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Joan A. Tober, vs. Civano 1 Neighborhood 1 Homeowners Association

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Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 19F-H1918042-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-01-15
Administrative Law Judge Kay A. Abramsohn
Outcome The Administrative Law Judge concluded, both in the original decision and the rehearing, that the HOA was the prevailing party. The final decision affirmed that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B), specifically ruling that privileged documents are exempt from disclosure timelines and that the Petitioner's request for 'all background information' was unreasonably broad and unclarified.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joan A. Tober Counsel —
Respondent Civano 1 Neighborhood 1 Homeowners Association Counsel Diana J. Elston

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge concluded, both in the original decision and the rehearing, that the HOA was the prevailing party. The final decision affirmed that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B), specifically ruling that privileged documents are exempt from disclosure timelines and that the Petitioner's request for 'all background information' was unreasonably broad and unclarified.

Why this result: Petitioner lost because she failed to meet the burden of proof that the HOA violated A.R.S. § 33-1805(A). The primary record sought was protected by attorney-client privilege, and her vague request for 'any and all documentation' made it impossible for the HOA to reasonably comply within the 10-day period.

Key Issues & Findings

HOA violation of requirement to provide association records within ten business days.

Petitioner alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide access to requested documents, including a privileged attorney letter and 'all background information', within the required 10-business day period. The rehearing focused specifically on the timeliness aspect.

Orders: The HOA was deemed the prevailing party in the rehearing, and Petitioner’s appeal was dismissed. The ALJ concluded the HOA acted in compliance with A.R.S. § 33-1805(A) and (B).

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)
  • A.R.S. § 32-2102
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.05
  • A.R.S. § 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: Records Request, Attorney-Client Privilege, A.R.S. 33-1805, Planned Community, Rehearing, Unreasonably Broad Request, Timeliness of Disclosure
Additional Citations:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)
  • A.R.S. § 32-2102
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.05
  • A.R.S. § 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Video Overview

Audio Overview

Decision Documents

19F-H1918042-REL-RHG Decision – 764197.pdf

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19F-H1918042-REL-RHG Decision – ../19F-H1918042-REL/714863.pdf

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19F-H1918042-REL-RHG Decision – ../19F-H1918042-REL/725808.pdf

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Briefing Document: Tober v. Civano 1 Homeowners Association

Executive Summary

This document synthesizes the legal proceedings and outcomes of the case Joan A. Tober v. Civano 1 Neighborhood 1 Homeowners Association (No. 19F-H1918042-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was Petitioner Joan A. Tober’s demand for records from her Homeowners Association (HOA), specifically a legal opinion letter concerning the “North Ridge wall.”

The Petitioner argued that the HOA violated Arizona statute A.R.S. § 33-1805 by failing to provide this letter and other “background information.” She contended the HOA waived attorney-client privilege by discussing the letter in an open board meeting and, in a subsequent rehearing, failed to provide records within the statutorily required 10-day timeframe.

The HOA maintained that the letter was a privileged communication with its attorney and therefore exempt from disclosure under A.R.S. § 33-1805(B). The HOA also argued that the Petitioner’s broader request for “any and all documentation” was overly vague and that she failed to clarify the request when asked.

Administrative Law Judge Kay Abramsohn ultimately ruled in favor of the HOA in both the initial hearing and a subsequent rehearing. The final decision affirmed that the legal letter was privileged and could be withheld. Crucially, the judge concluded the HOA did not violate the 10-day provision because the Petitioner’s request was “unreasonably broad” and she failed to respond to the HOA’s request for clarification, thereby preventing the HOA from being able to “reasonably make records available.” The HOA was declared the prevailing party in both instances.

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Case Overview

This matter involves a formal dispute between a homeowner and her homeowners’ association, brought before the Arizona Department of Real Estate and heard by the Office of Administrative Hearings (OAH).

Case Name

Joan A. Tober, Petitioner, vs. Civano 1 Neighborhood 1 Homeowners Association, Respondent.

Case Number

19F-H1918042-REL

Adjudicating Body

Office of Administrative Hearings (OAH)

Administrative Law Judge

Kay A. Abramsohn

Core Issue

Alleged violation of A.R.S. § 33-1805, which governs member access to association records.

Initial Hearing Date

June 5, 2019

Initial Decision Date

July 29, 2019

Rehearing Date

December 11, 2019

Final Decision Date

January 15, 2020

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Key Parties and Individuals

• Petitioner: Joan A. Tober

◦ A homeowner in the Civano 1 Neighborhood since 2001.

◦ Previously worked for the company that developed the land/homes in the association area.

◦ Has served as a past Board member for the HOA.

◦ Served as an alternate member on the Finance Committee in 2018.

◦ Exhibits a high level of engagement with HOA affairs, having taped and often transcribed every meeting since 2008.

• Respondent: Civano 1 Neighborhood 1 Homeowners Association (HOA)

◦ The governing body for the planned community.

◦ Represented by Diana J. Elston, Esq., of Jones, Skelton & Hochuli, P.L.C.

• Adjudicator: Kay Abramsohn

◦ The Administrative Law Judge for the Office of Administrative Hearings who presided over both the initial hearing and the rehearing.

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Chronology of the Dispute

Nov 20, 2018

At an HOA Board meeting, the Board President mentions receiving a letter (“the Letter”) from its attorney regarding the North Ridge wall, states it concerns the HOA’s legal responsibility, and suggests it can be sent out to residents.

Nov 26, 2018

Petitioner sends her first email request for a copy of the Letter.

Nov 27, 2018

Petitioner sends a second request. The HOA replies that it is waiting for clarification from its attorney.

Nov 29, 2018

At 4:58 a.m., Petitioner sends a third, formal request citing A.R.S. § 33-1805, demanding “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”

Nov 29, 2018

At 9:44 a.m., the HOA responds, stating the President misspoke and the Letter is a privileged legal opinion. The HOA asks if Petitioner needs a copy of “the original engineer report.” The judge later finds no evidence that Petitioner responded to this clarification query.

Dec 13, 2018

Petitioner writes to the Board, stating she will use “all means… to obtain the requested materials, to include a formal complaint.”

Dec 26, 2018

Petitioner files her single-issue petition with the Arizona Department of Real Estate.

Jan 15-16, 2019

The HOA forwards to Petitioner the “Civano historical erosion reports” (2013 and 2014) and an invoice related to the 2014 study.

June 5, 2019

The initial administrative hearing is held.

July 29, 2019

Initial Decision Issued: The Administrative Law Judge (ALJ) finds the Letter is privileged and the HOA is the prevailing party.

Aug 5, 2019

Petitioner files a request for rehearing, arguing the initial decision “did not address the timeliness aspect of the law.”

Aug 23, 2019

The Commissioner of the Arizona Department of Real Estate grants the rehearing request.

Dec 11, 2019

The rehearing is conducted.

Jan 15, 2020

Final Decision Issued: The ALJ again finds for the HOA, concluding it did not violate the statute because Petitioner’s request was overly broad and she failed to clarify it. The appeal is dismissed.

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Core Dispute and Arguments

Petitioner’s Position (Joan A. Tober)

1. Waiver of Privilege: The Petitioner’s central argument was that the HOA intentionally waived attorney-client privilege regarding the Letter when the Board President mentioned it in an open meeting and offered to distribute it, with the other Board members not objecting, thereby showing “unanimous consent to waive confidentiality.”

2. Right to “Background Information”: Petitioner argued that because the North Ridge wall issue had been ongoing since 2013, her request for “any and all documents” and “background information” was justified, and that more than just two prior engineering reports must exist.

3. Untimely Response (Rehearing Argument): In her request for rehearing, Petitioner’s primary argument shifted to timeliness, asserting that even if the HOA “eventually” provided some records, it failed to do so within the 10-business-day period mandated by A.R.S. § 33-1805(A).

Respondent’s Position (Civano 1 HOA)

1. Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which may be withheld from members under A.R.S. § 33-1805(B).

2. No Waiver: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of the attorney-client privilege.

3. Vague and Overly Broad Request: The HOA argued that the Petitioner’s request for “any and all” documents was too broad to know what she wanted.

4. Prior Possession of Documents: The HOA indicated that it could be determined from the Petitioner’s own exhibits that she had already received or possessed copies of key requested documents, such as the 2013 and 2014 erosion reports.

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Key Findings of Fact and Evidence

The Administrative Law Judge made several critical findings of fact based on the evidence presented across both hearings.

• The Nature of the “Letter”: The document at the center of the dispute was confirmed to be a legal opinion from the HOA’s attorney. It had been discussed by the Board in an executive session prior to the November 20, 2018 meeting. The letter advised that the HOA was responsible for the land below the wall and recommended hiring a “licensed bonded engineer.”

• Petitioner’s Pre-existing Knowledge: The Petitioner was well-informed on the North Ridge wall issue. She acknowledged at the rehearing that at the time of her November 29, 2018 request, she already possessed copies of the 2013 and 2014 engineering reports, which she had obtained from the city in 2014.

• Petitioner’s Request and Failure to Clarify:

◦ The Petitioner’s initial requests on November 26 and 27 were solely for the attorney’s Letter.

◦ Her formal request on November 29 expanded to “any and all documentation… and all background information.”

◦ On the same day, the HOA asked for clarification, specifically inquiring if she “still need[ed] a copy of the original engineer report.”

◦ The ALJ found “no document supporting” the Petitioner’s claim that she responded to this email. During the rehearing, the Petitioner was unable to produce such a response. This failure to clarify was a key factor in the final ruling.

• Lack of Other Documents: The hearing record contained no evidence of any other erosion reports besides the 2013 and 2014 reports. The HOA President, Mr. Mastrosimone, testified that “there were no documents other than the Letter that would have been responsive” to the request.

——————————————————————————–

Legal Rulings and Conclusions of Law

Initial Decision (July 29, 2019)

• Jurisdiction: The OAH confirmed its authority to hear the dispute under Arizona statutes.

• Privilege: The ALJ concluded that under A.R.S. § 33-1805(B), “privileged communication between an attorney for the association and the association” may be withheld. Therefore, the HOA was “not statutorily required to provide access or a copy of the Letter to Petitioner.”

• Outcome: The ALJ concluded that the HOA provided records in compliance with the statute and was deemed the prevailing party.

Final Decision on Rehearing (January 15, 2020)

• Issue for Rehearing: The sole issue on rehearing was whether the HOA violated A.R.S. § 33-1805 by failing to provide access to records within 10 business days.

• Privileged Communication: The ALJ reaffirmed that the Letter was privileged communication and the HOA was not required to provide it “within any time period.”

• Unreasonably Broad Request: The ALJ concluded that the Petitioner’s formal request was “unreasonably broad and remained unclarified.”

• Failure to Clarify: The ruling explicitly states: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available. An association is not required to guess what records are being requested.”

• No Violation of Timeliness: Because the request was unclarified, the ALJ found the HOA did not violate the 10-day rule in A.R.S. § 33-1805(A). The decision notes that the initial ruling “inartfully stated” that the HOA had provided records in compliance, and that it “should have simply stated that the HOA acted in compliance with A.R.S. § 33-1805.”

• Final Outcome: The ALJ concluded that the HOA acted in compliance with both subsections (A) and (B) of the statute. The HOA was again declared the prevailing party, and the Petitioner’s appeal was dismissed. The decision was declared binding on the parties, subject to judicial review in superior court.

Study Guide: Tober v. Civano 1 Neighborhood 1 Homeowners Association

This study guide provides a comprehensive review of the administrative case No. 19F-H1918042-REL, involving Petitioner Joan A. Tober and Respondent Civano 1 Neighborhood 1 Homeowners Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.

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Short Answer Quiz

Instructions: Answer the following questions in 2-3 sentences, using only information provided in the source documents.

1. What specific event prompted Joan Tober to first request documents from the HOA in November 2018?

2. What was the HOA’s primary legal justification for refusing to provide a copy of “the Letter” to the Petitioner?

3. According to Arizona statute A.R.S. § 33-1805(A), what is the required timeframe for an HOA to make records available to a member after a written request?

4. What was the Petitioner’s core argument for why the HOA had forfeited its right to keep “the Letter” confidential?

5. On what grounds did the Petitioner file her request for a rehearing after the initial decision on July 29, 2019?

6. How did the Petitioner’s document request evolve between her first communication on November 26, 2018, and her third request on November 29, 2018?

7. What crucial step did the Administrative Law Judge conclude the Petitioner failed to take after the HOA’s email on November 29, 2018?

8. Besides “the Letter,” what other key documents related to the North Ridge wall did the Petitioner already possess when she filed her formal request?

9. Describe the Petitioner’s long-standing involvement and activities within the Civano 1 HOA community.

10. What was the final ruling in the Administrative Law Judge Decision on Rehearing, issued January 15, 2020?

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Answer Key

1. The request was prompted by the HOA Board meeting on November 20, 2018. At this meeting, the Board President mentioned receiving a letter from the HOA’s attorney regarding the North Ridge wall, stated its legal conclusion, and indicated, “I believe we can … send it out … so people can have it.”

2. The HOA’s primary justification was that the document was a privileged attorney-client communication. The HOA argued that the letter contained legal analysis and advice to the Board and was therefore exempt from disclosure under Arizona statute A.R.S. § 33-1805(B).

3. A.R.S. § 33-1805(A) states that a homeowners association has “ten business days” to fulfill a written request for examination of its financial and other records.

4. The Petitioner argued that the HOA had intentionally waived confidentiality. She contended that because the Board President mentioned the letter in an open meeting and the other Board members did not object, they showed unanimous consent to waive the attorney-client privilege.

5. The Petitioner requested a rehearing on the grounds that the initial Administrative Law Judge ruling “did not address the timeliness aspect of the law.” She argued that while the HOA eventually provided access to some records, it had not done so within the required 10-business day period.

6. The Petitioner’s request evolved from a specific ask for a copy of “the Letter” on November 26 and 27 to a much broader request on November 29. Her third request asked for “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”

7. The Judge concluded that the Petitioner failed to respond to the HOA’s request for clarification in its November 29 email. The HOA had asked if she needed a copy of the “original engineer report,” and the Judge found no evidence in the hearing records that the Petitioner ever answered this question, thus preventing the HOA from being able to reasonably make records available.

8. The Petitioner already possessed the 2013 Engineering report and the 2014 report concerning erosion issues with the North Ridge wall. She acknowledged at the rehearing that she had obtained these from the city in 2014.

9. The Petitioner worked for the company that developed the land, purchased her home in 2001, and has been a past Board member. At the time of the dispute, she was an alternate member of the Finance Committee and had been taping and often transcribing every HOA meeting since 2008.

10. The final ruling was that the HOA was the prevailing party and had not violated A.R.S. § 33-1805. The Judge concluded the HOA was not required to provide the privileged letter and that its failure to provide other documents within 10 days was excused because the Petitioner’s request was “unreasonably broad” and she failed to clarify it. The Petitioner’s appeal was dismissed.

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Essay Questions

Instructions: The following questions are designed for a longer, essay-format response. No answers are provided.

1. Analyze the concept of “waiver” of attorney-client privilege as it was argued in this case. Discuss the Petitioner’s claim that the President’s public comments constituted a waiver and contrast this with the Administrative Law Judge’s implicit and explicit findings on the matter.

2. Trace the procedural history of this case, beginning with the initial petition filing on December 26, 2018, and concluding with the final notice of appeal rights in the January 15, 2020 order. Identify the key legal proceedings, decisions, and dates that marked the progression of the dispute.

3. Discuss the legal standard of “preponderance of the evidence” as defined in the court documents. Explain how the Administrative Law Judge applied this standard to the evidence presented by the Petitioner and why the Petitioner ultimately failed to meet her burden of proof in both the initial hearing and the rehearing.

4. Examine the role and interpretation of Arizona statute A.R.S. § 33-1805 in this dispute. How did the two key subsections, (A) and (B), create the central legal conflict between the Petitioner’s right to access records and the HOA’s right to withhold privileged information?

5. Evaluate the Administrative Law Judge’s reasoning that the Petitioner’s November 29, 2018 request was “unreasonably broad.” How did this determination, combined with the Petitioner’s alleged failure to clarify her request, become the deciding factor in the rehearing?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings and issues legal decisions and orders.

Arizona Department of Real Estate (“the Department”)

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona.

A.R.S. § 33-1805

The Arizona Revised Statute governing access to homeowners’ association records. Subsection (A) requires records be made “reasonably available” within ten business days, while subsection (B) allows for withholding of privileged attorney-client communications.

Attorney-Client Privilege

A legal concept that allows for certain communications between an attorney and their client (in this case, the HOA) to be kept confidential. The HOA cited this privilege as the reason for withholding “the Letter.”

Burden of Proof

The obligation of a party in a legal proceeding to prove their allegations. In this case, the Petitioner bore the burden of proving by a preponderance of the evidence that the HOA violated statutes or community documents.

Executive Session

A private meeting of a board of directors. “The Letter” had been discussed by the HOA Board in an executive session prior to the public meeting where it was mentioned.

An acronym for Homeowners Association. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.

Office of Administrative Hearings (OAH)

The office with the legal authority to hear and decide contested cases involving disputes between homeowners and planned community associations in Arizona.

Petition

The formal, single-issue complaint filed by the Petitioner with the Department of Real Estate on December 26, 2018, which initiated the legal proceedings.

Petitioner

The party who files a petition initiating a legal action. In this case, the Petitioner is Joan A. Tober.

Preponderance of the Evidence

The standard of proof required in this proceeding. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” and “the greater weight of the evidence.”

Rehearing

A second hearing granted to re-examine a legal case after an initial decision has been made. A rehearing was granted in this case to address the Petitioner’s claim that the initial ruling did not consider the “timeliness aspect of the law.”

Respondent

The party against whom a petition is filed. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.

The Letter

The specific document at the heart of the dispute: a privileged legal opinion letter from the HOA’s attorneys to the Board regarding the North Ridge wall, which was “disclosed and discussed” at the November 20, 2018, Board meeting.

She Recorded Every HOA Meeting for a Decade and Still Lost. Here’s What Every Homeowner Can Learn.

Introduction: The Fight for Information

Many homeowners have felt the frustration of seeking information from their Homeowners Association (HOA), only to feel that the board is being less than transparent. It’s a common story that often ends in resignation. But for one Arizona homeowner, it ended in a formal administrative hearing.

This is the story of Joan A. Tober, a remarkably dedicated resident who filed a petition against her HOA with the Arizona Department of Real Estate over access to documents related to a retaining wall. She was a former board member, sat on the finance committee, and, most astoundingly, had personally recorded and often transcribed every single HOA meeting for over a decade. Yet, despite her exhaustive personal record-keeping, her petition was denied. The surprising and counter-intuitive lessons from her story offer a masterclass for any homeowner navigating a dispute with their association.

1. Takeaway #1: The “Attorney-Client Privilege” Shield is Stronger Than You Think.

The central conflict revolved around a single document: a letter from the HOA’s attorney. During an open board meeting, the Board President mentioned the letter, which concerned the association’s responsibility for a retaining wall, and created an expectation of transparency, stating: “I believe we can … send it out … so people can have it.”

Ms. Tober argued that by openly discussing the letter and offering to distribute it, the board had waived its confidentiality, and she was therefore entitled to a copy. It seems like a logical assumption. However, the Administrative Law Judge (ALJ) disagreed, pointing directly to the law. Under Arizona law (A.R.S. § 33-1805(B)), “privileged communication between an attorney for the association and the association” can be legally withheld from members.

The tribunal found that the mere mention of the letter in a public meeting—even with the president’s comment—did not break that legal privilege. This is a critical point for homeowners to understand. The law protects the board’s ability to seek and receive candid legal advice to govern the association effectively. While it may feel like a lack of transparency, this shield is a fundamental and legally protected aspect of HOA operations.

2. Takeaway #2: Asking for “Everything” Can Get You Nothing.

Beyond the privileged letter, the evolution and wording of Ms. Tober’s request became a major factor in the denial of her petition. The timeline shows how a homeowner’s frustration can lead to a fatal strategic error. On November 26 and 27, 2018, she made two specific requests for the attorney’s letter. The HOA responded that it was seeking clarification from its attorney.

After this delay, Ms. Tober’s third request, dated November 29, escalated significantly. She now asked for: “any and all documentation to include the letter that was disclosed and discussed… and all background information.”

In response, the HOA asked for clarification, but according to the hearing record, Ms. Tober could not provide evidence that she ever replied to narrow her request. This failure proved fatal. The Administrative Law Judge found the request to be “unreasonably broad.” The judge’s decision on the matter was blunt and serves as a powerful warning:

An association is not required to guess what records are being requested.

The ultimate reason for the denial synthesized both issues: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available.” This demonstrates that the legal burden falls squarely on the homeowner to articulate a request the association can reasonably fulfill. As the ALJ noted, an association is not required to be a mind reader.

3. Takeaway #3: Diligence Alone Doesn’t Guarantee a Win.

What makes this story so compelling is the extraordinary diligence of the petitioner. Joan Tober was not a casual observer. The hearing records establish her deep involvement in the community: she was a former Board member, a member of the Finance Committee, and had even worked for the company that originally developed the community.

But one fact, noted in the ALJ’s decision, highlights her stunning level of dedication:

Since 2008, Petitioner has taped every meeting and she often creates a transcript of the meetings.

Despite this decade of meticulous personal record-keeping and her clear passion for the issue, her petition was denied—not just once, but twice, on the initial hearing and again on the rehearing. This presents a sobering reality for all homeowners. While passion, engagement, and even a mountain of personal documentation are valuable, they cannot overcome fundamental legal principles. The outcome of a formal hearing is determined by the strength of the legal argument, not the volume of personal effort expended.

Conclusion: Strategy Over Sheer Effort

The petition of Joan A. Tober is a powerful reminder that when dealing with an HOA, effectiveness is not always measured by effort. Her story provides three critical takeaways for every homeowner: attorney-client privilege provides HOAs with a strong legal shield, record requests must be specific and targeted to be enforceable, and meticulous personal diligence must be paired with a sound legal strategy to succeed in a formal dispute.

This case leaves every homeowner with a critical question: when you have a dispute, are you channeling your energy into the most effective strategy, or simply into the most effort?

Case Participants

Petitioner Side

  • Joan A. Tober (petitioner)
    Former Board member; current Finance Committee member

Respondent Side

  • Diana J. Elston (HOA attorney)
    Jones, Skelton & Hochuli, P.L.C.
  • Mr. Mastrosimone (Board President)
    Civano 1 Neighborhood 1 Homeowners Association
    Testified at rehearing

Neutral Parties

  • Kay A. Abramsohn (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • c. serrano (Clerk)
  • Felicia Del Sol (Clerk)
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal

Olga Carnahan v. White Mountain Lake Vistas

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Case Summary

Case ID 20F-H2019021-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-01-13
Administrative Law Judge Antara Nath Rivera
Outcome The Administrative Law Judge dismissed the petition, finding that the Respondent did not violate the CC&Rs. The specific article cited by the Petitioner (Article 12.3) governed amendments to the Declaration and Plat, not the purchase of real property, and therefore did not require a membership vote.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Olga Carnahan Counsel —
Respondent White Mountain Lake Vistas Counsel Edward O’Brien

Alleged Violations

Article 12.3

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Respondent did not violate the CC&Rs. The specific article cited by the Petitioner (Article 12.3) governed amendments to the Declaration and Plat, not the purchase of real property, and therefore did not require a membership vote.

Why this result: Petitioner failed to establish by a preponderance of the evidence that the CC&Rs required a membership vote for the Board to purchase lots.

Key Issues & Findings

Purchase of lots without membership vote

Petitioner alleged the HOA Board violated CC&Rs by purchasing two lots without a membership vote. The Board argued Article 12.3 applies to amendments, not property purchases, and no vote was required.

Orders: The Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • Article 12.3

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Video Overview

Audio Overview

Decision Documents

20F-H2019021-REL Decision – 763430.pdf

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Briefing: Carnahan vs. White Mountain Lake Vistas Administrative Decision

Executive Summary

On January 13, 2020, Administrative Law Judge Antara Nath Rivera issued a decision in the matter of Olga Carnahan vs. White Mountain Lake Vistas (No. 20F-H2019021-REL). The case centered on a dispute regarding the authority of a Homeowners Association (HOA) Board of Directors to purchase real property without a membership vote.

The Petitioner, Olga Carnahan, alleged that the Respondent, White Mountain Lake Vistas, violated Article 12.3 of the community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) by purchasing two lots (#54 and #65) without obtaining a two-thirds majority approval from the membership. The Respondent argued that the cited article applied specifically to amendments of the CC&Rs and Plats, not to the acquisition of property.

Following a hearing held on December 26, 2019, the Administrative Law Judge (ALJ) determined that the Petitioner failed to meet the burden of proof. The ALJ ruled that the CC&Rs did not require a membership vote for the purchase of the lots and that the Petitioner’s secondary concerns regarding financial impact were not ripe for adjudication. Consequently, the Petition was dismissed.

Case Overview

Key Information Details
Case Name Olga Carnahan vs. White Mountain Lake Vistas
Case Number 20F-H2019021-REL
Hearing Date December 26, 2019
Decision Date January 13, 2020
Presiding Judge Antara Nath Rivera
Primary Issue Alleged violation of CC&Rs Article 12.3 regarding property acquisition without a vote.
Verdict Petition Dismissed

Detailed Analysis of Key Themes

1. Interpretation of CC&Rs vs. Board Authority

The central conflict of the case was the interpretation of Article 12.3 of the CC&Rs. The Petitioner interpreted the requirement for a two-thirds membership vote for "Amendments" as a requirement for any major board action, including the purchase of lots. However, the Respondent testified—and the ALJ confirmed—that Article 12.3 specifically governs the process for amending the Declaration or the Plat. The Board maintained that their authority to purchase property to address drainage issues did not trigger the amendment requirements of Article 12.3.

2. Burden of Proof and Evidentiary Standards

In administrative hearings under A.R.S. § 32-2199, the Petitioner carries the burden of proof by a "preponderance of the evidence." This means the Petitioner must prove that their contention is "more probably true than not." The ALJ found that the Petitioner failed to provide evidence that any provision in the CC&Rs specifically authorized or required a membership vote for the purchase of property. Without a specific provision linking property acquisition to a membership vote, the Petitioner could not sustain her burden.

3. Procedural Ripeness and Financial Speculation

During the hearing, the Petitioner introduced a second argument: that the purchase of the lots would cause a future financial loss to the Association due to the loss of HOA fees from those lots. The ALJ designated this issue as "not ripe." Because the Respondent had not yet made definitive plans for the lots (such as merging them or making Plat changes) and the financial impact was speculative, it did not constitute an immediate violation of the community documents.

4. Board Transparency and Member Consent

The evidence showed that while the Board was not legally required to hold a vote, they did discuss the purchase at a September 20, 2019, meeting. The Board testified that members present agreed with the idea of purchasing the lots to address drainage issues. The dispute arose because the Petitioner requested a formal vote, which the Board denied based on their interpretation of the CC&Rs. This highlights the distinction between a Board seeking member opinion and a Board being legally bound by a membership vote.

Important Quotes and Context

On Article 12.3 (Amendments)

"This Declaration may be amended by the written approval or affirmative vote, or any combination thereof, of two-thirds (2/3) of the Membership." — CC&Rs Article 12.3.1

Context: This is the specific clause the Petitioner relied upon to argue that a vote was necessary for the lot purchase. The ALJ ultimately ruled that this clause applies only to formal amendments of the Declaration text.

On Administrative Authority to Amend

"The Board may amend this Declaration or the Plat, without obtaining the approval or consent of any Owner… in order to conform this Declaration or the Plat to the requirements or guidelines of [federal, state, or local agencies]." — CC&Rs Article 12.3.2

Context: This section outlines specific instances where the Board can act even without the two-thirds vote mentioned in 12.3.1, demonstrating that the Board has broad powers regarding the Plat under certain conditions.

On the Burden of Proof

"A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." — Findings of Fact, quoting Morris K. Udall, Arizona Law of Evidence

Context: This legal standard was used to evaluate whether Olga Carnahan had provided enough evidence to show the HOA violated its rules. The ALJ concluded she had not.

On the Final Ruling

"Petitioner failed to establish by a preponderance of the evidence that Respondent lacked the authority to purchase the lots without a vote. Thus, Petitioner failed to sustain her burden to establish that Respondent violated Article 12.3 of the CC&Rs." — Conclusion of Law #8

Context: This is the ALJ's final determination, leading directly to the dismissal of the petition.

Actionable Insights

For Homeowners Association Boards
  • Clarify Governing Document Scope: Ensure that the distinction between "Board Actions" (e.g., purchasing property for maintenance/drainage) and "Amendments to Declarations" is clearly communicated to members to prevent litigation.
  • Documentation of Intent: The Respondent’s ability to point to specific reasons for the purchase (drainage issues) and the lack of any formal Plat changes helped demonstrate that they were not circumventing Article 12.3.
  • Meeting Minutes as Evidence: The Respondent successfully used meeting minutes (Exhibits #6 and #7) to show that they had consulted with members, even if a formal vote was not legally required.
For Members/Petitioners
  • Verify Specificity of Allegations: Before filing a petition under A.R.S. § 32-2199, a member should ensure the specific Article cited actually governs the action in question. In this case, citing an "Amendment" clause for a "Purchase" action led to dismissal.
  • Understand Ripeness: Legal challenges must be based on current violations rather than fears of future financial loss. Arguments regarding "future" adverse effects on finances are likely to be dismissed as not ripe.
  • Evidentiary Requirements: Petitioners must provide more than testimony; they must provide community documents that explicitly mandate the procedure they claim was bypassed.

Case Study Guide: Olga Carnahan vs. White Mountain Lake Vistas

This study guide provides a comprehensive overview of the administrative hearing between Olga Carnahan and the White Mountain Lake Vistas Homeowners Association. It explores the legal interpretations of community documents, the evidentiary standards in administrative hearings, and the specific application of Arizona Revised Statutes regarding planned community disputes.

1. Case Overview and Core Themes

The central conflict in this case involves a homeowner (Petitioner) alleging that the Board of Directors of White Mountain Lake Vistas (Respondent) violated the community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) by purchasing real property without a membership vote.

Key Themes:
  • Board Authority vs. Membership Approval: The distinction between actions requiring a supermajority vote and those within the Board's discretionary power.
  • Interpretation of CC&Rs: The legal necessity of applying specific articles to relevant actions (e.g., distinguishing between "amending a declaration" and "purchasing property").
  • Evidentiary Burdens: The requirement for a Petitioner to prove a violation by a preponderance of the evidence in an administrative setting.
  • Ripeness of Claims: Determining whether a violation has actually occurred or if the claim is based on future, speculative harm.

2. Fact Summary and Timeline

Date Event
June 30, 2017 Petitioner purchases lot #43 within the community.
July 2, 2019 CC&Rs are amended by a 2/3 membership vote per Article 12.3.
Sept 20, 2019 Board meeting held; drainage issues regarding lots #54 and #65 are discussed. Board indicates intent to purchase the lots.
Oct 11, 2019 Petitioner learns of the sale of lots #54 and #65 to the Respondent.
Oct 14, 2019 Petitioner files a Dispute Process Petition with the Arizona Department of Real Estate.
Nov 20, 2019 Department of Real Estate issues a Notice of Hearing.
Dec 26, 2019 Administrative hearing held before Judge Antara Nath Rivera.
Jan 13, 2020 Administrative Law Judge issues the decision to dismiss the Petition.

3. Analysis of Article 12.3 (Amendments)

The Petitioner’s case relied primarily on Article 12.3 of the CC&Rs. The following table breaks down the relevant subsections and their legal applications as determined during the hearing:

Subsection Provision Details Application in Case
12.3.1 The Declaration may be amended by written approval or affirmative vote of 2/3 of the Membership. The Judge ruled this applies only to amendments to the CC&Rs, not the purchase of property.
12.3.2 The Board may amend the Declaration or the Plat without Owner consent to conform to federal/state/local guidelines (FHA, VA, etc.). This grants the Board unilateral power to amend Plats in specific regulatory contexts.
12.3.3 Approved amendments must be signed by the President/VP and recorded with the County Recorder. Procedural requirement for valid amendments; did not apply as no amendment occurred.

4. Short-Answer Practice Questions

Q1: What was the primary legal issue raised by the Petitioner?

  • Answer: The Petitioner alleged that the Respondent violated Article 12.3 of the CC&Rs by purchasing two lots (#54 and #65) without obtaining a 2/3 majority vote from the membership.

Q2: How did the Respondent justify the purchase of lots #54 and #65?

  • Answer: The Board testified that the lots were purchased to address drainage issues affecting the community. They further argued that the CC&Rs contained no provision requiring a membership vote for the purchase of property.

Q3: What standard of proof was required for the Petitioner to win the case?

  • Answer: The Petitioner was required to establish the violation by a "preponderance of the evidence," meaning she had to prove the contention was more probably true than not.

Q4: Why did the Administrative Law Judge deem the Petitioner's secondary argument regarding financial loss as "not ripe"?

  • Answer: The Petitioner argued the purchase would cause future financial loss due to missing HOA fees. The Judge found this did not establish an immediate violation and therefore was not yet a justiciable issue for the hearing.

Q5: Who bears the burden of proof regarding affirmative defenses in this administrative hearing?

  • Answer: The Respondent bears the burden to establish affirmative defenses by a preponderance of the evidence.

5. Essay Prompts for Deeper Exploration

  1. The Limits of Homeowner Oversight: Analyze the tension between homeowner expectations and the Board's operational authority. In the context of Carnahan vs. White Mountain Lake Vistas, discuss why the Petitioner's expectation of a vote was legally unsupported despite her presence at the meeting where the idea was discussed.
  2. Statutory Interpretation of CC&Rs: Critique the Petitioner’s application of Article 12.3. Explain the legal distinction between "amending a community document" and "executing a real estate transaction," and discuss how specific language in CC&Rs limits or expands Board power.
  3. Administrative Law and the Preponderance of Evidence: Evaluate the role of the Office of Administrative Hearings in HOA disputes. How does the standard of "preponderance of the evidence" differ from "beyond a reasonable doubt," and why is this lower threshold appropriate for civil disputes involving planned communities?

6. Glossary of Important Terms

  • A.R.S. § 32-2199 et seq: The Arizona Revised Statutes that permit an owner or planned community organization to file a petition for a hearing concerning violations of community documents.
  • Affirmative Defense: A fact or set of facts other than those alleged by the petitioner which, if proven by the respondent, defeats or mitigates the legal consequences of the respondent's otherwise unlawful conduct.
  • CC&Rs (Covenants, Conditions, and Restrictions): The declaration that sets forth the rules, regulations, and requirements for a planned community.
  • Department (Arizona Department of Real Estate): The state agency responsible for overseeing HOA dispute petitions before they are sent to the Office of Administrative Hearings.
  • Plat: A map or plan of a piece of land showing how it has been subdivided into lots.
  • Preponderance of the Evidence: Evidence that has the most convincing force; proof that a contention is more probably true than not.
  • Ripeness: A legal doctrine used to determine if a case is ready for adjudication. A claim is not "ripe" if it is based on speculative future events rather than an actual, immediate violation.
  • Special Warranty Deed: A deed in which the seller warrants only against defects in the title that occurred during their period of ownership.

HOA Authority vs. Homeowner Rights: Lessons from the White Mountain Lake Vistas Dispute

1. Introduction: The Power Struggle in Planned Communities

In the realm of common-interest developments, a perpetual tension exists between the authority of the Board of Directors and the expectations of the membership. This friction often intensifies when a Board exercises its power to manage community assets or expend association funds. Homeowners frequently view significant acquisitions through the lens of a democratic vote, while Boards often operate under the mandate of their corporate powers.

The case of Olga Carnahan vs. White Mountain Lake Vistas (No. 20F-H2019021-REL) serves as a quintessential study in this jurisdictional tug-of-war. The dispute centers on a fundamental question of HOA governance: Does a Board of Directors possess the unilateral authority to purchase real property, or does such an acquisition constitute an amendment to the community’s governing documents requiring a membership vote?

2. The Dispute: The Purchase of Lots #54 and #65

The conflict arose when Olga Carnahan, an owner of lot #43 who was not a member of the Board during her tenure in the community, challenged the Association’s purchase of two vacant lots, specifically lots #54 and #65. In October 2019, Carnahan filed a petition with the Arizona Department of Real Estate, alleging that the Board had bypassed the procedural requirements set forth in Article 12.3 of the Declaration of Covenants, Conditions, and Restrictions (CC&Rs).

Carnahan’s petition was built on two primary grievances:

  • Lack of Membership Consent: She asserted that the Board was legally obligated to obtain a majority or two-thirds vote from the homeowners before acquiring new land, arguing that such a significant action should be a community-wide decision.
  • Financial Erosion: Beyond the procedural challenge, the Petitioner raised concerns regarding the fiscal impact on the Association. She argued that the purchase resulted in an immediate loss of revenue, as the HOA would no longer collect assessments from these previously privately owned, fee-paying lots.
3. The Defense: Solving Drainage Issues

The Respondent Board, represented by Secretary/Treasurer Rose Thomas and President Joyce Dick, justified the purchase as an exercise of their duty to maintain the community's infrastructure. The acquisition was not intended as a speculative real estate venture but as a strategic solution to chronic drainage issues affecting those specific lots and the surrounding area.

The Board testified that the matter was discussed transparently during a meeting on September 20, 2019. While Petitioner Carnahan was present at this meeting and expressed support for the drainage solution, she insisted on a formal membership vote. The Board, however, maintained that the CC&Rs granted them the authority to act independently. After gauging the general support of the members in attendance, the Board voted unanimously to proceed with the purchase. Notably, while the Petitioner alleged that a vote was supposed to occur at a subsequent meeting on October 11, 2019, the evidence showed she was not present at that meeting, leaving her testimony regarding those specific proceedings without firsthand weight.

4. Legal Deep Dive: Decoding CC&Rs Article 12.3

The resolution of this dispute required a precise interpretation of Article 12.3. As a legal analyst, it is vital to distinguish between a Board's Business Power (the authority to manage assets) and the Contractual Framework (the CC&Rs and Plats that define the community).

Provision Scope of Authority
Subsection 12.3.1 The Declaration may be amended only with the written approval or affirmative vote of two-thirds (2/3) of the Membership.
Subsection 12.3.2 The Board may amend the Declaration or the Plat without owner or First Mortgagee consent to conform to requirements of federal agencies (FNMA, FHLMC, FHA, VA) or any federal, state, or local government agencies.

Analysis of Authority Administrative Law Judge (ALJ) Antara Nath Rivera’s decision hinged on the fact that Article 12.3 governs "Amendments"—changes to the written text of the Declaration or the physical descriptions in the Plat. The act of purchasing property is a corporate transaction, not a textual amendment to the community's servitudes. Because the lots remained vacant and no changes had been recorded to the Plat, the 2/3 vote requirement for amendments was never triggered. In the world of community associations, Boards generally have the power to manage corporate assets without seeking "shareholder" approval for every transaction unless the governing documents explicitly state otherwise.

5. The Verdict: Why the Petition Failed

The ALJ dismissed the petition, citing several critical legal and procedural deficiencies:

  • Preponderance of the Evidence: The burden of proof lay with the Petitioner to show that a violation occurred. Carnahan failed to identify any provision in the CC&Rs that specifically required a membership vote for property acquisition. Furthermore, her absence from the October 11 meeting weakened her evidentiary standing regarding alleged Board commitments.
  • Ripeness and Injury: The judge found the petition was "not ripe." Because the Board had not yet filed a Plat change or amended the Declaration, there was no "action" to adjudicate. The lots remained vacant, and the Board was still merely researching options for conversion or merging.
  • Procedural Scope: During the hearing, the Petitioner attempted to introduce a second issue regarding future financial impacts. The ALJ noted that this was a "single issue petition" and that the financial argument did not establish an immediate violation of the governing documents.

The final order was definitive: "IT IS ORDERED that the Petition be dismissed."

6. Compelling Takeaways for Homeowners and Boards

The White Mountain Lake Vistas case offers three critical lessons for the governance of planned communities:

  1. Know Your Definitions (Business Power vs. Contractual Framework): A property purchase is typically an exercise of Board Business Power—the authority to manage the association’s assets and common areas. An amendment, conversely, is a change to the community’s Contractual Framework. Unless the CC&Rs specifically restrict the Board’s power to acquire land, the amendment procedures do not apply to simple real estate transactions.
  2. The Burden of Proof: In administrative disputes, the homeowner bears the responsibility to prove a violation by a preponderance of the evidence. Subjective feelings of unfairness or the belief that a vote "should" happen are insufficient to overcome the legal authority granted to the Board by the governing documents.
  3. Read the Meeting Minutes and Attend: Documentation is the bedrock of HOA law. The September 20 meeting minutes proved that the Board had communicated its intent and gathered feedback. Owners who fail to attend meetings or review minutes may find themselves filing "premature" legal challenges based on a misunderstanding of Board actions and authority.
7. Conclusion: The Importance of Governing Documents

The Carnahan case reaffirms that the CC&Rs and Plats are the "constitution" of the HOA. They serve as the final authority in any dispute, defining the boundaries of Board power and owner rights. While homeowners may have valid concerns about community finances or transparency, those concerns must be anchored in the specific language of the Declaration to have legal standing. Clear, proactive communication between Boards and owners—particularly regarding complex issues like drainage and land acquisition—remains the best defense against costly and ultimately unsuccessful litigation.

Case Participants

Petitioner Side

  • Olga Carnahan (Petitioner)
    Appeared on her own behalf

Respondent Side

  • Edward O’Brien (Respondent Attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Appeared on behalf of White Mountain Lake Vistas
  • Rose Thomas (Board Secretary/Treasurer)
    White Mountain Lake Vistas Board
    Witness
  • Joyce Dick (Board President)
    White Mountain Lake Vistas Board
    Witness

Neutral Parties

  • Antara Nath Rivera (Administrative Law Judge)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of transmitted order

Myron H Colvin v. Tierra Del Sol RV Resort Association

Posted on by
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 19F-H1919064-REL
Agency —
Tribunal —
Decision Date 2020-01-09
Administrative Law Judge —
Outcome Petition dismissed
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Myron H. Colvin Counsel Pro se
Respondent Tierra Del Sol RV Resort Association Counsel Nicholas Nogami, Esq. and Lydia A. Peirce Linsmeier

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

19F-H1919064-REL-RHG Decision – 763086.pdf

Uploaded 2026-04-24T11:20:53 (86.2 KB)

Administrative Decision Briefing: Colvin v. Tierra Del Sol RV Resort Association

Executive Summary

This briefing document analyzes the administrative law decision in the matter of Myron H. Colvin v. Tierra Del Sol RV Resort Association (Case No. 19F-H19190064-REL-RHG). The case centered on a dispute regarding the installation of concrete pavers within a lot setback area and the interpretation of the association's Covenants, Conditions, and Restrictions (CC&Rs).

The Petitioner, Myron H. Colvin, alleged that the Tierra Del Sol RV Resort Association violated its own CC&Rs by issuing him a notice of violation. Following a rehearing on December 20, 2019, Administrative Law Judge Velva Moses-Thompson determined that the Petitioner failed to meet the burden of proof required to establish a violation by the Association. Furthermore, the judge ruled that the Office of Administrative Hearings (OAH) lacked the jurisdiction to issue a declaratory judgment regarding the Petitioner’s alleged violation. The petition was dismissed in its entirety.

Procedural History and Case Context

The dispute progressed through several administrative stages before reaching a final decision:

  • Initial Petition: On September 12, 2018, Mr. Colvin filed a petition with the Arizona Department of Real Estate alleging a violation of Section 4.3 of the CC&Rs.
  • Request for Hearing: On May 16, 2019, Mr. Colvin requested a hearing before the full Board of Directors concerning his alleged violation.
  • Original Hearing: The first hearing was conducted on August 7, 2019. Following the decision, Mr. Colvin requested a rehearing.
  • Rehearing: The Department of Real Estate set the matter for rehearing on December 20, 2019, at the OAH in Phoenix, Arizona.

Key Themes and Analysis

Interpretation of CC&R Section 4.3 (Lot Setbacks)

The core of the dispute involved the physical requirements for improvements within lot setbacks. Section 4.3 of the CC&Rs establishes specific setback areas:

  • Front: 5 feet
  • Sides: 3 feet
  • Rear: 3 feet

The provision prohibits permanent or temporary structures and improvements in these areas, with the exception of landscaping. However, landscaping is only permitted if it consists of "features which can be moved by one person unassisted by mechanical devices."

The Association issued a violation notice because Mr. Colvin’s installed pavers were not small enough to be removed by a single person without mechanical assistance. The Association suggested a remedy of cutting the concrete into small 100-pound sections.

Burden of Proof and Legal Standards

The decision highlights the evidentiary requirements in administrative hearings:

  • Preponderance of the Evidence: The Petitioner carries the burden of proving that the Respondent violated the CC&Rs by a "preponderance of the evidence." This is defined as evidence that is "more probably true than not" or possesses the "most convincing force."
  • Petitioner's Failure to Allegue: The judge noted a fundamental flaw in the Petitioner's argument: Mr. Colvin did not allege that the Association had placed a structure or improvement in the setback. Rather, he used the petition to argue that his own actions did not constitute a violation.
Jurisdictional Boundaries

A critical theme in the decision is the limitation of the OAH’s authority. The judge clarified that the tribunal’s role is to hear petitions concerning violations of planned community documents under A.R.S. § 32-2199(B). The tribunal does not have the jurisdiction to issue a "declaratory judgment"—a legal determination of a party's rights or status—regarding whether a homeowner's specific actions violated the CC&Rs.

Important Quotes and Context

Quote Context
"Each Lot shall be subject to a setback area… in no event shall any… Improvement, other than landscaping features which can be moved by one person unassisted by mechanical devices, encroach on or overhang any area designated in this Declaration as a lot setback." Source: CC&R Section 4.3. This quote defines the specific physical constraints that led to the violation notice against the Petitioner.
"Mr. Colvin did not even allege that Tierra Del Sol placed a structure, vehicle, or landscaping in the setback of a Lot. Mr. Colvin asserted that he did not violate Section 4.3 of the CC&Rs." Source: Conclusions of Law ¶ 4. This highlights the disconnect between the Petitioner's claim and the legal requirements for a successful petition against an association.
"To the extent that Mr. Colvin is requesting a declaratory judgment regarding his alleged violation, this tribunal does not have jurisdiction to make such a determination." Source: Conclusions of Law ¶ 5. This confirms the procedural limitation that the OAH cannot rule on a petitioner's "innocence" regarding a violation notice.
"A preponderance of the evidence is… evidence that has the most convincing force; superior evidentiary weight that… is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other." Source: Conclusions of Law ¶ 3. This provides the legal standard used to evaluate the evidence presented during the hearing.

Actionable Insights

For Property Owners
  • Understand Petition Requirements: When filing a petition against a Homeowners Association (HOA), the owner must provide evidence that the Association violated a specific provision of the community documents.
  • Clarify "Moveable" Standards: Before installing landscaping in setback areas, owners should verify that the materials meet the "one person, unassisted" rule to avoid mechanical device requirements and subsequent violations.
  • Jurisdictional Awareness: Owners should be aware that the OAH is a venue for addressing association violations, not necessarily a venue for obtaining a declaration that they are in compliance with rules after receiving a violation notice.
For Community Associations
  • Consistent Enforcement: The Association’s enforcement of Section 4.3 was based on a specific, measurable standard (size/weight of pavers and the need for mechanical assistance). Maintaining such clear standards aids in defending enforcement actions.
  • Remediation Options: Providing specific methods for compliance (e.g., "cutting the concrete… into small 100 pound sections") can be a useful component of a violation notice.
  • Jurisdictional Defense: In administrative hearings, associations can successfully argue for dismissal if the petitioner seeks a remedy (like a declaratory judgment) that the tribunal is not authorized to provide.

Case Analysis: Colvin v. Tierra Del Sol RV Resort Association (No. 19F-H19190064-REL-RHG)

This study guide provides a comprehensive overview of the administrative law proceedings regarding a dispute between a property owner and a homeowners association. It focuses on the interpretation of Covenants, Conditions, and Restrictions (CC&Rs), the burden of proof in administrative hearings, and the jurisdictional limits of the Office of Administrative Hearings (OAH).

Key Concepts and Case Summary

Case Background

The case involves a dispute between Myron H. Colvin (Petitioner) and Tierra Del Sol RV Resort Association (Respondent). Mr. Colvin, a property owner within the resort, filed a petition alleging that the Association violated Section 4.3 of its own CC&Rs.

The conflict originated from Mr. Colvin’s installation of concrete pavers in the setback area of his lot. While the Association initially approved the request, it later issued a Notice of Violation on May 8, 2019. The Association contended that the installed pavers were too large to be moved by one person without mechanical assistance, thus violating the specific mobility requirements for improvements in setback areas.

Legal Provisions: CC&R Section 4.3 (Lot Setbacks)

Section 4.3 of the Tierra Del Sol CC&Rs defines the physical boundaries and restrictions for lot setbacks:

Setback Location Required Distance
Front Five (5) feet
Sides Three (3) feet
Rear Three (3) feet

Core Restrictions within Setbacks:

  • Prohibited Items: No permanent or temporary structures, improvements (except landscaping), vehicles (except golf carts and car dollies), or Park Models/RVs may be located in these areas.
  • The "One-Person" Rule: Any improvement or landscaping feature in the setback must be capable of being moved by one person unassisted by mechanical devices.
  • Encroachment: No structure, slide-out, or improvement may encroach on or overhang the designated setback area unless it meets the mobility criteria.
The Burden of Proof and Legal Standards

Under Arizona law, specific standards of evidence apply to administrative hearings:

  • Petitioner's Burden: The Petitioner (Colvin) bears the burden of proof to establish that the Respondent (Association) violated the CC&Rs.
  • Respondent's Burden: The Respondent bears the burden of establishing any affirmative defenses.
  • Standard of Evidence: Both parties must prove their claims by a preponderance of the evidence.

Defining "Preponderance of the Evidence": As cited in the decision via Black’s Law Dictionary and Udall on Evidence, this standard means:

  1. The contention is "more probably true than not."
  2. Evidence that possesses the "most convincing force" and "superior evidentiary weight."
  3. It does not require the total absence of reasonable doubt, but rather enough evidence to incline an impartial mind toward one side of the issue.
Jurisdictional and Interpretive Rulings

The Administrative Law Judge (ALJ) reached two primary legal conclusions:

  1. Restrictive Covenant Interpretation: In Arizona, unambiguous covenants are enforced to give effect to the intent of the parties and must be construed as a whole.
  2. Lack of Jurisdiction for Declaratory Judgments: The OAH has the authority to hear petitions regarding violations of community documents under A.R.S. § 32-2199(B). However, the tribunal determined it does not have the jurisdiction to issue a declaratory judgment regarding whether a specific owner's actions constitute a violation; its focus is on whether the Association violated the documents.

Short-Answer Practice Questions

1. What was the primary allegation made by Myron H. Colvin in his petition? Answer: Colvin alleged that the Tierra Del Sol RV Resort Association violated Section 4.3 of its CC&Rs.

2. According to CC&R Section 4.3, what is the weight/size limit for landscaping features in a setback? Answer: There is no specific weight listed in the CC&R text, but the feature must be able to be moved by one person unassisted by mechanical devices. (Note: The Association suggested cutting concrete into 100-pound sections to meet this intent).

3. What are the specific dimensions of the setbacks for the front, sides, and rear of a lot? Answer: Front: 5 feet; Sides: 3 feet; Rear: 3 feet.

4. Why did the Administrative Law Judge dismiss Mr. Colvin’s petition? Answer: The Petitioner failed to establish that the Association violated Section 4.3. Furthermore, the tribunal ruled it lacked jurisdiction to provide a declaratory judgment on whether Colvin himself was in violation.

5. Which Arizona Revised Statute permits an owner to file a petition regarding violations of planned community documents? Answer: A.R.S. § 32-2199(B).

Essay Prompts for Deeper Exploration

  1. The Nature of Association Violations: The Association argued that Section 4.3 can only be violated if an entity places an unapproved object in a setback. Analyze the distinction between an Association failing to enforce a rule and an Association "violating" a rule. Based on the Source Context, why was Colvin’s argument fundamentally misaligned with the tribunal's jurisdictional scope?
  1. Interpreting "Unambiguous" Covenants: The decision notes that restrictive covenants must be construed as a whole to give effect to the intent of the parties. Discuss the potential challenges in interpreting the phrase "moved by one person unassisted by mechanical devices." How does such a subjective standard complicate enforcement for both homeowners and Boards of Directors?
  1. The Standard of Evidence in Administrative Law: Compare and contrast "preponderance of the evidence" with other legal standards (such as "beyond a reasonable doubt"). Using the definitions provided in the text, explain why the ALJ found that Colvin failed to meet this standard in his claim against the Association.

Glossary of Important Terms

  • Administrative Law Judge (ALJ): A judge who moves to resolve disputes between government agencies and people or between private parties under the authority of statutory law.
  • A.R.S. § 32-2199(B): The Arizona Revised Statute that grants the Department of Real Estate the authority to hear disputes regarding planned community violations.
  • CC&Rs (Covenants, Conditions, and Restrictions): The legal documents that lay out the rules for a planned community or homeowners association.
  • Declaratory Judgment: A binding adjudication that establishes the rights or legal status of the parties without necessarily awarding damages or ordering specific action.
  • Mechanical Device: In the context of CC&R 4.3, any tool or machine (such as a forklift or hoist) used to assist in moving objects that a person cannot move alone.
  • OAH (Office of Administrative Hearings): The agency responsible for conducting independent administrative hearings for the state.
  • Petitioner: The party who presents a petition to a court or tribunal (in this case, Myron H. Colvin).
  • Preponderance of the Evidence: The evidentiary standard where the proof shows that a fact is more likely to be true than not.
  • Respondent: The party against whom a petition is filed (in this case, Tierra Del Sol RV Resort Association).
  • Setback: The minimum distance which a building or other structure must be set back from a street, road, or lot boundary.

When Landscaping Leads to Legal Limbo: Lessons from the Tierra Del Sol RV Resort Dispute

1. Introduction: The High Cost of a Three-Foot Setback

What begins as a minor aesthetic modification can swiftly evolve into a protracted legal battle within the Office of Administrative Hearings (OAH). For Myron H. Colvin, a homeowner at the Tierra Del Sol RV Resort, the installation of concrete pavers triggered a dispute that spanned nearly a year and a half, beginning with a petition filing on September 12, 2018, and concluding only after a formal rehearing in early 2020.

The conflict centered on an alleged violation of Section 4.3 of the community’s Covenants, Conditions, and Restrictions (CC&Rs). This case highlights the precarious nature of property setbacks—specifically, how a three-foot strip of land can dictate the technical specifications of landscaping materials and the procedural hurdles a homeowner must clear when challenging an Association’s enforcement actions.

2. The Rule: Understanding CC&R Section 4.3

The governing documents of Tierra Del Sol RV Resort Association establish rigid "setback areas" intended to maintain safety and utility access between lots. Section 4.3 governs the placement of all structures, vehicles, and improvements within these zones.

CC&R § 4.3 Lot Setbacks: Restrictions "Each Lot shall be subject to a setback area across the front five (5) feet, on both sides three (3) feet, and the rear three (3) feet of each Lot. No permanent or temporary structures, improvements (other than landscaping), vehicles (other than golf carts and car dollies), Park Models or Recreational Vehicles shall be located within such setback area. A Recreational Vehicle, Park Model, Arizona Room, awning, shed, or any other permitted structure must be located on a Lot in compliance with setback requirements and rules of the Board, and in no event shall any Recreational Vehicle, its slide-out, or any Improvement, other than landscaping features which can be moved by one person unassisted by mechanical devices, encroach on or overhang any area designated in this Declaration as a lot setback."

Under this provision, the Association enforces three distinct setback requirements:

  • Front: 5 feet
  • Sides: 3 feet
  • Rear: 3 feet

As a specialist, it is vital to note that Section 4.3 applies the same "manual movability" standard to pavers as it does to "Arizona Rooms" and "Recreational Vehicle slide-outs." The core requirement is the "one-person" rule: any improvement in these areas must be capable of being moved by a single individual without mechanical assistance. This ensures that the Association or utility providers can clear the setback area quickly if emergency access to underground lines or property boundaries is required.

3. The Conflict: Pavers, Permits, and "Mechanical Devices"

While the Association initially granted approval for Mr. Colvin to install concrete pavers, the Association initiated formal enforcement proceedings following the actual installation. On May 8, 2019, the Association issued a Notice of Violation, asserting that the installed pavers were too large and heavy to comply with the "unassisted" movement requirement of CC&R § 4.3.

To resolve the non-compliance, the Board offered a compromise designed to bring the improvement within the "one-person" rule:

  • Complete removal of the concrete pavers from the setback areas; or
  • Sectioning the material: Cutting the concrete within the three-foot setback into small, 100-pound sections that a single person could theoretically move.

Mr. Colvin contested the violation, mounting a defense based on a prior alleged approval. He contended that the Association had previously sanctioned his plan to place concrete pavers cut into 3×5 foot pieces within the setback. This disagreement led to an initial hearing on August 7, 2019, and a subsequent rehearing on December 20, 2019, after Mr. Colvin challenged the initial decision.

4. The Legal Breakdown: Why the Petition Was Dismissed

The matter was adjudicated by an Administrative Law Judge (ALJ) under the authority of A.R.S. § 32-2199(B). Despite the lengthy proceedings, the ALJ sustained the Respondent's jurisdictional objections and dismissed the petition based on two fundamental legal failures.

A "Dead on Arrival" Legal Strategy

Under Arizona law, the Petitioner bears the preponderance of the evidence burden. This requires the Petitioner to prove that their contention is "more probably true than not" or carries the "most convincing force."

Mr. Colvin’s strategy was fundamentally flawed. Under A.R.S. § 32-2199(B), a petitioner must allege and prove that the Association violated the community documents. Instead, Mr. Colvin’s arguments were focused entirely on proving that he had not violated the CC&Rs. Because he failed to allege or prove a specific violation committed by the Association, he failed to meet his evidentiary burden.

The Jurisdictional Trap: No Declaratory Judgments

A critical takeaway for any homeowner is that the Office of Administrative Hearings is a venue of limited jurisdiction. The Association argued, and the ALJ confirmed, that the tribunal does not have the authority to issue a "declaratory judgment."

In practical terms, the OAH cannot provide "clearance" for a homeowner’s project or issue a ruling simply stating that a homeowner’s pavers are compliant. The tribunal’s power is restricted to determining if the Association’s actions—such as the issuance of a fine or a notice—violated the CC&Rs. By asking the court to rule on the status of his own improvements rather than the illegality of the Association's enforcement, the Petitioner sought a remedy the court had no power to give.

5. Conclusion: 3 Essential Takeaways for Homeowners

The petition was officially dismissed on January 9, 2020, with the ALJ noting that the order was binding as it resulted from a rehearing. This case serves as a vital case study in procedural correctness:

  1. Frame the Petition Correctly: In administrative law, being "right" about your landscaping is insufficient. You must frame the dispute as a violation committed by the Association. Do not defend your actions; instead, prove the Association’s enforcement action contradicts the CC&Rs.
  2. The "Unassisted" Standard is Absolute: When CC&Rs specify "manual movability," they create a technical threshold. If an improvement requires a dolly, crowbar, or a second person to move, it is a violation. The Board's offer of "100-pound sections" is a common benchmark for what constitutes "one person unassisted."
  3. Respect the Finality of Rehearings: The OAH process is exhaustive. This dispute lasted from September 2018 to January 2020. Once a rehearing decision is issued, it is binding, and the path to appeal through the Superior Court is narrow and time-sensitive.

Before engaging in a legal battle over setbacks, homeowners must realize that the tribunal is there to police the Association, not to validate the homeowner. Review the fine print—and your procedural strategy—before the first stone is laid.

Case Participants

Petitioner Side

  • Myron H. Colvin (Petitioner)
    Appeared on behalf of himself

Respondent Side

  • Nicholas Nogami (Attorney)
    Appeared on behalf of Respondent Tierra Del Sol RV Resort Association
  • Lydia A. Peirce Linsmeier (Attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Received copy of decision via US mail

Neutral Parties

  • Velva Moses-Thompson (Administrative Law Judge)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Larry Kline vs. The Foothills Community Association

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Case Summary

Case ID 20F-H2019012-REL
Agency Arizona Department of Real Estate
Tribunal —
Decision Date 2020-01-02
Administrative Law Judge —
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Larry Kline Counsel Pro se
Respondent The Foothills Community Association Counsel Austin Baillio, Esq.

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

20F-H2019012-REL Decision – 761847.pdf

Uploaded 2026-04-24T11:23:16 (150.9 KB)

Administrative Law Judge Decision: Kline vs. The Foothills Community Association

Executive Summary

On January 2, 2020, Administrative Law Judge Jenna Clark issued a decision in the matter of Larry Kline vs. The Foothills Community Association (No. 20F-H2019012-REL). The dispute centered on whether the Foothills Community Association (the "Association") was contractually obligated to repair a failing retaining wall located at the rear of Petitioner Larry Kline’s property.

The Petitioner alleged that the Association violated Article IV, Section 4.2(p) of the Association Bylaws by failing to maintain the wall, which separates his lot from the Foothills Golf Course. The Association denied liability, arguing the wall is not located within a "Common Area" and that no recorded instrument transfers maintenance responsibility to the Association. Following an evidentiary hearing on December 19, 2019, the Judge ruled in favor of the Association, concluding that the Petitioner failed to meet the burden of proof required to establish the Association's responsibility for the wall.

Analysis of Key Themes

1. Definition and Scope of Common Areas

A central theme of the dispute was the legal definition of "Common Area" as prescribed by the Association’s governing documents. Under Bylaws Article I, Section N, Common Areas are defined as Association-owned land, land intended for future conveyance to the Association, or specific easements granted for maintenance.

The evidence established that:

  • The retaining wall is located on the boundary of Petitioner's Lot 22 and the Foothills Golf Course.
  • The Association does not own the land underneath the retaining wall.
  • The Golf Course land is explicitly excluded from the Common Area per Bylaws Article IV, Section 4.5.
  • Tract A, a known Common Area, is located thirteen lots away from the Petitioner’s residence and has no physical or legal relationship to the wall in question.
2. Maintenance Liability for Party Walls and Fences

The Petitioner relied on Bylaws Article IV, Section 4.2(p) to argue for Association liability. This section dictates the rights and duties regarding "Party Walls" or "Party Fences." While the Association is responsible for maintenance in cases where fences are located between Common Areas and Lots or constructed by the Declarant on Common Areas, this responsibility does not extend to private walls between individual lots and non-Association land (such as the golf course).

3. Successorship and Easement Validity

The Petitioner presented a "Reservation of Easement" (1988) and a "Special Warranty Deed" (1995) to support his claim. However, the legal analysis found two critical gaps:

  • Successorship: The Petitioner could not establish that the Association was the successor or assign of the "Declarant" or "Dell E. Webb," the entities originally involved in the easement agreements.
  • Recorded Instruments: The 1995 Deed conveyed Tract A to the Association but did not convey an easement for the maintenance of the wall on Lot 22.
4. Technical Failure and Causation

The retaining wall's failure was attributed to water damage and a design flaw, with repairs estimated between $30,000 and $40,000. While the Petitioner cited failing anchors and a leaning structure, the Association raised the possibility that a leak from the Petitioner's in-ground pool may have compromised the wall's integrity. The engineering report provided by the Petitioner was noted to have omitted an underground inspection of the area between the pool and the wall.

Important Quotes with Context

On Common Area Definitions

"‘Common Area and Common Areas’ shall mean (a) all Association Land; (b) all land within The Foothills which the Declarant… makes available for use by Members… and (e) areas on a Lot or Parcel within easements granted to the Association… for the location, construction, maintenance, repair and replacement of a wall or fence."

— Bylaws Article I, Section N

Context: This definition serves as the baseline for determining whether the Association has any jurisdictional responsibility over a physical structure within the community.

On Maintenance Responsibility

"In the case of Party Fences (1) between Common Areas and Lots or Parcels, or (2) constructed by the Declarant or the Association on Common Areas within a Lot or Parcel, the Association shall be responsible for all maintenance thereof…"

— Bylaws Article IV, Section 4.2(p)(vi)

Context: The Petitioner argued this clause mandated the Association to fix his wall, but the court found the wall did not meet the "Common Area" criteria required to trigger this obligation.

On the Burden of Proof

"Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document… A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not."

— Conclusions of Law ¶ 3-4

Context: This establishes the legal standard used by the Administrative Law Judge to determine that the Petitioner's evidence was insufficient to hold the Association liable.

Summary of Findings and Ruling

The Administrative Law Judge made the following determinations:

Factor Finding
Wall Location Private property/Golf course boundary; not a Common Area.
Easement Connectivity No legal or physical relationship between the Association's Tract A and Lot 22.
Successorship No evidence that the Association is the successor to the original Declarant's easement duties.
Liability No recorded instrument imparts a maintenance requirement on the Association for this wall.

Final Order: The Petitioner’s request for the Association to cover repair costs was denied.

Actionable Insights

  • Documentation of Successorship: When claiming rights under old easement agreements, homeowners must provide recorded instruments that explicitly link the current homeowners' association to the original Declarant's specific obligations and powers.
  • Verification of Common Area Boundaries: Property owners should consult Plat Maps and Tract Declarations to confirm whether a structure (like a retaining wall) is legally classified as a Common Area before initiating a petition for Association maintenance.
  • Evidence of Causation: In disputes involving structural failure, comprehensive engineering reports—including underground inspections where applicable (e.g., near pools)—are vital to rule out owner negligence or "willful or negligent acts" that would shift costs back to the member under Bylaw Article X, Section 10.3.
  • Burden of Proof Requirements: A petitioner must prove it is "more probably true than not" that a violation occurred. Mere interpretation of ambiguous language without supporting recorded deeds or specific bylaws is generally insufficient in administrative hearings.

Study Guide: Kline v. The Foothills Community Association

This study guide provides a comprehensive overview of the administrative law case Larry Kline vs. The Foothills Community Association (No. 20F-H2019012-REL). It examines the legal dispute regarding the maintenance responsibilities of a homeowners' association versus an individual property owner.

Key Concepts and Case Summary

1. Case Overview

The case involves a dispute between Petitioner Larry Kline and Respondent Foothills Community Association. Petitioner alleged that the Association violated its governing documents—specifically Bylaws Article IV, Section 4.2(p)—by failing to repair a failing retaining wall located at the back of his property.

2. Governing Documents and Definitions

The relationship between the parties is governed by several legal instruments that form an enforceable contract:

  • Declaration of Covenants, Conditions and Restrictions (CC&Rs): Recorded on April 10, 1987, these empower the Association to control property use.
  • Common Areas: Defined in Bylaws Article I, Section N as Association Land or areas within easements granted to the Association for maintenance and repair.
  • Declarant: Refers to the Foothills Joint Venture or its successors/assigns who have been granted rights via recorded instruments.
  • Party Walls/Fences: Shared structures between lots or between a lot and a common area.
3. The Central Dispute

The Petitioner’s property (Lot 22) features a retaining wall separating his land from the Foothills Golf Course. The wall is leaning due to a design flaw and water damage, with repair costs estimated between $30,000 and $40,000.

  • Petitioner’s Argument: The Association is liable for maintenance based on an Easement Agreement (1988) and a Special Warranty Deed (1995).
  • Respondent’s Argument: The wall is not in a Common Area; the Association is not a successor to the original "Declarant" of the easement; and the wall sits on private property, making maintenance the owner’s responsibility.
4. Legal Standards
  • Jurisdiction: The Arizona Department of Real Estate has the authority to decide disputes between homeowners and associations regarding violations of community documents.
  • Burden of Proof: The Petitioner bears the burden of proving a violation by a preponderance of the evidence (meaning the claim is more probably true than not).

Short-Answer Practice Questions

1. What specific section of the Bylaws did the Petitioner claim the Association violated?

Answer: Bylaws Article IV, Section 4.2(p).

2. According to Bylaws Article IV, Section 4.5, is "Golf Course Land" considered part of the Common Area?

Answer: No. The Bylaws explicitly state that Golf Course Land is not part of the Common Area.

3. What was the estimated cost for the remediation of the retaining wall?

Answer: Between $30,000.00 and $40,000.00.

4. Why did the Administrative Law Judge (ALJ) conclude that the Association was not responsible for the wall under the Easement Agreement?

Answer: The Petitioner failed to establish that the Association was a successor or assign of the "Declarant" who signed the original Easement Agreement.

5. What is the definition of "Preponderance of the Evidence" used in this case?

Answer: Evidence that has the most convincing force and superior evidentiary weight, making a contention "more probably true than not."

6. What physical feature of Lot 22 did the Association’s witness suggest might have contributed to the wall's damage?

Answer: An in-ground pool, which may have leaked and impacted the wall's anchor support system.

7. Is Tract A related to the Petitioner’s property on Lot 22?

Answer: No. Tract A is a Common Area throughway located thirteen lots away from Lot 22, with no legal or physical relationship to Lot 22's retaining wall.

Essay Prompts for Deeper Exploration

  1. Contractual Obligations in Planned Communities: Analyze how CC&Rs and Bylaws function as an enforceable contract between an Association and its members. Discuss the importance of "recorded instruments" in determining which party is responsible for the maintenance of specific structures like party walls.
  2. The Role of the "Declarant" and Successorship: Explain the legal significance of the term "Declarant" in this case. Why was the Petitioner's inability to prove the Association was a "successor or assign" of the original Declarant fatal to his claim regarding the Easement Agreement?
  3. Evidentiary Burdens in Administrative Hearings: Discuss the "preponderance of evidence" standard. In the context of this case, what specific types of evidence (e.g., engineering reports, deeds, plat maps) were most influential in the Judge’s final decision, and where did the Petitioner’s evidence fall short?

Glossary of Important Terms

Term Definition
Administrative Law Judge (ALJ) A judge who over-sees evidentiary hearings and makes findings of fact and conclusions of law for state agencies.
CC&Rs Declaration of Covenants, Conditions and Restrictions; the primary governing documents for a homeowners' association.
Common Area Land owned by the Association or specifically designated for Association use and maintenance in recorded documents.
Declarant The original developer of a community (Foothills Joint Venture) or a party to whom their rights have been officially assigned.
Easement A legal right to use another person's land for a specific purpose (e.g., maintenance of a wall or landscaping).
Party Wall / Fence A wall or fence located on or at the division line between contiguous lots or between a lot and a common area.
Preponderance of the Evidence The standard of proof in civil cases; evidence that is more convincing than the evidence offered in opposition.
Recorded Instrument A legal document (like a deed or declaration) that has been officially filed with the County Recorder's Office to provide public notice.
Shotcrete Wall A reinforcement method mentioned in the remediation proposal for the failing retaining wall.
Tract Declaration A recorded document that defines specific sections or subdivisions within a larger development.

thought Master Writer and Editor. Legal Consultant specializing in Planned Community Disputes and HOA Governance. Rewrite an initial draft into a final, publication-ready document. Larry Kline vs. The Foothills Community Association (No. 20F-H2019012-REL). Outline, Expert Critique, Initial Draft, Source Context.

  • Tone: Professional, accessible, consultant-level nuance (strategic, not just reporting).
  • Fidelity: Prioritize Source Context (Arizona Department of Real Estate case).
  • Critique Point 1 (Persona): Frame Association strategy as a "defensive masterclass." Highlight Petitioner's lack of geotechnical due diligence regarding the pool.
  • Critique Point 2 (Successorship): Identify Dell E. Webb. Explain the failure to link the Association via a recorded instrument.
  • Critique Point 3 (Common Area/Tract A): Include "Tract A" details (13 lots away, only land in the 1995 Deed).
  • Critique Point 4 (Markdown Table): Add Bylaw Article IV, Section 4.5 (Golf Course Land is NOT Common Area).
  • Critique Point 5 (Synthesis): Add "Consultant's Notes" to the three missing links.
  • Critique Point 6 (Conclusion): Reference the Plat Map (no easement on Lot 22) and distinguish Special Warranty Deed vs. Easement Agreement.
  • Critique Point 7 (Bolding): Bold CC&Rs, Bylaws, Tract Declaration, Special Warranty Deed, Preponderance of the Evidence, Common Area.
  • Critique Point 8 (Venue): Mention the Arizona Department of Real Estate.
  • Critique Point 9 (Geography): Wall is on boundary of Lot 22 and Golf Course; HOA does not own the land.
  • Title: # The $40,000 Wall: Lessons in HOA Liability and Homeowner Responsibility
  • Section 1: Introduction.
  • Hook: Financial risks of boundary disputes.
  • The Case: Larry Kline vs. The Foothills Community Association (20F-H2019012-REL).
  • Venue: Arizona Department of Real Estate.
  • Question: Who is responsible for perimeter structures?
  • Section 2: The Conflict.
  • Description of Lot 22 and the wall (leaning toward golf course).
  • Bullet points on physical state: Design flaws, failing anchors, leaning, water damage.
  • Cost: $30,000-$40,000.
  • Legal hook: Bylaws Article IV, Section 4.2(p).
  • Association refusal: Demanded evidence of liability.
  • Section 3: Decoding the Governing Documents.
  • Define Common Area (Bylaws Article I, Section N). Mention Tract A (13 lots away).
  • Section 4.2(p) (Party Fences/Walls).
  • Section 4.5 (Golf Course Land is NOT Common Area).
  • Markdown Table: Compare Arguments. Ensure Section 4.5 is the "smoking gun."
  • Section 4: The Hearing.
  • Standard: Preponderance of the Evidence.
  • Association's "defensive masterclass."
  • Patricia Ann Wontor's testimony: Tract A vs. Lot 22.
  • Rebuttal/Due Diligence failure: The in-ground pool. Mention Kline's water bill justification as insufficient.
  • Section 5: The Verdict.
  • Judge Jenna Clark's decision.
  • The Three Missing Links with Consultant's Notes.
  • Link 1: Dell E. Webb / Successorship.
  • Link 2: Recorded Instrument / Mandate.
  • Link 3: Land Ownership (Private/Golf course vs. HOA).
  • Section 6: Conclusion.
  • Actionable insights.
  • Know Your Boundaries: Plat Map details (Lot 22 exclusion).
  • Documentation is King: Special Warranty Deed vs. Easement Agreement.
  • The Burden of Proof: Preponderance of the Evidence.
  • Final thought: Legal review and property inspection.
  • Check bolding: CC&Rs, Bylaws, Tract Declaration, Special Warranty Deed, Common Area, Preponderance of the Evidence.
  • Verify facts: Tract A is 13 lots away. Original party was Dell E. Webb. Wall is on private/golf course land.
  • Tone check: Ensure it sounds like a consultant advising a client/reader. Avoid passive language.
  • Formatting: H1 title, H2/H3 headers, Markdown table, no conversational filler.
  • Critique: Frame pool leak as failure of due diligence. (Included).
  • Critique: Mention Tract A is 13 lots away. (Included).
  • Critique: Mention Section 4.5 in the table. (Included).
  • Critique: Mention Dell E. Webb and the "recorded instrument" link. (Included).
  • Critique: "Consultant's Note" for missing links. (Included).
  • Critique: Bold specific terms. (Done).

(Self-Correction during drafting): Make sure the table shows the "smoking gun" of Section 4.5 clearly.

(Source Check): The source says "Petitioner has not established that the Association is a successor or assign of the Declarant who signed the Easement Agreement." The original party to the 1988 agreement was Dell E. Webb (mentioned in the Findings of Fact #22).

(Source Check): The 1995 Special Warranty Deed conveyed Tract A to the Association. Tract A is 13 lots away.

(Final Formatting Check): Only Markdown H1 at start. No preamble.# The $40,000 Wall: Lessons in HOA Liability and Homeowner Responsibility

1. Introduction: The High Stakes of Property Maintenance

In the world of planned communities, the boundary between a private lot and a common area is more than a line on a map—it is a high-stakes financial divide. When a perimeter structure begins to fail, homeowners often assume the homeowners’ association (HOA) is naturally responsible for the repair. However, as one Phoenix homeowner discovered, making that assumption without a rock-solid legal foundation can lead to a costly defeat.

The case of Larry Kline vs. The Foothills Community Association (No. 20F-H2019012-REL), heard by the Arizona Department of Real Estate, serves as a masterclass in the complexities of community governance. At the heart of the dispute was a failing retaining wall and a potential $40,000 repair bill. The central question of the hearing: Who is truly responsible for structures sitting on the edge of private property and common areas?

2. The Conflict: A Leaning Wall and a Denied Request

The dispute centered on a massive retaining wall located along the back perimeter of Larry Kline’s property (Lot 22), which separates his residence from the Foothills Golf Course. The physical state of the wall was dire:

  • Design Flaws: A latent defect in the original wall design.
  • Structural Failure: Failing internal anchors causing the wall to lose its integrity.
  • Physical Displacement: The structure was visibly leaning toward the golf course.
  • Water Damage: Significant damage caused by prolonged water accumulation and soil pressure.

After consulting with engineering firms, Kline estimated the cost for reinforcement and remediation to be between $30,000 and $40,000. Relying on his interpretation of the community’s governing documents—specifically Bylaws Article IV, Section 4.2(p)—Kline demanded that the Association cover the repairs. The Association refused, maintaining that they held no liability for structures located on the perimeter of a private lot, and challenged Kline to provide a recorded mandate for such maintenance.

3. Decoding the Governing Documents: CC&Rs vs. Reality

To resolve the dispute, the Administrative Law Judge had to dissect the CC&Rs and Bylaws, specifically regarding the definitions of "Common Area" and "Party Walls."

Under the Bylaws, Common Area is strictly defined as land owned by the Association or land the "Declarant" intended to convey via a Recorded instrument. A critical piece of evidence was the Special Warranty Deed from 1995, which conveyed "Tract A" to the Association. However, "Tract A" was a drainage throughway located thirteen lots away from Kline’s property, with no physical or legal connection to Lot 22.

The following table highlights the strategic clash between the Petitioner's assumptions and the Association’s textual defense:

Petitioner’s Argument Association’s Defense
Legal Basis: Relied on a 1988 Reservation of Easement and a 1995 Special Warranty Deed. Legal Basis: Relied on the Plat Map, Tract Declaration, and Bylaws Section 4.5.
Liability: Argued the Association was a successor to the original developer and held maintenance duties in perpetuity. The "Smoking Gun": Bylaws Article IV, Section 4.5 explicitly states that "Golf Course Land shall not be part of the Common Area."
Interpretation: Interpreted Section 4.2(p) as mandating HOA repair for any boundary "Party Fence" or wall. Ownership: Proved the wall sat entirely on land owned by the Petitioner and the golf course, neither of which is Common Area.

4. The Hearing: A Defensive Masterclass

The December 2019 hearing hinged on the Preponderance of the Evidence. This standard required Mr. Kline to prove it was "more probably true than not" that the Association violated a community document.

The Association executed a defensive masterclass by highlighting the Petitioner’s failure to conduct proper due diligence. While Kline argued that the wall failed due to design defects, the Association suggested a more localized cause: Kline’s in-ground pool. They argued that an underground leak from the pool could have compromised the wall's anchor system.

In a pivotal moment, Kline conceded he had not commissioned a geotechnical soil evaluation or checked for pool leaks because he "did not notice any abnormal increases to his monthly water bill." From a consultant’s perspective, relying on a water bill instead of a professional inspection in a $40,000 dispute left the Petitioner’s case fatally vulnerable to rebuttal.

5. The Verdict: Why the Petition was Denied

Administrative Law Judge Jenna Clark concluded that the Petitioner failed to sustain his burden of proof. The denial rested on three "missing links":

  1. Failure to Establish Successor Status: The Petitioner could not prove the Association was the legal successor or assign of Dell E. Webb (the original party to the 1988 Easement Agreement).
  • Consultant’s Note: Without a recorded instrument expressly linking the Association to the original developer’s specific obligations, the "chain of authority" is broken.
  1. Lack of a Recorded Mandate: No Deed or Tract Declaration was presented that explicitly required the Association to maintain that specific wall on Lot 22.
  • Consultant’s Note: In HOA law, verbal "understandings" or historical assumptions are legally irrelevant compared to what is written in the recorded title.
  1. Private Property Location: It was undisputed that the wall sat on private land and golf course property.
  • Consultant’s Note: Because the wall was not on a Common Area, the maintenance protections of Bylaws Section 4.2(p) simply did not apply.

6. Conclusion: Key Takeaways for Every Homeowner

This case provides a sobering reminder that "common sense" in a neighborhood is rarely the same as "legal fact" in a courtroom.

  • Know Your Boundaries: Never assume a boundary wall is an HOA responsibility. Consult your subdivision's Plat Map specifically. In this case, the Plat Map showed "no easement listed for Lot 22," which was a decisive factor in the ruling.
  • Documentation is King: Understand the difference between a Special Warranty Deed and an Easement Agreement. A Deed conveying one specific area (like Tract A) does not automatically transfer maintenance duties to every other perimeter structure in the community.
  • The Burden of Proof: In administrative hearings, the responsibility lies entirely with the petitioner to provide a Preponderance of the Evidence. If the governing documents—the CC&Rs, Bylaws, and Tract Declaration—do not explicitly grant you a right, the tribunal cannot create one for you.

Before escalating a dispute involving high-cost repairs, homeowners should invest in professional property inspections and a rigorous legal review of their CC&Rs to ensure their claims are built on recorded evidence, not expensive assumptions.

Case Participants

Petitioner Side

  • Larry Kline (Petitioner)
    The Foothills Community Association
    Property owner of Lot 22, Club House Estates; appeared on his own behalf.

Respondent Side

  • Austin Baillio (Attorney)
    Maxwell & Morgan, P.C.
    Appeared on behalf of The Foothills Community Association. Also spelled B. Austin Baillo.
  • Patricia Ann Wontor (Witness)
    The Foothills Community Association
    Onsite Community Manager for the Association.

Neutral Parties

  • Joe Robinson (Observer)
    Observed the hearing.
  • Sandra Salvo (Observer)
    Observed the hearing.
  • Jenna Clark (Administrative Law Judge)
    Office of Administrative Hearings
    Presiding judge.
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of the order and decision.

David W Hopper v. Las Cumbres Townhouses Association

Posted on by

Case Summary

Case ID 20F-H2019013-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-12-29
Administrative Law Judge Antara Nath Rivera
Outcome The Administrative Law Judge dismissed the petition, ruling that the Petitioner failed to prove the HOA violated CC&Rs or By-Laws. The dispute centered on a wall built on a neighbor's private property which blocked Petitioner's preferred access path; the judge found Petitioner had no legal right to use that private property.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner David W Hopper Counsel —
Respondent Las Cumbres Townhouses Association Counsel Blake Johnson

Alleged Violations

CC&Rs Article VII Section 3; CC&Rs Article VIII Section 4; By-Laws Article II Section 1(b) and 1(c)

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the Petitioner failed to prove the HOA violated CC&Rs or By-Laws. The dispute centered on a wall built on a neighbor's private property which blocked Petitioner's preferred access path; the judge found Petitioner had no legal right to use that private property.

Why this result: Petitioner failed to prove the HOA violated any governing documents; the wall was on private property (not common area) and Petitioner had no legal right to access it.

Key Issues & Findings

HOA Dispute Process Petition regarding wall construction

Petitioner alleged the HOA violated governing documents by approving a neighbor's wall construction that blocked a pathway Petitioner used for access, arguing it impaired maintenance, safety, and property value.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&Rs Article VII Section 3
  • CC&Rs Article VIII Section 4
  • By-Laws Article II Section 1(b)
  • By-Laws Article II Section 1(c)

Video Overview

Audio Overview

Decision Documents

20F-H2019013-REL Decision – 761441.pdf

Uploaded 2026-04-24T11:23:25 (106.4 KB)

Administrative Law Judge Decision: Hopper vs. Las Cumbres Townhouses Association

Executive Summary

On December 29, 2019, Administrative Law Judge Antara Nath Rivera issued a decision in the matter of David W Hopper vs. Las Cumbres Townhouses Association (No. 20F-H2019013-REL). The dispute centered on the Petitioner’s allegation that the Homeowners Association (HOA) violated community governing documents by approving the construction of a wall on a neighbor’s private property. The Petitioner argued that this wall obstructed a pathway he and his wife used for home maintenance, safety access, and health-related movement, subsequently devaluing his property.

The Respondent, Las Cumbres Townhouses Association, maintained that the wall was constructed solely on private property for erosion mitigation, was approved unanimously by the Board, and conformed to the community’s design scheme. The Judge ruled in favor of the Respondent, dismissing the petition on the grounds that the Petitioner failed to establish any violation of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs) or the Association By-Laws by a preponderance of the evidence.

Detailed Analysis of Key Themes

Property Rights vs. Customary Use

A central theme of the case is the distinction between a legal right of access and a neighborly accommodation. The Petitioner had grown accustomed to using a flat pathway through his neighbor’s patio to haul large items and provide access for workers. However, the evidence established that this area was not a "common area" but private property. The Judge concluded that while the Petitioner had enjoyed the use of the patio with the neighbor’s tacit consent, he was not entitled to "continued uninterrupted use" of property that did not belong to him.

Health, Safety, and Property Maintenance

The Petitioner raised several concerns regarding the adverse effects of the wall:

  • Maintenance: He argued that large windows for his renovation could no longer be brought through the back, and would not fit through the front door.
  • Safety: He claimed the wall removed a critical fire exit route.
  • Health: He noted that his wife suffered from a condition similar to vertigo, making the existing, steeper common area pathway behind the home unsafe for her.

The Respondent successfully countered that other townhomes with similar layouts had replaced large windows without using neighbors' yards. Furthermore, the Association testified that a common area walkway did exist behind the home, and although steep, it was the designated area for resident use.

HOA Board Authority and Governance

The Association demonstrated that its actions were consistent with its governing documents. The Board held a meeting on March 26, 2019, where they unanimously approved the neighbor's wall as a measure to mitigate erosion. The Judge found that the Association acted within its rights to approve plans that were in conformity with the community’s "common scheme and design."

Legal Standards of Proof

The case underscores the "preponderance of the evidence" standard required in administrative hearings. To prevail, the Petitioner needed to prove that his contentions were "more probably true than not." The Judge determined that the Petitioner did not provide sufficient evidence that the HOA’s approval of the wall violated specific provisions regarding health, safety, welfare, or property value protection.

Summary of Alleged Violations

The following table outlines the specific community documents cited by the Petitioner and the associated legal findings.

Document & Section Provision Summary Judicial Finding
CC&Rs Art. VII, Sec. 3 Owners are responsible for the maintenance and repair of their individual units. Respondent did not violate this by approving a wall on a different private property.
CC&Rs Art. VIII, Sec. 4 Owners shall not impair structural soundness, easements, or adversely affect other units. Petitioner failed to establish that the wall on the neighbor’s property legally impaired his property rights.
By-Laws Art. II, Sec. 1(b) Purpose of the Association is to promote health, safety, and welfare of residents. The Association’s approval of erosion mitigation on private property did not violate this purpose.
By-Laws Art. II, Sec. 1(c) Purpose of the Association is to protect property values for each dwelling. Petitioner failed to prove the wall legally decreased property value relative to HOA obligations.

Important Quotes with Context

On the Definition of Preponderance of the Evidence

"A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not… evidence that has the most convincing force; superior evidentiary weight."

  • Context: This quote establishes the legal threshold the Petitioner failed to meet during the hearing.
On Private Property Rights

"Petitioner was not entitled to continued uninterrupted use of his neighbor’s private property… Petitioner failed to present evidence that he had a legal right of access to his neighbor’s patio as a pathway."

  • Context: The Judge used this to clarify that previous use of the neighbor's yard did not grant a permanent easement or right of way.
On Association Responsibility

"While Respondent may have affected Petitioner’s convenience when it approved plans to build the wall, it did not violate any rules and procedures."

  • Context: This distinguishes between an HOA action that causes an inconvenience and one that constitutes a legal violation of community documents.
On Notice of Construction

"Petitioner argued lack of notice of the construction of the wall. However, Petitioner did not cite to any CC&Rs or By-Laws violated by Respondent with respect to lack of notice."

  • Context: The Judge noted that while the Petitioner felt slighted by the lack of communication, there was no documented legal requirement for the HOA to provide such notice for construction on a neighbor's private lot.

Actionable Insights

  1. Verification of Property Boundaries: Homeowners should not rely on the temporary use of neighboring land for maintenance or access. Legal access is strictly defined by property lines and recorded easements, not by historical practice or neighborly permission.
  2. HOA Approval Discretion: HOA Boards have the authority to approve modifications on private lots—such as walls for erosion control—as long as they conform to the community’s design scheme and follow established procedural rules.
  3. Burden of Proof in Disputes: In a petition against an HOA, the burden lies entirely with the Petitioner to link an action (like the approval of a wall) to a specific violation of the CC&Rs or By-Laws. General claims of "diminished property value" or "inconvenience" are insufficient without a direct link to a violated regulation.
  4. Common Area vs. Private Property: Residents must distinguish between common areas maintained for community use and private property. In this case, the existence of a "steep" common area walkway satisfied the community's requirement for access, regardless of whether a flatter, private alternative was preferred.

Study Guide: Hopper v. Las Cumbres Townhouses Association (Case No. 20F-H2019013-REL)

This study guide provides a comprehensive overview of the administrative hearing between David W. Hopper and the Las Cumbres Townhouses Association. It examines the legal standards, the specific community documents at the center of the dispute, and the evidentiary findings that led to the dismissal of the petition.

Key Concepts and Case Overview

1. The Nature of the Dispute

The case involves a homeowner (Petitioner) who filed a dispute against his Homeowners Association (Respondent) following the construction of a wall on a neighbor’s property. The Petitioner alleged that the wall—approved by the Association Board—blocked a pathway he previously used for home maintenance, emergency egress, and general access to the front of the community.

2. Legal Standards and Burden of Proof

The hearing was conducted under Arizona Revised Statutes (A.R.S. § 32-2199 et seq.), which allows for the Office of Administrative Hearings to resolve disputes concerning planned community documents.

  • Burden of Proof: The Petitioner bears the burden of proving that the Association committed the alleged violations.
  • Preponderance of the Evidence: This is the evidentiary standard used. It is defined as proof that convinces the trier of fact that a contention is "more probably true than not." It represents the "greater weight of the evidence" or "superior evidentiary weight."
3. Governing Community Documents

The dispute centered on the interpretation of four specific sections of the community’s governing documents:

  • CC&R Article VII, Section 3 (Exterior Maintenance): Establishes that all maintenance and repair of individual units are the sole obligation and expense of the individual owners.
  • CC&R Article VIII, Section 4 (Interior and Other Maintenance): Prohibits owners from performing acts that impair the structural soundness of dwellings, impair easements, or adversely affect other units or owners.
  • Bylaws Article II, Section 1(b): States the Association’s purpose is to promote the health, safety, and welfare of residents.
  • Bylaws Article II, Section 1(c): States the Association’s purpose is to protect property values for each dwelling and the Association.

Short-Answer Practice Questions

1. What specific physical structure triggered the filing of the petition? The construction of an adobe wall on the Petitioner’s neighbor's yard, which blocked a flat pathway the Petitioner had been using to access his property and the guest parking lot.

2. Why did the Petitioner argue that the wall affected his wife’s safety and welfare? His wife suffers from a medical condition similar to vertigo. The wall blocked the flat pathway through the neighbor's patio, which was her only safe exit in the event of a fire, as the alternative common area path consisted of rough and steep terrain.

3. What reason did the Association Board provide for approving the neighbor's wall? The Board testified that the wall was part of a project intended to mitigate erosion on the neighbor’s property. They also noted the wall was in conformity with the community’s common scheme and design.

4. How did the Petitioner’s real estate agent contribute to his argument? The agent informed the Petitioner that the property had lost value because the lack of access to the west side of the home would now have to be disclosed to future buyers.

5. What was the critical finding regarding the ownership of the pathway at issue? The Administrative Law Judge determined that the pathway was located on the neighbor’s private property, not in a common area. Therefore, the Petitioner had no legal right of access to it.

6. Did the Association violate the notice requirements according to the judge? No. While the Petitioner argued he was not given notice of the construction, the judge found he failed to cite any specific CC&R or Bylaw provision that the Association violated regarding notice.

Essay Prompts for Deeper Exploration

1. Property Rights vs. Historical Use

Analyze the distinction between a "legal right of access" and "permissive use" as presented in this case. In your response, discuss how the Petitioner’s history of using the neighbor’s patio for home renovations and access influenced his expectations, and explain why the law prioritized the neighbor’s private property rights over the Petitioner’s established routine.

2. The Limits of HOA Responsibility

The Petitioner cited Bylaw provisions regarding the promotion of "health, safety, and welfare" and the protection of "property values" to argue that the Association should not have approved the wall. Evaluate the judge’s conclusion that these broad purpose statements did not obligate the Association to prevent the construction. To what extent should an HOA be held responsible for the indirect effects of one member’s private property improvements on another member?

3. Assessing Preponderance of the Evidence in HOA Disputes

Using the definitions provided in the case, discuss the "Preponderance of the Evidence" standard. Why did the Petitioner fail to meet this standard despite providing testimony regarding his wife’s medical condition, property value concerns, and maintenance difficulties? Focus your analysis on the relationship between the facts presented and the specific language of the CC&Rs and Bylaws.

Glossary of Important Terms

  • Administrative Law Judge (ALJ): An official who presides over hearings and adjudicates disputes involving government agencies or specific statutory processes (in this case, the Arizona Department of Real Estate).
  • Bylaws: The rules and regulations adopted by an organization (like an HOA) for its internal administration and management.
  • CC&Rs (Covenants, Conditions, Restrictions, and Easements): A legal document that outlines the rules for a planned community and the rights and obligations of the homeowners and the association.
  • Common Area: Land or amenities within a development that are owned or managed by the HOA for the use and enjoyment of all residents.
  • Egress: A way out or a point of exit.
  • Mitigation: The action of reducing the severity, seriousness, or painfulness of something (e.g., erosion mitigation).
  • Petitioner: The party who initiates a lawsuit or petition (David W. Hopper).
  • Preponderance of the Evidence: The standard of proof in most civil cases, requiring that the evidence be "more likely than not" to support the claim.
  • Respondent: The party against whom a petition is filed or an appeal is taken (Las Cumbres Townhouses Association).
  • Structural Soundness: The ability of a building or structure to withstand its design loads and remain stable without failure.

When Your Shortcut Ends: Navigating HOA Disputes and Property Rights

The Wall Between Neighbors

In the world of planned developments, there is a fine—and often invisible—line between neighborly convenience and absolute property rights. For years, many residents operate on informal licenses, such as a borrowed patch of lawn or a "shortcut" across a neighbor’s lot. However, as an HOA consultant, I often see these "understandings" crumble the moment a permanent structure is erected.

The case of David W. Hopper vs. Las Cumbres Townhouses Association serves as a stark reminder of this reality. The dispute involved a homeowner who lost a preferred backyard access route when his neighbor built a board-approved wall. This case illustrates a fundamental truth in community living: your personal convenience does not equate to a legal right, and the governing documents—the CC&Rs and By-Laws—are the final word on what you are actually entitled to.

The Dispute: A Tale of Two Properties

The conflict began shortly after David Hopper purchased his townhome in the 14-unit Las Cumbres community in September 2018. During an extensive renovation, Hopper and his contractors utilized what they described as a "shortcut"—a flat pathway used to haul large construction materials and access guest parking. Crucially, this "pathway" was not a common area; it was the neighbor’s private patio.

For months, the neighbor permitted this use by consent. However, in April 2019, the neighbor began construction on an adobe wall designed to mitigate erosion on their private lot. The wall, which had been formally approved by the Association, completely blocked Hopper’s access to the guest parking lot and the side of his home. Having relied on the neighbor's patio as a primary access point, Hopper filed a petition with the Arizona Department of Real Estate to have the wall addressed.

The Homeowner’s Case: Maintenance, Safety, and Value

The Petitioner (Hopper) alleged that the Association violated CC&Rs Article VII (Section 3), Article VIII (Section 4), and By-Laws Article II, Section 1(b) and Section 1(c). Note that a significant procedural hurdle existed: the official Notice of Hearing failed to reference Article VII, Section 3, despite Hopper including it in his initial petition—a common pitfall in administrative litigation.

Hopper’s arguments rested on three main pillars:

  • Maintenance Obstacles: Hopper claimed the wall prevented essential upkeep, specifically stating a window company could not transport large replacement windows to the back of the property because they would not fit through the home’s interior.
  • Health and Safety Concerns: Citing By-Laws Article II, Section 1(b), Hopper argued the wall created a safety hazard for his wife, who suffers from a vertigo-like condition. He contended that the steep, rough terrain of the designated common area was impassable for her, leaving them without a flat emergency exit.
  • Property Value Impact: Invoking By-Laws Article II, Section 1(c), Hopper presented a real estate agent’s opinion that the home’s value would decrease because future buyers would need a disclosure regarding the lack of side-access.
The Association’s Defense: Private Rights vs. Common Areas

The Association maintained that the Board acted within its authority to approve a functional improvement (erosion mitigation) on a private lot. Their defense centered on the fact that the Petitioner was claiming a right to land he did not own.

Petitioner Claims Respondent Evidence
The wall prevents necessary maintenance (windows). Evidence showed other townhomes in the community with identical layouts replaced large windows without using the neighbor’s patio.
The Association violated health and safety access. A designated common area walkway exists behind the home. While steep, it is the community’s legal path for residents to navigate the area.
The wall adversely affects property value/integrity. The wall was a necessary erosion mitigation project that was unanimously approved and conforms to the community's common design scheme.
The "shortcut" was a long-standing access point. The area is private property (a patio), not a common area. Use was by neighborly consent, not by right or easement.
The Ruling: Why the Case Was Dismissed

Administrative Law Judge Antara Nath Rivera dismissed the petition, ruling that Hopper failed to meet the "Preponderance of the Evidence" standard. The decision hinged on a vital legal distinction: Consent vs. Right.

The judge found that while the neighbors were "nice enough" to allow Hopper access for a time, that permission constituted a revocable license, not a permanent easement. The court emphasized that the Petitioner was well aware of the property lines, the closeness of the units, and the common scheme of the 1972 development when he purchased the home.

Key findings included:

  • No Adverse Effect: Under CC&R Art. VIII, Sec. 4, an owner cannot "adversely affect" others. The judge ruled that building a wall on one’s own property at one’s own expense—following Board approval—does not constitute an "adverse effect" on a neighbor's property rights.
  • Maintenance Precedent: The maintenance argument failed because evidence proved that other residents successfully performed similar repairs without trespassing on neighboring patios.
  • Document Integrity: The judge ruled that the Association did not violate CC&Rs Art. VII or VIII, nor By-Laws Art. II, Section 1(b) and 1(c).
Key Takeaways for Homeowners and HOAs

This case serves as a masterclass in the principle of Caveat Emptor (Buyer Beware) within planned communities.

  1. Verify Property Lines: Never assume that a convenient path is a legal right. If your ability to maintain your home depends on walking across a neighbor's patio, you are operating on borrowed time.
  2. License is Not an Easement: Neighborly consent (a license) can be revoked at any time. Unless an access right is recorded as an easement in the CC&Rs or a deed, it is not legally enforceable.
  3. The Burden of Proof is High: To win an HOA dispute, you must prove a specific violation of the governing documents. Personal hardship, medical conditions, or a loss of convenience do not empower a judge to override a neighbor’s private property rights.

Pro-Tip: Influence happens at the Board level, not after the concrete is poured. The wall in this case was discussed and unanimously approved at a board meeting on March 26, 2019. Active participation in Board meetings is your only opportunity to object to projects that may impact your "shortcut" before they become permanent fixtures.

Conclusion

The final decision, rendered on December 29, 2019, underscored the finality of the Board's authority and the sanctity of private property lines. While community harmony is the goal of every HOA, that harmony must be built on the foundation of the governing documents. As this case proves, when the "neighborly understanding" ends, the law will always side with the recorded property rights over personal convenience.

Case Participants

Petitioner Side

  • David W Hopper (Petitioner)
    Appeared on his own behalf; owner of the townhome
  • Myra Hopper (Witness)
    Petitioner's wife

Respondent Side

  • Blake Johnson (HOA attorney)
    Appeared on behalf of Las Cumbres Townhouse Association
  • Robert Sorock (Board President)
    Las Cumbres Townhouse Association Board
    Testified at hearing
  • Kathleen Boyle (Board Secretary)
    Las Cumbres Townhouse Association Board
    Testified at hearing
  • Nathan Tennyson (attorney)
    BROWN/OLCOTT, PLLC
    Listed on the mailing distribution list for the law firm representing the Respondent

Neutral Parties

  • Antara Nath Rivera (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge who presided over the hearing and signed the decision
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Received electronic transmission of the order

Jeffrey S Audette vs. Sun Harbor Community Association dba Desert

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Case Summary

Case ID 20F-H2019009-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-12-25
Administrative Law Judge Velva Moses-Thompson
Outcome The ALJ found that the Petitioner failed to prove the HOA violated A.R.S. § 33-1817(B)(3) or the CC&Rs. The HOA reasonably determined the Petitioner's unauthorized construction of block walls was inconsistent with architectural guidelines regarding setbacks and view preservation.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jeffrey S. Audette Counsel Mark J. Bainbridge
Respondent Sun Harbor Community Association dba Desert Harbor Homeowners Association Counsel Lauren Vie

Alleged Violations

A.R.S. § 33-1817(B)(3)

Outcome Summary

The ALJ found that the Petitioner failed to prove the HOA violated A.R.S. § 33-1817(B)(3) or the CC&Rs. The HOA reasonably determined the Petitioner's unauthorized construction of block walls was inconsistent with architectural guidelines regarding setbacks and view preservation.

Why this result: The Petitioner modified his property without required prior approval. The modification (block walls in a setback area) violated specific architectural guidelines. The Petitioner provided no evidence that the HOA had not enforced these guidelines against other homeowners (selective enforcement).

Key Issues & Findings

Unreasonable withholding of architectural approval

Petitioner alleged the HOA unreasonably denied his request to replace wrought iron fences with block walls and inconsistently enforced rules.

Orders: Petition dismissed; Respondent deemed prevailing party.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1817(B)(3)
  • CC&R Article IV, Section 2(a)

Video Overview

Audio Overview

Decision Documents

20F-H2019009-REL Decision – 760862.pdf

Uploaded 2026-04-24T11:23:04 (87.1 KB)

Administrative Law Judge Decision: Jeffrey S. Audette v. Sun Harbor Community Association

Executive Summary

This briefing document analyzes the administrative hearing and subsequent decision in the matter of Jeffrey S. Audette v. Sun Harbor Community Association dba Desert Harbor Homeowners Association (No. 20F-H2019009-REL). The dispute arose when the Petitioner, Jeffrey S. Audette, replaced wrought iron fencing with five-foot-high block walls on his lakefront property without obtaining prior authorization from the Respondent, Sun Harbor Community Association (Sun Harbor).

The Petitioner alleged that the Association unreasonably denied his construction plans and practiced inconsistent enforcement of community rules. However, the Administrative Law Judge (ALJ) determined that Sun Harbor acted reasonably and within the scope of its governing documents. The ALJ found that the Petitioner failed to meet the burden of proof required to establish selective enforcement or a violation of Arizona law. Consequently, the petition was dismissed, and Sun Harbor was deemed the prevailing party.

Detailed Analysis of Key Themes

1. Procedural Non-Compliance and Prior Approval

A central theme of the case is the Petitioner’s failure to adhere to the procedural requirements set forth in the Sun Harbor Covenants, Conditions, and Restrictions (CC&Rs).

  • Unauthorized Modification: In February 2018, the Petitioner replaced two wrought iron fences with five-foot-high block walls.
  • Lack of Prior Consent: This construction occurred before the Petitioner requested permission from the Sun Harbor Architectural Committee.
  • Retrospective Denial: When the Petitioner eventually submitted a request in March 2018, the Committee denied it, and the Association upheld this denial upon appeal.
2. Architectural Guidelines and Setback Restrictions

The decision highlights specific technical violations regarding the placement and height of the new structures.

  • The 15-Foot Setback Rule: Sun Harbor Architectural Guidelines prohibit any structure, fence, or shrub with a solid height greater than three feet within the 15-foot setback of the concrete shoreline.
  • Violation Specifics: The Petitioner’s block walls were five feet high and located within the restricted 15-foot lake lining setback.
  • Preservation of Harmony and Views: Testimony from Association representatives established that the block walls were "inharmonious with the surroundings" and "obscured the view of the lake" for other homeowners, specifically those on lots 1 through 9.
3. Standards of Evidence and Selective Enforcement

The Petitioner attempted to defend the modification by claiming that Sun Harbor inconsistently enforced its rules.

  • Burden of Proof: Under Arizona Administrative Code R2-19-119, the party asserting a claim (the Petitioner) bears the burden of proof by a preponderance of the evidence.
  • Insufficient Evidence: While the Petitioner provided photographs of other properties allegedly in violation of the three-foot height limit, he failed to provide written or oral testimony proving that the Association had not enforced the guidelines against those specific homeowners.
  • The Precedent Concern: The Association testified that its denial was partly based on a desire to avoid creating a precedent that would allow other homeowners to replace iron fences with high block walls.

Important Quotes with Context

Quote Context
"The Committee will take into consideration the suitability of the proposed alteration… the harmony thereof with the surroundings and the effect of the alteration as planned on any adjacent or neighboring property." Found in the Sun Harbor Architectural Guidelines (Sept 2002), this establishes the Association's broad authority to judge projects based on aesthetics and community impact.
"No structure, fence or shrubs with a solid height greater than 3 feet are allowed in the 15-foot setback of the concrete shoreline, with the exception of approved docks." The specific rule from the Architectural Guidelines that the Petitioner's five-foot wall violated.
"The CC&Rs are a contract between the parties and the parties are required to comply with its terms." A legal conclusion citing Johnson v. The Pointe Community Association, reinforcing that homeowners are legally bound by the association's governing documents.
"An association shall not unreasonably withhold approval of a construction project’s architectural plans." A reference to A.R.S. § 33-1817(B)(3), which serves as the legal standard for determining if an HOA's denial was lawful.
"A preponderance of the evidence is: The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other." The legal standard used by the ALJ to evaluate the claims, citing Black’s Law Dictionary.

Actionable Insights

For Community Associations (HOAs)
  • Consistency in Documentation: The Association's success in this matter was tied to having clear, written Architectural Guidelines that specified height and setback requirements.
  • Aesthetic Justification: Boards should document how a non-compliant structure impacts the "harmony" of the community or the views of other residents, as these are defensible reasons for denial under Arizona law.
  • Precedent Awareness: Associations may validly deny a request if granting it would set an undesirable precedent for the community, provided the denial is based on existing CC&Rs.
For Homeowners and Members
  • The "Prior Approval" Mandate: Homeowners must obtain written approval before beginning construction. Attempting to seek approval after the fact (retrospective approval) puts the homeowner at a significant legal and financial disadvantage.
  • Sub-Association vs. Master Association: Approval from a sub-association does not automatically grant approval from the master association. Homeowners must ensure they have consent from all relevant governing bodies.
  • Substantiating Selective Enforcement: To successfully argue selective enforcement, a homeowner must provide more than just photos of other violations; they must prove that the association actively chose not to enforce rules in those specific instances while enforcing them against the homeowner.
Legal and Regulatory Takeaways
  • Preponderance of Evidence: In administrative hearings regarding HOA disputes, the petitioner must provide convincing force to their claims. Merely showing that neighbors approve of a change is insufficient to override the contractual obligations of the CC&Rs.
  • Contractual Nature of CC&Rs: The courts and administrative offices treat CC&Rs as unambiguous contracts. If the terms are clear, they will be enforced as written to give effect to the intent of the parties.

Study Guide: Audette v. Sun Harbor Community Association

This study guide provides a comprehensive overview of the administrative hearing between Jeffrey S. Audette (Petitioner) and Sun Harbor Community Association (Respondent). It explores the legal obligations of homeowners within an association, the authority of architectural committees, and the standards of proof required in administrative law.

Key Concepts and Case Overview

1. Architectural Control and Prior Approval

Under Sun Harbor’s Covenants, Conditions, and Restrictions (CC&R) Article IV, Section 2(a), homeowners are strictly required to obtain written notification and approval from the Architectural Committee before undertaking any structural changes. This ensures that alterations are suitable in terms of materials, site location, and harmony with the surrounding environment.

2. Specific Property Restrictions

The Sun Harbor Architectural Guidelines (adopted September 2002) establish specific limitations for waterfront properties:

  • The 15-Foot Setback: No structure, fence, or shrub with a solid height greater than 3 feet is permitted within the 15-foot setback of the concrete shoreline.
  • Exceptions: The only structures generally exempt from this height restriction are approved docks.
3. Legal Status of CC&Rs

In Arizona, CC&Rs are viewed as a legal contract between the association and the property owner. Courts and administrative bodies must enforce these documents according to their clear and unambiguous terms to give effect to the intent of the parties involved.

4. Burden of Proof in Administrative Hearings

In an administrative hearing, the party asserting a claim (the Petitioner) bears the "burden of proof." The standard used is a "preponderance of the evidence," meaning the evidence presented must have the most convincing force and demonstrate that the claim is more likely true than not.

5. Selective Enforcement Claims

A common defense in HOA disputes is the allegation of selective enforcement—the idea that the association is enforcing rules against one member while ignoring similar violations by others. To succeed, the petitioner must provide concrete evidence (written or oral) that the association knowingly failed to enforce guidelines in those other instances.

Short-Answer Practice Questions

1. What specific modification did Mr. Audette make to his property that led to the violation notice?

Mr. Audette removed two wrought iron fences and replaced them with 5-foot high block walls.

2. Why did the Sun Harbor Architectural Committee deny Mr. Audette’s retroactive request for the block walls?

The request was denied because the walls exceeded the 3-foot height limit within the 15-foot setback and were deemed inharmonious with the surroundings, specifically obscuring the view of the lake.

3. Which state agency has authority over disputes involving homeowners' associations in this case?

The Arizona Department of Real Estate (ADRE).

4. According to Black’s Law Dictionary, as cited in the case, how is "preponderance of the evidence" defined?

It is the greater weight of the evidence; evidence that has the most convincing force and inclines a fair and impartial mind to one side of the issue.

5. What was Mr. Audette's argument regarding the visibility of his block walls?

He asserted that no other homeowners could see the walls except for his immediate neighbors to the left and right, both of whom approved of the modification.

6. What is the association’s legal obligation regarding the approval of architectural plans under A.R.S. § 33-1817(B)(3)?

An association shall not unreasonably withhold approval of a construction project’s architectural plans.

7. Why did the Administrative Law Judge (ALJ) reject Mr. Audette’s claim of selective enforcement?

Mr. Audette provided no written or oral testimony to establish that the association had failed to enforce the guidelines against other homeowners who he claimed were also in violation.

Essay Prompts for Deeper Exploration

  1. Contractual Obligations vs. Property Rights: Analyze the legal argument that CC&Rs serve as a binding contract. How does this contractual nature limit a homeowner's ability to modify their property, even if they have the support of their immediate neighbors?
  2. The "Harmony" Standard in Architectural Review: The Sun Harbor Architectural Committee is tasked with considering the "harmony" of a proposed change with its surroundings. Discuss the subjective and objective elements of this standard as applied to the view of Desert Harbor Lake and the precedent of moving from wrought iron to solid block walls.
  3. Evaluating Selective Enforcement: Mr. Audette provided photographs of other properties to argue that the association inconsistently enforced its rules. Explain the evidentiary gap between showing "other violations exist" and proving "selective enforcement" according to the ALJ's findings.

Glossary of Important Terms

Term Definition
Administrative Law Judge (ALJ) A professional hearing officer who presides over administrative proceedings and issues decisions based on findings of fact and conclusions of law.
A.R.S. § 33-1817(B)(3) The Arizona Revised Statute stipulating that homeowners' associations cannot unreasonably withhold approval for architectural plans.
CC&R Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and limitations for a planned community.
Inharmonious A term used by the association to describe a structure that does not fit aesthetically or functionally with the surrounding properties or environment.
Petitioner The party who initiates a lawsuit or petition; in this case, Jeffrey S. Audette.
Preponderance of the Evidence The standard of proof in civil and administrative cases, requiring that a fact be more likely than not to be true.
Respondent The party against whom a petition is filed; in this case, Sun Harbor Community Association.
Setback The minimum distance a structure must be kept from a property line, shoreline, or other defined boundary.
Sub-association A secondary homeowners' association governing a specific subset of homes within a larger master association.

The Price of a View: Lessons from a Waterfront HOA Dispute

1. Introduction: The High Cost of Bypassing the Board

For many residents in planned communities, the home is a castle, but the CC&Rs (Covenants, Conditions, and Restrictions) are the contractual bedrock that defines how that castle can be modified. When personal preference collides with community standards, the resulting neighborly friction often shifts from the front yard to the courtroom. A homeowner attempting to enhance their privacy or "improve" their property without following established protocols can quickly find themselves in a legal quagmire, proving that the cost of a better view is far higher when it bypasses the board.

The case of Jeffrey S. Audette vs. Sun Harbor Community Association (doing business as Desert Harbor Homeowners Association) serves as a quintessential cautionary tale. This dispute centered on a waterfront property owner who replaced open wrought iron fences with solid five-foot-high block walls within a restricted setback area—all without securing the necessary prior approval from the Master Association.

2. The Timeline of a Conflict

The path from a backyard renovation to an administrative judgment is often paved with missed opportunities for compliance. The chronological breakdown of this dispute highlights a nearly two-year struggle:

  • February 2018: Without obtaining prior permission, Mr. Audette removes two wrought iron fences and replaces them with five-foot-high block walls located within 15 feet of the lake lining setback.
  • March 2018: Mr. Audette submits a retroactive construction plan to the Sun Harbor Architectural Committee. The committee denies the request, leading the homeowner to file an internal appeal.
  • May 9, 2018: Following the denial of his appeal, Sun Harbor issues a formal violation notice citing CC&R Article IV, Section 2(a) for the unauthorized conversion of the fences.
  • September 4, 2019: Mr. Audette files a petition with the Arizona Department of Real Estate (ADRE), alleging that the Association improperly denied his request and was inconsistent in its enforcement of community rules.
  • December 5, 2019: The matter reaches a formal evidentiary hearing at the Office of Administrative Hearings.
3. The Homeowner’s Defense: Permission vs. Process

Mr. Audette’s defense was built on the argument that the Association’s denial was unreasonable and discriminatory. Notably, Mr. Audette had previously served on the Sun Harbor board, making this a case where a former "insider" found himself at odds with the very process he once helped oversee—a reminder that personal history does not exempt one from current regulations. His primary arguments included:

  • Sub-Association Approval: He claimed he had secured permission from his specific sub-association before construction commenced.
  • Immediate Neighbor Consent: He testified that the neighbors directly to his left and right approved of the new block walls.
  • Past Board Practices: Drawing on his experience as a former board member, he argued that the Association traditionally granted requests that had already received a "green light" from a sub-association.
  • Limited Visibility: He contended that the walls were only visible to his immediate neighbors and did not negatively impact the community at large.
  • Selective Enforcement Claims: To meet the high bar of selective enforcement, he submitted photographs of other properties in the community that he alleged were also in violation of height restrictions.
4. The Association’s Stand: Aesthetics and Regulations

The Association stood firmly on the "Sun Harbor Architectural Guidelines" adopted in September 2002. These rules exist to preserve the visual "harmony" of the community. Per Finding of Fact #17, the Architectural Committee is required to consider specific factors including the suitability of the alteration, the materials used, the topography and finished grade elevation of the site, and the effect on adjacent properties.

The Association focused heavily on the specific restrictions for shoreline lots:

"No structure, fence or shrubs with a solid height greater than 3 feet are allowed in the 15-foot setback of the concrete shoreline, with the exception of approved docks." (Sun Harbor Architectural Guidelines, pg. 11).

The Association argued that while the guidelines allowed for 3-foot structures, Mr. Audette’s 5-foot walls were fundamentally inharmonious. Testimony from the Association emphasized that these walls obscured lake views for residents on lots 1 through 9. Furthermore, the board expressed a valid concern regarding precedent: allowing one homeowner to swap transparent wrought iron for solid block would fundamentally alter the character of the waterfront for everyone.

5. The Legal Verdict: Why the HOA Prevailed

Administrative Law Judge Velva Moses-Thompson ruled in favor of the Association, dismissing the petition. The legal reasoning offers a masterclass in HOA law:

  • The Burden of Proof: In this administrative venue, the Petitioner (Mr. Audette) bore the burden of proving his case by a "Preponderance of the Evidence."
  • Defining the Standard: The Judge utilized Black’s Law Dictionary to define this standard as: "The greater weight of the evidence… evidence that has the most convincing force; superior evidentiary weight that… is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other."
  • Failure to Prove Unreasonableness: Under A.R.S. § 33-1817(B)(3), an association cannot "unreasonably withhold" approval. However, the legal reality was not that the HOA proved it was right, but that Mr. Audette failed to prove the HOA acted unreasonably. The Association’s adherence to its height and harmony guidelines was found to be a reasonable exercise of its authority.
  • The Selective Enforcement Trap: The Judge found that Mr. Audette failed to establish selective enforcement. Simply providing photos of other violations is insufficient; a petitioner must prove that the Association knowingly allowed those violations to persist without taking enforcement action.
6. Key Takeaways for Homeowners and Boards

This case yields several vital insights for those living in or managing common-interest communities:

  1. Prior Approval is Mandatory: Never assume that a sub-association’s "okay" or a neighbor’s "thumbs up" overrides the Master Association’s authority. Process must always precede construction.
  2. Respect the Setbacks: Shoreline and common-area setbacks are often the most strictly protected zones in a community. In this case, the distinction between the allowed 3-foot height and the offending 5-foot wall was the difference between a compliant project and a legal violation.
  3. The Evidence Gap in Selective Enforcement: To successfully argue selective enforcement, a homeowner must provide more than just pictures of other non-compliant homes. You must provide written or oral testimony proving that the board was aware of those violations and failed to act. Without proof of board inaction, photos are just pictures of other people’s potential problems.
  4. Process Over Personal History: Even former board members are subject to the current rules. Familiarity with the system is no substitute for following the current, written architectural guidelines.
7. Final Summary

The integrity of a community’s aesthetic depends on the consistent application of its governing documents. As Audette vs. Sun Harbor illustrates, the CC&Rs are not mere suggestions but binding contracts. Bypassing the architectural review process is a high-risk gamble that can result in expensive litigation, the dismissal of your claims, and the eventual requirement to tear down the very improvements you sought to enjoy. Following the rules from the start is the only guaranteed way to protect both your property and your peace of mind.

Case Participants

Petitioner Side

  • Jeffrey S. Audette (Petitioner)
    Sun Harbor Community Association (Member)
    Homeowner; former board member
  • Mark J. Bainbridge (attorney)
    Appeared on behalf of Petitioner

Respondent Side

  • Lauren Vie (attorney)
    Appeared on behalf of Respondent
  • Yvette Rushford (witness)
    Testified for Sun Harbor
  • Bud Levey (witness)
    Testified for Sun Harbor
  • Beth Mulcahy (attorney)
    Mulcahy Law Firm, PC
    Listed in distribution list

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Received electronic transmission of order

Robert S. Nickell v. Holiday Harbour Property Owners Association

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Case Summary

Case ID 20F-H2019008-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-12-09
Administrative Law Judge Thomas Shedden
Outcome The Administrative Law Judge dismissed the petition, ruling that the Association did not violate A.R.S. § 33-1817(B)(3). The Association's enforcement of the height restriction was reasonable as they allowed for excavation to meet height requirements, and the Petitioner did not demonstrate the necessary hardship for a waiver.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Robert S. Nickell Counsel —
Respondent Holiday Harbour Property Owners Association Counsel —

Alleged Violations

A.R.S. § 33-1817(B)(3)

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the Association did not violate A.R.S. § 33-1817(B)(3). The Association's enforcement of the height restriction was reasonable as they allowed for excavation to meet height requirements, and the Petitioner did not demonstrate the necessary hardship for a waiver.

Why this result: Petitioner failed to meet the burden of proof to show the Association acted unreasonably or that the height restriction caused extreme hardship.

Key Issues & Findings

Unreasonable withholding of architectural design approval

Petitioner alleged the Association unreasonably denied his request to build a home 17 feet in height, violating the 15-foot limit in the CC&Rs, and failed to grant a variance for hardship.

Orders: The petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1817(B)(3)
  • CC&Rs Section 6
  • CC&Rs Section 11

Video Overview

Audio Overview

Decision Documents

20F-H2019008-REL Decision – 757400.pdf

Uploaded 2026-04-24T05:35:18 (107.8 KB)

20F-H2019008-REL Decision – 757626.pdf

Uploaded 2026-04-24T05:35:23 (108.4 KB)

Case Analysis: Nickell v. Holiday Harbour Property Owners Association (No. 20F-H2019008-REL)

Executive Summary

This briefing document analyzes the administrative law decision and subsequent amended decision regarding a dispute between Robert S. Nickell (Petitioner) and the Holiday Harbour Property Owners Association (Respondent). The conflict centered on the Association’s denial of Mr. Nickell's request to construct a residence and attached RV garage with a height of 17 feet, which exceeded the 15-foot limit stipulated in the community's Covenants, Conditions, and Restrictions (CC&Rs).

The Petitioner argued that the Association's denial was unreasonable and sought a variance based on claims of selective enforcement and potential drainage issues. However, the Administrative Law Judge (ALJ) determined that the Petitioner failed to meet the burden of proof required to show that the Association acted unreasonably or that the height restriction caused an "extreme or material hardship." Consequently, the petition was dismissed, upholding the Association's right to enforce its established architectural standards.

Case Overview
Category Details
Case Number 20F-H2019008-REL
Petitioner Robert S. Nickell
Respondent Holiday Harbour Property Owners Association
Administrative Law Judge Thomas Shedden
Hearing Date November 19, 2019
Core Dispute Denial of a 17-foot structure in a 15-foot limit zone
Legal Basis A.R.S. § 33-1817(B)(3); CC&Rs Sections 6 and 11
Final Decision Petition Dismissed

Detailed Analysis of Key Themes

1. Architectural Standards and "Lot Grade" Interpretation

The primary technical dispute involved the definition of "lot grade" as the starting point for measuring the 15-foot height restriction mandated by Section 6 of the CC&Rs.

  • Association's Position: The Association interprets "lot grade" as the "highest buildable point," specifically the elevation where the original house on the lot was located. They define the highest buildable point as an area within required setbacks capable of accommodating a structure with 800 square feet of livable space.
  • Petitioner’s Argument: Mr. Nickell contended that the Association had previously used different definitions of lot grade and argued that since his lot had been excavated down by 3.4 feet, he should be permitted a total height of 18.4 feet.
  • Adjudication: The ALJ found the Association’s interpretation reasonable. Testimony from Board member Douglas Clark clarified that the "highest buildable point" identified by the Petitioner was actually outside the required setbacks, undermining the Petitioner's measurement claims.
2. Reasonableness of Architectural Control (A.R.S. § 33-1817(B))

Under Arizona law, an Association cannot unreasonably withhold approval of architectural designs. The Petitioner alleged the Association violated this statute.

  • Proposed Mitigation: The Association demonstrated reasonableness by offering an alternative: they informed Mr. Nickell he could build his 17-foot-2-inch structure if he excavated down from the established lot grade. This would allow him the desired building height while maintaining the community's elevation profile.
  • Fairness vs. Aesthetics: The Association testified that the height restriction is enforced as a "matter of fairness" rather than strictly to preserve specific views. The ALJ concluded that because the Association provided a path to compliance via excavation, their denial of the original non-compliant plan was not unreasonable.
3. Hardship and the Variance Standard

Section 11 of the CC&Rs allows the Association to grant a variance at its discretion if the height restriction causes "extreme or material hardship."

  • Hardship Claims: Mr. Nickell argued that excavation was unfeasible due to drainage concerns. He also rejected the Association’s suggestion to reverse the house footprint, citing impacts on his personal views and the utility of an existing garage bathroom.
  • Legal Conclusion: The ALJ ruled that these inconveniences did not rise to the level of "extreme or material hardship." The Petitioner failed to provide sufficient evidence that the lot could not be drained properly if excavated.
4. Consistency in Enforcement

The Petitioner attempted to argue selective enforcement by providing photographs of other homes with RV garages exceeding 15 feet.

  • Association Rebuttal: The Association successfully argued that the homes identified by the Petitioner were compliant because those owners had excavated down from the lot grade to accommodate the taller structures.
  • Exceptions: While the Association admitted to granting one 17-foot waiver previously, it was for a specific waterfront lot on the west side of Highway 95, which did not establish a precedent for the Petitioner's inland lot.

Important Quotes with Context

On the Burden of Proof

"Mr. Nickell bears the burden of proof, and the standard of proof on all issues in this matter is that of a preponderance of the evidence." (Conclusion of Law No. 2)

Context: This establishes that the Petitioner was legally required to prove that it was more likely than not that the Association acted improperly.

Legal Definition of Preponderance of Evidence

"The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force…" (Conclusion of Law No. 3, quoting Black’s Law Dictionary)

Context: The ALJ used this to evaluate the conflicting testimonies regarding the "highest buildable point" and the feasibility of excavation.

On Contractual Compliance

"The CC&Rs are a contract between the parties and the parties are required to comply with its terms." (Conclusion of Law No. 5)

Context: This reinforces that the 15-foot height limit is a binding contractual obligation that the Association has a right and duty to enforce.

Regarding the Reasonableness of the Association

"The Association allows members to excavate down from the highest buildable point to accommodate structures that are taller than fifteen feet… This was not unreasonable, and Mr. Nickell has not proven that the Association violated ARIZ. REV. STAT. section 33-1817(B)(3)." (Conclusion of Law No. 7)

Context: This quote is the crux of the decision, highlighting that providing an alternative path to compliance (excavation) satisfies the legal requirement for an Association to act reasonably.

Actionable Insights

  • Establishing "Lot Grade" Protocols: Associations should clearly define "lot grade" and "highest buildable point" within their architectural guidelines—ideally referencing areas within setbacks—to avoid disputes during new construction or major renovations.
  • The Power of Compromise: The Association’s willingness to suggest excavation and footprint reversals served as strong evidence of "reasonableness" in the eyes of the court. Proposing alternative solutions to non-compliant homeowners can protect an Association from claims of being "unreasonable."
  • Hardship is a High Bar: For homeowners seeking variances, "hardship" must be more than a preference for a specific view or the convenience of an existing bathroom. "Extreme or material hardship" typically requires proof of physical or structural impossibility.
  • Documentation of Compliance: The Association was able to successfully defend against claims of selective enforcement because they had records showing that other "tall" buildings in the neighborhood had followed the excavation rules. Maintaining a clear paper trail of how previous exceptions or compliant tall structures were handled is vital for legal defense.
  • Correction of Errors: The issuance of the Amended Decision on December 9, 2019, to correct a typographical error in Conclusion of Law No. 9 demonstrates the necessity for parties to review final orders immediately for technical accuracy to ensure the legal record is clear.

Study Guide: Robert S. Nickell v. Holiday Harbour Property Owners Association

This study guide provides a comprehensive overview of the administrative hearing between Robert S. Nickell and the Holiday Harbour Property Owners Association (Case No. 20F-H2019008-REL). It covers the core legal issues regarding height restrictions in planned communities, the application of Arizona Revised Statutes (A.R.S.), and the standards for architectural approval.

I. Overview of the Dispute

The case centers on a petition filed by Robert S. Nickell (Petitioner) against the Holiday Harbour Property Owners Association (Respondent). The Petitioner sought to build a home with a height of seventeen feet on his lot at 4835 Marina View. The Association denied the request based on its Covenants, Conditions, and Restrictions (CC&Rs).

Central Legal Questions
  • Architectural Approval: Did the Association unreasonably withhold approval of the Petitioner’s construction plans in violation of A.R.S. § 33-1817(B)(3)?
  • Variances and Hardships: Did the Petitioner qualify for a height variance under Section 11 of the CC&Rs based on "extreme or material hardship"?
  • Definition of Lot Grade: How is "lot grade" determined for the purposes of enforcing height restrictions?

II. Key Concepts and Findings

1. The Height Restriction (CC&R Section 6)

The Association’s CC&Rs explicitly state that structures may not exceed fifteen (15) feet in height above lot grade. The Association interprets "lot grade" as the "highest buildable point," which in this specific case was the elevation where the original house on the lot was located.

2. Methods of Compliance

The Association allows homeowners to build structures taller than fifteen feet provided they excavate down from the lot grade. This ensures the total height above the original grade does not exceed the 15-foot limit. The Association informed the Petitioner he could build his requested 17-foot, 2-inch structure if he excavated accordingly.

3. The "Highest Buildable Point" Dispute

The Petitioner argued that his lot had already been excavated by 3.4 feet and that the "highest buildable point" should allow for an 18.4-foot structure. However, the Association provided testimony that the point identified by the Petitioner was located outside the required setbacks, and therefore did not qualify as the highest buildable point.

4. Variance Criteria (CC&R Section 11)

A variance or waiver of the height restriction can be granted at the Association's discretion if the restriction causes extreme or material hardship. The Petitioner cited drainage issues and the potential loss of his own views as hardships, but these were not found to meet the legal standard of extreme or material hardship.

5. Legal Standards for Administrative Hearings
  • Authority: The Arizona Department of Real Estate has authority over these matters under A.R.S. Title 32, Ch. 20, Art. 11.
  • Burden of Proof: The Petitioner carries the burden of proof.
  • Standard of Proof: The case is decided based on a preponderance of the evidence, meaning the evidence has the most convincing force and is sufficient to incline an impartial mind to one side.

III. Short-Answer Practice Questions

Q1: What is the maximum height permitted for structures under Section 6 of the Holiday Harbour CC&Rs?

  • Answer: Fifteen (15) feet above lot grade.

Q2: How does the Association define the "highest buildable point" for a lot?

  • Answer: It is an area inside the required setbacks that can accommodate a structure with 800 square feet of livable space.

Q3: Under A.R.S. § 33-1817(B)(3), what is the limitation placed on an Association regarding architectural designs?

  • Answer: Approval of a construction project's architectural designs, plans, and amendments shall not be unreasonably withheld.

Q4: Why did the Petitioner reject the Association's suggestion to reverse the footprint of his proposed house?

  • Answer: He claimed it would affect his own views and his ability to use a bathroom located in the existing garage.

Q5: What was the Petitioner's argument regarding his neighbor's home?

  • Answer: He argued that because the neighboring home was at a higher elevation, his proposed 17-foot home would still be six to eight feet lower than the neighbor’s and would not affect their views.

Q6: What specific reason did the Association give for enforcing height restrictions if not to preserve views?

  • Answer: The Association enforces height restrictions as a matter of fairness.

IV. Essay Prompts for Deeper Exploration

1. The Intersection of Contract Law and HOA Governance

The decision references Johnson v. The Pointe Community Association, noting that CC&Rs are a contract between parties. Discuss the implications of viewing CC&Rs as a contract. How does this contractual nature limit or empower an Association’s Board when enforcing restrictions like height limits?

2. Evaluating "Reasonableness" in Architectural Denials

Under A.R.S. § 33-1817(B)(3) and Tierra Ranchos Homeowners Ass'n v. Kitchukov, an Association must act reasonably. Analyze the Association's actions in this case. Was the offer to allow the Petitioner to build a 17-foot home—contingent on excavation—a "reasonable" compromise? Why did the Administrative Law Judge conclude that the Petitioner failed to prove the Association acted unreasonably?

3. The Challenge of Proving "Extreme or Material Hardship"

The Petitioner argued that excavation was impossible due to drainage issues and that changing his house footprint would negatively impact his personal views and garage access. Compare these claims against the standard of "extreme or material hardship." Why might a court or ALJ find these personal preferences insufficient to warrant a variance?

V. Glossary of Important Terms

Term Definition
A.R.S. § 33-1817(B)(3) An Arizona statute stating that HOAs cannot unreasonably withhold approval of construction architectural designs or plans.
CC&Rs Covenants, Conditions, and Restrictions; a contract between the Association and property owners governing the use of land.
Highest Buildable Point The elevation used to determine lot grade; specifically, an area within setbacks that can hold 800 sq. ft. of livable space.
Lot Grade The reference point for measuring structure height; in this case, the elevation at which the original house was located.
Preponderance of the Evidence The legal standard of proof where the evidence presented is more convincing than the evidence opposed to it.
Setbacks Required distances between a structure and the property lines or other features where building is prohibited.
Variance An exception to the established rules (CC&Rs) granted by the Association, typically in cases of extreme hardship.
Waiver The voluntary relinquishment of a known right or the decision not to enforce a specific restriction in the CC&Rs.

Heights and Hardships: Navigating HOA Construction Disputes

1. Introduction: The Battle for the Extra Two Feet

Homeowners, take note: spending thousands of dollars on architectural designs before clearing the legal hurdles of your CC&Rs is a recipe for a very expensive heartbreak. The case of Robert S. Nickell vs. Holiday Harbour Property Owners Association serves as a textbook example of what happens when a homeowner’s dream of a custom RV garage collides with a Board’s duty to enforce community standards. What began as a request for an extra two feet of height evolved into a legal battle that reaffirmed a fundamental truth in property law: your "vision" for your property does not override the binding contract you signed when you bought into an HOA.

2. The Rulebook: Understanding CC&Rs Section 6 and 11

The dispute hinged on the interpretation of two critical sections of the Holiday Harbour governing documents. As a consultant, I always tell my clients that these are not mere suggestions; they are the boundaries of your property rights.

  • The Height Limit: Section 6 explicitly prohibits any structure from exceeding 15 feet in height when measured above the "lot grade."
  • The Variance Clause: Section 11 provides the Board with the discretion to waive this restriction, but only in instances where the petitioner can demonstrate an "extreme or material hardship."
3. The Homeowner’s Argument: Why 17 Feet?

Petitioner Robert S. Nickell approached the Arizona Department of Real Estate seeking to overturn the Association’s denial of his 17-foot design. His strategy relied on an escalating set of interpretations and grievances:

  • The "Precedent" Claim: Nickell argued the Association was being arbitrary, presenting photos of other homes with RV garages that appeared to exceed the 15-foot limit.
  • A Moving Target: While the initial dispute was over a 17-foot home, Nickell’s demands escalated during the process. He eventually argued for a height of 18.4 feet, based on his own calculations of excavation and "highest buildable point."
  • Subjective Interpretation of Grade: He contended that "lot grade" should be defined as the "highest buildable point" on the property—a definition that favored his desired elevation.
  • The Subjective View Argument: Nickell claimed that because a neighboring home was at a higher elevation, his 17-foot home would not obstruct any neighbor's view. Conversely, he rejected the Association's suggestion to reverse his house footprint because it would negatively impact his own view from a garage bathroom.
  • Practical Hardship: He claimed excavation was impossible due to drainage concerns, asserting that the height limit effectively barred him from his desired build.
4. The Association’s Defense: Fairness Over Views

The Association, supported by testimony from Board members Douglas Clark and Michael Frue, maintained a defense rooted in consistency and mathematical precision. Their rebuttal offered a masterclass in how Boards should handle challenges:

  • Defining "Lot Grade": The Association successfully argued that "lot grade" refers to the historical elevation of the original home on the site.
  • The Setback Criticality: In a move that highlights the importance of surveyed boundaries, the Board proved that the "highest buildable point" Nickell used for his 18.4-foot claim was actually located outside the required property setbacks, rendering it legally irrelevant for height calculations.
  • The Compromise Offer: To prove they were not being "unreasonable," the Association informed Nickell he could build a structure up to 17 feet, 2 inches in total height, provided he excavated down from the lot grade—a standard they had applied to every other "tall" home in the community.
  • The Waterfront Exception: While Nickell pointed to a 17-foot home that had received a waiver, the Association clarified this was one of only six waterfront lots west of Highway 95. This specific class of lot did not set a precedent for Nickell’s inland property.
  • The Fairness Doctrine: The Board testified that height restrictions are enforced to ensure community-wide fairness, not to manage the subjective "views" of individual owners.
5. The Legal Verdict: Defining "Unreasonable"

The Administrative Law Judge (ALJ) reviewed the case under A.R.S. § 33-1817(B), which states that architectural approval shall not be "unreasonably withheld." The court reaffirmed the principle that the petitioner bears the burden of proof under a specific legal standard:

Preponderance of the Evidence: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. BLACK’S LAW DICTIONARY 1373 (10th ed. 2014).

The ALJ determined the Association acted reasonably. By offering a compromise (the 17' 2" excavation option) that was consistent with past enforcement, the Board met its legal obligations.

6. Key Takeaways for Homeowners and HOAs

The lesson for Boards and owners alike is clear. The ruling provides three actionable insights:

  1. Definitions are Legal, Not Subjective: "Lot grade" is typically tied to historical or surveyed points (like the original house footprint), not the most convenient mound of dirt on the property. Nickell’s attempt to use a point outside the setbacks was a fatal flaw in his argument.
  2. The Hardship Bar is Immense: To secure a variance, you must show more than a "preference." The court found that wanting an RV garage or refusing to move a footprint to protect a "garage bathroom view" does not constitute an "extreme or material hardship." Personal amenities are not legal rights.
  3. Case Law Protects the Contract: The court cited Johnson v. The Pointe Community Association and Tierra Ranchos v. Kitchukov to emphasize that CC&Rs are binding contracts. If an Association enforces its rules consistently—even if it offers a path to compromise like excavation—the courts will generally stay out of their hair.
7. Conclusion: The Final Order

The Administrative Law Judge ordered that Robert S. Nickell’s petition be dismissed in its entirety. This case serves as a stark warning: the "highest buildable point" on your lot isn't just where the ground is highest; it's where the law and your contract say it is. Before you break ground, ensure your architect is designing to the CC&Rs, not just your wishlist. In the world of HOAs, the rulebook always stands taller than your extra two feet.

Case Participants

Petitioner Side

  • Robert S. Nickell (Petitioner)
    Appeared on his own behalf

Respondent Side

  • Larry Boquette (HOA President)
    Holiday Harbour Property Owners Association
    Also listed as Lawrence E Boquette; appeared for Respondent
  • Douglas Clark (Board member)
    Holiday Harbour Property Owners Association
    Provided testimony
  • Michael Frue (Board member)
    Holiday Harbour Property Owners Association
    Provided testimony

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of order

Michael D. Pursley vs. Sycamore Vista No. 7 Homeowners Association,

Posted on by

Case Summary

Case ID 20F-H2019004-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-12-04
Administrative Law Judge Tammy L. Eigenheer
Outcome The ALJ ruled in favor of the Petitioner on both counts. It was found that the HOA violated statutes by failing to hold annual meetings in 2017 and 2018 and failing to timely respond to records requests. The HOA was ordered to refund the Petitioner's $1,000.00 filing fee.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael D. Pursley Counsel —
Respondent Sycamore Vista No. 7 Homeowners Association, Inc. Counsel Maxwell T. Riddiough

Alleged Violations

A.R.S. § 33-1804(B)
A.R.S. § 33-1805

Outcome Summary

The ALJ ruled in favor of the Petitioner on both counts. It was found that the HOA violated statutes by failing to hold annual meetings in 2017 and 2018 and failing to timely respond to records requests. The HOA was ordered to refund the Petitioner's $1,000.00 filing fee.

Key Issues & Findings

Failure to hold annual meetings

Petitioner alleged Respondent failed to hold annual meetings. Respondent admitted to not holding meetings in 2017 and 2018 due to a belief that a quorum could not be established.

Orders: Violation found. Respondent ordered to comply (implied via prevailing party status).

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Failure to timely provide records

Petitioner alleged Respondent repeatedly failed to provide requested community documents within the statutory timeframe. Respondent eventually provided documents but not within the required time.

Orders: Violation found.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

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Video Overview

Audio Overview

Decision Documents

20F-H2019004-REL Decision – 757066.pdf

Uploaded 2026-04-24T11:22:35 (89.0 KB)

Briefing Document: Pursley v. Sycamore Vista No. 7 Homeowners Association, Inc.

Executive Summary

This briefing document details the administrative law proceedings and subsequent decision in the case of Michael D. Pursley v. Sycamore Vista No. 7 Homeowners Association, Inc. (Case No. 20F-H2019004-REL). The matter, heard on October 18, 2019, centered on allegations that the Respondent, Sycamore Vista No. 7 Homeowners Association, Inc. (the HOA), violated Arizona Revised Statutes regarding the conduct of annual meetings and the timely provision of community records to its members.

The Administrative Law Judge (ALJ) concluded that the Respondent failed to comply with its statutory obligations under A.R.S. § 33-1804(B) and A.R.S. § 33-1805(A). Consequently, the Petitioner was deemed the prevailing party and the HOA was ordered to reimburse the Petitioner’s filing fee of $1,000.00.

Detailed Analysis of Key Themes

1. Mandatory Annual Meeting Requirements

The primary legal dispute involved the HOA's failure to hold annual member meetings in 2017 and 2018. Under A.R.S. § 33-1804(B), an association is strictly required to hold a meeting of the members at least once each year.

The Respondent acknowledged the failure but offered a defense based on practical constraints: because the subdivision's lots were largely undeveloped and uninhabited, the HOA believed it could not achieve a quorum. However, the ALJ found this defense insufficient to waive the statutory requirement. Compliance was eventually achieved in 2019 only after a corporate entity purchased enough lots to satisfy quorum requirements.

2. Timeliness of Records Production

The second core issue was the Respondent’s failure to provide governing documents and financial statements within the legally mandated timeframe. A.R.S. § 33-1805(A) grants associations a maximum of ten business days to fulfill requests for the examination or copying of records.

The evidence demonstrated a significant delay in the HOA's response to the Petitioner:

Date of Request Method Content Requested
January 20, 2019 Letter CC&Rs
April 6, 2019 Certified Letter CC&Rs
June 21, 2019 Certified Letter CC&Rs, Rules and Regulations, Bylaws, Financial Statement

The HOA did not provide the documents via email until June 27, 2019—five months after the initial request and significantly beyond the ten-day limit following the final certified letter.

3. Burden of Proof and Legal Standards

In this administrative proceeding, the Petitioner bore the burden of proving the allegations by a "preponderance of the evidence." The court applied the standard definition: evidence that shows the fact sought to be proved is "more probable than not." Given the Respondent's admissions regarding the lack of meetings and the documented timeline of the records requests, the ALJ determined the Petitioner successfully met this burden.

Important Quotes with Context

Statutory Mandates

"A meeting of the members' association shall be held at least once each year." — A.R.S. § 33-1804(B)

  • Context: This quote establishes the non-discretionary nature of annual meetings, which the Respondent failed to adhere to for two consecutive years.

"The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records… the association shall have ten business days to provide copies of the requested records." — A.R.S. § 33-1805(A)

  • Context: This excerpt outlines the strict window of time an HOA has to respond to a member's request for information, a timeline the Respondent exceeded in this case.
Defense and Findings

"Respondent’s witness indicated that because the lots were undeveloped and no one was living in the association, Respondent believed it would be unable to have the number of owners present to make a quorum necessary to hold the annual meeting." — Findings of Fact, Paragraph 11

  • Context: This explains the Respondent’s rationale for skipping meetings, which the court ultimately found did not excuse the statutory violation.

"Petitioner initially denied having received the June 27, 2019 email that included the requested documents, but acknowledged that Respondent did email the documents to him even if he did not see them when they were sent to him." — Findings of Fact, Paragraph 10

  • Context: This clarifies that while documents were eventually provided, the provision occurred only after multiple requests and the initiation of the dispute process.

Actionable Insights

Based on the findings and the final order in this matter, the following insights are relevant for the management of homeowners associations:

  • Quorum Challenges Do Not Excuse Non-Compliance: HOAs must attempt to hold annual meetings regardless of development status or anticipated quorum issues to remain in compliance with A.R.S. § 33-1804(B).
  • Strict Adherence to the 10-Day Records Rule: Once a member submits a written request for records, the association has a maximum of ten business days to provide the materials. Failure to do so, even if the records are eventually provided, constitutes a statutory violation.
  • Certified Mail as a Trigger: The use of certified mail by a member provides a clear, evidentiary timeline for records requests. Management companies should treat these as high-priority to avoid administrative litigation.
  • Financial Risk of Litigation: While the ALJ did not find a civil penalty appropriate in this specific case, the Respondent was still ordered to pay the Petitioner's $1,000 filing fee. This demonstrates the direct financial cost of failing to address member requests and statutory requirements in a timely manner.
  • Permissible Copying Fees: Per A.R.S. § 33-1805(A), while an association cannot charge for making materials available for review, they are entitled to charge a fee of no more than fifteen cents ($0.15) per page for physical copies.

Study Guide: Michael D. Pursley v. Sycamore Vista No. 7 Homeowners Association, Inc.

This study guide provides a comprehensive overview of the administrative law case Michael D. Pursley v. Sycamore Vista No. 7 Homeowners Association, Inc. (No. 20F-H2019004-REL). It covers key legal concepts regarding Arizona Homeowners Association (HOA) regulations, the findings of the Administrative Law Judge (ALJ), and the statutory requirements for association transparency and governance.

Key Legal Concepts and Statutes

The case centers on the interpretation and application of Arizona Revised Statutes (A.R.S.) regarding the conduct of homeowners associations and the rights of their members.

1. Mandatory Annual Meetings (A.R.S. § 33-1804)

Under Arizona law, specifically A.R.S. § 33-1804(B), a homeowners association is mandated to hold a meeting of the members at least once every year. The failure to hold such a meeting constitutes a violation of the statute, regardless of internal logistical challenges such as a lack of quorum.

2. Member Access to Records (A.R.S. § 33-1805)

Members of an association have a statutory right to examine and copy association records. Key provisions of A.R.S. § 33-1805(A) include:

  • Reasonable Availability: All financial and other records must be made available for examination by a member or their designated representative.
  • Response Timeframe: The association has exactly ten business days to fulfill a request for examination or to provide copies of requested records.
  • Cost Limitations: Associations are prohibited from charging for the review of materials. If a member requests copies, the association may charge a fee of no more than fifteen cents per page.
3. Burden of Proof and Legal Standards
  • Jurisdiction: The Arizona Department of Real Estate (ADRE) has the authority to hear disputes between property owners and associations under A.R.S. § 32-2199 et seq.
  • Preponderance of the Evidence: In these administrative proceedings, the Petitioner (the homeowner) bears the burden of proof. They must prove their case by a "preponderance of the evidence," meaning the evidence shows the facts sought to be proved are "more probable than not."

Case Summary: Findings and Conclusions

The Dispute

Petitioner Michael D. Pursley, a member of the Sycamore Vista No. 7 HOA, filed a petition with the Department of Real Estate alleging two primary violations:

  1. The Respondent failed to hold annual meetings in 2017 and 2018.
  2. The Respondent failed to timely provide requested community documents (CC&Rs, Rules and Regulations, Bylaws, and Financial Statements) after multiple requests made in early 2019.
The Respondent’s Defense

The HOA acknowledged it did not hold the 2017 and 2018 meetings. Their defense was based on the fact that the lots were undeveloped and no residents were living in the association, leading them to believe they could not achieve a quorum (the minimum number of members required to conduct business). By 2019, a corporate entity had purchased enough lots to meet quorum requirements.

The Tribunal’s Decision

The ALJ ruled in favor of the Petitioner on both counts:

  • Meeting Violation: The HOA violated A.R.S. § 33-1804(B) by failing to hold meetings for two consecutive years.
  • Records Violation: The HOA violated A.R.S. § 33-1805(A) by failing to provide the requested records within the required ten-business-day window. While the records were eventually sent via email on June 27, 2019, this occurred months after the initial January and April requests.

Final Order:

  • Petitioner was deemed the prevailing party.
  • The Respondent was ordered to pay the Petitioner’s $1,000.00 filing fee.
  • No additional civil penalty was assessed.

Short-Answer Practice Questions

Q1: According to A.R.S. § 33-1804(B), how frequently must an HOA hold a members' meeting?

  • A: At least once each year.

Q2: What is the maximum per-page fee an HOA can charge for copies of records?

  • A: Fifteen cents ($0.15) per page.

Q3: How many business days does an association have to fulfill a request for records examination or copies?

  • A: Ten business days.

Q4: What reason did Sycamore Vista No. 7 HOA provide for not holding meetings in 2017 and 2018?

  • A: The lots were undeveloped and no one was living there, so the HOA believed it could not reach a quorum.

Q5: Who bears the burden of proof in an HOA dispute hearing, and what is the required standard of evidence?

  • A: The Petitioner bears the burden of proof by a "preponderance of the evidence."

Q6: What was the specific financial penalty/reimbursement ordered by the ALJ in this case?

  • A: The Respondent was ordered to pay the Petitioner his $1,000.00 filing fee.

Essay Prompts for Deeper Exploration

  1. Statutory Compliance vs. Practical Constraints: Analyze the HOA’s defense regarding the lack of quorum due to undeveloped lots. Why did the ALJ find this defense insufficient to excuse the violation of A.R.S. § 33-1804(B)? Discuss the importance of maintaining statutory governance even in the early stages of a development.
  1. The Significance of Timely Disclosure: In this case, the Petitioner eventually received the requested documents. Explore why the law mandates a strict ten-business-day response time under A.R.S. § 33-1805(A) and the potential impact on homeowners when associations fail to meet this timeline.
  1. The Role of the Administrative Law Judge (ALJ): Based on the document, describe the process of an administrative hearing for HOA disputes. Evaluate how the ALJ weighs evidence (such as the "preponderance of the evidence" standard) to reach a conclusion when facts—such as the receipt of an email—are initially contested.

Glossary of Important Terms

Term Definition
A.R.S. Arizona Revised Statutes; the codified laws of the state of Arizona.
CC&Rs Covenants, Conditions, and Restrictions; the governing documents that dictate the rules for a planned community.
Petitioner The party who initiates a lawsuit or petition (in this case, Michael D. Pursley).
Respondent The party against whom a petition is filed (in this case, Sycamore Vista No. 7 HOA).
Quorum The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid.
Preponderance of the Evidence A legal standard of proof meaning that the evidence as a whole shows the fact sought to be proved is more probable than not.
Administrative Law Judge (ALJ) An official who presides over an administrative hearing and makes findings of fact and conclusions of law.
Business Days For the purposes of records requests, these are the days during which the association must fulfill requests, excluding weekends and holidays (implied by the ten-day limit).
Governing Documents The collective set of rules for the association, including CC&Rs, Bylaws, and Rules and Regulations.

Understanding Your Rights: A Lesson in HOA Accountability from Pursley v. Sycamore Vista No. 7

1. Introduction: When Homeowners Take a Stand

As an expert in HOA compliance and an advocate for homeowner rights, I frequently see Boards of Directors acting as if state statutes are merely "suggestions." For many homeowners, dealing with an unresponsive association feels like shouting into a void. You pay your assessments and follow the CC&Rs, but when you ask for basic transparency, you’re met with silence or excuses.

The case of Michael D. Pursley vs. Sycamore Vista No. 7 Homeowners Association, Inc. is a landmark reminder that you do not have to accept Board negligence. This case demonstrates how a single, persistent homeowner held his association accountable through the Arizona Department of Real Estate (ADRE) dispute process. If your Board is skipping annual meetings or gatekeeping records, this ruling provides the roadmap for asserting your rights.

2. The Core Obligations: What the Law Requires

In Arizona, the operations of a Planned Community are governed by strict statutory mandates. Boards often plead ignorance, but as a homeowner, you must know that these requirements are non-negotiable legal duties.

Statute Number Mandatory Association Action
A.R.S. § 33-1804(B) A meeting of the members' association shall be held at least once each year.
A.R.S. § 33-1805(A) Fulfill requests to examine or provide copies of association records within ten business days.

Note for Homeowners: These statutes are part of the Arizona Planned Communities Act. They do not say a Board "should" hold a meeting; they say a meeting shall be held.

3. The Case Study: A Timeline of Non-Compliance

The dispute in Pursley v. Sycamore Vista No. 7 provides a textbook example of how "administrative friction" is used to discourage homeowners. Mr. Pursley’s journey to obtain basic governing documents spanned nearly half a year:

  • January 20, 2019: Initial request for CC&Rs sent to the management company.
  • April 6, 2019: After receiving no response, Pursley sent a certified letter repeating the request.
  • June 21, 2019: A second certified letter was sent, expanding the request to include Rules and Regulations, Bylaws, and Financial Statements.
  • June 27, 2019: The Association finally emailed the documents—five months after the initial request.

The "Expert" Insight on Deadlines: Interestingly, during the hearing, Mr. Pursley argued that the Association failed to provide documents within 20 business days. In a win for homeowners, the Administrative Law Judge (ALJ) corrected this: under A.R.S. § 33-1805(A), the Association actually only has 10 business days to comply. The law is even stricter than the Petitioner realized.

4. The Judge’s Ruling: Transparency Prevails

Administrative Law Judge Tammy L. Eigenheer found that the Association’s excuses did not hold up under legal scrutiny. The Petitioner successfully proved his case by a "preponderance of the evidence," meaning he showed it was more probable than not that the violations occurred.

Proven Violations:

  • Failure to Hold Meetings: The Association admitted it held no annual meetings in 2017 or 2018, a direct violation of A.R.S. § 33-1804(B).
  • Failure to Provide Timely Records: The Association failed the 10-business-day statutory deadline for record production.

The Financial Outcome: The Judge designated Mr. Pursley as the prevailing party and ordered the Association to pay his $1,000.00 filing fee within 30 days. However, as an expert consultant, I must set a realistic expectation: the ALJ noted that "No Civil Penalty is found to be appropriate." This process is designed for compliance and cost recovery, not for homeowners to collect "damages" or punitive fines.

5. Why "Quorum" and "Development" Aren't Excuses

The Association attempted to justify its failure to hold meetings by claiming that because the lots were undeveloped and no one was living there, they believed they couldn't achieve a quorum. They only held a meeting in 2019 after a corporate entity purchased enough lots to guarantee a quorum.

The ALJ rejected this logic entirely. A Board cannot wait for a "friendly" corporate developer to arrive before fulfilling its duty to the individual homeowners already in the association. The statutory requirement to hold a meeting "at least once each year" is absolute. If you are the only resident in a sea of empty lots, you still have the right to an annual meeting.

6. Conclusion: Key Takeaways for Every Homeowner

The Pursley case is a victory for the "little guy," but it also highlights the necessity of a professional approach to disputes.

Expert Actionable Takeaways:

  1. Certified Mail is Your Best Friend: Mr. Pursley’s use of certified mail created an indisputable paper trail. Never rely on phone calls or unconfirmed emails.
  2. Maintain a Detailed Interaction Log: Beyond mail, keep a log of every date, time, and person you speak with regarding records. This is your "evidence" if you end up before a judge.
  3. The 10-Day Rule is Powerful: Do not let management companies tell you they need "a few weeks." The clock starts when they receive the request, and they have 10 business days. Period.
  4. Use the OAH Process: Traditional litigation is expensive and slow. The Office of Administrative Hearings (OAH) provides access to specialized judges who understand HOA law, making it a more cost-effective and viable path for members.

Transparency is not a courtesy—it is a right. When Boards fail to follow state statutes, they undermine the community's trust. By knowing the law and documenting every step, you can ensure your association remains accountable to the people it serves.

Case Participants

Petitioner Side

  • Michael D. Pursley (petitioner)
    Appeared on his own behalf

Respondent Side

  • Maxwell T. Riddiough (respondent representative)
    Sycamore Vista No. 7 Homeowners Association, Inc.
    Represented the Respondent
  • Bradley P. Miller (Statutory Agent)
    Sycamore Vista No 7 HOA, Inc.
    Listed on transmission list

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Listed on transmission list
  • Felicia Del Sol (clerk)
    Office of Administrative Hearings
    Transmitted the decision

Mangus (AKA Gary) L.D. MacLeod Grantor and Trustee v. Mogollon

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Case Summary

Case ID 19F-H1919070-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-12-02
Administrative Law Judge Thomas Shedden
Outcome The ALJ dismissed the petition, finding that the Respondent provided all responsive records in its possession. The tribunal held that A.R.S. § 33-1805(A) does not require an association to obtain and produce records it does not have.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Mangus (AKA Gary) L.D. MacLeod Grantor and Trustee Counsel —
Respondent Mogollon Airpark, Inc. Counsel Gregory Stein

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The ALJ dismissed the petition, finding that the Respondent provided all responsive records in its possession. The tribunal held that A.R.S. § 33-1805(A) does not require an association to obtain and produce records it does not have.

Why this result: Petitioner failed to meet the burden of proof; the ALJ ruled that the statutory requirement to make records available does not extend to records not in the association's possession.

Key Issues & Findings

Failure to provide records (CD history trail)

Petitioner requested specific historical records regarding four CDs. Respondent provided records in its possession and some obtained from banks, but Petitioner argued Respondent was required to obtain further 'history trails' it did not possess.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1805(A)

Video Overview

Audio Overview

Decision Documents

19F-H1919070-REL Decision – 756469.pdf

Uploaded 2026-04-24T11:21:44 (91.2 KB)

Administrative Law Judge Decision: MacLeod v. Mogollon Airpark, Inc.

Executive Summary

On December 2, 2019, Administrative Law Judge Thomas Shedden issued a decision in the matter of Mangus L.D. MacLeod v. Mogollon Airpark, Inc. (Case No. 19F-H1919070-REL). The dispute centered on whether the Respondent, Mogollon Airpark, Inc., violated Arizona Revised Statutes (A.R.S.) § 33-1805 by failing to provide certain financial records requested by the Petitioner, Mangus MacLeod.

The Petitioner contended that the Association was legally obligated to obtain and produce bank records related to four Certificates of Deposit (CDs) from 2017, even if those records were not currently in the Association's possession. The Respondent maintained that it had provided all responsive records it possessed and had even assisted the Petitioner in obtaining additional records directly from financial institutions.

The Administrative Law Judge (ALJ) ruled in favor of the Respondent, concluding that A.R.S. § 33-1805(A) does not require an association to procure records it does not have. Consequently, the petition was dismissed.

Detailed Analysis of Key Themes

1. Statutory Interpretation of A.R.S. § 33-1805(A)

The central legal question was the scope of an association's duty to make "financial and other records" available. The Petitioner argued that because certain records (like bank history trails) are mentioned in an association’s records retention policy, they must be produced upon request regardless of whether the association actually possesses them.

The ALJ rejected this interpretation, noting that:

  • Statutes must be interpreted to provide "fair and sensible" results.
  • The tribunal cannot expand a statute to include requirements not explicitly stated in its provisions.
  • Requiring an association to obtain records it does not possess would constitute an "absurd and unreasonable construction" of the law.
2. Possession vs. Acquisition

The case distinguished between records held by the Association and records held by third-party entities (banks).

  • Respondent's Position: On April 22, 2019, the Association provided all records it currently had, including some newly acquired from banks via the Board president's proactive efforts.
  • Petitioner's Position: The Association was responsible for obtaining the full "history trail" of the CDs from the banks to facilitate a proper audit.

The ALJ found that once the Association provided all records in its possession, it had fulfilled its statutory duty.

3. Evidentiary Standards and Burden of Proof

The Petitioner bore the burden of proof by a preponderance of the evidence. The ALJ determined that the Petitioner failed to:

  • Identify any responsive records that were actually in the Respondent’s possession at the time of the request.
  • Provide substantial evidence that the Respondent failed to comply with a second records request.
4. Good Faith Cooperation

The findings of fact highlight that the Respondent, specifically Board president Craig Albright and the management company (HOAMCO), acted cooperatively. This included:

  • Contacting three banks to solicit records.
  • Directly accompanying the Petitioner to banks in June 2019 to help produce records.
  • Maintaining communication regarding the lack of hardcopy or electronic formats for older 2017 records.

Key Quotes and Contextual Analysis

Quote Source Context Significance
"The 'core' issue in this matter is whether 'other records' as used in ARIZ. REV. STAT. section 33-1805(A) includes all records listed in that retention policy regardless of whether Respondent actually has those records." Finding of Fact #18 Defines the Petitioner's legal theory: that a retention policy creates an absolute mandate to produce, even if the records must be sought from third parties.
"Courts will not place an absurd and unreasonable construction on statutes." Conclusion of Law #4 (Citing State v. McFall) Establishes the judicial boundary for interpreting HOA records laws; the ALJ used this to dismiss the idea that HOAs must "hunt" for missing records.
"Mr. MacLeod acknowledged that he could not identify any records that were responsive to his requests that were in the possession of Respondent when he made those requests." Finding of Fact #20 This admission was fatal to the Petitioner's case, as the statute governs existing records of the association.
"The preponderance of the evidence shows that Respondent provided Mr. MacLeod with copies of all records it had that were responsive to his first request." Conclusion of Law #8 The ultimate factual finding that cleared the Respondent of the alleged violation.

Actionable Insights

For Homeowners' Associations (HOAs)
  • Possession is the Metric: Compliance with A.R.S. § 33-1805(A) is generally measured by the production of records currently in the association's possession (either physical or electronic).
  • Documentation of Effort: The Respondent’s success was bolstered by the ability to show they contacted banks and worked with the management company (HOAMCO) to find responsive documents. Associations should document all efforts to fulfill record requests.
  • Third-Party Suggestion: When records are held by third parties (like banks), suggesting that the requester contact those entities directly is a valid and helpful response, though not strictly required by the statute to obtain those records for them.
For Petitioners/Members
  • Identifying Possession: Before filing a petition, a member should be able to provide evidence that the association actually holds the records being withheld.
  • Retention Policy vs. Statute: A retention policy dictates what an association should keep, but the statutory penalty for non-production under § 33-1805 applies to what the association has available for examination.
  • Meeting the Standard of Proof: Petitioners must provide "substantial evidence" (evidence that would permit a reasonable person to conclude the finding is substantiated) to prevail in administrative hearings.
Procedural Takeaway
  • Cooperation as Defense: While the hearing involved "hours of testimony" and "a thousand pages of proposed exhibits," the ALJ focused on the Respondent’s cooperative behavior and the credible testimony of the Board president regarding the April 22nd production of documents. This suggests that demonstrating "good faith" can be a powerful defense in administrative disputes.

MacLeod v. Mogollon Airpark, Inc.: A Study Guide on Association Records and Statutory Requirements

This study guide provides a comprehensive overview of the administrative law case Mangus L.D. MacLeod v. Mogollon Airpark, Inc. (No. 19F-H1919070-REL). The case centers on the interpretation of Arizona Revised Statutes (A.R.S.) § 33-1805 regarding the duty of a homeowners' association to provide records to its members.

Key Concepts and Case Overview

Core Dispute

The primary issue in this matter is whether an association is legally required to obtain and produce records that are not currently in its possession to satisfy a member’s request under A.R.S. § 33-1805. The Petitioner, Mangus MacLeod, sought the "history trail" for four Certificates of Deposit (CDs) held by Mogollon Airpark, Inc. dating back to 2017.

Legal Venue and Parties
  • Tribunal: Arizona Office of Administrative Hearings.
  • Petitioner: Mangus (AKA Gary) L.D. MacLeod, Grantor and Trustee.
  • Respondent: Mogollon Airpark, Inc. (managed by HOAMCO).
  • Administrative Law Judge: Thomas Shedden.
Statutory Framework: A.R.S. § 33-1805(A)

This statute governs the availability of association records:

  • Availability: All financial and other records of the association must be made reasonably available for examination.
  • Timeline for Examination: The association has ten business days to fulfill a request for examination.
  • Timeline for Copies: The association has ten business days to provide copies of requested records upon a request for purchase.

Summary of Findings and Legal Conclusions

Factual Timeline
Date Event
April 13 & May 3, 2019 Mr. MacLeod makes formal requests for CD records from 2017.
April 22, 2019 HOAMCO (Respondent's management) provides all records currently in possession.
June 12, 2019 Mr. MacLeod files a petition alleging non-compliance.
June 2019 Board president Craig Albright assists MacLeod by visiting banks to produce further records.
Oct & Nov 2019 Administrative hearings are conducted.
December 2, 2019 Administrative Law Judge issues a decision dismissing the petition.
Judicial Reasoning
  1. Possession of Records: The court found that the Respondent provided all records it had in its possession at the time of the request. The Respondent even went beyond its legal duty by soliciting new records from banks to assist the Petitioner.
  2. Statutory Interpretation: The judge ruled that A.R.S. § 33-1805(A) does not require an association to obtain records it does not have. Expanding the statute to include such a requirement would be "absurd and unreasonable."
  3. Burden of Proof: The Petitioner failed to provide "substantial evidence" that the Respondent withheld any records that were actually in its possession.

Short-Answer Practice Questions

1. Who bears the burden of proof in this administrative hearing? Answer: The Petitioner (Mangus MacLeod).

2. What is the standard of proof required for this case? Answer: Preponderance of the evidence.

3. According to A.R.S. § 33-1805(A), how many business days does an association have to provide copies of requested records? Answer: Ten business days.

4. Why did the Administrative Law Judge dismiss Mr. MacLeod’s petition? Answer: Because the Respondent provided all records it possessed that were responsive to the request, and the law does not require associations to obtain records from third parties (like banks) that they do not currently hold.

5. How did the Board president, Craig Albright, demonstrate cooperation after the petition was filed? Answer: He accompanied Mr. MacLeod to several banks in June 2019 to help have records produced directly for him.

Essay Questions for Deeper Exploration

1. Statutory Construction and Judicial Restraint

The decision references State ex rel. Morrison v. Anway, stating that a tribunal "may not expand or extend a statute to include that which is not within its provisions." Discuss how this principle applied to the Judge’s interpretation of "other records" in A.R.S. § 33-1805(A). Why would requiring an association to retrieve third-party records be considered an "absurd and unreasonable" construction of the law?

2. The Definition of "Reasonably Available"

Under A.R.S. § 33-1805(A), records must be made "reasonably available." Based on the findings of fact in this case, evaluate whether Mogollon Airpark, Inc. and its management company, HOAMCO, met this standard. Consider the actions taken by the Board president to contact banks and the information sent via email on April 22, 2019.

3. Evidentiary Weight and Witness Credibility

On the first day of the hearing, witness Craig Albright was described as "confused" regarding when certain bank records were obtained. On the second day, however, the Judge found his testimony "credible." Analyze the importance of witness credibility in administrative hearings and how the final determination of facts (Findings of Fact #15 and #16) influenced the legal outcome.

Glossary of Important Terms

  • A.R.S. § 33-1805: The specific Arizona statute governing the inspection and copying of association records by members.
  • Administrative Law Judge (ALJ): A judge who moves over trials and adjudicates disputes involving administrative agencies.
  • HOAMCO: The management company for Mogollon Airpark, Inc.
  • Petitioner: The party who initiates a lawsuit or petition (in this case, Mangus MacLeod).
  • Preponderance of the Evidence: The standard of proof where the evidence has the "most convincing force" and shows that a fact is more likely true than not.
  • Respondent: The party against whom a petition is filed (in this case, Mogollon Airpark, Inc.).
  • Substantial Evidence: Evidence that would permit a reasonable person to conclude that a proposed finding should be substantiated.
  • Tribunal: A court or forum of justice; in this context, the Office of Administrative Hearings.

The Limits of Transparency: Lessons from MacLeod v. Mogollon Airpark, Inc.

1. Introduction: The Tension Between Transparency and Practicality

In the world of community association governance, transparency is a statutory mandate, yet it is frequently tested by the practical realities of record-keeping. A recurring flashpoint for litigation involves a fundamental question: does an association’s duty to provide records extend to documents it does not actually possess?

This tension reached a definitive conclusion in a dispute between homeowner Mangus MacLeod and Mogollon Airpark, Inc. The matter, litigated before the Arizona Department of Real Estate (Case No. 19F-H1919070-REL) and heard by the Office of Administrative Hearings, serves as a critical boundary-marker for the rights of members and the administrative obligations of boards. The ruling clarifies that while transparency is essential, the law does not require an association to perform the impossible or the extra-statutory.

2. The Request: A Search for the "History Trail"

The conflict began in the spring of 2019. On April 13 and May 3, Petitioner Mangus MacLeod submitted formal requests to Mogollon Airpark, Inc. to examine and copy records dating back to 2017 concerning four Certificates of Deposit (CDs) held by the association. Mr. MacLeod's stated motive was to establish a "history trail" for these assets, which he argued was necessary for a "proper audit" of the association’s financial standing.

In response, Board President Craig Albright took proactive steps to satisfy the request. He coordinated with the association’s treasurer and contacted three separate financial institutions to retrieve the records. While two banks cooperated electronically, a third refused. The gathered documents, combined with records already in the association’s possession, were delivered to MacLeod via the management company, HOAMCO, on April 22, 2019.

Despite these efforts, MacLeod remained dissatisfied. He contended that the association was legally required to obtain the missing 2017 bank records, asserting that the association’s responsibility was not limited by what was currently in its filing cabinets but extended to any records it should have according to its internal policies.

3. Arguments from Both Sides
Petitioner (MacLeod) Respondent (Mogollon Airpark, Inc.)
Statutory Expansion: Argued that the term "other records" in A.R.S. § 33-1805(A) should be interpreted to include all documents listed in the HOA’s records retention policy, regardless of whether the HOA actually possesses them. Possession-Based Compliance: Asserted that the association satisfied its legal duty by providing all responsive records currently in its possession or control.
Mandatory Procurement: Claimed the HOA has an affirmative legal obligation to retrieve records from third parties (banks) if a member requests them for an audit. Reasonable Effort: Argued that there is no statutory mandate to "create" a record or "procure" third-party documents that the association does not hold.
The "Audit" Motive: Asserted that the "history trail" was essential for financial oversight and that the HOA’s failure to produce it hindered member transparency. Good Faith Action: Highlighted Board President Albright’s extensive efforts to assist, including personally accompanying the Petitioner to banks to attempt to retrieve the data.
4. The Legal Verdict: Interpreting A.R.S. § 33-1805(A)

Administrative Law Judge (ALJ) Thomas Shedden focused the ruling on the strict construction of A.R.S. § 33-1805(A), which requires that association records be made "reasonably available for examination."

In his analysis, the ALJ firmly constrained the scope of the statute, refusing to "legislate from the bench" by expanding the law’s requirements. The court relied on three core legal principles to reach its decision:

  1. Avoidance of Absurdity: Citing Gutierrez v. Industrial Commission of Arizona and State v. McFall, the ALJ noted that statutes must be interpreted to provide a "fair and sensible result" and that courts must reject "absurd and unreasonable construction."
  2. Statutory Limits: Referencing State ex rel. Morrison v. Anway, the ALJ emphasized that a tribunal may not expand or extend a statute to include requirements not expressly written in its provisions.
  3. Defining "Reasonably Available": The ALJ clarified that "reasonably available" pertains to the manner and timing of access to records the association actually has—it does not create a mandate for the association to hunt down, procure, or produce records held by third parties.

The ALJ concluded that equating a "retention policy" list with a "mandatory production" list was an unreasonable construction of the law.

5. Critical Takeaways for Homeowners and Boards

The MacLeod decision provides a roadmap for handling records disputes with precision and professional distance:

  • Possession vs. Obligation: A board’s duty is to produce what it has. The law does not require an association to "go hunting" for third-party records. If a record is not in the association's possession or control, the association has no statutory obligation to go out and get it.
  • The Credibility of Good Faith: During the hearing, Board President Albright was initially "confused" about the exact dates some records were obtained. However, because his underlying documentation (Exhibit 11) was solid and his actions—such as accompanying the petitioner to the bank—showed a clear intent to cooperate, the ALJ found his testimony credible.
  • The Burden of Proof is Substantial: Under Arizona Administrative Code § R2-19-119, the Petitioner bears the burden of proof by a "preponderance of the evidence." The "smoking gun" in this case was MacLeod’s own admission: he could not identify a single record that the HOA actually possessed that was being withheld.
  • Internal Policies are Not Statutes: While a "records retention policy" is a best-practice internal document, it does not expand the association’s legal liability under A.R.S. § 33-1805. A homeowner cannot use an internal policy to force a board to perform duties that the state legislature did not expressly authorize.
6. Conclusion: A Fair and Sensible Result

The ruling in MacLeod v. Mogollon Airpark, Inc. reinforces a standard of reasonableness. While transparency is the law, it is not an unlimited license for members to demand administrative labor from their boards. By adhering to the "fair and sensible" standard, the ALJ protected community associations from being forced to act as private investigators for individual members. For boards, the takeaway is clear: document your records, cooperate in good faith, and rest assured that your legal obligations end where your actual possession of records begins.

Case Participants

Petitioner Side

  • Mangus (AKA Gary) L.D. MacLeod (Petitioner)
    Appeared and testified

Respondent Side

  • Gregory Stein (Attorney for Respondent)
    Carpenter, Hazlewood, Delgado & Bolen LLP
  • Craig Albright (Board President)
    Mogollon Airpark, Inc.
    Witness; testified
  • Brian Dye (Community Manager)
    HOAMCO

Neutral Parties

  • Thomas Shedden (Administrative Law Judge)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of the order
  • Felicia Del Sol (Administrative Staff)
    Office of Administrative Hearings
    Transmitted the order

Joyce H Monsanto vs. Four Seasons at the Manor Homeowners Association

Posted on by
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 19F-H1919053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-11-18
Administrative Law Judge Diane Mihalsky
Outcome The ALJ denied the petition, concluding that the HOA's architectural guideline limiting homeowners to one flagpole per lot, while permitting the display of both the U.S. flag and a military flag (Marine Corps flag) on that single pole, constitutes a reasonable rule under A.R.S. § 33-1808(B). The ALJ also found the Board complied with the 45-day requirement for a written appeal decision under CC&R § 7.9 by memorializing the denial in the draft meeting minutes posted by December 4, 2018,,.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joyce H Monsanto Counsel —
Respondent Four Seasons at the Manor Homeowners Association Counsel Mark K. Sahl, Esq.

Alleged Violations

A.R.S. § 33-1808; CC&R § 7.9

Outcome Summary

The ALJ denied the petition, concluding that the HOA's architectural guideline limiting homeowners to one flagpole per lot, while permitting the display of both the U.S. flag and a military flag (Marine Corps flag) on that single pole, constitutes a reasonable rule under A.R.S. § 33-1808(B). The ALJ also found the Board complied with the 45-day requirement for a written appeal decision under CC&R § 7.9 by memorializing the denial in the draft meeting minutes posted by December 4, 2018,,.

Why this result: The Petitioner failed to meet her burden of proof on both statutory and CC&R violations,.

Key Issues & Findings

HOA's denial of application to install two flagpoles for US and military flags, and alleged failure to follow CC&R appeal process.

Petitioner challenged the HOA's denial of her request to install two flagpoles, arguing the restriction violated A.R.S. § 33-1808 (flag statute) and that the Board failed to provide a written decision on her appeal within 45 days as required by CC&R § 7.9, which she argued meant the request was deemed approved. The ALJ found the single flagpole restriction reasonable under A.R.S. § 33-1808(B) since both flags could be flown from one pole, and determined the Board satisfied the CC&R § 7.9 requirement by posting the decision in the meeting minutes within 45 days,.

Orders: Petitioner's petition is denied, as she failed to establish that the Respondent's Board should not have denied her application under A.R.S. § 33-1808 or CC&R § 7. The Board can properly find Petitioner in violation of Architectural Guidelines and order her to remove one of her two flagpoles.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1808
  • CC&R § 7.9
  • A.R.S. § 33-1803
  • A.R.S. § 32-2199(B)

Analytics Highlights

Topics: Flag display, Architectural Guidelines, CC&Rs, Statutory compliance, Planned Communities Act, Rehearing
Additional Citations:

  • A.R.S. § 33-1808
  • CC&R § 7.9
  • A.R.S. § 33-1803
  • A.R.S. § 32-2199(B)
  • 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)
  • CC&R § 7

Video Overview

Audio Overview

Decision Documents

19F-H1919053-REL-RHG Decision – 749213.pdf

Uploaded 2026-01-23T17:29:16 (163.6 KB)

19F-H1919053-REL-RHG Decision – 753595.pdf

Uploaded 2026-01-23T17:29:19 (163.3 KB)

Briefing Document: Monsanto v. Four Seasons at the Manor HOA

Executive Summary

This document synthesizes the findings and legal reasoning from the Amended Administrative Law Judge Decision in the case of Joyce H. Monsanto versus the Four Seasons at the Manor Homeowners Association (HOA). The central conflict revolves around the HOA’s denial of Ms. Monsanto’s request to install two separate flagpoles on her home to display the United States flag and the United States Marine Corps flag. The petitioner alleged this denial violated Arizona state law and the HOA’s own governing documents.

The Administrative Law Judge (ALJ) ultimately denied the petitioner’s claim, ruling in favor of the HOA. The decision established two critical points: first, that the HOA’s rule limiting homeowners to a single flagpole is a “reasonable” regulation on the “placement and manner of display” explicitly permitted under Arizona statute A.R.S. § 33-1808(B), and does not constitute a prohibition of flag display. Second, the HOA was found to have complied with its own appeal process as outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The ALJ concluded that an oral denial at a board meeting, later documented in publicly posted meeting minutes, satisfied the CC&R’s requirement to “render its written decision” within a 45-day timeframe. The ruling affirms an HOA’s authority to enforce uniform aesthetic standards, provided they are reasonable and applied according to the association’s governing documents.

Case Background and Procedural History

The case was brought before the Arizona Office of Administrative Hearings (OAH) following a petition filed by homeowner Joyce H. Monsanto (“Petitioner”) against her HOA, Four Seasons at the Manor Homeowners Association (“Respondent”).

• Initial Petition: On March 6, 2019, the Petitioner filed a petition with the Arizona Department of Real Estate, alleging the HOA violated state law (A.R.S. § 33-1803) and its CC&Rs (§ 7.9) by refusing to approve her request for two flagpoles.

• First Hearing: An evidentiary hearing was held on May 30, 2019, after which the ALJ found that the Petitioner had not proven any violation by the HOA.

• Rehearing: The Commissioner of the Department of Real Estate granted the Petitioner’s request for a rehearing on August 22, 2019. This rehearing took place on October 21, 2019.

• Amended Decision: On November 18, 2019, ALJ Diane Mihalsky issued an Amended Administrative Law Judge Decision, again denying the Petitioner’s petition and affirming the previous findings. The amendment was issued to correct a typographical error and clarify the parties’ appeal rights.

The Core Dispute: A Request for Two Flagpoles

The petitioner, whose husband and two sons have long careers in the U.S. Marines and Coast Guard, sought to display both the U.S. flag and the U.S. Marine Corps flag on her home.

• The Application: On August 31, 2018, she submitted a Design Review Application to install two 6-foot-long flagpoles on the exterior wall of her house, flanking her front door.

• The Rationale: The Petitioner stated her desire for two separate poles was for aesthetic reasons, believing the display would look better. She also expressed concern that a single, larger flagpole installed in her front yard would obstruct the view from her front window.

• The Denial: On September 22, 2018, the HOA’s Architectural Committee issued a written Notice of Disapproval, citing the Architectural Guidelines which permit only one flagpole per lot.

• The Appeal: On October 1, 2018, the Petitioner submitted a written appeal to the HOA Board, arguing the denial was unreasonable, that the guidelines were not uniformly enforced, and that the board could grant a waiver under CC&R § 7.6.

Governing Rules and Statutes

The case decision rested on the interpretation of Arizona state law and the HOA’s specific governing documents.

Arizona Revised Statute § 33-1808

This statute governs the right of homeowners to display certain flags.

• Protection of Display: Subsection A states that an association “shall not prohibit the outdoor… display” of the American flag or a military flag, among others.

• Right to Regulate: Subsection B grants associations the authority to “adopt reasonable rules and regulations regarding the placement and manner of display.” It explicitly allows rules that “regulate the location and size of flagpoles,” “limit the member to displaying no more than two flags at once,” and limit flagpole height, while not prohibiting their installation.

HOA Architectural Guidelines

The community’s rules regarding flagpoles evolved but consistently maintained a key restriction.

• Original Guideline (May 24, 2016): “Poles must not exceed 12’ in height, and only one flagpole is permitted per Lot.”

• Amended Guideline (November 8, 2018): The board increased the maximum pole height to 20′ and added rules for nighttime illumination and inclement weather, but explicitly “did not change the limit of one flagpole per lot.”

HOA CC&Rs (Covenants, Conditions, and Restrictions)

The procedural requirements for architectural review and appeals were central to the Petitioner’s claim.

• Section 7.8 (Board Approval): Pertaining to initial applications, this section requires the Board to provide the owner with a “written response within sixty (60) days,” otherwise the request is deemed approved.

• Section 7.9 (Appeal): Pertaining to appeals, this section requires the Board to consult with the Architectural Committee and “render its written decision” within 45 days. A failure by the Board to render a decision in this period “shall be deemed approval.” This section does not contain the same explicit language as § 7.8 requiring the response be provided to the owner.

Analysis of the Appeal Process and Conflicting Testimonies

A significant portion of the dispute centered on the events of the November 8, 2018, HOA Board meeting, where the Petitioner’s appeal was to be considered. The accounts of what transpired at this meeting were contradictory.

Petitioner’s Testimony (Joyce H. Monsanto)

Respondent’s Testimony (Anthony Nunziato, Board President)

Consultation

The board did not consult the Architectural Committee.

The board consulted with the Architectural Committee before the meeting.

Decision

The board did not consider or make any decision on her appeal.

The board considered the appeal and made a decision.

Notification

She was never told her appeal was denied at the meeting.

He was certain the board verbally informed the Petitioner that her appeal was denied at the meeting.

On December 4, 2018, draft minutes from the November 8 meeting were posted on the HOA’s website. The Petitioner acknowledged seeing them. These minutes included the following entry:

“[Petitioner’s] last request was for a waiver that would allow her to have two flagpoles on her property (one to fly the American flag and the other to fly the Marine flag). The Board rejected this request since our CC&Rs allow for the flying of both flags on a single flagpole.”

The Petitioner argued that these publicly posted draft minutes, which were not sent directly to her, did not constitute a valid written denial of her appeal under the CC&Rs.

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision methodically rejected each of the Petitioner’s claims, relying on witness credibility, statutory interpretation, and contract construction principles.

Credibility Assessment

The ALJ made a clear determination on the conflicting testimonies regarding the November 8 meeting.

• Mr. Nunziato’s testimony that the board made a decision and informed the Petitioner was found to be “credible and supported by the minutes of the meeting.”

• The Petitioner’s testimony that the board made no decision on her appeal was deemed “incredible.”

Ruling on A.R.S. § 33-1808 (State Flag Law)

The ALJ concluded that the HOA’s one-flagpole rule did not violate state law.

• The rule was found to be a “reasonable rule or regulation under A.R.S. § 33-1808(B).”

• Because the Architectural Guidelines allow for flying two flags from a single flagpole up to 20′ long, the HOA was not prohibiting the display of flags, merely regulating the manner.

• The ALJ characterized the core issue as the “Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons, not Respondent’s unreasonableness or lack of patriotism.”

Ruling on CC&R § 7.9 (Appeal Process)

The ALJ found that the HOA had followed the procedure required by its own CC&Rs.

• Consultation: Based on Mr. Nunziato’s credible testimony, the board fulfilled its duty to consult with the Architectural Committee.

• “Render a Decision”: The board “rendered a decision on her appeal at the November 8, 2018 board meeting” when it orally reached a decision.

• “Written Decision”: The board created a “writing memorializing its decision” by documenting it in the meeting minutes. Because the Petitioner saw these minutes on December 4, 2018, this action occurred within the 45-day window following her October 1, 2018 appeal.

• No Delivery Requirement: The ALJ applied the “negative implication cannon of contract construction.” By comparing CC&R § 7.9 (appeals) with § 7.8 (initial applications), the judge noted that § 7.9 lacks the explicit requirement to provide the written decision to the owner. Therefore, posting the minutes was sufficient, and the Petitioner’s request was not “deemed approved.”

Final Order

Based on these findings, the ALJ issued a final, binding order.

IT IS ORDERED that the Petitioners’ petition is denied because she has not established that the Respondent’s Board should not have denied her application to install two flagpoles on her property.

The decision concludes with a notice informing the parties that the order is binding and that any appeal must be filed with the superior court within 35 days from the date of service.

Study Guide: Monsanto v. Four Seasons at the Manor HOA

This study guide provides a detailed review of the legal case Joyce H. Monsanto v. Four Seasons at the Manor Homeowners Association, Case No. 19F-H1919053-REL-RHG, as detailed in the Amended Administrative Law Judge Decision dated November 18, 2019. The guide includes a short-answer quiz, a corresponding answer key, suggested essay questions, and a comprehensive glossary of terms to facilitate a thorough understanding of the case’s facts, arguments, and legal conclusions.

Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, based entirely on the information provided in the case document.

1. Who are the Petitioner and the Respondent in this case, and what is their relationship?

2. What specific action did the Petitioner request from the Respondent that initiated this dispute?

3. On what grounds did the Respondent’s Architectural Committee initially deny the Petitioner’s request on September 22, 2018?

4. Identify the key Arizona statute cited in the case and explain its two main provisions regarding flag displays.

5. What was the Petitioner’s primary argument regarding the Respondent’s handling of her appeal under CC&R § 7.9?

6. According to the testimony of Board President Tony Nunziato, how did the Board address the Petitioner’s appeal at the November 8, 2018 meeting?

7. What documentary evidence did the Respondent use to support the claim that a decision on the appeal was made and written down within the required timeframe?

8. Why did the Administrative Law Judge (ALJ) find the Respondent’s one-flagpole rule to be legally permissible?

9. What is the legal standard of proof required for the Petitioner in this case, and did she meet it according to the ALJ?

10. What was the final order issued by the Administrative Law Judge in this case and its practical consequence for the Petitioner?

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Answer Key

1. The Petitioner is Joyce H. Monsanto, a homeowner. The Respondent is the Four Seasons at the Manor Homeowners Association (HOA). Ms. Monsanto is a member of the Respondent HOA because she owns a house within its development in Sun City, Arizona.

2. The Petitioner submitted a Design Review Application to install two 6-foot-long flagpoles on the exterior wall of her house. She intended to fly the United States flag from one pole and the United States Marine Corps flag from the other.

3. The Architectural Committee denied the request because the community’s Architectural Guidelines only permitted one flagpole per lot. The written Notice of Disapproval explicitly stated this rule as the reason for the denial.

4. The key statute is A.R.S. § 33-1808. Its first provision, § 33-1808(A), prohibits an HOA from banning the display of the American flag and various military flags. The second provision, § 33-1808(B), allows an HOA to adopt reasonable rules regulating the placement, size, and number of flagpoles, explicitly permitting a limit of one flagpole per property.

5. The Petitioner argued that the Board violated CC&R § 7.9 because it failed to provide her with a formal written decision denying her appeal within the 45-day period. She contended that because she never received a dedicated letter, the request should have been “deemed approved” as stipulated in the CC&R for failure to render a timely decision.

6. Tony Nunziato testified that the Board did consult with the Architectural Committee regarding the appeal before the meeting. He stated with certainty that at the November 8, 2018 meeting, the Board considered the appeal and verbally informed Ms. Monsanto that her request for a waiver was denied.

7. The Respondent presented the draft minutes from the November 8, 2018 Board meeting, which were posted on the HOA’s website on December 4, 2018. These minutes explicitly stated that the Board rejected the Petitioner’s request for a waiver to have two flagpoles, fulfilling the requirement to have a written record of the decision within 45 days of her October 1 appeal.

8. The ALJ found the rule permissible because A.R.S. § 33-1808(B) explicitly grants HOAs the authority to “adopt reasonable rules and regulations” which may “regulate the location and size of flagpoles” and “shall not prohibit the installation of a flagpole.” Since the HOA’s guidelines allowed for one flagpole up to 20 feet long, capable of flying two flags, the judge concluded the rule was reasonable under the statute.

9. The required standard of proof was a “preponderance of the evidence,” meaning the Petitioner had to convince the judge that her contention was more probably true than not. The ALJ concluded that the Petitioner did not meet this burden of proof to establish that the Respondent violated any statute or its own CC&Rs.

10. The final order denied the Petitioner’s petition. The practical consequence is that the HOA’s denial of her application for two flagpoles was upheld, and the Board could therefore properly find her in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.

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Suggested Essay Questions

1. Analyze the conflict between A.R.S. § 33-1808(A), which protects a homeowner’s right to display military flags, and § 33-1808(B), which grants HOAs regulatory power. How did the Administrative Law Judge balance these two provisions to reach a conclusion in this case?

2. Discuss the concept of “burden of proof” as it applied to the Petitioner. Detail the specific claims made by Joyce Monsanto and explain why, according to the legal decision, she failed to establish them by a “preponderance of the evidence.”

3. Examine the procedural dispute surrounding CC&R § 7.9. Contrast the Petitioner’s interpretation of a “written decision” with the interpretation ultimately adopted by the Administrative Law Judge, referencing the role of the verbal notification and the meeting minutes.

4. Evaluate the role of testimony and credibility in this administrative hearing. Compare and contrast the testimony provided by Petitioner Joyce Monsanto and Respondent’s Board President Tony Nunziato regarding the events of the November 8, 2018 board meeting, and explain why the judge found Mr. Nunziato’s account more credible.

5. Based on the facts presented, construct an argument that the HOA’s actions, while legally permissible according to the judge, were inconsistent with the patriotic values of its community, which includes many retired military members. Conversely, construct an argument defending the Board’s decision as a necessary and fair application of rules essential for maintaining community standards.

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Glossary of Key Terms

Definition in Context

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact, and issues legal decisions. In this case, Diane Mihalsky served as the ALJ for the Office of Administrative Hearings.

A.R.S. § 33-1808

An Arizona Revised Statute that governs the display of flags in planned communities. It forbids HOAs from prohibiting certain flags (like the U.S. and military flags) but permits them to establish reasonable rules regarding the number, size, and location of flagpoles.

Architectural Committee

A committee established by the HOA’s CC&Rs responsible for reviewing and approving or disapproving homeowners’ applications for external modifications to their property, such as installing flagpoles.

Architectural Guidelines

The specific rules adopted by the HOA that set forth requirements for property modifications. In this case, the guidelines limited each lot to one flagpole, with a maximum height of 20 feet.

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. The Petitioner, Joyce Monsanto, bore the burden of proof to show the HOA had violated the law or its own rules.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that create the rules for a planned community. The Petitioner alleged the Respondent violated CC&R § 7.9, which outlines the appeal process for disapproved architectural applications.

Declarant

The original developer of a planned community who establishes the initial CC&Rs. In this case, K. Hovnanian was the Declarant for Four Seasons at the Manor.

Homeowners’ Association (HOA)

The governing organization in a planned community responsible for enforcing the CC&Rs and managing common areas. The Respondent, Four Seasons at the Manor Homeowners Association, is an HOA.

Negative Implication

A principle of legal interpretation which holds that the explicit inclusion of one thing implies the intentional exclusion of another. The ALJ used this to argue that because CC&R § 7.9 (appeals) does not specify that a written decision must be sent to the owner, unlike CC&R § 7.8 (initial applications), that requirement should not be read into the appeal rule.

Office of Administrative Hearings (OAH)

An independent Arizona state agency that conducts evidentiary hearings for other state agencies, providing an impartial forum to resolve disputes.

Petitioner

The party who initiates a legal action by filing a petition. In this case, Joyce H. Monsanto is the Petitioner.

Preponderance of the Evidence

The evidentiary standard required in this civil case. It is defined as proof that convinces the trier of fact (the judge) that a contention is “more probably true than not.”

Respondent

The party against whom a petition is filed. In this case, the Four Seasons at the Manor Homeowners Association is the Respondent.

Restrictive Covenant

A legally enforceable rule within the CC&Rs that limits what a homeowner can do with their property. The rule limiting homes to one flagpole is an example of a restrictive covenant.

Waiver

The act of intentionally relinquishing a known right or claim. The Petitioner argued that the HOA board could, and should, have waived the one-flagpole rule for her under CC&R § 7.6.

HOA vs. Military Family: 4 Lessons from a Legal Battle Over a Flagpole

For Joyce Monsanto, a member of a dedicated military family, displaying her patriotism was a matter of pride. Her husband served 25 years in the Marines, and her two sons have spent decades in the Marines and the Coast Guard. Naturally, she wanted to fly both the flag of the United States and the flag of the U.S. Marine Corps at her Arizona home. But when she submitted her plan to her Homeowners Association (HOA), she was met with a firm “no.”

The conflict wasn’t about the flags themselves. The Four Seasons at the Manor HOA had no issue with her displaying both. The dispute centered on how she wanted to display them. It was a disagreement over her vision for a symmetrical, two-pole display versus the HOA’s “one flagpole per lot” rule. This architectural dispute escalated from a simple request into a formal administrative hearing.

Ms. Monsanto’s fight reveals several surprising truths about the power of HOA rules and the specific language written into state law. Her case ultimately failed on two fronts—a substantive challenge to the rule itself, and a procedural challenge to how the HOA handled her appeal. Here’s what every homeowner can learn from each.

1. Your Right to Fly the Flag Has Limits—And They’re Written into Law.

Many homeowners believe the right to fly the American flag is unconditional. However, the legal reality is more nuanced. While Arizona law (A.R.S. § 33-1808) prevents an HOA from outright prohibiting the display of U.S. or military flags, it explicitly allows the association to create “reasonable rules and regulations” for their placement and manner of display.

The statute is specific about what these rules can cover. An HOA can legally regulate the size and location of flagpoles and can limit a homeowner to displaying no more than two flags at once. In this case, the HOA’s architectural guidelines permitted two flags, but only on a single flagpole. The Administrative Law Judge found this “one flagpole per lot” rule was a “reasonable” regulation and therefore perfectly legal. To underscore that the HOA’s stance was not about a lack of patriotism, the judge noted testimony that the HOA president himself “placed 140 small flags on his property” for Memorial Day. The issue was about the uniform enforcement of an architectural rule, not the patriotic display itself.

2. Your Personal Taste Is No Match for the Community Rulebook.

During the hearing, Ms. Monsanto acknowledged that she could fly both of her flags from a single pole as the HOA rules allowed. Her reason for wanting two poles was a matter of personal preference. She testified that she “wanted to install two flagpoles for aesthetic reasons” and also felt that a single pole placed in the middle of her lot would block the view from her front window.

The judge was unmoved by this line of reasoning. In the final decision, the response was direct and unambiguous:

Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons, not Respondent’s unreasonableness or lack of patriotism.

This is a foundational principle of community association law: homeowners trade a degree of personal autonomy for the perceived benefits of uniform standards and predictable property values. The judge’s decision simply reaffirms that bargain. In the world of planned communities, the established rulebook will almost always outweigh an individual’s personal taste.

3. In HOA Law, the Appeal Isn’t a Re-do—It’s a Different Process.

One of Ms. Monsanto’s key arguments was procedural. She believed her appeal should have been automatically approved because the HOA failed to provide a written decision within the 45-day deadline stipulated in its own rules (CC&R § 7.9). This is where the judge identified a subtle but crucial legal distinction buried in the HOA’s governing documents.

The HOA’s CC&Rs had two different sections for architectural requests:

• CC&R § 7.8 (Initial Requests): This section explicitly required the Board to “inform the submitting party of the final decision” with a “written response.”

• CC&R § 7.9 (Appeals): This section, however, only required the Board to “render its written decision” within 45 days.

That small difference in wording—”written response” versus “written decision”—was the linchpin of her procedural case. The judge ruled that for an appeal, the HOA was not required to send a personal letter or direct notice to Ms. Monsanto. It only had to create a written record of its decision within the timeframe.

4. A Post on an HOA Website Can Count as an Official “Written Decision.”

The final surprise came down to what constitutes a “written decision” and how the deadline was met. Ms. Monsanto was waiting for a formal letter informing her that her appeal had been denied. She never received one. Her appeal was filed on October 1, 2018, starting a 45-day clock.

The judge found the HOA satisfied its obligation in a two-step process:

1. The Decision: The Board verbally denied her appeal during its public meeting on November 8, 2018. This action, which occurred 38 days after her appeal, fulfilled the requirement to “render its decision” within the 45-day period.

2. The Writing: That decision was then recorded in the draft meeting minutes, which were posted on the Board’s website on December 4, 2018. Ms. Monsanto acknowledged seeing the posted minutes.

The judge ruled that these online minutes satisfied the separate legal requirement for a “writing memorializing its decision.” Even though they weren’t sent directly to her, the publicly posted minutes served as the official record of the timely denial of her appeal, closing the final door on her argument for automatic approval.

Conclusion: Before You Plant Your Flag, Read the Fine Print

Joyce Monsanto’s case is a cautionary tale on two levels. First, it shows that even cherished rights like displaying the flag are subject to reasonable, neutrally-applied community rules. Second, and more critically, it demonstrates that procedural arguments live and die by the most precise definitions in the governing documents. A single word can be the difference between winning an appeal and being ordered to take your flagpole down.

This case came down to the difference between a “written response” and a “written decision”—do you know what the fine print says about your rights in your community?

Case Participants

Petitioner Side

  • Joyce H Monsanto (petitioner)
    Appeared on her own behalf

Respondent Side

  • Mark K. Sahl (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Anthony Nunziato (board member)
    Four Seasons at the Manor Homeowners Association
    President of the Board of Directors; also referred to as 'Tony'
  • Annette McCraw (property manager)
    Community Manager/Trestle Management (implied)
    Sent Notice of Disapproval on behalf of Respondent
  • Marc Vasquez (HOA representative)
    Addressed Petitioner's claim regarding violation letters at the Board meeting

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate