penalty against the HOA.

Key Issues & Findings

Whether Desert Ranch Homeowners Association (Respondent) violated A.R.S. § 33-1805 by failing to fulfill a records request.

The Association violated A.R.S. § 33-1805 by failing to fully comply with Petitioner's specific request for EDC records (submissions, requests, and approvals) by providing only a summary table instead of the totality of requested communications within the statutory deadline.

Orders: Petitioner's petition granted. Respondent ordered to reimburse Petitioner's $500.00 filing fee (ARIZ. REV. STAT. § 32-2199.01) and tender a $500.00 civil penalty to the Department (ARIZ. REV. STAT. § 32-2199.02(A)).

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

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

Analytics Highlights

Topics: Records Request, HOA Violation, Civil Penalty, Filing Fee Reimbursement

Additional Citations:

• ARIZ. REV. STAT. § 33-1805
• ARIZ. REV. STAT. § 32-2199.01
• ARIZ. REV. STAT. § 32-2199.02(A)
• ARIZ. REV. STAT. § 32-2102
• ARIZ. REV. STAT. § 32-2199
• ARIZ. REV. STAT. § 32-2199.05
• ARIZ. REV. STAT. § 32-2199(2)
• ARIZ. REV. STAT. § 32-2199.01(D)
• ARIZ. REV. STAT. § 32-2199.02
• ARIZ. REV. STAT. § 41-1092
• ARIZ. ADMIN. CODE R2-19-119
• ARIZ. REV. STAT. § 1-243
• ARIZ. ADMIN. CODE R2-19-107
• ARIZ. REV. STAT. § 33-1804

Audio Overview

Decision Documents

19F-H1918037-REL Decision – 700566.pdf

Uploaded 2025-10-08T07:08:27 (149.3 KB)

Briefing Document: Barrs v. Desert Ranch Homeowners Association

Executive Summary

This document synthesizes the findings from two Administrative Law Judge (ALJ) Decisions concerning a records request dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent). The central issue was whether the Association violated Arizona Revised Statute (A.R.S.) § 33-1805 by failing to adequately fulfill a records request submitted by the Petitioner on November 1, 2018.

The initial hearing on March 21, 2019, resulted in an April 10, 2019, decision in favor of the Association. The ALJ concluded that the Petitioner had failed to properly submit his request to all members of the Association’s Board, and thus the Association’s partial response (a summary table) did not constitute a statutory violation.

Following a successful appeal by the Petitioner, a rehearing was held on August 27, 2019. New evidence demonstrated that the Petitioner had followed prior express instructions from the Association regarding who to contact for records requests. Consequently, the ALJ issued a new decision on September 12, 2019, reversing the original order. The final ruling found the Association in violation of A.R.S. § 33-1805. The Association was ordered to reimburse the Petitioner’s $500 filing fee and was assessed a civil penalty of $500.

Case Overview

Case Numbers

No. 19F-H1918037-REL (Initial Decision)
No. 19F-H1918037-REL-RHG (Rehearing Decision)

Petitioner

Tom Barrs, a property owner and member of the Association.

Respondent

Desert Ranch Homeowners Association, Scottsdale, Arizona.

Central Issue

Whether the Association violated A.R.S. § 33-1805 by failing to fulfill a records request for Environmental Design Committee (EDC) actions, requests, and approvals.

Initial Petition

Filed by Tom Barrs on December 17, 2018.

Initial Hearing

March 21, 2019, before ALJ Jenna Clark.

Rehearing

August 27, 2019, before ALJ Jenna Clark.

Final Outcome

Petition granted in favor of Tom Barrs. The Association was found in violation of state law, ordered to reimburse the filing fee, and fined.

Key Individuals and Entities

Role / Affiliation

Tom Barrs

Petitioner; homeowner in the Desert Ranch subdivision.

Desert Ranch HOA

Respondent; homeowners’ association.

Jenna Clark

Administrative Law Judge, Office of Administrative Hearings.

Brian Schoeffler

Chairman of the Association’s Environmental Design Committee (EDC); appeared on behalf of the Association.

Catherine Overby

President of the Association’s Board of Directors.

Lori Loch-Lee

Vice President of Client Services at Associated Asset Management (AAM), the Association’s accounting/management company.

Jonathan Dessaules, Esq.

Attorney who appeared on behalf of the Petitioner at the rehearing.

The Records Request and Subsequent Dispute

The Initial Request

On November 1, 2018, at 9:40 p.m., Petitioner submitted an electronic records request to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee. The text of the request was as follows:

“Pursuant to ARS 33-1805, I am requesting a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018. Soft copies via return email are preferable; otherwise, please let me know when hard copies are available for pickup.”

The Association’s Response and Petitioner’s Follow-Up

• November 2, 2018: Lori Loch-Lee from AAM notified the Petitioner she would forward his request to all Board members, noting that AAM was only the Association’s accounting firm.

• November 18, 2018: The Petitioner received a summary table listing some EDC actions, not the complete set of communications and documents requested. At this time, he was advised by Brian Schoeffler that he “needed to copy all Board members on records requests.”

• March 6, 2019: The Petitioner sent a follow-up email, accusing the Association of willful failure and clarifying the specific records he sought beyond the summary table, including “copies of the communications (letters, emails, and application forms) relating to Environmental Design Review (EDC) submissions, requests, complaints and approvals (or denials).”

• March 11, 2019: Mr. Schoeffler replied, arguing that the request had been complied with on November 18, 2018, and directed the Petitioner to “submit a new request” for the additional information.

• March 17, 2019: Mr. Schoeffler reiterated that the original request was only sent to two of four Board members and stated that providing additional documents could be “interpreted as an admission of guilt.”

As of the rehearing date (August 27, 2019), the Petitioner had still not received all the documentation requested on November 1, 2018.

Legal Proceedings and Rulings

Initial Hearing and Decision (April 10, 2019)

In the first hearing, the dispute centered on the validity of the request submission and the adequacy of the Association’s response.

Arguments:

• Petitioner (Barrs): Argued the Association acted in bad faith and willfully failed to fulfill the request, noting a similar dispute had been previously adjudicated. He was concerned with the completeness of the response, not its timeliness.

• Respondent (HOA): Argued it had complied with the request by providing a summary table, consistent with its handling of a previous dispute with the Petitioner. Mr. Schoeffler testified that the response was untimely (provided on the 11th business day) but asserted it was otherwise sufficient.

ALJ Conclusion: The Judge ruled in favor of the Association, denying the Petitioner’s petition. The key finding was that the Petitioner had failed to properly submit his request.

“Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation of ARIZ. REV. STAT. § 33-1805 for providing him with a summary table on November 18, 2018.”

The decision also noted that the statute does not legally obligate an HOA to email copies of records.

Rehearing and Final Decision (September 12, 2019)

After the Petitioner’s appeal was granted, a rehearing introduced new evidence that fundamentally changed the outcome.

New Evidence and Concessions:

• July 19, 2017 Instruction: Evidence showed Association President Catherine Overby had previously appointed Brian Schoeffler as the Petitioner’s “primary records request contact.”

• July 18, 2018 Instruction: Evidence showed Ms. Overby had also instructed the Petitioner to direct requests to the management company, AAM.

• Association Concessions: The Respondent conceded that its governing documents do not require all Board members to be copied on records requests and that its own bylaws regarding submission forms are not adhered to or enforced.

ALJ’s Reversed Conclusion: The Judge reversed the prior decision and granted the Petitioner’s petition. The new evidence proved the Petitioner had followed express instructions from the Association.

“Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.”

The Judge concluded that the partial response was a clear violation of the law.

“Petitioner is correct that the Association did not fully comply with his specific request, and has established by a preponderance of the evidence that the summary table provided by the Association was a violation of ARIZ. REV. STAT. § 33-1805.”

Final Order and Penalties

The Administrative Law Judge’s Final Order on September 12, 2019, which is binding on the parties, mandated the following:

1. Petition Granted: The Petitioner’s petition was granted.

2. Filing Fee Reimbursement: The Respondent (Desert Ranch HOA) was ordered to reimburse the Petitioner’s $500.00 filing fee.

3. Civil Penalty: The Respondent was ordered to pay a civil penalty of $500.00 to the Arizona Department of Real Estate.

Tom Barrs v. Desert Ranch Homeowners Association

Posted on April 10, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918037-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2019-09-12
Administrative Law Judge	Jenna Clark
Outcome	full
Filing Fees Refunded	$500.00
Civil Penalties	$500.00

Parties & Counsel

Petitioner	Tom Barrs	Counsel	Jonathan A. Dessaules
Respondent	Desert Ranch Homeowners Association	Counsel	B. Austin Baillio

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge concluded that the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide the full requested documentation relating to EDC actions and communications. The Petitioner's request for relief was granted, resulting in the reimbursement of the $500 filing fee and the imposition of a $500 civil penalty against the HOA.

Key Issues & Findings

Whether Desert Ranch Homeowners Association (Respondent) violated A.R.S. § 33-1805 by failing to fulfill a records request.

The Association violated A.R.S. § 33-1805 by failing to fully comply with Petitioner's specific request for EDC records (submissions, requests, and approvals) by providing only a summary table instead of the totality of requested communications within the statutory deadline.

Orders: Petitioner's petition granted. Respondent ordered to reimburse Petitioner's $500.00 filing fee (ARIZ. REV. STAT. § 32-2199.01) and tender a $500.00 civil penalty to the Department (ARIZ. REV. STAT. § 32-2199.02(A)).

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

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

Analytics Highlights

Topics: Records Request, HOA Violation, Civil Penalty, Filing Fee Reimbursement

Additional Citations:

• ARIZ. REV. STAT. § 33-1805
• ARIZ. REV. STAT. § 32-2199.01
• ARIZ. REV. STAT. § 32-2199.02(A)
• ARIZ. REV. STAT. § 32-2102
• ARIZ. REV. STAT. § 32-2199
• ARIZ. REV. STAT. § 32-2199.05
• ARIZ. REV. STAT. § 32-2199(2)
• ARIZ. REV. STAT. § 32-2199.01(D)
• ARIZ. REV. STAT. § 32-2199.02
• ARIZ. REV. STAT. § 41-1092
• ARIZ. ADMIN. CODE R2-19-119
• ARIZ. REV. STAT. § 1-243
• ARIZ. ADMIN. CODE R2-19-107
• ARIZ. REV. STAT. § 33-1804

Audio Overview

Decision Documents

19F-H1918037-REL Decision – 700566.pdf

Uploaded 2025-10-09T03:33:55 (149.3 KB)

Briefing Document: Barrs v. Desert Ranch Homeowners Association

Executive Summary

This document synthesizes the findings from two Administrative Law Judge (ALJ) Decisions concerning a records request dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent). The central issue was whether the Association violated Arizona Revised Statute (A.R.S.) § 33-1805 by failing to adequately fulfill a records request submitted by the Petitioner on November 1, 2018.

The initial hearing on March 21, 2019, resulted in an April 10, 2019, decision in favor of the Association. The ALJ concluded that the Petitioner had failed to properly submit his request to all members of the Association’s Board, and thus the Association’s partial response (a summary table) did not constitute a statutory violation.

Following a successful appeal by the Petitioner, a rehearing was held on August 27, 2019. New evidence demonstrated that the Petitioner had followed prior express instructions from the Association regarding who to contact for records requests. Consequently, the ALJ issued a new decision on September 12, 2019, reversing the original order. The final ruling found the Association in violation of A.R.S. § 33-1805. The Association was ordered to reimburse the Petitioner’s $500 filing fee and was assessed a civil penalty of $500.

Case Overview

Case Numbers

No. 19F-H1918037-REL (Initial Decision)
No. 19F-H1918037-REL-RHG (Rehearing Decision)

Petitioner

Tom Barrs, a property owner and member of the Association.

Respondent

Desert Ranch Homeowners Association, Scottsdale, Arizona.

Central Issue

Whether the Association violated A.R.S. § 33-1805 by failing to fulfill a records request for Environmental Design Committee (EDC) actions, requests, and approvals.

Initial Petition

Filed by Tom Barrs on December 17, 2018.

Initial Hearing

March 21, 2019, before ALJ Jenna Clark.

Rehearing

August 27, 2019, before ALJ Jenna Clark.

Final Outcome

Petition granted in favor of Tom Barrs. The Association was found in violation of state law, ordered to reimburse the filing fee, and fined.

Key Individuals and Entities

Role / Affiliation

Tom Barrs

Petitioner; homeowner in the Desert Ranch subdivision.

Desert Ranch HOA

Respondent; homeowners’ association.

Jenna Clark

Administrative Law Judge, Office of Administrative Hearings.

Brian Schoeffler

Chairman of the Association’s Environmental Design Committee (EDC); appeared on behalf of the Association.

Catherine Overby

President of the Association’s Board of Directors.

Lori Loch-Lee

Vice President of Client Services at Associated Asset Management (AAM), the Association’s accounting/management company.

Jonathan Dessaules, Esq.

Attorney who appeared on behalf of the Petitioner at the rehearing.

The Records Request and Subsequent Dispute

The Initial Request

On November 1, 2018, at 9:40 p.m., Petitioner submitted an electronic records request to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee. The text of the request was as follows:

“Pursuant to ARS 33-1805, I am requesting a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018. Soft copies via return email are preferable; otherwise, please let me know when hard copies are available for pickup.”

The Association’s Response and Petitioner’s Follow-Up

• November 2, 2018: Lori Loch-Lee from AAM notified the Petitioner she would forward his request to all Board members, noting that AAM was only the Association’s accounting firm.

• November 18, 2018: The Petitioner received a summary table listing some EDC actions, not the complete set of communications and documents requested. At this time, he was advised by Brian Schoeffler that he “needed to copy all Board members on records requests.”

• March 6, 2019: The Petitioner sent a follow-up email, accusing the Association of willful failure and clarifying the specific records he sought beyond the summary table, including “copies of the communications (letters, emails, and application forms) relating to Environmental Design Review (EDC) submissions, requests, complaints and approvals (or denials).”

• March 11, 2019: Mr. Schoeffler replied, arguing that the request had been complied with on November 18, 2018, and directed the Petitioner to “submit a new request” for the additional information.

• March 17, 2019: Mr. Schoeffler reiterated that the original request was only sent to two of four Board members and stated that providing additional documents could be “interpreted as an admission of guilt.”

As of the rehearing date (August 27, 2019), the Petitioner had still not received all the documentation requested on November 1, 2018.

Legal Proceedings and Rulings

Initial Hearing and Decision (April 10, 2019)

In the first hearing, the dispute centered on the validity of the request submission and the adequacy of the Association’s response.

Arguments:

• Petitioner (Barrs): Argued the Association acted in bad faith and willfully failed to fulfill the request, noting a similar dispute had been previously adjudicated. He was concerned with the completeness of the response, not its timeliness.

• Respondent (HOA): Argued it had complied with the request by providing a summary table, consistent with its handling of a previous dispute with the Petitioner. Mr. Schoeffler testified that the response was untimely (provided on the 11th business day) but asserted it was otherwise sufficient.

ALJ Conclusion: The Judge ruled in favor of the Association, denying the Petitioner’s petition. The key finding was that the Petitioner had failed to properly submit his request.

“Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation of ARIZ. REV. STAT. § 33-1805 for providing him with a summary table on November 18, 2018.”

The decision also noted that the statute does not legally obligate an HOA to email copies of records.

Rehearing and Final Decision (September 12, 2019)

After the Petitioner’s appeal was granted, a rehearing introduced new evidence that fundamentally changed the outcome.

New Evidence and Concessions:

• July 19, 2017 Instruction: Evidence showed Association President Catherine Overby had previously appointed Brian Schoeffler as the Petitioner’s “primary records request contact.”

• July 18, 2018 Instruction: Evidence showed Ms. Overby had also instructed the Petitioner to direct requests to the management company, AAM.

• Association Concessions: The Respondent conceded that its governing documents do not require all Board members to be copied on records requests and that its own bylaws regarding submission forms are not adhered to or enforced.

ALJ’s Reversed Conclusion: The Judge reversed the prior decision and granted the Petitioner’s petition. The new evidence proved the Petitioner had followed express instructions from the Association.

“Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.”

The Judge concluded that the partial response was a clear violation of the law.

“Petitioner is correct that the Association did not fully comply with his specific request, and has established by a preponderance of the evidence that the summary table provided by the Association was a violation of ARIZ. REV. STAT. § 33-1805.”

Final Order and Penalties

The Administrative Law Judge’s Final Order on September 12, 2019, which is binding on the parties, mandated the following:

1. Petition Granted: The Petitioner’s petition was granted.

2. Filing Fee Reimbursement: The Respondent (Desert Ranch HOA) was ordered to reimburse the Petitioner’s $500.00 filing fee.

3. Civil Penalty: The Respondent was ordered to pay a civil penalty of $500.00 to the Arizona Department of Real Estate.

Michael Stoltenberg vs Rancho Del Oro Homeowners Association

Posted on April 3, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918038-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-04-03
Administrative Law Judge	Diane Mihalsky
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Michael Stoltenberg	Counsel	—
Respondent	Rancho Del Oro Homeowners Association	Counsel	Nicole D. Payne

Alleged Violations

CC&Rs §§ 1.8, 1.9, 2.1, 3.1, 4.1, 4.2, 4.3, 5.1, and 14.2

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the HOA acted in accordance with its governing documents (CC&Rs § 4.1) by imposing uniform assessments. The CC&Rs did not provide an exception for reduced assessments based on an owner's choice of landscaping (rock yard) or refusal of HOA maintenance services.

Why this result: Petitioner failed to meet the burden of proof that the Respondent violated its CC&Rs, as CC&R § 4.1 requires uniform assessment and no provision requires or allows Respondent to assess Petitioner less due to his rock yard and refusal of maintenance.

Key Issues & Findings

HOA Assessment Uniformity Requirement

Petitioner, who had rock landscaping and refused HOA maintenance, alleged the HOA violated CC&Rs by assessing him uniform dues, arguing he should pay less since HOA expenditures on lawn maintenance were substantial and primarily benefited neighbors with grass yards.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

• CC&Rs § 4.1
• CC&Rs § 5.1(a)
• A.R.S. § 32-2199(B)
• A.R.S. § 33-1803
• A.R.S. § 41-1092.07(G)(2)
• Powell v. Washburn, 211 Ariz. 553
• Vazanno v. Superior Court, 74 Ariz. 369

Analytics Highlights

Topics: HOA Assessment, Uniform Dues, CC&R Enforcement, Landscaping Maintenance

Additional Citations:

• A.R.S. § 32-2199(B)
• A.R.S. § 33-1803
• A.R.S. § 41-1092.07(G)(2)
• A.A.C. R2-19-119(A)
• A.A.C. R2-19-119(B)(1)
• A.A.C. R2-19-119(B)(2)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
• BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
• Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
• Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Audio Overview

Decision Documents

19F-H1918038-REL Decision – 698869.pdf

Uploaded 2025-10-09T03:33:59 (141.7 KB)

Briefing Document: Stoltenberg v. Rancho Del Oro Homeowners Association

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Decision in case number 19F-H1918038-REL, concerning a dispute between homeowner Michael Stoltenberg and the Rancho Del Oro Homeowners Association (HOA). The core conflict centered on Mr. Stoltenberg’s claim that he should pay lower HOA assessments because his property has rock landscaping, while his neighbors have grass yards requiring more costly maintenance by the HOA.

The Administrative Law Judge ultimately denied the petition. The decision rested on an unambiguous interpretation of the HOA’s Covenants, Conditions, and Restrictions (CC&Rs). The Judge found that the CC&Rs explicitly obligate the HOA to maintain landscaping on all individual lots and, crucially, require assessments to be uniform for all members to cover these “common expenses.” The petitioner’s argument for a reduced assessment was unsupported by any provision in the governing documents. Furthermore, evidence showed that Mr. Stoltenberg had actively refused the HOA access to his property to install a community irrigation system and to perform the very landscaping maintenance that is a central component of the assessments.

Case Overview

• Case Number: 19F-H1918038-REL

• Parties Involved:

◦ Petitioner: Michael Stoltenberg, a homeowner at 11777 E. Calle Gaudi, Rancho Del Oro.

◦ Respondent: Rancho Del Oro Homeowners Association (HOA).

• Hearing Date: March 19, 2019

• Presiding Judge: Diane Mihalsky, Administrative Law Judge

• Core Allegation: On December 29, 2018, the Petitioner filed a petition alleging the HOA violated multiple sections of its CC&Rs (§§ 1.8, 1.9, 2.1, 3.1, 4.1, 4.2, 4.3, 5.1, and 14.2) by levying the same assessment fees on his property as on neighboring properties with grass lawns.

Petitioner’s Position and Evidence (Michael Stoltenberg)

The Petitioner’s case was built on the argument of fairness, contending that his assessment should be lower because his property does not utilize the HOA’s most expensive landscaping services.

• Primary Argument: It is inequitable for the HOA to charge him the same amount as neighbors with grass yards, given that his front yard is rock and does not receive the same level of maintenance.

• Financial Evidence: The Petitioner testified that in 2016, the HOA spent $54,000 on lawn maintenance and landscaping, which constituted 39% of its total budget.

• Refusal of Services: The Petitioner acknowledged that he refused to allow the HOA access to his property for two key purposes:

1. To install irrigation pipes connecting his lot to a new community well.

2. To perform any landscape maintenance on his front yard.

• Justification for Refusal: The Petitioner accused the HOA of previously killing his trees during maintenance activities and stated that he now undertakes all maintenance of his own yard.

Respondent’s Position and Evidence (Rancho Del Oro HOA)

The HOA’s defense was grounded in its adherence to the plain language of its governing documents, arguing that its actions were not only permissible but mandated by the CC&Rs.

• Primary Argument: The HOA is legally bound by its CC&Rs to levy uniform assessments on all members and is simultaneously obligated to maintain the landscaping on every individual lot.

• Key Testimony (Diana Crites, Property Manager):

◦ CC&R § 5.1(a) explicitly requires the HOA to maintain the yards of its members.

◦ CC&R § 4.1 requires all owners to be assessed uniformly, without regard to the type of landscaping they have chosen or whether they permit the HOA to perform its maintenance duties.

◦ The Petitioner’s property is one of eight constructed by a different developer, who did not originally install grass or an irrigation system.

◦ The HOA has since drilled a community well to address water costs and has offered to remove rock and install grass for these properties, an offer the Petitioner could accept.

• Supporting Evidence (Letter from Dawn Simpson, former bookkeeper):

◦ A 2013 HOA project was initiated to install a community well for landscaping and to connect all homes, including the Petitioner’s.

◦ The letter details an incident where the Petitioner “became very heated with [the] contractor” and “declared that no one was to enter his yard for any purpose.”

◦ This action directly halted all construction to connect his property to the irrigation system and ceased all landscaping services provided by the HOA.

Analysis of Governing Documents (CC&Rs)

The judge’s decision centered on the clear, unambiguous language of specific articles within the CC&Rs. The petitioner failed to identify any language that would permit or require a non-uniform assessment.

CC&R Section

Key Language

Implication & Ruling

Article IV, Section 4.1

Assessments “shall be used for the… common benefit… of the Owners” and “shall constitute common expenses for which the apartment owners shall be severally liable in proportion to their respective common interests.”

This establishes the principle of uniform, shared liability for common expenses, regardless of an individual owner’s specific use of a particular service.

Article V, Section 5.1(a)

“The Association shall maintain… landscaping… It shall also include maintenance of the landscaping on individual Lots outside of structures.”

This article imposes a direct obligation on the HOA to maintain all members’ landscaping, not merely an optional service.

Legal Conclusions and Final Order

• Burden of Proof: The decision established that the Petitioner, Mr. Stoltenberg, held the burden to prove by a “preponderance of the evidence” that the HOA had violated its CC&Rs.

• Interpretation of Covenants: In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties. The judge found the CC&Rs to be unambiguous, requiring a holistic interpretation. The documents clearly mandate that the HOA must maintain all yards and must assess all members equally to fund that maintenance.

• Final Ruling: The Petitioner did not meet his burden of proof. He failed to point to any provision within the CC&Rs that “allows, much less requires, Respondent to assess Petitioner less because he has a rock yard and will not allow Respondent to maintain his yard.”

• Order: The petition was denied. The HOA’s practice of charging uniform assessments was upheld as compliant with its governing documents.

Michael Stoltenberg vs Rancho Del Oro Homeowners Association

Posted on April 3, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918038-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-04-03
Administrative Law Judge	Diane Mihalsky
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Michael Stoltenberg	Counsel	—
Respondent	Rancho Del Oro Homeowners Association	Counsel	Nicole D. Payne

Alleged Violations

CC&Rs §§ 1.8, 1.9, 2.1, 3.1, 4.1, 4.2, 4.3, 5.1, and 14.2

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the HOA acted in accordance with its governing documents (CC&Rs § 4.1) by imposing uniform assessments. The CC&Rs did not provide an exception for reduced assessments based on an owner's choice of landscaping (rock yard) or refusal of HOA maintenance services.

Why this result: Petitioner failed to meet the burden of proof that the Respondent violated its CC&Rs, as CC&R § 4.1 requires uniform assessment and no provision requires or allows Respondent to assess Petitioner less due to his rock yard and refusal of maintenance.

Key Issues & Findings

HOA Assessment Uniformity Requirement

Petitioner, who had rock landscaping and refused HOA maintenance, alleged the HOA violated CC&Rs by assessing him uniform dues, arguing he should pay less since HOA expenditures on lawn maintenance were substantial and primarily benefited neighbors with grass yards.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

• CC&Rs § 4.1
• CC&Rs § 5.1(a)
• A.R.S. § 32-2199(B)
• A.R.S. § 33-1803
• A.R.S. § 41-1092.07(G)(2)
• Powell v. Washburn, 211 Ariz. 553
• Vazanno v. Superior Court, 74 Ariz. 369

Analytics Highlights

Topics: HOA Assessment, Uniform Dues, CC&R Enforcement, Landscaping Maintenance

Additional Citations:

• A.R.S. § 32-2199(B)
• A.R.S. § 33-1803
• A.R.S. § 41-1092.07(G)(2)
• A.A.C. R2-19-119(A)
• A.A.C. R2-19-119(B)(1)
• A.A.C. R2-19-119(B)(2)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
• BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
• Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
• Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Audio Overview

Decision Documents

19F-H1918038-REL Decision – 698869.pdf

Uploaded 2025-10-08T07:08:35 (141.7 KB)

Briefing Document: Stoltenberg v. Rancho Del Oro Homeowners Association

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Decision in case number 19F-H1918038-REL, concerning a dispute between homeowner Michael Stoltenberg and the Rancho Del Oro Homeowners Association (HOA). The core conflict centered on Mr. Stoltenberg’s claim that he should pay lower HOA assessments because his property has rock landscaping, while his neighbors have grass yards requiring more costly maintenance by the HOA.

The Administrative Law Judge ultimately denied the petition. The decision rested on an unambiguous interpretation of the HOA’s Covenants, Conditions, and Restrictions (CC&Rs). The Judge found that the CC&Rs explicitly obligate the HOA to maintain landscaping on all individual lots and, crucially, require assessments to be uniform for all members to cover these “common expenses.” The petitioner’s argument for a reduced assessment was unsupported by any provision in the governing documents. Furthermore, evidence showed that Mr. Stoltenberg had actively refused the HOA access to his property to install a community irrigation system and to perform the very landscaping maintenance that is a central component of the assessments.

Case Overview

• Case Number: 19F-H1918038-REL

• Parties Involved:

◦ Petitioner: Michael Stoltenberg, a homeowner at 11777 E. Calle Gaudi, Rancho Del Oro.

◦ Respondent: Rancho Del Oro Homeowners Association (HOA).

• Hearing Date: March 19, 2019

• Presiding Judge: Diane Mihalsky, Administrative Law Judge

• Core Allegation: On December 29, 2018, the Petitioner filed a petition alleging the HOA violated multiple sections of its CC&Rs (§§ 1.8, 1.9, 2.1, 3.1, 4.1, 4.2, 4.3, 5.1, and 14.2) by levying the same assessment fees on his property as on neighboring properties with grass lawns.

Petitioner’s Position and Evidence (Michael Stoltenberg)

The Petitioner’s case was built on the argument of fairness, contending that his assessment should be lower because his property does not utilize the HOA’s most expensive landscaping services.

• Primary Argument: It is inequitable for the HOA to charge him the same amount as neighbors with grass yards, given that his front yard is rock and does not receive the same level of maintenance.

• Financial Evidence: The Petitioner testified that in 2016, the HOA spent $54,000 on lawn maintenance and landscaping, which constituted 39% of its total budget.

• Refusal of Services: The Petitioner acknowledged that he refused to allow the HOA access to his property for two key purposes:

1. To install irrigation pipes connecting his lot to a new community well.

2. To perform any landscape maintenance on his front yard.

• Justification for Refusal: The Petitioner accused the HOA of previously killing his trees during maintenance activities and stated that he now undertakes all maintenance of his own yard.

Respondent’s Position and Evidence (Rancho Del Oro HOA)

The HOA’s defense was grounded in its adherence to the plain language of its governing documents, arguing that its actions were not only permissible but mandated by the CC&Rs.

• Primary Argument: The HOA is legally bound by its CC&Rs to levy uniform assessments on all members and is simultaneously obligated to maintain the landscaping on every individual lot.

• Key Testimony (Diana Crites, Property Manager):

◦ CC&R § 5.1(a) explicitly requires the HOA to maintain the yards of its members.

◦ CC&R § 4.1 requires all owners to be assessed uniformly, without regard to the type of landscaping they have chosen or whether they permit the HOA to perform its maintenance duties.

◦ The Petitioner’s property is one of eight constructed by a different developer, who did not originally install grass or an irrigation system.

◦ The HOA has since drilled a community well to address water costs and has offered to remove rock and install grass for these properties, an offer the Petitioner could accept.

• Supporting Evidence (Letter from Dawn Simpson, former bookkeeper):

◦ A 2013 HOA project was initiated to install a community well for landscaping and to connect all homes, including the Petitioner’s.

◦ The letter details an incident where the Petitioner “became very heated with [the] contractor” and “declared that no one was to enter his yard for any purpose.”

◦ This action directly halted all construction to connect his property to the irrigation system and ceased all landscaping services provided by the HOA.

Analysis of Governing Documents (CC&Rs)

The judge’s decision centered on the clear, unambiguous language of specific articles within the CC&Rs. The petitioner failed to identify any language that would permit or require a non-uniform assessment.

CC&R Section

Key Language

Implication & Ruling

Article IV, Section 4.1

Assessments “shall be used for the… common benefit… of the Owners” and “shall constitute common expenses for which the apartment owners shall be severally liable in proportion to their respective common interests.”

This establishes the principle of uniform, shared liability for common expenses, regardless of an individual owner’s specific use of a particular service.

Article V, Section 5.1(a)

“The Association shall maintain… landscaping… It shall also include maintenance of the landscaping on individual Lots outside of structures.”

This article imposes a direct obligation on the HOA to maintain all members’ landscaping, not merely an optional service.

Legal Conclusions and Final Order

• Burden of Proof: The decision established that the Petitioner, Mr. Stoltenberg, held the burden to prove by a “preponderance of the evidence” that the HOA had violated its CC&Rs.

• Interpretation of Covenants: In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties. The judge found the CC&Rs to be unambiguous, requiring a holistic interpretation. The documents clearly mandate that the HOA must maintain all yards and must assess all members equally to fund that maintenance.

• Final Ruling: The Petitioner did not meet his burden of proof. He failed to point to any provision within the CC&Rs that “allows, much less requires, Respondent to assess Petitioner less because he has a rock yard and will not allow Respondent to maintain his yard.”

• Order: The petition was denied. The HOA’s practice of charging uniform assessments was upheld as compliant with its governing documents.

Loraine Brokaw vs. Sin Vacas Property Owners Association

Posted on April 1, 2019 by jeremy@yourazhoaattorney.com

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 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

Posted on April 1, 2019 by jeremy@yourazhoaattorney.com

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 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.

Jay A. Janicek v. Sycamore Vista No. 8 Homeowners

Posted on March 20, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918001-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2019-03-25
Administrative Law Judge	Jenna Clark
Outcome	full
Filing Fees Refunded	$0.00
Civil Penalties	$250.00

Parties & Counsel

Petitioner	Jay A. Janicek	Counsel	Jake Kubert, Esq.
Respondent	Sycamore Vista No. 8 Homeowners Association	Counsel	Evan Thompson, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1804(B)

Outcome Summary

The ALJ granted the petition, finding that the HOA Board violated ARIZ. REV. STAT. § 33-1804(B) and the Association Bylaws by amending the Bylaws on November 20, 2017, without a quorum of Association members voting in favor and without proper notice. The amendment was invalidated, and the HOA was fined $250.00 and ordered to refund the Petitioner's filing fee.

Why this result: The Board lacked the authority to amend the Bylaws without the vote of the Association membership, and failed to provide required notice for the proposed amendment, violating ARIZ. REV. STAT. § 33-1804(B) and the Association Bylaws.

Key Issues & Findings

Whether Sycamore Vista No. 8 Homeowners Association violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.

The Respondent HOA Board amended Association Bylaws on November 20, 2017, without proper notice to the members and without a vote by a majority of Association members, which violated the statutory notice requirement and the Bylaws. The Board action was consequently invalidated.

Orders: The Petitioner's petition was granted. The Respondent's third amendment to the Association Bylaws, dated November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner's filing fee and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.

Filing fee: $0.00, Fee refunded: Yes, Civil penalty: $250.00

Disposition: petitioner_win

Cited:

• Powell v. Washburn, 211 Ariz. 553, 125 P.3d 373, 374 (Ariz. 2006)
• Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
• Mail Boxes v. Indus. Comm’n of Ariz., 181 Ariz. 119, 122, 888 P.2d 777, 780 (1995)

Analytics Highlights

Topics: Open Meeting Law, Bylaw Amendment, Notice Violation, Membership Vote, HOA Governance

Additional Citations:

• Powell v. Washburn, 211 Ariz. 553, 125 P.3d 373, 374 (Ariz. 2006)
• Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
• Mail Boxes v. Indus. Comm’n of Ariz., 181 Ariz. 119, 122, 888 P.2d 777, 780 (1995)

Audio Overview

Decision Documents

19F-H1918001-REL-RHG Decision – 696205.pdf

Uploaded 2025-10-09T03:33:15 (169.8 KB)

Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association

Executive Summary

This document synthesizes the findings from the Administrative Law Judge (ALJ) Decision in case number 19F-H1918001-REL-RHG, concerning a dispute between homeowner Jay Janicek (“Petitioner”) and the Sycamore Vista No. 8 Homeowners Association (“Respondent”). The central conflict revolved around the HOA Board of Directors’ unilateral amendment of the Association’s Bylaws on November 20, 2017, without a vote of the general membership.

The ALJ ruled decisively in favor of the Petitioner, invalidating the Board’s amendment. The decision hinged on the interpretation of the word “members” in Article XIII of the Bylaws, which governs amendments. The ALJ concluded that “members” unambiguously refers to the homeowners who constitute the Association, not the members of the Board of Directors. Consequently, the Board’s action was found to be outside its authority as defined in the governing documents.

Furthermore, the ALJ determined that the Board’s action violated Arizona’s Open Meeting Law, specifically ARIZ. REV. STAT. § 33-1804(B), because the required notice for a proposed bylaw amendment was not provided to the Association’s membership. The Respondent’s arguments were found to be unpersuasive. As a result of the ruling, the amendment was nullified, and the HOA was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.

1. Case Overview

• Case Number: 19F-H1918001-REL-RHG

• Petitioner: Jay Janicek, a property owner and member of the Association.

• Respondent: Sycamore Vista No. 8 Homeowners Association (“the Association”).

• Presiding Judge: Administrative Law Judge Jenna Clark.

• Central Issue: “Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.”

2. Procedural History and Timeline

• July 25, 2018: Petitioner Jay Janicek filed a petition with the Arizona Department of Real Estate.

• September 5, 2018: An initial evidentiary hearing was held at the Office of Administrative Hearings (OAH).

• September 25, 2018: The OAH issued an initial ALJ Decision in favor of the Petitioner.

• October 23, 2018: Respondent submitted a Request for Rehearing.

• November 7, 2018: The Department granted the Respondent’s request for a rehearing.

• March 5, 2019: A rehearing was held. Per a stipulated agreement, no new evidence was presented; instead, counsel for both parties submitted legal briefs and presented closing arguments.

• March 25, 2019: The final ALJ Decision was issued, reaffirming the initial ruling in favor of the Petitioner.

3. The Disputed Action of November 20, 2017

At a regular Board of Directors meeting held on November 20, 2017, the Association’s Board voted to approve a third amendment to the Association Bylaws. The amendment altered Article VIII Section 6(d), which pertains to the Association’s financial oversight.

• Original Clause: Required the Board to “cause an annual audit of the Association books to be made by a public accountant at the completion of each fiscal year.”

• Amended Clause: Changed the requirement to “cause an annual audit, review, or compilation of the Associations financial records to be made by a public accountant within 180 days after the end of the HOA’s fiscal year.”

The Petitioner argued that while he had not been directly impacted, he could be in the future, as the amendment modified a prior third-party audit requirement. He asserted an interest as a homeowner in ensuring the Association’s financials were correct and not subject to self-auditing.

4. Analysis of Core Arguments

The case centered on the conflicting interpretations of the Association’s governing documents, particularly the clause authorizing Bylaw amendments.

4.1. Petitioner’s Position (Jay Janicek)

The Petitioner contended that any amendment to the Bylaws required a vote by the general membership of the Association, not just the Board of Directors.

• Textual Interpretation: Petitioner focused on Bylaws Article XIII, Section 1, which states: “These Bylaws may be amended at a regular or special meeting of the Board of Directors of the Association by a vote of a majority of a quorum of members present in person or by proxy.” He argued “members” refers to homeowners as defined in the Association’s Declaration, not Board members.

• Use of “Proxy”: The inclusion of the term “proxy” was cited as evidence supporting this interpretation, as Board members are not permitted to vote by proxy, whereas Association members are.

• Delineation of Powers: Petitioner noted that Article VII, which outlines the “Powers and Duties of the Board of Directors,” does not grant the Board the authority to amend the Bylaws.

• Intent of the Drafter: The argument was made that the Bylaws’ drafters intentionally used the words “directors” and “members” distinctly throughout the document, indicating that the use of “members” in the amendment clause was a deliberate choice to refer to the homeowners.

• Statutory Violation: The Petitioner argued the Board’s action violated Arizona’s Open Meeting Law (ARIZ. REV. STAT. § 33-1804), which requires specific notice to members between 10 and 50 days in advance of any meeting where a Bylaw amendment is proposed.

• Legal Precedent: The Petitioner cited Powell v. Washburn, which holds that restrictive covenants should be interpreted to give effect to the intention of the parties as determined from the language of the entire document.

4.2. Respondent’s Position (Sycamore Vista No. 8 HOA)

The Association argued that the Board of Directors possessed the authority to amend the Bylaws during a properly convened Board meeting.

• Board Authority: Respondent cited Article IV of the Bylaws, which states that the “affairs of this Association shall be managed by a Board.”

• Meeting Protocol: The action took place at a regular monthly Board meeting, as permitted by Article VI. The meeting on November 20, 2017, had three Board members present, constituting a quorum as required by the Bylaws.

• Interpretation of “Members”: The Respondent’s central argument was that the phrase “a quorum of members” in Article XIII referred to the members of the Board of Directors, thereby empowering them to pass the amendment.

• Compliance with Open Meeting Law: The Association argued its conduct was not a violation of the law because a necessary quorum of directors was present for the vote.

5. Administrative Law Judge’s Findings and Conclusions

The ALJ found the Petitioner’s arguments convincing and concluded that he had sustained his burden of proof by a preponderance of the evidence. The Respondent’s closing arguments were described as not persuasive.

• Violation of Statute: The Judge determined that the Board’s action violated ARIZ. REV. STAT. § 33-1804(B) because “there was no notice of the proposed amendment” provided to the Association members. The conduct was described as going “against the spirit of the legislative intent” of the statute due to a lack of transparency.

• Interpretation of Governing Documents: The decision firmly established the correct interpretation of the Bylaws.

◦ The terms “members” and “directors” are clearly and intentionally differentiated throughout the document. “Members” refers to the body of homeowners, while “directors” refers to the elected Board.

◦ The conclusion states: “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”

◦ It was concluded that the Board “does not have power to act where authority is expressly delegated to the membership of the Association.”

• Invalidation of Board Action: The ALJ concluded that the Board’s action on November 20, 2017, was invalid because it was taken “in the absence of a quorum of Association members whereby a majority of said members voted in favor of the proposed third amendment.”

6. Final Order and Penalties

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following orders:

1. Petition Granted: The Petitioner’s petition was granted.

2. Amendment Invalidated: The “third amendment to the Association Bylaws, as taken on November 20, 2017, is invalidated.”

3. Fees and Penalties: The Respondent (HOA) was ordered to:

◦ Pay the Petitioner the filing fee.

◦ Pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.

The decision, having been issued as a result of a rehearing, is binding on the parties.

Jay A. Janicek v. Sycamore Vista No. 8 Homeowners

Posted on March 20, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918001-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2019-03-25
Administrative Law Judge	Jenna Clark
Outcome	full
Filing Fees Refunded	$0.00
Civil Penalties	$250.00

Parties & Counsel

Petitioner	Jay A. Janicek	Counsel	Jake Kubert, Esq.
Respondent	Sycamore Vista No. 8 Homeowners Association	Counsel	Evan Thompson, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1804(B)

Outcome Summary

The ALJ granted the petition, finding that the HOA Board violated ARIZ. REV. STAT. § 33-1804(B) and the Association Bylaws by amending the Bylaws on November 20, 2017, without a quorum of Association members voting in favor and without proper notice. The amendment was invalidated, and the HOA was fined $250.00 and ordered to refund the Petitioner's filing fee.

Why this result: The Board lacked the authority to amend the Bylaws without the vote of the Association membership, and failed to provide required notice for the proposed amendment, violating ARIZ. REV. STAT. § 33-1804(B) and the Association Bylaws.

Key Issues & Findings

Whether Sycamore Vista No. 8 Homeowners Association violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.

The Respondent HOA Board amended Association Bylaws on November 20, 2017, without proper notice to the members and without a vote by a majority of Association members, which violated the statutory notice requirement and the Bylaws. The Board action was consequently invalidated.

Orders: The Petitioner's petition was granted. The Respondent's third amendment to the Association Bylaws, dated November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner's filing fee and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.

Filing fee: $0.00, Fee refunded: Yes, Civil penalty: $250.00

Disposition: petitioner_win

Cited:

• Powell v. Washburn, 211 Ariz. 553, 125 P.3d 373, 374 (Ariz. 2006)
• Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
• Mail Boxes v. Indus. Comm’n of Ariz., 181 Ariz. 119, 122, 888 P.2d 777, 780 (1995)

Analytics Highlights

Topics: Open Meeting Law, Bylaw Amendment, Notice Violation, Membership Vote, HOA Governance

Additional Citations:

• Powell v. Washburn, 211 Ariz. 553, 125 P.3d 373, 374 (Ariz. 2006)
• Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
• Mail Boxes v. Indus. Comm’n of Ariz., 181 Ariz. 119, 122, 888 P.2d 777, 780 (1995)

Audio Overview

Decision Documents

19F-H1918001-REL-RHG Decision – 696205.pdf

Uploaded 2025-10-08T07:06:39 (169.8 KB)

Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association

Executive Summary

This document synthesizes the findings from the Administrative Law Judge (ALJ) Decision in case number 19F-H1918001-REL-RHG, concerning a dispute between homeowner Jay Janicek (“Petitioner”) and the Sycamore Vista No. 8 Homeowners Association (“Respondent”). The central conflict revolved around the HOA Board of Directors’ unilateral amendment of the Association’s Bylaws on November 20, 2017, without a vote of the general membership.

The ALJ ruled decisively in favor of the Petitioner, invalidating the Board’s amendment. The decision hinged on the interpretation of the word “members” in Article XIII of the Bylaws, which governs amendments. The ALJ concluded that “members” unambiguously refers to the homeowners who constitute the Association, not the members of the Board of Directors. Consequently, the Board’s action was found to be outside its authority as defined in the governing documents.

Furthermore, the ALJ determined that the Board’s action violated Arizona’s Open Meeting Law, specifically ARIZ. REV. STAT. § 33-1804(B), because the required notice for a proposed bylaw amendment was not provided to the Association’s membership. The Respondent’s arguments were found to be unpersuasive. As a result of the ruling, the amendment was nullified, and the HOA was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.

1. Case Overview

• Case Number: 19F-H1918001-REL-RHG

• Petitioner: Jay Janicek, a property owner and member of the Association.

• Respondent: Sycamore Vista No. 8 Homeowners Association (“the Association”).

• Presiding Judge: Administrative Law Judge Jenna Clark.

• Central Issue: “Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.”

2. Procedural History and Timeline

• July 25, 2018: Petitioner Jay Janicek filed a petition with the Arizona Department of Real Estate.

• September 5, 2018: An initial evidentiary hearing was held at the Office of Administrative Hearings (OAH).

• September 25, 2018: The OAH issued an initial ALJ Decision in favor of the Petitioner.

• October 23, 2018: Respondent submitted a Request for Rehearing.

• November 7, 2018: The Department granted the Respondent’s request for a rehearing.

• March 5, 2019: A rehearing was held. Per a stipulated agreement, no new evidence was presented; instead, counsel for both parties submitted legal briefs and presented closing arguments.

• March 25, 2019: The final ALJ Decision was issued, reaffirming the initial ruling in favor of the Petitioner.

3. The Disputed Action of November 20, 2017

At a regular Board of Directors meeting held on November 20, 2017, the Association’s Board voted to approve a third amendment to the Association Bylaws. The amendment altered Article VIII Section 6(d), which pertains to the Association’s financial oversight.

• Original Clause: Required the Board to “cause an annual audit of the Association books to be made by a public accountant at the completion of each fiscal year.”

• Amended Clause: Changed the requirement to “cause an annual audit, review, or compilation of the Associations financial records to be made by a public accountant within 180 days after the end of the HOA’s fiscal year.”

The Petitioner argued that while he had not been directly impacted, he could be in the future, as the amendment modified a prior third-party audit requirement. He asserted an interest as a homeowner in ensuring the Association’s financials were correct and not subject to self-auditing.

4. Analysis of Core Arguments

The case centered on the conflicting interpretations of the Association’s governing documents, particularly the clause authorizing Bylaw amendments.

4.1. Petitioner’s Position (Jay Janicek)

The Petitioner contended that any amendment to the Bylaws required a vote by the general membership of the Association, not just the Board of Directors.

• Textual Interpretation: Petitioner focused on Bylaws Article XIII, Section 1, which states: “These Bylaws may be amended at a regular or special meeting of the Board of Directors of the Association by a vote of a majority of a quorum of members present in person or by proxy.” He argued “members” refers to homeowners as defined in the Association’s Declaration, not Board members.

• Use of “Proxy”: The inclusion of the term “proxy” was cited as evidence supporting this interpretation, as Board members are not permitted to vote by proxy, whereas Association members are.

• Delineation of Powers: Petitioner noted that Article VII, which outlines the “Powers and Duties of the Board of Directors,” does not grant the Board the authority to amend the Bylaws.

• Intent of the Drafter: The argument was made that the Bylaws’ drafters intentionally used the words “directors” and “members” distinctly throughout the document, indicating that the use of “members” in the amendment clause was a deliberate choice to refer to the homeowners.

• Statutory Violation: The Petitioner argued the Board’s action violated Arizona’s Open Meeting Law (ARIZ. REV. STAT. § 33-1804), which requires specific notice to members between 10 and 50 days in advance of any meeting where a Bylaw amendment is proposed.

• Legal Precedent: The Petitioner cited Powell v. Washburn, which holds that restrictive covenants should be interpreted to give effect to the intention of the parties as determined from the language of the entire document.

4.2. Respondent’s Position (Sycamore Vista No. 8 HOA)

The Association argued that the Board of Directors possessed the authority to amend the Bylaws during a properly convened Board meeting.

• Board Authority: Respondent cited Article IV of the Bylaws, which states that the “affairs of this Association shall be managed by a Board.”

• Meeting Protocol: The action took place at a regular monthly Board meeting, as permitted by Article VI. The meeting on November 20, 2017, had three Board members present, constituting a quorum as required by the Bylaws.

• Interpretation of “Members”: The Respondent’s central argument was that the phrase “a quorum of members” in Article XIII referred to the members of the Board of Directors, thereby empowering them to pass the amendment.

• Compliance with Open Meeting Law: The Association argued its conduct was not a violation of the law because a necessary quorum of directors was present for the vote.

5. Administrative Law Judge’s Findings and Conclusions

The ALJ found the Petitioner’s arguments convincing and concluded that he had sustained his burden of proof by a preponderance of the evidence. The Respondent’s closing arguments were described as not persuasive.

• Violation of Statute: The Judge determined that the Board’s action violated ARIZ. REV. STAT. § 33-1804(B) because “there was no notice of the proposed amendment” provided to the Association members. The conduct was described as going “against the spirit of the legislative intent” of the statute due to a lack of transparency.

• Interpretation of Governing Documents: The decision firmly established the correct interpretation of the Bylaws.

◦ The terms “members” and “directors” are clearly and intentionally differentiated throughout the document. “Members” refers to the body of homeowners, while “directors” refers to the elected Board.

◦ The conclusion states: “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”

◦ It was concluded that the Board “does not have power to act where authority is expressly delegated to the membership of the Association.”

• Invalidation of Board Action: The ALJ concluded that the Board’s action on November 20, 2017, was invalid because it was taken “in the absence of a quorum of Association members whereby a majority of said members voted in favor of the proposed third amendment.”

6. Final Order and Penalties

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following orders:

1. Petition Granted: The Petitioner’s petition was granted.

2. Amendment Invalidated: The “third amendment to the Association Bylaws, as taken on November 20, 2017, is invalidated.”

3. Fees and Penalties: The Respondent (HOA) was ordered to:

◦ Pay the Petitioner the filing fee.

◦ Pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.

The decision, having been issued as a result of a rehearing, is binding on the parties.

Linda Curtin vs. The Ridge at Diamante del Lago Homeowners

Posted on March 5, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918034-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-03-05
Administrative Law Judge	Diane Mihalsky
Outcome	full
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Linda Curtin	Counsel	—
Respondent	The Ridge at Diamante del Lago Homeowners Association, Inc.	Counsel	—

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

Petitioner established that Respondent violated A.R.S. § 33-1805(A) by failing to provide access to requested association records within the statutory ten-day period. The petition was granted and Respondent was ordered to reimburse the $500.00 filing fee.

Key Issues & Findings

Failure to provide timely access to association financial records

Petitioner filed a single-issue petition alleging Respondent violated CC&Rs § 4.8 and A.R.S. § 33-1805 by refusing to make available association records or to produce a receipt identifying a contractor and the amount paid for a cinderblock wall built by the community’s clubhouse.

Orders: The petition was granted because Respondent violated A.R.S. § 33-1805(A) by failing to provide access to records within ten days of Petitioner’s September 12, 2018 request. Respondent was ordered to reimburse the $500.00 filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

• A.R.S. § 33-1805(A)
• CC&R § 4.8

Analytics Highlights

Topics: HOA Records, Record Inspection, Timely Disclosure, Statutory Violation, Filing Fee Reimbursement

Additional Citations:

• A.R.S. § 33-1805(A)
• CC&R § 4.8
• A.R.S. § 32-2199(B)
• A.R.S. § 33-1803
• A.R.S. § 41-1092.07(G)(2)
• A.A.C. R2-19-119(A)
• A.A.C. R2-19-119(B)(1)

Audio Overview

Decision Documents

19F-H1918034-REL Decision – 692859.pdf

Uploaded 2025-10-08T07:08:23 (151.9 KB)

Briefing Document: Curtin v. The Ridge at Diamante del Lago HOA

Executive Summary

This briefing document analyzes the Administrative Law Judge (ALJ) Decision in case number 19F-H1918034-REL, a dispute between homeowner Linda Curtin and The Ridge at Diamante del Lago Homeowners Association, Inc. (HOA). The central conflict arose from the HOA’s failure to provide financial records related to a small construction project within the timeframe mandated by Arizona law.

The petitioner, Ms. Curtin, alleged that the HOA violated its own Covenants, Conditions, and Restrictions (CC&Rs) and Arizona Revised Statutes (A.R.S.) § 33-1805 by not producing an invoice for a $1,000 cinderblock wall project at the community clubhouse. While the HOA did eventually provide the requested records, the ALJ found that it failed to do so within the legally required ten-day period following Ms. Curtin’s formal written request on September 12, 2018.

Consequently, the ALJ granted the petition in favor of Ms. Curtin, ruling that the HOA was in violation of A.R.S. § 33-1805(A). The HOA was ordered to reimburse Ms. Curtin for her $500 petition filing fee. However, the ALJ dismissed all of the petitioner’s ancillary complaints, including suspicions of forgery, concerns about the contractor’s licensing status, and other issues of HOA governance, deeming them either unsubstantiated or outside the narrow scope of the single-issue petition. The ruling underscores the strict procedural compliance required of HOAs regarding member record requests while limiting the scope of such legal challenges to the specific violations alleged.

——————————————————————————–

I. Case Overview

• Case Number: 19F-H1918034-REL

• Forum: Arizona Office of Administrative Hearings

• Petitioner: Linda Curtin (“Complainant”), a homeowner and HOA member.

• Respondent: The Ridge at Diamante del Lago Homeowners Association, Inc. (“HOA”), represented by Community Manager Tracy Schofield.

• Administrative Law Judge: Diane Mihalsky

• Core Allegation: The HOA violated its governing documents and state law by failing to make association records available to a member upon request. Specifically, the petitioner sought a receipt and contractor details for a cinderblock wall built at the community clubhouse.

II. Governing Rules and Statutes

The case centered on the interpretation and enforcement of the HOA’s internal rules and a specific Arizona statute governing planned communities.

Rule/Statute

Key Provision

CC&R § 4.8

Requires the HOA Board to keep “true and correct records of account in accordance with generally accepted accounting principles” and to make such books and records available for inspection by all owners upon request during normal business hours.

A.R.S. § 33-1805(A)

Mandates that all financial and other association records be made “reasonably available for examination” by any member. The statute explicitly requires the association to fulfill a request for examination within ten business days. A similar ten-day deadline applies for providing copies of records.

The respondent did not claim any legal privilege under A.R.S. § 33-1805(B) that would permit it to withhold the requested documents.

III. Chronology of the Dispute

The conflict unfolded over several months, beginning with an informal inquiry and escalating to a formal legal petition.

• August 1, 2018: Petitioner Linda Curtin first emails Community Manager Tracy Schofield for a contractor recommendation.

• August 2 – September 11, 2018: In a subsequent email exchange, Ms. Curtin asks who built the garbage can walls at the clubhouse. Ms. Schofield provides the name “Roberto” but is unable to provide a contact number, stating that the Board’s Treasurer, Jim Mackiewicz, had arranged the work. The petitioner later characterized this exchange as “evasive.”

• September 12, 2018: Ms. Curtin sends a formal written letter requesting “a copy of the invoice submitted to The Ridge HOA” for the wall construction. This action officially started the ten-day clock under A.R.S. § 33-1805(A).

• September 24, 2018: Ms. Schofield responds, stating that she does not have the invoices at her office as records are retained “in the community.” She provides a printout of payments made to contractor Gualberto Castro, which includes a $1,000 check dated November 1, 2017, for “Block work – clubhouse.”

• November 5, 2018: Ms. Curtin requests that the invoice be brought to that day’s HOA board meeting. The document is not provided.

• November 28, 2018: After making an additional 15 phone calls regarding related meeting minutes without a satisfactory response, Ms. Curtin files a single-issue petition with the Arizona Department of Real Estate.

• December 10, 2018: The HOA files its answer, claiming the issue has been resolved. On the same day, Ms. Schofield emails the contractor’s invoice to Ms. Curtin. The invoice, from ValleyWide Custom Painting Inc. and dated November 2, 2017, details the $1,000 job.

• December 11, 2018: Ms. Curtin requests additional documents, including a copy of the cashed check and the Architectural Control Committee (ACC) application for the project. Ms. Schofield is reported to have stated that ACC approval was not applicable to work on common areas.

• Post-December 11, 2018: Ms. Schofield eventually provides a copy of the cancelled check for $1,000 made payable to Mr. Castro.

• February 20, 2019: An evidentiary hearing is held before the ALJ.

IV. Analysis of Evidence and Arguments

A. Petitioner’s Position

Ms. Curtin’s case was built on the initial failure to produce records and expanded to include broader suspicions about the HOA’s conduct.

• Primary Claim: The HOA violated state law by failing to fulfill her September 12, 2018 request for records within the ten-day statutory period.

• Suspicions about Documentation: The petitioner expressed dissatisfaction with the documents eventually provided. She opined that the November 2, 2017 receipt “appeared to have two different kinds of handwriting and might be a forgery.” She also pointed to the fact that the check for payment was dated one day before the invoice date.

• Ancillary Governance Concerns: Ms. Curtin raised several issues beyond the scope of her petition, including:

◦ The contractor, Mr. Castro, was not licensed as required by the Registrar of Contractors.

◦ The Board meeting minutes did not show authorization for the $1,000 expenditure.

◦ The HOA’s ACC approval process was not followed for the wall.

◦ A separate, unrelated $125,000 pool remodel project was approved improperly (this was refuted by Ms. Schofield’s testimony that it required a membership vote).

B. Respondent’s Position

The HOA, through Ms. Schofield, acknowledged the delay but argued it had ultimately complied and faced logistical constraints.

• Eventual Compliance: The HOA’s primary defense was that it eventually provided all the documents in its possession related to the expenditure, thereby resolving the complaint.

• Logistical Challenges: Ms. Schofield testified that she is an off-site community manager for numerous associations and does not keep records in her office. She stated that the HOA’s records are stored “in the community” at a separate depository.

• Commitment to Future Compliance: Ms. Schofield testified that for any future requests, she would schedule a time for the petitioner to review records at the depository within the ten-day window.

• Communication: Ms. Schofield maintained that she “communicated with Petitioner on every issue” and provided what information she had available.

V. Administrative Law Judge’s Decision and Rationale

The ALJ’s decision was narrowly focused on the statutory violation, setting aside the petitioner’s other grievances.

A. Conclusions of Law

1. Violation Confirmed: The judge concluded that the petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). The HOA “acknowledged that it did not provide the documents or provide access to Petitioner to view the documents within ten days of Petitioner’s September 12, 2018 request.”

2. Scope of Relief Limited: The ALJ determined that the statute only requires that records be kept and made available in a timely manner. The law “has not authorized the Department… that HOAs produce records that satisfy all of a members’ stated concerns.”

3. Ancillary Claims Dismissed: The judge explicitly rejected the petitioner’s broader concerns, stating: “Petitioner’s concern with ‘transparency’ and dissatisfaction and suspicions about the records that were eventually provided do not entitle her to any additional relief in this forum.” The forgery claim was dismissed for lack of evidence, as Ms. Curtin did not present the opinion of a handwriting expert. The issues related to contractor licensing and internal HOA procedures were deemed outside the jurisdiction of the hearing for an HOA petition.

B. Recommended Order

Based on the findings, the ALJ issued a two-part order:

1. Petition Granted: The petition was granted on the grounds that Ms. Curtin had proven the HOA violated A.R.S. § 33-1805(A).

2. Reimbursement of Filing Fee: The HOA was ordered to reimburse the petitioner the $500.00 she paid to file the single-issue petition.

The order, issued on March 5, 2019, was declared binding on both parties unless a request for rehearing was filed within 30 days.

Linda Curtin vs. The Ridge at Diamante del Lago Homeowners

Posted on March 5, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918034-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-03-05
Administrative Law Judge	Diane Mihalsky
Outcome	full
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Linda Curtin	Counsel	—
Respondent	The Ridge at Diamante del Lago Homeowners Association, Inc.	Counsel	—

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

Petitioner established that Respondent violated A.R.S. § 33-1805(A) by failing to provide access to requested association records within the statutory ten-day period. The petition was granted and Respondent was ordered to reimburse the $500.00 filing fee.

Key Issues & Findings

Failure to provide timely access to association financial records

Petitioner filed a single-issue petition alleging Respondent violated CC&Rs § 4.8 and A.R.S. § 33-1805 by refusing to make available association records or to produce a receipt identifying a contractor and the amount paid for a cinderblock wall built by the community’s clubhouse.

Orders: The petition was granted because Respondent violated A.R.S. § 33-1805(A) by failing to provide access to records within ten days of Petitioner’s September 12, 2018 request. Respondent was ordered to reimburse the $500.00 filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

• A.R.S. § 33-1805(A)
• CC&R § 4.8

Analytics Highlights

Topics: HOA Records, Record Inspection, Timely Disclosure, Statutory Violation, Filing Fee Reimbursement

Additional Citations:

• A.R.S. § 33-1805(A)
• CC&R § 4.8
• A.R.S. § 32-2199(B)
• A.R.S. § 33-1803
• A.R.S. § 41-1092.07(G)(2)
• A.A.C. R2-19-119(A)
• A.A.C. R2-19-119(B)(1)

Audio Overview

Decision Documents

19F-H1918034-REL Decision – 692859.pdf

Uploaded 2025-10-09T03:33:53 (151.9 KB)

Briefing Document: Curtin v. The Ridge at Diamante del Lago HOA

Executive Summary

This briefing document analyzes the Administrative Law Judge (ALJ) Decision in case number 19F-H1918034-REL, a dispute between homeowner Linda Curtin and The Ridge at Diamante del Lago Homeowners Association, Inc. (HOA). The central conflict arose from the HOA’s failure to provide financial records related to a small construction project within the timeframe mandated by Arizona law.

The petitioner, Ms. Curtin, alleged that the HOA violated its own Covenants, Conditions, and Restrictions (CC&Rs) and Arizona Revised Statutes (A.R.S.) § 33-1805 by not producing an invoice for a $1,000 cinderblock wall project at the community clubhouse. While the HOA did eventually provide the requested records, the ALJ found that it failed to do so within the legally required ten-day period following Ms. Curtin’s formal written request on September 12, 2018.

Consequently, the ALJ granted the petition in favor of Ms. Curtin, ruling that the HOA was in violation of A.R.S. § 33-1805(A). The HOA was ordered to reimburse Ms. Curtin for her $500 petition filing fee. However, the ALJ dismissed all of the petitioner’s ancillary complaints, including suspicions of forgery, concerns about the contractor’s licensing status, and other issues of HOA governance, deeming them either unsubstantiated or outside the narrow scope of the single-issue petition. The ruling underscores the strict procedural compliance required of HOAs regarding member record requests while limiting the scope of such legal challenges to the specific violations alleged.

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I. Case Overview

• Case Number: 19F-H1918034-REL

• Forum: Arizona Office of Administrative Hearings

• Petitioner: Linda Curtin (“Complainant”), a homeowner and HOA member.

• Respondent: The Ridge at Diamante del Lago Homeowners Association, Inc. (“HOA”), represented by Community Manager Tracy Schofield.

• Administrative Law Judge: Diane Mihalsky

• Core Allegation: The HOA violated its governing documents and state law by failing to make association records available to a member upon request. Specifically, the petitioner sought a receipt and contractor details for a cinderblock wall built at the community clubhouse.

II. Governing Rules and Statutes

The case centered on the interpretation and enforcement of the HOA’s internal rules and a specific Arizona statute governing planned communities.

Rule/Statute

Key Provision

CC&R § 4.8

Requires the HOA Board to keep “true and correct records of account in accordance with generally accepted accounting principles” and to make such books and records available for inspection by all owners upon request during normal business hours.

A.R.S. § 33-1805(A)

Mandates that all financial and other association records be made “reasonably available for examination” by any member. The statute explicitly requires the association to fulfill a request for examination within ten business days. A similar ten-day deadline applies for providing copies of records.

The respondent did not claim any legal privilege under A.R.S. § 33-1805(B) that would permit it to withhold the requested documents.

III. Chronology of the Dispute

The conflict unfolded over several months, beginning with an informal inquiry and escalating to a formal legal petition.

• August 1, 2018: Petitioner Linda Curtin first emails Community Manager Tracy Schofield for a contractor recommendation.

• August 2 – September 11, 2018: In a subsequent email exchange, Ms. Curtin asks who built the garbage can walls at the clubhouse. Ms. Schofield provides the name “Roberto” but is unable to provide a contact number, stating that the Board’s Treasurer, Jim Mackiewicz, had arranged the work. The petitioner later characterized this exchange as “evasive.”

• September 12, 2018: Ms. Curtin sends a formal written letter requesting “a copy of the invoice submitted to The Ridge HOA” for the wall construction. This action officially started the ten-day clock under A.R.S. § 33-1805(A).

• September 24, 2018: Ms. Schofield responds, stating that she does not have the invoices at her office as records are retained “in the community.” She provides a printout of payments made to contractor Gualberto Castro, which includes a $1,000 check dated November 1, 2017, for “Block work – clubhouse.”

• November 5, 2018: Ms. Curtin requests that the invoice be brought to that day’s HOA board meeting. The document is not provided.

• November 28, 2018: After making an additional 15 phone calls regarding related meeting minutes without a satisfactory response, Ms. Curtin files a single-issue petition with the Arizona Department of Real Estate.

• December 10, 2018: The HOA files its answer, claiming the issue has been resolved. On the same day, Ms. Schofield emails the contractor’s invoice to Ms. Curtin. The invoice, from ValleyWide Custom Painting Inc. and dated November 2, 2017, details the $1,000 job.

• December 11, 2018: Ms. Curtin requests additional documents, including a copy of the cashed check and the Architectural Control Committee (ACC) application for the project. Ms. Schofield is reported to have stated that ACC approval was not applicable to work on common areas.

• Post-December 11, 2018: Ms. Schofield eventually provides a copy of the cancelled check for $1,000 made payable to Mr. Castro.

• February 20, 2019: An evidentiary hearing is held before the ALJ.

IV. Analysis of Evidence and Arguments

A. Petitioner’s Position

Ms. Curtin’s case was built on the initial failure to produce records and expanded to include broader suspicions about the HOA’s conduct.

• Primary Claim: The HOA violated state law by failing to fulfill her September 12, 2018 request for records within the ten-day statutory period.

• Suspicions about Documentation: The petitioner expressed dissatisfaction with the documents eventually provided. She opined that the November 2, 2017 receipt “appeared to have two different kinds of handwriting and might be a forgery.” She also pointed to the fact that the check for payment was dated one day before the invoice date.

• Ancillary Governance Concerns: Ms. Curtin raised several issues beyond the scope of her petition, including:

◦ The contractor, Mr. Castro, was not licensed as required by the Registrar of Contractors.

◦ The Board meeting minutes did not show authorization for the $1,000 expenditure.

◦ The HOA’s ACC approval process was not followed for the wall.

◦ A separate, unrelated $125,000 pool remodel project was approved improperly (this was refuted by Ms. Schofield’s testimony that it required a membership vote).

B. Respondent’s Position

The HOA, through Ms. Schofield, acknowledged the delay but argued it had ultimately complied and faced logistical constraints.

• Eventual Compliance: The HOA’s primary defense was that it eventually provided all the documents in its possession related to the expenditure, thereby resolving the complaint.

• Logistical Challenges: Ms. Schofield testified that she is an off-site community manager for numerous associations and does not keep records in her office. She stated that the HOA’s records are stored “in the community” at a separate depository.

• Commitment to Future Compliance: Ms. Schofield testified that for any future requests, she would schedule a time for the petitioner to review records at the depository within the ten-day window.

• Communication: Ms. Schofield maintained that she “communicated with Petitioner on every issue” and provided what information she had available.

V. Administrative Law Judge’s Decision and Rationale

The ALJ’s decision was narrowly focused on the statutory violation, setting aside the petitioner’s other grievances.

A. Conclusions of Law

1. Violation Confirmed: The judge concluded that the petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). The HOA “acknowledged that it did not provide the documents or provide access to Petitioner to view the documents within ten days of Petitioner’s September 12, 2018 request.”

2. Scope of Relief Limited: The ALJ determined that the statute only requires that records be kept and made available in a timely manner. The law “has not authorized the Department… that HOAs produce records that satisfy all of a members’ stated concerns.”

3. Ancillary Claims Dismissed: The judge explicitly rejected the petitioner’s broader concerns, stating: “Petitioner’s concern with ‘transparency’ and dissatisfaction and suspicions about the records that were eventually provided do not entitle her to any additional relief in this forum.” The forgery claim was dismissed for lack of evidence, as Ms. Curtin did not present the opinion of a handwriting expert. The issues related to contractor licensing and internal HOA procedures were deemed outside the jurisdiction of the hearing for an HOA petition.

B. Recommended Order

Based on the findings, the ALJ issued a two-part order:

1. Petition Granted: The petition was granted on the grounds that Ms. Curtin had proven the HOA violated A.R.S. § 33-1805(A).

2. Reimbursement of Filing Fee: The HOA was ordered to reimburse the petitioner the $500.00 she paid to file the single-issue petition.

The order, issued on March 5, 2019, was declared binding on both parties unless a request for rehearing was filed within 30 days.