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Jason West vs. Desert Sage Two Homeowners Association

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Case Summary

Case ID 19F-H1919065-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-10-01
Administrative Law Judge Diane Mihalsky
Outcome The Petitioner's request for a hearing was denied and the petition was dismissed because the Petitioner failed to prove the Homeowners Association violated A.R.S. § 33-1804(B) or its Bylaw 1.5 by refusing to place a proposed bylaw amendment on the meeting agenda or ballot.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jason West Counsel —
Respondent Desert Sage Two Homeowners Association Counsel Bradley R. Jardine

Alleged Violations

A.R.S. § 33-1804(B) and Bylaw 1.5

Outcome Summary

The Petitioner's request for a hearing was denied and the petition was dismissed because the Petitioner failed to prove the Homeowners Association violated A.R.S. § 33-1804(B) or its Bylaw 1.5 by refusing to place a proposed bylaw amendment on the meeting agenda or ballot.

Why this result: The relevant statute and HOA bylaws do not mandate that the Board add a member-proposed amendment to the agenda; the member has the independent recourse of gathering member support (25% or 1/4 of votes) to call a special meeting, a route the Petitioner was aware of but did not pursue.

Key Issues & Findings

Failure to place a proposed bylaw amendment on the agenda of the annual meeting

Petitioner alleged Respondent HOA violated A.R.S. § 33-1804(B) and Bylaw 1.5 by refusing to place his proposed bylaw amendment (Bylaw 3.13, concerning banning directors whose actions resulted in a paid claim) on the agenda or ballot for the annual meeting.

Orders: Petition denied because Petitioner did not establish that Respondent violated the cited statute or bylaw by declining to add the proposed amendment to the agenda or ballot.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1804(B)
  • Bylaw 1.5
  • Bylaw 2.2

Analytics Highlights

Topics: HOA, Bylaw Amendment, Meeting Agenda, Director liability, Statute interpretation
Additional Citations:

  • A.R.S. § 33-1804(B)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.R.S. § 41-1092.09
  • Respondent’s Bylaw 1.5
  • Respondent’s Bylaw 2.2

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Video Overview

Audio Overview

Decision Documents

19F-H1919065-REL Decision – 742075.pdf

Uploaded 2026-04-24T11:21:02 (159.4 KB)

Briefing Document: West v. Desert Sage Two Homeowners Association (Case No. 19F-H1919065-REL)

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the matter of Jason West (Petitioner) versus the Desert Sage Two Homeowners Association (Respondent), Case No. 19F-H1919065-REL. The petition, filed on May 20, 2019, was ultimately denied in a decision issued on October 1, 2019.

The central issue was the Petitioner’s allegation that the Respondent’s Board of Directors violated Arizona statute A.R.S. § 33-1804(B) and its own Bylaw 1.5 by refusing to add his proposed bylaw amendment to the agenda for the annual members’ meeting. The proposed amendment sought to ban directors from serving for five years if their actions resulted in a paid claim against the Association.

The ALJ’s ruling was decisive: the Petitioner failed to meet the burden of proof. The decision rested on a strict interpretation of the relevant statute and bylaws. The ALJ concluded that neither A.R.S. § 33-1804(B) nor the Association’s bylaws compel the Board to place a member-initiated proposal on the agenda of a Board-scheduled meeting. Critically, the bylaws provide a distinct and available remedy for members: Bylaw 2.2 allows members to force a special meeting for any purpose, including bylaw amendments, by gathering the support of 25% of the voting membership. The record showed the Petitioner was aware of this option but did not attempt to use it. Consequently, the petition was dismissed. The Respondent’s request for attorney’s fees was also denied, as the presiding body (the Office of Administrative Hearings) lacks the statutory authority to award them in such proceedings.

1. Case Overview

Case Name

Jason West v. Desert Sage Two Homeowners Association

Case Number

19F-H1919065-REL

Jurisdiction

Office of Administrative Hearings (OAH), Arizona

Presiding Judge

Administrative Law Judge Diane Mihalsky

Hearing Date

September 26, 2019

Decision Date

October 1, 2019

Petitioner

Jason West, appearing on his own behalf

Respondent

Desert Sage Two Homeowners Association, represented by Bradley R. Jardine, Esq.

Core Allegation: The Petitioner alleged that the Respondent’s Board violated state law and its governing documents by refusing to include his proposed bylaw amendment on the agenda and ballot for the annual meeting held in June 2019.

2. The Proposed Bylaw Amendment (Bylaw 3.13)

The Petitioner submitted a proposal to add a new Bylaw 3.13 to the Association’s governing documents. The full text of the proposed amendment is as follows:

Directors whose actions result in a paid claim

In an effort to reduce liability to the Association, any current or former director whose actions have resulted in a paid claim by the Association or its insurance carrier, is banned from serving as a director for a period of five years from the date of the final payment. This five year directorship ban also applies to any other individual co-owning an Association lot with the director. This Amendment is retroactive.

The stated purpose of the amendment was to reduce the Association’s liability. The decision notes that some of the current Board members may have been serving when the Association’s insurance carrier paid legal fees and other costs associated with a previous petition filed by the Petitioner.

3. Chronology of the Dispute

• December 23, 2018: The Petitioner first sent his proposed Bylaw 3.13 amendment to Joanelize Morales, the Association’s property manager.

• January 3 & 4, 2019: The Petitioner emailed Mickey Latz, owner of the management company, demanding the proposal be added to the next meeting’s agenda and ballot. In this correspondence, the Petitioner explicitly stated his awareness of the alternative process, writing, “I can also force the Board to call a Special Meeting of the Members at any time with 10 signatures from members of our Association. This is Article 2.2 of our Bylaws.”

• January – June 2019: Mr. Latz repeatedly informed the Petitioner that the Board, based on legal advice, had decided not to add the proposal to the agenda of a Board-scheduled meeting.

• April 17, 2019: Notice was sent to members for the annual meeting scheduled for June 4, 2019. The agenda was limited to (1) Election of Directors and (2) Approval of 2018 Annual Meeting Minutes. On the same day, the Petitioner re-sent his proposed amendment.

• May 14, 2019: The Petitioner attended a Board meeting and threatened to file a petition with the Department of Real Estate if his amendment was not placed on the agenda.

• May 20, 2019: The Petitioner filed the formal petition that led to this hearing.

• June 3, 2019: A notice was sent rescheduling the meeting to June 20, 2019, with the agenda unchanged.

• June 20, 2019: At the annual meeting, the Petitioner, whose name was on the ballot, was not elected to the Board of Directors.

4. Governing Authorities and Bylaws

The ALJ’s decision centered on the interpretation of one state statute and two specific Association bylaws.

• A.R.S. § 33-1804(B): This Arizona statute governs homeowners’ association meetings. It requires annual meetings and specifies notice requirements. It explicitly provides a mechanism for members to call special meetings: “Special meetings of the members’ association may be called by the president, by a majority of the board of directors or by members having at least twenty-five percent, or any lower percentage specified in the bylaws, of the votes in the association.”

• Bylaw 1.5 (Amendment Process): This bylaw states that amendments can be made “at a regular or special meeting of the Members, by a vote of the Members having a majority (more than 50%) of the votes.” The ALJ found that this bylaw is permissive, allowing for votes on amendments, but does not obligate the Board to place any specific proposal on an agenda.

• Bylaw 2.2 (Special Meetings): This bylaw mirrors the state statute, allowing members to compel a meeting. It states: “Special meetings of the Members may be called at any time … upon written request signed by Members having at least one-fourth (1/4) of the authorized votes… which request shall be delivered to the President or Secretary.”

5. Summary of Key Testimony

The hearing included testimony from the Petitioner and six witnesses he subpoenaed, including property managers and the three current Board members.

• Board Members (Bryan Selna, David Epstein, Linda Seidler): All testified that they consulted with the Association’s attorneys and property management company. Based on the advice received, they collectively decided not to add the Petitioner’s proposal to the agenda.

• Mickey Latz (Property Management Co. Owner): Testified that the Board as a whole, not the secretary, determines the meeting agenda. He affirmed that counsel had advised the Board it was not obligated to add member-requested items. Mr. Latz testified that he explicitly pointed the Petitioner to the process outlined in Bylaw 2.2, which allows members to call their own meetings directly.

• Joanelize Morales (Property Manager): Confirmed that she prepares meeting agendas based on the Board’s instructions. She also testified that the Petitioner never attempted to use the Bylaw 2.2 process to gather the support of his neighbors to schedule a meeting to consider his proposed amendment.

6. Historical Context and Prior Litigation

The decision provides context regarding the Petitioner’s previous interactions with the Association.

• Prior Petition (OAH Case No. 17F-H1716031-REL): In April 2017, the Petitioner filed a petition concerning the Board’s failure to fill vacant positions. On June 28, 2017, an ALJ dismissed that petition, concluding that the Board had done all it could and that vacancies were due in part to the Petitioner’s “obstructionist tactics.”

• Successful Amendment (Bylaw 3.12): In April 2017, the Petitioner proposed a different amendment regarding director resignations. The Board at that time agreed to submit it to a vote, and it was passed by the membership in May 2017.

7. Administrative Law Judge’s Decision and Rationale

The ALJ’s conclusions of law methodically dismantled the Petitioner’s claims, leading to the dismissal of the petition.

• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Respondent had violated the statute and bylaw.

• Statutory and Bylaw Interpretation: The ALJ applied a plain-language reading to the governing authorities.

◦ The court found that nothing in the language of A.R.S. § 33-1804(B) requires an HOA board to add an item to an agenda at a member’s request. Instead, it provides the remedy for members to call a meeting themselves.

◦ Similarly, the court concluded that Bylaw 1.5 allows for bylaw amendments to be considered at meetings but does not compel the Board to include such proposals on the agenda of a meeting it has noticed.

◦ The ALJ found that Bylaw 2.2 provides the explicit and proper procedure for a member to bring an issue to a vote when the Board declines to do so: gather support from 25% of the members to call a special meeting.

• Final Ruling: Because the Petitioner failed to establish a violation of any cited statute or bylaw, the petition was ordered to be denied.

• Attorney’s Fees: The Respondent’s request for attorney’s fees was denied. The decision cited legal precedent establishing that administrative bodies like the Department of Real Estate and the OAH are not empowered by the legislature to award attorney’s fees in these types of disputes.

Study Guide: West v. Desert Sage Two Homeowners Association

Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, based on the provided administrative law judge decision.

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

2. What specific action did the Petitioner, Jason West, allege the Respondent took that violated Arizona statute and the association’s bylaws?

3. Describe the substance of the proposed Bylaw 3.13 that the Petitioner wanted to add to the agenda.

4. What was the Respondent’s primary defense for not adding the proposed bylaw amendment to the annual meeting’s agenda or ballot?

5. According to Bylaw 2.2, what procedural option did the Petitioner have to bring his proposed amendment to a vote without the Board’s approval?

6. What was the outcome of the Petitioner’s previous case against the Respondent in 2017 (OAH Case No. 17F-H1716031-REL)?

7. What two specific authorities did the Petitioner claim the Respondent’s Board violated?

8. According to the Administrative Law Judge’s interpretation, does A.R.S. § 33-1804(B) require an HOA board to add an item to an agenda at a single member’s request?

9. What was the final order of the Administrative Law Judge in this case (No. 19F-H1919065-REL)?

10. What was the judge’s ruling regarding the Respondent’s request for attorney’s fees, and what was the reason for this ruling?

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Answer Key

1. The Petitioner is Jason West, who owns a house in the Desert Sage Two development. The Respondent is the Desert Sage Two Homeowners Association, of which the Petitioner is a member.

2. The Petitioner alleged that the Respondent violated A.R.S. § 33-1804(B) and its own Bylaw 1.5. The specific violation was the Board’s failure to place a bylaw amendment proposed by the Petitioner on the agenda of the association’s annual meeting.

3. The proposed Bylaw 3.13 sought to ban any current or former director from serving on the board for five years if their actions resulted in a paid claim by the association or its insurance carrier. This ban would be retroactive and also apply to any individual co-owning a lot with the director.

4. The Respondent’s Board, after consulting with its attorneys and property management company, argued that neither state law nor its bylaws obliged them to add items to an agenda at a single member’s request. They contended that the Petitioner had the option to call a special meeting himself by gathering support from other members.

5. Bylaw 2.2 allows for a special meeting of the members to be called upon a written request signed by members who hold at least one-fourth (25%) of the authorized votes. The Petitioner was aware of this option but had not attempted to use it.

6. In the previous case, the Administrative Law Judge dismissed the Petitioner’s petition. The judge concluded that the Board had done all it could to fill vacant positions and that the Petitioner’s own “obstructionist tactics” were part of the reason no eligible members were willing to serve.

7. The Petitioner claimed the Respondent’s Board violated Arizona Revised Statute § 33-1804(B) and the association’s Bylaw 1.5.

8. No, the judge concluded that nothing in the language of A.R.S. § 33-1804(B) requires a homeowners’ association board to add an item to an agenda or ballot at the request of a single member. The statute only provides that members with at least 25% of the votes can independently call a meeting.

9. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge found that the Petitioner had not established that the Respondent’s Board violated either A.R.S. § 33-1804(B) or Bylaw 1.5.

10. The judge ruled that attorney’s fees could not be awarded to the Respondent. The reason given is that the legislature has not empowered the Department of Real Estate or the Office of Administrative Hearings to award attorney’s fees in this type of administrative proceeding.

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Essay Questions

Construct a detailed essay response for each of the following prompts, using only evidence and reasoning found within the case document.

1. Analyze the Administrative Law Judge’s method of statutory construction and interpretation of restrictive covenants. How did the judge apply these principles to A.R.S. § 33-1804(B) and Bylaw 1.5 to reach a conclusion?

2. Discuss the balance of power between an individual HOA member and the Board of Directors as illustrated in this case. What rights and recourses are available to a member who disagrees with a Board decision, according to the Respondent’s Bylaws?

3. Explain the concept of “burden of proof” as it applies to this case. Who held the burden of proof, what was the standard required, and why was the Petitioner unable to meet this standard?

4. Examine the history between the Petitioner and the Respondent as detailed in the “Findings of Fact.” How might this prior history, including the 2017 legal case and a previously successful bylaw amendment, have influenced the actions of both parties in the current dispute?

5. Based on the testimony of Michael David (“Mickey”) Latz and the text of the bylaws, contrast the process for placing an item on the agenda of a Board-scheduled meeting versus the process for calling a member-initiated special meeting. What are the key differences in initiative, requirements, and control?

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Glossary of Key Terms

Definition from Source Context

Administrative Law Judge (ALJ)

An independent official (Diane Mihalsky) from the Office of Administrative Hearings who presides over evidentiary hearings and issues decisions on petitions filed with the Arizona Department of Real Estate.

A.R.S. § 33-1804(B)

An Arizona statute cited by the Petitioner. It stipulates that an HOA members’ meeting must be held at least annually and that special meetings can be called by the president, a board majority, or members with at least 25% of the votes.

Bylaw 1.5

A bylaw of the Desert Sage Two HOA that states the Bylaws may be amended at a regular or special meeting by a majority vote of members present in person or by proxy.

Bylaw 2.2

A bylaw of the Desert Sage Two HOA that allows for special meetings of the members to be called by the president, the Board, or upon written request from members holding at least one-fourth (25%) of the votes.

Department

The Arizona Department of Real Estate, the state body authorized to receive and decide petitions for hearings from members of homeowners’ associations.

Homeowners’ Association

An organization whose members own property and/or residences in a specific development (in this case, Desert Sage Two in Scottsdale, Arizona).

Office of Administrative Hearings (OAH)

An independent state agency to which the Department refers petitions for an evidentiary hearing.

Petitioner

Jason West, the member of the homeowners’ association who filed the petition alleging a violation by the association’s Board.

Petition

A formal complaint filed with the Department of Real Estate by an HOA member or the HOA itself concerning alleged violations.

Preponderance of the evidence

The burden of proof standard required in the hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”

Respondent

The Desert Sage Two Homeowners Association, the entity against which the petition was filed.

Restrictive Covenant

A rule or provision within community documents, like bylaws, that is enforced to give effect to the intent of the parties if it is unambiguous.

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19F-H1919065-REL

1 source

This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings (OAH) concerning a dispute between a homeowner, Jason West (Petitioner), and his association, the Desert Sage Two Homeowners Association (Respondent). The Petitioner alleged that the Respondent violated Arizona statute (A.R.S. § 33-1804(B)) and an association bylaw by refusing to place his proposed bylaw amendment on the agenda of the annual meeting. The proposed amendment sought to ban directors whose actions resulted in a paid insurance claim from serving for five years, but the Administrative Law Judge (ALJ) found that neither the statute nor the association’s bylaws required the Board to add a member-proposed item to a scheduled agenda or ballot. Therefore, the ALJ concluded that the Petitioner failed to prove a violation and denied the petition.

1 source

What was the specific legal and procedural context of this homeowners association dispute?
How did the Petitioner’s proposed bylaw amendment attempt to alter Board member liability?
What statutory and bylaw provisions guided the final Administrative Law Judge decision?

Based on 1 source

00:00
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NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Jason West (petitioner)

Respondent Side

  • Bradley R. Jardine (HOA attorney)
    Jardine, Baker, Hickman, & Houston, PLLC
    Represented Respondent
  • Edward A. Padilla (property manager)
    Desert Sage Two Homeowners Association
    Property manager in May 2017; testified for Petitioner; also referred to as 'Eddie'
  • Joanelize Morales (property manager)
    Desert Sage Two Homeowners Association
    Property manager since August 2018; testified for Petitioner
  • Bryan Robert Selna (board member)
    Desert Sage Two Homeowners Association
    Current Vice President of Respondent's Board; testified for Petitioner
  • David Epstein (board member)
    Desert Sage Two Homeowners Association
    Current President of Respondent's Board; testified for Petitioner
  • Linda Maria Seidler (board member)
    Desert Sage Two Homeowners Association
    Current Secretary of Respondent's Board; testified for Petitioner
  • Michael David Latz (property manager)
    Golden Valley Property Management
    Owner of Golden Valley Property Management; testified for Petitioner; also referred to as 'Mickey'

Neutral Parties

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

Thomas J Van Dan Elzen v. Carter Ranch Homeowners Association

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Case Summary

Case ID 19F-H1919071-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-01-30
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Thomas J. Van Dan Elzen Counsel —
Respondent Carter Ranch Homeowners Association Counsel Augustus H. Shaw IV, Esq.

Alleged Violations

A.R.S. § 33-1808

Outcome Summary

The Administrative Law Judge dismissed the Petitioner's case, finding that the Petitioner failed to meet the burden of proof to establish that the Respondent HOA violated A.R.S. § 33-1808 or improperly adopted its Flag Display Rule.

Why this result: Petitioner failed to establish a violation of A.R.S. § 33-1808 and failed to prove that the HOA's Flag Display Rule was inconsistent with or improperly adopted under the CC&Rs.

Key Issues & Findings

Flags and Sings

Petitioner Thomas J. Van Dan Elzen filed a petition arguing that the HOA violated A.R.S. § 33-1808 after being notified he violated Association Rules by displaying a “Trump 2020” flag. He argued the HOA's Flag Display Rule was invalid because the CC&Rs only defined SIGNS (DCC&R 3.14) and had no reference to Flags whatsoever, thus the rule was inconsistent with the CC&Rs.

Orders: Petitioner Thomas J. Van Dan Elzen’s petition is dismissed. Respondent is deemed to be the prevailing party.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1808
  • A.A.C. R2-19-119
  • BLACK'S LAW DICTIONARY 1182 (6th ed. 1990)
  • 4 United States Code sections 4 through 10
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 12-904(A)

Analytics Highlights

Topics: Flag Display, Political Sign, CC&Rs, Rules & Regulations
Additional Citations:

  • A.R.S. § 33-1808
  • A.A.C. R2-19-119
  • 4 United States Code sections 4 through 10

Video Overview

Audio Overview

Decision Documents

19F-H1919071-REL Decision – 767071.pdf

Uploaded 2026-04-24T11:21:58 (69.0 KB)

19F-H1919071-REL Decision – 741807.pdf

Uploaded 2026-04-24T11:22:08 (78.9 KB)

Administrative Hearing Briefing: Van Dan Elzen v. Carter Ranch HOA

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the case of Thomas J. Van Dan Elzen versus the Carter Ranch Homeowners Association (HOA), case number 19F-H1919071-REL-RHG. The dispute centered on the HOA’s prohibition of a “Trump 2020” flag displayed by Mr. Van Dan Elzen at his property. The petitioner alleged this prohibition violated Arizona state law.

The ALJ ultimately dismissed the petition, ruling in favor of the Carter Ranch HOA. The decision was based on the petitioner’s failure to prove by a preponderance of the evidence that the HOA’s “Flag Display Rule” was inconsistent with its foundational Covenants, Conditions, and Restrictions (CC&Rs) or that the rule was improperly adopted. Crucially, the ALJ found that the petitioner had not sufficiently alleged a direct violation of the relevant state statute, A.R.S. § 33-1808. The ruling effectively upholds the HOA’s authority, granted by its CC&Rs, to regulate the display of flags not explicitly protected by Arizona law.

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I. Case Overview

• Case Name: Thomas J. Van Dan Elzen, Petitioner, vs. Carter Ranch Homeowners Association, Respondent.

• Case Number: 19F-H1919071-REL-RHG

• Adjudicating Body: Arizona Office of Administrative Hearings

• Presiding Judge: Administrative Law Judge Velva Moses-Thompson

• Hearing Date: January 10, 2020

• Decision Date: January 30, 2020

• Subject of Dispute: The validity of an HOA rule prohibiting the display of a “Trump 2020” political flag, which the petitioner claimed violated A.R.S. § 33-1808.

II. Chronology of Key Events

• May 21, 2019: Carter Ranch HOA notifies petitioner Thomas J. Van Dan Elzen that his “Trump 2020” flag violates Association Rules.

• June 14, 2019: Mr. Van Dan Elzen files a petition with the Arizona Department of Real Estate, alleging the HOA violated A.R.S. § 33-1808.

• November 18, 2019: The Department of Real Estate issues an order setting the matter for a rehearing.

• January 10, 2020: The rehearing is held before an Administrative Law Judge.

III. Petitioner’s Position (Thomas J. Van Dan Elzen)

Mr. Van Dan Elzen’s case was predicated on the argument that the HOA’s rules regarding flags were inconsistent with its own governing documents, specifically the Covenants, Conditions, and Restrictions (CC&Rs).

• Core Allegation: The HOA’s enforcement action violated A.R.S. § 33-1808, which governs flags and signs.

• Primary Argument: Mr. Van Dan Elzen contended that the HOA’s “Flag Display Rule” was invalid because the CC&Rs do not explicitly mention the word “flag.” He argued that the relevant section of the governing documents, DCC&R 3.14, only defines “SIGNS.”

• Direct Quotation from Petition: The petition stated the following, highlighting the perceived discrepancy:

IV. Respondent’s Position (Carter Ranch HOA)

The Carter Ranch HOA maintained that its “Flag Display Rule” was valid, properly enacted, and did not violate state law or its own governing documents.

• The “Flag Display Rule”: The HOA’s rules explicitly prohibit flying any flag other than those on an approved list, which includes:

◦ The American Flag

◦ Official flags of the U.S. Army, Navy, Air Force, Marine Corps, or Coast Guard

◦ A POW/MIA flag

◦ An Arizona Indian National flag

◦ The Arizona State flag

◦ The Gadsden Flag

• Authority to Regulate: The HOA asserted its authority to create this rule stemmed from Article V, Section 5.3 of its CC&Rs. This section grants the Board the power to adopt, amend, and repeal rules pertaining to “the health, safety or welfare of the owners… or restrictions on the use of Lots.” It also specifies that such rules are “enforceable in the same manner” as the CC&Rs themselves.

• Defense Arguments: The HOA contended that the petition should be dismissed because:

1. The Flag Display Rule was not inconsistent with the CC&Rs.

2. The rule was properly adopted under the authority granted in the CC&Rs.

3. The petitioner failed to allege that the HOA had actually violated a specific statute or provision of its governing documents.

V. Analysis of Governing Law: A.R.S. § 33-1808

This Arizona Revised Statute was central to the dispute. It places specific limitations on an HOA’s ability to regulate the display of certain flags and political signs.

Provision

Description of Regulation

Subsection A: Protected Flags

An HOA cannot prohibit the outdoor display of: The American flag (if displayed consistent with federal code), official U.S. military flags, the POW/MIA flag, the Arizona state flag, an Arizona Indian nations flag, or the Gadsden flag.

Subsection C: Political Signs

An HOA cannot prohibit the display of political signs on a member’s property, but may regulate them. Permissible regulations include:
• Time: Prohibiting display earlier than 71 days before an election and later than 3 days after an election.
• Size & Number: Regulations must be no more restrictive than applicable city/county ordinances. If no such ordinance exists, the HOA cannot limit the number of signs, but can cap the maximum aggregate dimensions at nine square feet.

• Definition of “Political Sign”: The statute defines a political sign as “a sign that attempts to influence the outcome of an election.”

VI. Administrative Law Judge’s Decision and Order

The ALJ concluded that the petitioner failed to meet the required burden of proof, which is to prove a violation by a preponderance of the evidence.

1. Rule Consistency: The ALJ concluded that the “Petitioner has not established that the Flag Display Rule was inconsistent with the CC&Rs.”

2. Rule Adoption: The ALJ found that the “Petitioner has not established that the Association improperly adopted the Flag Display Rule under its CC&Rs.”

3. Failure to Allege Violation: The judge noted that the “Petitioner has not alleged that Carter Ranch violated A.R.S. § 33-1808.” This indicates a failure in the petition’s framing to connect the HOA’s actions to a specific statutory prohibition.

4. Final Determination: Based on these conclusions, the judge determined that “Mr. Van Dan Elzen’s petition should be dismissed and the Respondent be deemed to be the prevailing party in this matter.”

• Dismissal: “IT IS ORDERED that Petitioner Thomas J. Van Dan Elzen’s petition is dismissed.”

• Binding Nature: The order is binding on the parties as it resulted from a rehearing.

• Appeal Rights: Any appeal must be filed with the superior court within 35 days from the date the order was served.

Study Guide: Van Dan Elzen v. Carter Ranch Homeowners Association

This study guide provides a detailed review of the Administrative Law Judge Decision in the case of Thomas J. Van Dan Elzen versus the Carter Ranch Homeowners Association (No. 19F-H1919071-REL-RHG). The guide includes a short-answer quiz with an answer key, a set of essay questions for deeper analysis, and a comprehensive glossary of key terms found within the legal decision.

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Quiz: Test Your Understanding

Answer the following questions in two to three sentences each, based on the information in the provided source text.

1. Who were the primary parties involved in this case, and what were their respective roles?

2. What specific action taken by Thomas J. Van Dan Elzen initiated the dispute with the Carter Ranch Homeowners Association?

3. What was Mr. Van Dan Elzen’s central argument for why the HOA’s Flag Display Rule was invalid?

4. On what authority did the Carter Ranch HOA claim it had the right to create and enforce its Flag Display Rule?

5. According to the HOA’s “Flag Display Rule,” which specific flags are homeowners permitted to fly?

6. What is the legal standard of proof the petitioner was required to meet in this hearing, and how is it defined in the decision?

7. What protection does Arizona Revised Statutes (A.R.S.) § 33-1808(C) provide for “political signs”?

8. What were the two key failures of the petitioner’s case, as identified in the Administrative Law Judge’s conclusions of law?

9. What was the final ruling, or “Order,” issued by the Administrative Law Judge in this case?

10. What are the next steps for a party wishing to challenge the Administrative Law Judge’s order?

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Quiz Answer Key

1. The primary parties were the Petitioner, Thomas J. Van Dan Elzen, who brought the complaint, and the Respondent, Carter Ranch Homeowners Association, which was defending its actions. Mr. Van Dan Elzen represented himself, while the HOA was represented by its attorney, Augustus H. Shaw IV, Esq.

2. The dispute began on or about May 21, 2019, when the Carter Ranch HOA notified Mr. Van Dan Elzen that he had violated its rules by displaying a “Trump 2020” flag in his front yard. This notice of violation prompted Mr. Van Dan Elzen to file a petition with the Arizona Department of Real Estate.

3. Mr. Van Dan Elzen’s central argument was that the Flag Display Rule was inconsistent with the community’s Covenants, Conditions and Restrictions (CC&Rs). He contended that because CC&R section 3.14 only defines “SIGNS” and makes no reference to “Flags,” the HOA had no basis in the CC&Rs to regulate his flag.

4. The Carter Ranch HOA asserted its authority based on Article V, Section 5.3 of its CC&Rs. This section grants the HOA Board the power to adopt, amend, and repeal rules and regulations pertaining to the health, safety, or welfare of the owners and restrictions on the use of Lots.

5. The HOA’s Flag Display Rule prohibits flying any flag other than the American Flag, an official replica of a U.S. military flag (Army, Navy, Air Force, Marine Corps, or Coast Guard), a POW/MIA flag, an Arizona Indian National flag, the Arizona State flag, and the Gadsden Flag.

6. The petitioner was required to prove his case by a “preponderance of the evidence.” The decision defines this as “Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

7. A.R.S. § 33-1808(C) prevents an HOA from prohibiting the display of political signs on a member’s property, although it allows for regulation. An HOA cannot prohibit political signs earlier than 71 days before an election or later than three days after, and its rules on size and number can be no more restrictive than applicable city or county ordinances.

8. The Judge concluded that the petitioner failed to establish that the Flag Display Rule was improperly adopted or inconsistent with the CC&Rs. Furthermore, the Judge concluded that the petitioner had not actually alleged that Carter Ranch violated the specific statute he cited, A.R.S. § 33-1808.

9. The final Order was that Petitioner Thomas J. Van Dan Elzen’s petition is dismissed. The Judge also deemed the Respondent, Carter Ranch HOA, to be the prevailing party in the matter.

10. A party wishing to appeal the order must seek judicial review by filing an appeal with the superior court. This appeal must be filed within thirty-five days from the date the order was served upon the parties, as prescribed by state statutes.

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Essay Questions for Deeper Analysis

The following questions are designed to encourage a more in-depth analysis of the case. No answers are provided.

1. Analyze the petitioner’s argument that the Flag Display Rule was invalid because the word “flag” does not appear in the CC&Rs. Why was this argument ultimately unconvincing to the Administrative Law Judge?

2. Explain the legal distinction between a “flag” and a “political sign” as presented in A.R.S. § 33-1808. How might the petitioner’s case have differed if he had argued his “Trump 2020” flag was a “political sign” instead of a flag?

3. Discuss the authority granted to the Carter Ranch HOA Board by Article V, Section 5.3 of its CC&Rs. How did the HOA use this section to justify its Flag Display Rule, and why was this justification accepted by the court?

4. Evaluate the Administrative Law Judge’s conclusion that the petitioner “has not alleged that Carter Ranch violated A.R.S. § 33-1808.” How can this be true when the petitioner’s initial filing explicitly cited this statute?

5. Based on the provided text of A.R.S. § 33-1808, under what specific circumstances could a homeowner in Carter Ranch successfully challenge the HOA’s rules on outdoor displays?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

A judge who presides over administrative hearings. In this case, Velva Moses-Thompson served as the ALJ in the Office of Administrative Hearings.

A.R.S. (Arizona Revised Statutes)

The codified collection of laws for the state of Arizona. The case centered on an alleged violation of A.R.S. § 33-1808.

CC&Rs (Covenants, Conditions and Restrictions)

The governing legal documents that set up the guidelines for a planned community or subdivision. The Carter Ranch CC&Rs grant the HOA Board the authority to adopt rules and regulations.

Department

Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide petitions from members of homeowners’ associations.

Flag Display Rule

The specific rule created by the Carter Ranch HOA that prohibits flying any flag other than the American, military, POW/MIA, Arizona Indian National, Arizona State, and Gadsden flags.

Homeowners’ Association (HOA)

An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents. The Carter Ranch Homeowners Association is the Respondent in this case.

Petitioner

The party who files a petition or brings a legal action against another party. In this case, the petitioner is Thomas J. Van Dan Elzen.

Political Sign

Defined by A.R.S. § 33-1808(C) as “a sign that attempts to influence the outcome of an election.” HOAs are restricted in their ability to prohibit the display of such signs.

Preponderance of the evidence

The burden of proof required in this proceeding. It is defined as “Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it,” meaning the fact is more probable than not.

Prevailing Party

The party who wins the legal case. The Administrative Law Judge deemed the Respondent (Carter Ranch HOA) to be the prevailing party.

Rehearing

A second hearing of a case to reconsider the issues. This case was decided as a result of a rehearing held on January 10, 2020.

Respondent

The party against whom a petition is filed; the party who must respond to the complaint. In this case, the respondent is the Carter Ranch Homeowners Association.

He Fought the HOA Over a Political Flag—And Lost. Here Are 3 Surprising Reasons Why.

Introduction: The Pride and the Problem

Imagine this: You want to display a flag on your own property to support a political candidate. It feels like a fundamental right, an expression of free speech on your home turf. But then, a letter arrives from your Homeowners Association (HOA) citing you for a violation. This exact scenario happened to Thomas J. Van Dan Elzen, who displayed a “Trump 2020” flag and promptly received a violation notice from the Carter Ranch HOA in Arizona.

Believing the HOA was overstepping its authority, Mr. Van Dan Elzen took them to court. He lost. The outcome might seem counter-intuitive, but the court’s decision reveals crucial lessons for any homeowner living under an HOA. Here are the three surprising legal reasons why the HOA won.

1. The Power of the Fine Print: Why a “Loophole” Wasn’t Enough

Mr. Van Dan Elzen built his case on a clever textual argument. He alleged that the HOA’s rule against his flag was invalid because the section of the master community documents—the Covenants, Conditions, and Restrictions (CC&Rs)—he believed it was based on only regulated “SIGNS” and made no mention of “FLAGS.” He argued that since the document didn’t explicitly prohibit flags, the rule against his was unenforceable.

This seemingly logical “loophole” argument failed. The HOA countered by pointing to a different, much broader clause in their CC&Rs. Article V, Section 5.3, gave the HOA board expansive power to create new rules.

The Board may, from time to time, adopt, amend and repeal rules and regulations pertaining to: … (iii) the health, safety or welfare of the owners, Lessees and Residence, or (iv) restrictions on the use of Lots…

This general power to create rules for the “welfare of the owners” was enough to give the HOA the legal authority to regulate flags, even if the word “flag” wasn’t in the specific section the homeowner cited. The broad power to govern trumped the narrow, semantic argument.

2. A Flag Is Not a Sign (At Least, Not According to the Law)

While the homeowner’s flag was political in nature, it did not receive the legal protections granted to “political signs” under Arizona law. This distinction proved fatal to his case.

The relevant statute, A.R.S. § 33-1808, is highly specific about which flags an HOA is forbidden from prohibiting. The protected list includes: the American flag, official military branch flags, the POW/MIA flag, the Arizona state flag, Arizona Indian nations flags, and the Gadsden flag. Critically, the Carter Ranch HOA’s own Flag Display Rule mirrored this state-approved list exactly, demonstrating they had aligned their regulations with the law. A political campaign flag, like “Trump 2020,” is not on this protected list.

The same law does protect political signs, but it defines them very precisely:

“political sign” means a sign that attempts to influence the outcome of an election, including supporting or opposing the recall of a public officer or supporting or opposing the circulation of a petition for a ballot measure, question or proposition or the recall of a public officer.

The key takeaway is that the law treats a political flag differently from a political sign. Because the “Trump 2020” item was a flag and not on the state’s protected flag list, the HOA was well within its rights to restrict its display based on its own community rules.

3. A Critical Misstep: Arguing the Wrong Point

The most decisive reason for the loss was not a procedural error, but a substantive legal failure. Mr. Van Dan Elzen filed his petition with the state on the grounds that the HOA had violated a specific state law, A.R.S. § 33-1808, which governs flags and political signs.

However, his entire case was built on arguing that the HOA’s internal rules were inconsistent with its own CC&Rs—the “sign” versus “flag” argument. This was the wrong legal target. To win, he had to prove that the HOA had violated the state statute. But the statute explicitly allows an HOA to regulate any flag not on the protected list. By regulating his “Trump 2020” flag, the HOA was doing exactly what the state law permitted. His argument about internal documents, even if correct, did not add up to a violation of the state law he sued under.

The Administrative Law Judge recognized this fundamental flaw, concluding that the homeowner hadn’t actually made a case for a statutory violation at all.

Moreover, Petitioner has not alleged that Carter Ranch violated A.R.S. § 33-1808.

This is a crucial lesson: it’s not enough to feel wronged. Your argument must directly prove that the specific law you cite in your complaint has actually been broken. The homeowner’s claim was dismissed because his central argument was irrelevant to the law he needed to prove was violated.

Conclusion: Know Your Rights, and Your Rules

The case of the “Trump 2020” flag is a powerful illustration for homeowners everywhere. It highlights three critical realities of living in an HOA: the broad rule-making power granted by community documents can override perceived loopholes; state laws make very specific and narrow distinctions between protected items like signs and flags; and a sound legal strategy is paramount.

This case is a stark reminder that in an HOA, your property rights are defined not by what you feel is right, but by what is written down. Before you make a stand, are you certain you’re fighting the right battle on the right legal ground?

Case Participants

Petitioner Side

  • Thomas J. Van Dan Elzen (petitioner)
    Appeared and testified on his own behalf

Respondent Side

  • Augustus H. Shaw IV (attorney)
    Shaw & Lines LLC
    Appeared for Carter Ranch Homeowners Association

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate

Other Participants

  • Dustin Snow (property manager)
    SNOW PROPERTY SERVICES
    Recipient of order transmission

Dennis J Gregory v. Four Seasons at the Manor Homeowners Association

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Case Summary

Case ID 19F-H1919069-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-09-24
Administrative Law Judge Antara Nath Rivera
Outcome The Petitioner's petition alleging violations of the HOA's CC&Rs and A.R.S. § 33-1803 was denied because the Petitioner failed to meet the burden of proof. The HOA had acknowledged its error regarding the palm trees, issued an apology, and expunged the record, thereby resolving the substantive dispute and making the remaining allegations moot.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Dennis J Gregory Counsel —
Respondent Four Seasons at the Manor Homeowners Association Counsel Marc Vasquez

Alleged Violations

8.1.7 of CC&Rs; A.R.S. § 33-1803

Outcome Summary

The Petitioner's petition alleging violations of the HOA's CC&Rs and A.R.S. § 33-1803 was denied because the Petitioner failed to meet the burden of proof. The HOA had acknowledged its error regarding the palm trees, issued an apology, and expunged the record, thereby resolving the substantive dispute and making the remaining allegations moot.

Why this result: Petitioner failed to establish that Respondent violated governing documents or statute when the Respondent had already resolved the underlying issue by apology and expungement, and no financial penalties were assessed.

Key Issues & Findings

Violation of Governing Documents and Planned Community Statute

Petitioner filed a two-issue petition alleging Respondent violated CC&Rs and A.R.S. § 33-1803 by fraudulently sending a courtesy notice regarding unapproved palm trees and subsequently deceiving Petitioner, despite the underlying tree issue being resolved and expunged.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199(B)
  • Title 33, Chapter 16.1
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)

Analytics Highlights

Topics: HOA dispute, Planned Community Statute, CC&Rs violation, Expungement of record, Mootness
Additional Citations:

  • A.R.S. § 32-2199(B)
  • Title 33, Chapter 16.1
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)

Video Overview

Audio Overview

Decision Documents

19F-H1919069-REL Decision – 740332.pdf

Uploaded 2026-04-24T11:21:33 (85.6 KB)

Briefing Document: Gregory v. Four Seasons at the Manor HOA (Case No. 19F-H1919069-REL)

Executive Summary

This document provides an analysis of the Administrative Law Judge Decision in Case No. 19F-H1919069-REL, concerning a petition filed by homeowner Dennis Gregory against the Four Seasons at the Manor Homeowners Association (HOA). The petition was ultimately denied.

The dispute originated from an incorrect violation notice sent by the HOA on July 13, 2018, regarding palm trees on the Petitioner’s property. The HOA subsequently discovered its error, recognizing the trees were on its “Recommended Plant List.” Consequently, the HOA issued a formal apology to the Petitioner on August 16, 2018, and expunged the violation notice from all records. No fines or penalties were ever imposed.

Despite the resolution, the Petitioner filed a formal dispute petition with the Arizona Department of Real Estate on May 24, 2019. He alleged the initial notice was fraudulent and that an employee of the HOA’s management company had lied and threatened him. The Administrative Law Judge, Antara Nath Rivera, concluded that the Petitioner failed to meet the burden of proof. The Judge determined that the HOA’s prompt corrective actions—issuing an apology, retracting the notice, and imposing no fines—rendered the issue moot.

Case Overview

The hearing addressed a petition filed by Dennis Gregory alleging that the Four Seasons at the Manor Homeowners Association violated its Covenants, Conditions, and Restrictions (CC&Rs) and Arizona state law.

Case Detail

Information

Case Number

19F-H1919069-REL

Petitioner

Dennis J Gregory

Respondent

Four Seasons at the Manor Homeowners Association

Presiding Judge

Antara Nath Rivera, Administrative Law Judge

Hearing Date

September 4, 2019

Decision Date

September 24, 2019

Chronology of Events

• July 13, 2018: The HOA sends a courtesy notice to Dennis Gregory requesting the removal of palm trees, citing a violation of the CC&Rs.

• Post-July 13, 2018: Gregory disputes the violation. Upon review, the HOA discovers the palm trees are on its “Recommended Plant List” and therefore permissible.

• August 16, 2018: The HOA sends Gregory a letter of apology via both email and postal mail, deeming the violation notice invalid.

• May 24, 2019: Gregory files a two-issue Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate.

• June 28, 2019: The HOA files its formal answer to the petition.

• September 4, 2019: An administrative hearing is conducted, with testimony from Gregory and Marc Vasquez, Vice President of the HOA’s management company.

• September 24, 2019: The Administrative Law Judge issues a decision denying the petition.

Petitioner’s Allegations and Testimony

Dennis Gregory filed the petition after the palm tree issue was resolved because he was upset with the HOA’s handling of the matter. His testimony and allegations included:

• Primary Motivation: He believed the HOA “fraudulently sent the courtesy letter.”

• Allegations of Deception:

◦ The HOA lied about the Board members discussing the palm tree issue prior to sending the notice.

◦ Annette McCraw of Trestle Management Group lied to him about speaking with the board.

◦ The HOA deceptively changed the CC&Rs regarding the names of permitted trees.

◦ The HOA failed to disclose the identity of the individual who falsely claimed his palm trees were poisonous.

• Allegations of Misconduct: He stated that Annette McCraw had threatened him with a lawyer.

• Legal Claim: He opined that these actions constituted a violation of the community’s CC&Rs (specifically 8.1.7) and Arizona Revised Statutes § 33-1803.

• Acknowledged Facts: During his testimony, Gregory confirmed that the HOA never imposed any fines and that he received the apology letter issued on August 16, 2018.

Respondent’s Position and Actions

The HOA, represented by Marc Vasquez of Trestle Management Group, maintained that it had taken all necessary steps to rectify its initial error.

• Admission of Error: The Respondent acknowledged that the initial violation notice was sent in error.

• Corrective Measures:

◦ It issued a formal apology letter once the mistake was identified.

◦ The courtesy letter was “removed and expunged” from both the Respondent’s and Petitioner’s records to preserve the Petitioner’s good standing.

◦ Marc Vasquez personally apologized to Gregory at a board meeting.

• No Penalties: The Respondent confirmed that no fines or sanctions were ever imposed on the Petitioner.

• Personnel Status: Vasquez testified that Annette McCraw, the employee accused of misconduct by the Petitioner, was no longer employed by Trestle Management Group.

Administrative Law Judge’s Conclusions and Order

The Administrative Law Judge denied the petition, finding that the Petitioner failed to prove his case by a preponderance of the evidence.

Legal Reasoning

1. Burden of Proof: The decision established that the Petitioner bore the burden of proving that the HOA violated its CC&Rs and state statutes. The standard of proof required was a “preponderance of the evidence,” meaning evidence sufficient to convince a trier of fact that a contention is more probably true than not.

2. Failure to Meet Burden: The Judge concluded that the Petitioner failed to meet this standard. This conclusion was based on several key facts established during the hearing:

◦ The Petitioner himself acknowledged that he was never financially penalized.

◦ The Petitioner acknowledged receipt of the HOA’s apology letter.

◦ Evidence showed the palm trees were, in fact, compliant with HOA rules.

◦ The violation notice was officially “removed and expunged” from all records.

3. Mootness of the Issue: The decision states, “the preponderance of the evidence showed Respondent did not violate any rules or regulations that would facilitate any orders or sanctions once it issued the apology letter, thus making the issue moot.” The HOA’s corrective actions effectively nullified the original dispute before it escalated to the point of requiring legal sanctions.

Final Order

“IT IS ORDERED that Petitioners’ petition is denied.”

The decision also included a notice that the order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order, pursuant to A.R.S. § 41-1092.09.

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

This guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 19F-H1919069-REL, concerning Dennis J Gregory and the Four Seasons at the Manor Homeowners Association. It includes short-answer questions with an answer key, essay questions for deeper analysis, and a glossary of key terms found within the legal decision.

Quiz: Short-Answer Questions

Answer the following questions in two to three complete sentences, using only information found in the case decision.

1. Who were the primary parties involved in this administrative hearing, and what were their roles?

2. What was the initial action by the Homeowners Association that triggered the dispute with the Petitioner?

3. What specific violations did the Petitioner, Dennis Gregory, allege in his Homeowners Association Dispute Process Petition?

4. How did the Respondent discover its error regarding the Petitioner’s palm trees?

5. What two specific actions did the Respondent take to rectify its error before the hearing took place?

6. Why did the Petitioner proceed with the hearing even after the Respondent retracted the violation notice and apologized?

7. Who was Annette McCraw, and what specific actions did the Petitioner accuse her of taking?

8. What is the “preponderance of the evidence,” and what was its significance in the judge’s decision?

9. According to the judge’s findings, why was the central issue of the dispute considered moot?

10. What was the final Order issued by the Administrative Law Judge in this case?

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Answer Key

1. The primary parties were Dennis J Gregory, the homeowner, who served as the Petitioner, and the Four Seasons at the Manor Homeowners Association, which was the Respondent. Marc Vasquez, vice president of Trestle Management Group, appeared on behalf of the Respondent.

2. The dispute was triggered when the Respondent, on July 13, 2018, sent the Petitioner a courtesy notice requesting the removal of palm trees from his front yard. The notice claimed the trees were a violation of the association’s CC&Rs.

3. The Petitioner alleged that the Respondent violated section 8.1.7 of its Covenants, Conditions, and Restrictions (CC&Rs) and the Arizona Revised Statute (A.R.S.) § 33-1803.

4. After the Petitioner disputed the violation, the Respondent conducted a further review. Through this review, the Respondent discovered that the palm trees on the Petitioner’s property were actually listed on the “Recommended Plant List” and were therefore acceptable.

5. First, the Respondent issued a courtesy letter to the Petitioner on August 16, 2018, apologizing for the misunderstanding. Second, the Respondent deemed the original violation notice invalid and had it “removed and expunged” from both its own and the Petitioner’s records to preserve his good standing.

6. The Petitioner proceeded with the hearing because he was upset and believed the Respondent had acted fraudulently. He alleged the Respondent lied about discussing the issue with board members, deceptively changed the CC&Rs, and failed to disclose who made the initial complaint.

7. Annette McCraw was an employee of Trestle Management Group, the Respondent’s management company. The Petitioner accused her of lying about speaking with board members regarding the palm tree issue and threatening him with a lawyer.

8. “Preponderance of the evidence” is the standard of proof required, defined as evidence convincing the trier of fact that a contention is more probably true than not. Its significance is that the Petitioner bore this burden of proof and ultimately failed to meet it, leading to the denial of his petition.

9. The issue was considered moot because the Respondent had already issued an apology letter and rescinded the violation notice before the hearing occurred. Since the Petitioner was never fined, the palm trees were deemed acceptable, and the notice was expunged, there was no longer an active controversy for the court to resolve.

10. The final Order, issued on September 24, 2019, was that the Petitioner’s petition is denied. The Order was binding unless a rehearing was requested within 30 days.

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Essay Questions

Construct detailed responses to the following prompts, drawing evidence and arguments exclusively from the provided legal decision.

1. Analyze the concept of a “moot” issue as it applies to this case. How did the Respondent’s actions before the hearing render the Petitioner’s primary complaint moot in the eyes of the law, despite the Petitioner’s ongoing grievances?

2. Discuss the burden of proof in this administrative hearing. Explain the “preponderance of the evidence” standard as defined in the document and detail the specific reasons why the Administrative Law Judge concluded that Dennis Gregory failed to meet this burden.

3. Examine the roles and conduct of the management company, Trestle Management Group, and its employee, Annette McCraw. Based on the testimony presented, what specific actions escalated the conflict even after the initial landscaping error was identified and corrected?

4. Trace the timeline of events from the initial “courtesy notice” of July 13, 2018, to the final Order of September 24, 2019. Identify the key turning points and decisions made by both the Petitioner and the Respondent that influenced the outcome of the case.

5. Although the Petitioner lost the case, he raised several allegations beyond the palm trees, including fraud, deception, and threats. Using only the evidence presented in the decision, construct the argument that Dennis Gregory was attempting to make regarding why these subsequent actions constituted a violation of the planned community statute, even if the original tree issue was resolved.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over the administrative hearing and issues a decision. In this case, the ALJ was Antara Nath Rivera.

Answer

The Respondent’s formal written response to the Petition, filed in this case on June 28, 2019.

A.R.S. (Arizona Revised Statutes)

The collection of laws for the state of Arizona. The decision cites A.R.S. § 33-1803, which authorizes HOAs to enforce CC&Rs, and statutes governing the hearing and rehearing process.

Burden of Proof

The obligation of a party to establish its claims by a required degree of evidence. In this hearing, the Petitioner had the burden of proof.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing documents that establish the rules for a planned community. The Petitioner alleged a violation of section 8.1.7 of the Respondent’s CC&Rs.

Department

The Arizona Department of Real Estate, the state agency with which the Petition was filed and which has jurisdiction over such disputes.

Homeowners Association Dispute Process Petition (Petition)

The formal document filed by a homeowner to initiate a hearing with the Department concerning alleged violations by their homeowners association.

A legal term for a situation where the underlying issue has been resolved, making any ruling on the matter unnecessary. The judge found the case moot because the Respondent had already issued an apology and rescinded the violation notice.

The final and binding decision issued by the Administrative Law Judge. In this case, the Order was to deny the Petitioner’s petition.

Petitioner

The party who initiates a legal action or hearing. In this case, the Petitioner was homeowner Dennis J Gregory.

Preponderance of the Evidence

The standard of proof required in this case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

Respondent

The party against whom a petition is filed and who is required to respond. In this case, the Respondent was the Four Seasons at the Manor Homeowners Association.

Trestle Management Group, LLC

The management company employed by the Respondent HOA to handle its operations.

An HOA Admitted It Was Wrong. The Homeowner Sued Anyway—And Lost. Here Are the Surprising Reasons Why.

Introduction: The Familiar Dread of an HOA Letter

For many homeowners, few things cause a spike of anxiety quite like a formal notice from their Homeowners Association (HOA). That crisp envelope often contains a violation notice, sparking a frustrating process of proving compliance or making unwanted changes. But what happens when you prove the HOA was completely wrong, they admit their mistake, and issue a full apology? For most, that’s the end of the story—a clear victory.

This, however, is the story of a homeowner who achieved that victory and then decided to take the HOA to a formal hearing anyway. He had been proven right, the violation was erased, and no fines were ever issued. Yet, he pursued the case and ultimately lost.

How could someone who was proven right end up losing their case? The answer reveals a critical distinction between winning an argument and winning in a court of law.

1. You Can Win the Argument, But Still Lose the Case

The initial dispute was straightforward. The homeowner, Dennis Gregory, received a courtesy notice from his HOA requesting the removal of palm trees from his front yard, which were alleged to be in violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs).

Mr. Gregory disputed the violation. In response, the HOA conducted a further review and made a critical discovery: the palm trees on the property were, in fact, listed on the HOA’s own “Recommended Plant List” and were perfectly acceptable. The HOA had made a mistake. Here, however, the story takes a surprising turn. Mr. Gregory filed his formal petition for a hearing after the HOA had already admitted its error, apologized, and confirmed the issue was resolved.

This sequence of events is the crucial detail of the case. The legal dispute wasn’t about the palm trees—that argument was already won. The case was about the actions taken after the HOA’s error was acknowledged and corrected.

2. A Proactive Apology Can Be a Powerful Legal Shield

Once the HOA realized its mistake, it took several decisive steps to remedy the situation. According to the Administrative Law Judge’s findings, the HOA and its management company:

• Sent a formal apology letter to the homeowner.

• Confirmed the original courtesy notice was “deemed invalid.”

• “Removed and expunged” the violation from the homeowner’s records to preserve his good standing.

• Never issued any fines or financial penalties.

• Took action regarding personnel, as the employee who the homeowner accused of making threats was no longer with the management company by the time of the hearing.

These corrective actions had a profound legal impact. The judge found that because the HOA had already reversed its initial notice, apologized, cleared the homeowner’s record, and addressed the personnel issue, there was no longer an active dispute to rule on. The issue was considered “moot.”

This conclusion was emphasized in the judge’s final decision:

Furthermore, the preponderance of the evidence showed Respondent did not violate any rules or regulations that would facilitate any orders or sanctions once it issued the apology letter, thus making the issue moot.

3. The Law Requires Proof, Not Just Principle

The homeowner’s petition wasn’t just about the palm trees. He testified that he proceeded with the case because he felt he had been wronged by an HOA management employee during the dispute. His petition alleged the HOA had “fraudulently sent the courtesy letter,” lied about discussing the issue with board members, and even “threatened him with a lawyer.” He wasn’t just seeking to correct the record on his landscaping; he was fighting on a matter of principle.

To win his case, however, the homeowner had to meet a specific legal standard: proving his claims by “a preponderance of the evidence.” In simple terms, this means showing that his version of events was more likely to be true than not.

Ultimately, the judge concluded that the homeowner “failed to establish, by a preponderance of the evidence, that Respondent violated the CC&Rs.” This outcome highlights a crucial legal reality: tangible, documented evidence—such as a formal apology letter and an expunged record—often carries more evidentiary weight than a homeowner’s testimony about verbal statements, which can be viewed as a ‘he said, she said’ dispute without additional proof. While the homeowner may have genuinely felt wronged, his feelings could not overcome the HOA’s documented resolution.

Conclusion: A Cautionary Tale for Homeowners and HOAs

The outcome of this dispute offers a powerful lesson for both homeowners and association boards. It demonstrates three core takeaways: a dispute isn’t over until it’s legally resolved, a swift and comprehensive apology can be an effective legal defense, and a deeply felt principle must still be backed by sufficient evidence to prevail in a formal hearing.

This case serves as a fascinating reminder of the complexities of community disputes, leaving us with a final question: At what point does the fight for principle risk overshadowing a practical victory?

Case Participants

Petitioner Side

  • Dennis J Gregory (petitioner)
    Appeared and testified on own behalf

Respondent Side

  • Marc Vasquez (attorney)
    Trestle Management Group
    Appeared for Respondent; testified as vice president of Trestle
  • Annette McCraw (property manager)
    Trestle Management Group, LLC
    Issued letter on behalf of Respondent; no longer with Trestle
  • James A. Baska (management representative)
    Trestle Management Group
    Recipient of decision transmission

Neutral Parties

  • Antara Nath Rivera (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Addressed in transmission of decision

John H. Kelly v. Cortez Canyon Unit Owners Association

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Case Summary

Case ID 19F-H1919060-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-09-13
Administrative Law Judge Jenna Clark
Outcome The ALJ concluded that the Petitioner failed to meet the required threshold of 21 valid signatures from eligible voters needed to compel the Association to call a special meeting under ARIZ. REV. STAT. § 33-1243. The petition was consequently denied.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

ARIZ. REV. STAT. § 33-1243

Outcome Summary

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

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

Key Issues & Findings

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

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

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

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

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

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Video Overview

Audio Overview

Decision Documents

19F-H1919060-REL Decision – 737890.pdf

Uploaded 2026-04-24T11:20:28 (142.6 KB)

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

Executive Summary

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

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

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

Case Overview

Parties Involved

Name / Entity

Details

Petitioner

John H. Kelly

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

Respondent

Cortez Canyon Unit Owners Association

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

Witness

Saundra Garcia

President of the Association’s Board of Directors.

Adjudicator

Jenna Clark

Administrative Law Judge, Arizona Office of Administrative Hearings.

Core Dispute

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

Legal and Governance Framework

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

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

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

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

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

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

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

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

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

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

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

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

Respondent’s Position and Evidence (Cortez Canyon Association)

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

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

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

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

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

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

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

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

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

Administrative Law Judge’s Findings and Ruling

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

Conclusions of Law

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

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

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

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

Final Order

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

IT IS ORDERED that Petitioner’s petition be denied.

Study Guide: Kelly v. Cortez Canyon Unit Owners Association (Case No. 19F-H1919060-REL)

This study guide provides a comprehensive review of the Administrative Law Judge Decision in the matter between Petitioner John H. Kelly and Respondent Cortez Canyon Unit Owners Association. It is designed to test and reinforce understanding of the case’s facts, legal arguments, governing documents, and final outcome.

——————————————————————————–

Part I: Short-Answer Quiz

Instructions: Answer the following ten questions in two to three complete sentences, based solely on the information provided in the case document.

1. Who were the primary parties involved in this hearing, and what were their respective roles?

2. What was the specific violation of Arizona law alleged by the Petitioner in his initial petition to the Department of Real Estate?

3. How many condominium units are in the Cortez Canyon development, and what number of valid signatures was consequently required to compel a special meeting?

4. According to the Association’s Bylaws, what circumstances would cause a Unit Owner to have their voting rights suspended?

5. List the three categories of invalid signatures that the Association identified in its review of the Petitioner’s submission.

6. Who was Jeffery Law, and why was his signature ultimately not counted by the Association?

7. What was the initial assessment given to the Petitioner by the property management group, Golden Valley, and how did it differ from the Association’s final determination?

8. In this type of legal proceeding, who bears the “burden of proof,” and what standard of proof must be met?

9. What was the Administrative Law Judge’s final conclusion regarding the Petitioner’s claim?

10. What was the final ORDER issued by the Administrative Law Judge in this case?

——————————————————————————–

Part II: Answer Key

1. The primary parties were John H. Kelly, the “Petitioner,” who appeared on his own behalf, and the Cortez Canyon Unit Owners Association, the “Respondent,” which was represented by Jonathan A. Dessaules, Esq. Administrative Law Judge Jenna Clark presided over the hearing. Saundra Garcia, the Association’s Board President, appeared as a witness for the Respondent.

2. The Petitioner alleged that the Association violated ARIZ. REV. STAT. § 33-1243 by failing to call a special meeting for the purpose of removing a board member. He claimed to have collected the required number of signatures from homeowners to compel such a meeting.

3. The Cortez Canyon development has 84 units. Based on the requirement for signatures from 25% of the votes in the Association, a total of 21 valid Unit Owner signatures were required to compel a special meeting.

4. According to Bylaws Article II, Section 7, a Unit Owner’s right to vote is automatically suspended if the owner is in arrears in the payment of any Assessment, monetary penalties, or other fees for a period of fifteen days. This suspension remains in effect until all payments are brought current.

5. The Association determined that of the 36 submitted signatures, 23 were invalid. The categories for invalidation were: eleven signatures from non-owner renters or occupants, six signatures from units where another signature had already been collected, and six signatures from Unit Owners who were ineligible to vote due to being delinquent on payments.

6. Jeffery Law was an Association member and owner of six condominium units. His signature was not counted because the Petitioner secured it after submitting the petition to the management company and never provided it to the Association as part of the formal submission.

7. The former property management group, Golden Valley, initially informed the Petitioner that he had secured enough valid signatures to compel a special meeting. However, after the Association directly reviewed the petition, it determined that only 13 of the signatures were valid, far short of the required 21.

8. In this proceeding, the Petitioner, John H. Kelly, bore the burden of proof. The standard of proof required was a “preponderance of the evidence,” which means providing evidence that is more convincing and has superior weight than the evidence presented by the opposing side.

9. The Administrative Law Judge concluded that the Petitioner failed to sustain his burden of proof. The credible evidence demonstrated that the Petitioner submitted only thirteen valid signatures, which was insufficient to compel the Association to call a special meeting under its Bylaws and state law.

10. The final ORDER, based on the Findings of Fact and Conclusions of Law, was that the Petitioner’s petition be denied.

——————————————————————————–

Part III: Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. They require a deeper analysis of the case’s themes, legal principles, and procedural elements. Do not provide answers.

1. Analyze the concept of “burden of proof” as it applies to this case. Explain what “preponderance of the evidence” means in this context, who held the burden, and how the failure to meet this standard was the central reason for the judge’s final decision.

2. Discuss the critical importance of an association’s governing documents (CC&Rs and Bylaws) in resolving internal disputes. Use specific articles and sections from the Cortez Canyon Bylaws to illustrate how they definitively established the rules for calling a special meeting and determining voter eligibility, leaving little room for interpretation.

3. Evaluate the Petitioner’s strategy and execution in collecting signatures for his petition. Identify the critical errors he and his assistants made in the process, and outline the specific steps he could have taken to verify signatures and ensure his petition was valid before its submission.

4. Explain the legal and practical distinctions between a Unit Owner, an occupant/renter, and an “eligible voter” within the context of the Cortez Canyon Unit Owners Association. How did the Petitioner’s failure to understand these distinctions become the central point of failure for his petition?

5. Imagine you are advising the Cortez Canyon Board of Directors following this hearing. Based on the evidence and outcome of the case, what recommendations would you make regarding their procedures for validating petitions and their communication with Unit Owners about voting rights, petition requirements, and the consequences of financial delinquency?

——————————————————————————–

Part IV: Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official (Jenna Clark) who presides over hearings at the Office of Administrative Hearings, reviews evidence, and makes legal findings and conclusions.

Answer

The formal written response filed by the Respondent (the Association) on May 28, 2019, denying the Petitioner’s allegations.

ARIZ. REV. STAT.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. The specific statute at issue was § 33-1243.

Association

The Cortez Canyon Unit Owners Association, the governing body for the condominium development, comprised of all unit owners.

Board of Directors (the Board)

The group of individuals that oversees the Association, as empowered by the CC&Rs. The petition sought to remove a member of this board.

Burden of Proof

The legal obligation on one party in a dispute (in this case, the Petitioner) to provide sufficient evidence to prove their claim.

Bylaws

The set of rules adopted by the Association on June 14, 2000, that govern its internal operations, including meetings and voting rights.

Covenants, Conditions, and Restrictions (CC&Rs)

The primary governing documents for the development, recorded on May 9, 2000, which form an enforceable contract between the Association and each property owner.

Department

The Arizona Department of Real Estate, the state agency authorized to receive and decide petitions from members of homeowners’ associations.

Eligible Votes

A term defined in the Bylaws as the total number of votes that can be lawfully cast, excluding those from members whose voting rights are suspended.

Findings of Fact

The section of the legal decision that outlines the established, undisputed facts of the case based on the hearing evidence.

OAH (Office of Administrative Hearings)

An independent state agency where evidentiary hearings are conducted by Administrative Law Judges.

The final, legally binding command issued by the judge at the conclusion of the decision. In this case, the Order was to deny the petition.

Petitioner

The party who initiates a legal action by filing a petition. In this case, John H. Kelly.

Petition

The formal document filed by the Petitioner on April 29, 2019, with the Department to initiate the hearing process against the Association.

Preponderance of the Evidence

The standard of proof required in this case, meaning that the evidence must be sufficient to convince the judge that the contention is more probably true than not.

Respondent

The party against whom a petition is filed and who must respond to the allegations. In this case, the Cortez Canyon Unit Owners Association.

Special Meeting

A meeting of Association members called for a specific purpose outside of the regularly scheduled meetings. The petition sought to compel a special meeting to remove a board member.

Unit Owner

An individual who holds legal title to a condominium within the Cortez Canyon development and is a member of the Association.

He Gathered 36 Signatures to Oust His HOA Board. Here’s Why Only 13 Counted.

Introduction: The Power and Pitfalls of Community Action

Many homeowners have felt the frustration of trying to enact change within their community, especially when it involves challenging the decisions of a Homeowners Association (HOA) board. It can feel like an uphill battle, but the right to petition and call for special meetings is a cornerstone of community governance.

However, a real-world case involving homeowner John H. Kelly and the Cortez Canyon Unit Owners Association serves as a critical cautionary tale. Mr. Kelly gathered what he believed were more than enough signatures to force a special meeting to remove a board member. Despite his significant effort, his petition failed spectacularly. This article breaks down the key legal and procedural reasons why, offering essential lessons for every homeowner.

1. Not All Signatures Are Created Equal: The Validity Gauntlet

The core of the issue began with a simple numbers game. The Cortez Canyon HOA has 84 units, meaning a petition required signatures from 25%, or 21, of the unit owners to compel a special meeting. Mr. Kelly successfully collected 36 signatures—a number that seemed to guarantee his success.

In a moment of false victory, the association’s property management company at the time, Golden Valley, informed Mr. Kelly that he had indeed secured enough signatures. But this assurance was short-lived. A new management company took over, and after a formal review, the association delivered devastating news: only 13 of the 36 signatures were valid. The petition was dead on arrival.

The association disqualified 23 signatures for specific, documented reasons:

• Non-Owners: Eleven signatures were from renters or other residential occupants who were not the legal owners of the unit.

• Duplicate Units: Six signatures were removed because another signature had already been collected from the same unit, upholding the “one vote per unit” principle.

• Ineligible Owners: Six signatures were from homeowners who were technically owners but were found to be ineligible to vote at the time they signed.

This reveals the petitioner’s first critical, and ultimately fatal, assumption: that the HOA would do the work of verifying his supporters. In reality, the burden of proof was his alone. The legal findings state it plainly: “Neither Petitioner nor his assistants verified if the signatures that were collected belonged to Unit Owners eligible to vote.” From a governance perspective, this initial culling of signatures is where most grassroots community efforts fail.

2. The Fine Print That Disenfranchises: “Good Standing” and Your Right to Vote

Here, we find the kind of boilerplate legal language that is often ignored by homeowners but wielded with immense power by boards. The ineligibility of six homeowners stemmed from a specific clause in the association’s bylaws related to financial standing.

The bylaw states:

“In the event any Unit Owner is in arrears in the payment of any Assessment, monetary penalties or other fees and charges due under the terms of the Condominium Documents for a period of fifteen (15) days, the Unit Owner’s right to vote as a member of the Association shall be automatically suspended…”

This single provision had a profound impact. Six of the signatures Mr. Kelly collected were from homeowners who were more than 15 days late on their dues or fines. Their voting rights were suspended, and their signatures were rendered invalid. This highlights a crucial preparatory step for any petitioner: confidentially requesting a list of members in good standing from the association before collecting signatures, if the governing documents allow, or at minimum, reminding potential signatories to ensure their accounts are current.

3. Process is Paramount: The Signature That Never Was

Facing a losing battle at the administrative hearing, the petitioner made a final argument to salvage his petition. He contended that he had also secured the signature of a member named Jeffrey Law, who owned six separate units. Mr. Kelly argued this single signature should count as six votes, which would have put him over the required threshold.

However, this argument failed due to a simple but fatal procedural error. According to the court’s findings, the signature from Mr. Law was never actually submitted with the petition to the association.

The Administrative Law Judge’s finding was unambiguous: “The signature Petitioner collected from the multiple unit owner, Jeffrey Law, was not a part of the petition received by the Association and therefore was not counted.” This procedural error, while seemingly minor, is an absolute bar to success in administrative law. Unlike a casual disagreement, there is no room for “I meant to” or “I thought I had.”

Conclusion: Knowledge is Power in an HOA

Because the petitioner could only provide 13 valid signatures instead of the required 21, the Administrative Law Judge denied his petition. The HOA was not required to call the special meeting, and the board member remained in place. Mr. Kelly’s story is a powerful reminder that enthusiasm and effort are not enough to navigate the complexities of community governance. The case provides three clear takeaways for any homeowner:

1. Quality Over Quantity: A short, verified list of eligible voters is infinitely more powerful than a long list of unverified names.

2. Bylaws are Your Battlefield: The governing documents contain the rules of engagement. Ignoring them—especially clauses on voter eligibility—is a unilateral surrender.

3. Documentation is Everything: If it wasn’t formally submitted to the correct party, it legally never happened. Your ability to prove submission is as important as the submission itself.

This case is a powerful reminder that enthusiasm and effort aren’t enough. The real question every homeowner should ask is: Do you truly know the rules that govern your rights in your own community?

Case Participants

Petitioner Side

  • John H. Kelly (petitioner)

Respondent Side

  • Jonathan A. Dessaules (attorney)
    Dessaules Law Group
    Appeared on behalf of Respondent
  • Saundra Garcia (board member)
    Cortez Canyon Unit Owners Association
    Called as a witness and testified as Board President
  • Jacob A. Kubert (attorney)
    Dessaules Law Group
    Counsel receiving notice of decision

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Decision transmitted to Commissioner

Other Participants

  • Jeffery Law (owner)
    Cortez Canyon Unit Owners Association
    Unit owner whose signature Petitioner secured but was not submitted to the Association

Michael J Stoltenberg v. Rancho Del Oro Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1919068-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-09-04
Administrative Law Judge Thomas Shedden
Outcome The ALJ found the HOA violated CC&R 4.3 regarding the timing of budget delivery. While the Petitioner prevailed on the violation and was awarded the $500 filing fee, the ALJ denied the request to rescind the dues increase and denied civil penalties.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

CC&R 4.3

Outcome Summary

The ALJ found the HOA violated CC&R 4.3 regarding the timing of budget delivery. While the Petitioner prevailed on the violation and was awarded the $500 filing fee, the ALJ denied the request to rescind the dues increase and denied civil penalties.

Key Issues & Findings

Failure to deliver budget 15 days prior to meeting

Petitioner alleged the HOA violated CC&R 4.3 by failing to deliver the budget 15 days before the meeting. The HOA mailed the budget exactly 15 days prior (Jan 2 for Jan 17 meeting), but the ALJ ruled the contract required delivery, not just mailing, 15 days prior.

Orders: Respondent must pay to Petitioner his filing fee of $500.00 within thirty days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Video Overview

Audio Overview

Decision Documents

19F-H1919068-REL Decision – 735330.pdf

Uploaded 2026-04-24T11:21:24 (80.1 KB)

Administrative Decision Briefing: Stoltenberg v. Rancho Del Oro Homeowners Association

Executive Summary

This document provides a comprehensive analysis of the administrative law decision in Case No. 19F-H1919068-REL, involving Petitioner Michael J. Stoltenberg and Respondent Rancho Del Oro Homeowners Association. The central dispute concerned whether the Association complied with its Covenants, Conditions, and Restrictions (CC&Rs) regarding the timely delivery of budget documentation to members.

The Administrative Law Judge (ALJ), Thomas Shedden, determined that the Association violated CC&R section 4.3 by failing to deliver the 2019 budget to the Petitioner at least fifteen days before the annual meeting. While the Petitioner was declared the prevailing party and awarded a refund of his $500 filing fee, the court declined to rescind the 2019 dues increase or issue civil penalties.

Detailed Analysis of Key Themes

1. Interpretation of Delivery Timelines

The core of the legal dispute rested on the distinction between "mailing" and "delivery." CC&R section 4.3 stipulates that the Board must cause a copy of the budget and assessment amounts to be delivered to each unit owner at least fifteen days prior to the meeting where the budget is presented.

The evidence established that:

  • The annual meeting occurred on January 17, 2019.
  • The Association mailed the budget on January 2, 2019 (exactly fifteen days before the meeting).
  • The Petitioner did not actually receive the budget fifteen days before the meeting.

The ALJ concluded that merely placing the budget in the mail fifteen days prior does not satisfy a requirement for "delivery" by that same date, as the transit time naturally delays the delivery beyond the required window.

2. Contractual Nature of CC&Rs

The decision reinforces the legal principle that CC&Rs constitute a binding contract between a Homeowners Association and its members. The tribunal emphasized that:

  • Both parties are required to comply with the explicit terms of the CC&Rs.
  • The court must give effect to the "clear and unambiguous terms" of these documents.
  • The Association’s failure to meet the specific delivery deadline constituted a breach of its contractual duty under section 4.3.
3. Burden of Proof and Evidentiary Standards

The Petitioner bore the burden of proof under the standard of a "preponderance of the evidence." This case highlights how credible personal testimony, combined with physical evidence (such as a postmarked envelope), can meet this standard. The ALJ found the Petitioner's testimony regarding the receipt of the budget to be credible, which was sufficient to incline the "fair and impartial mind" toward his side of the issue.

4. Remedies and Judicial Discretion

While the Petitioner successfully proved a violation, the court exercised discretion regarding the requested remedies. The decision illustrates a distinction between a procedural violation and the substantive validity of Association actions:

  • Procedural Violation: Confirmed (Late delivery of budget).
  • Awarded Remedy: Refund of the $500 filing fee to the Petitioner.
  • Denied Remedies: The court refused to rescind the 10% dues increase and declined to issue civil penalties, as the Petitioner failed to demonstrate that such measures were appropriate or necessary.

Key Case Data

Category Details
Case Number 19F-H1919068-REL
Administrative Law Judge Thomas Shedden
Hearing Date August 21, 2019
Decision Date September 4, 2019
Relevant CC&R Section 4.3 (Budget Delivery)
Prevailing Party Michael J. Stoltenberg
Financial Award $500.00 (Filing Fee Reimbursement)

Important Quotes with Context

On the 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; superior evidentiary weight that… is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other." (Citing Black’s Law Dictionary)

Context: This quote establishes the legal threshold the Petitioner had to meet to prove the Association violated the CC&Rs.

On Contractual Compliance

"The CC&Rs are a contract between the parties and the parties are required to comply with its terms… the tribunal must give effect to a contract’s clear and unambiguous terms."

Context: The ALJ used this to explain why the Association could not be excused from the strict 15-day delivery requirement, regardless of their mailing efforts.

On the Specific Violation

"The preponderance of the evidence shows that the Association placed the budget in the mail on January 2, 2019, which is fifteen days before the meeting, but it was not delivered to Mr. Stoltenberg on that date and was not delivered to him fifteen days before the meeting as required."

Context: This finding is the pivot point of the decision, clarifying that mailing a document on the deadline date is insufficient if the requirement is "delivery."

Actionable Insights

For Homeowners Associations
  • Buffer Mailing Dates: When CC&Rs require "delivery" by a certain date, Associations should account for mail transit times. Mailing exactly on the deadline (e.g., 15 days before a meeting for a 15-day requirement) will likely result in a violation if the document is not received on that same day.
  • Review Mandatory Timelines: Associations must strictly adhere to the timelines set in their CC&Rs for budget preparation (60 days prior to fiscal year) and member notification (30 days prior to meetings).
  • Dues Increase Authority: The case notes that dues increases up to 10% do not require membership approval under these specific CC&Rs, though procedural notice requirements still apply.
For Association Members
  • Documenting Receipts: Maintaining evidence of postmarks and arrival dates is crucial when alleging procedural violations by an Association.
  • Single-Issue Petitions: Petitioners should be aware that administrative hearings may require identifying a single issue or paying additional fees for multi-issue hearings.
  • Limited Remedies: Even if a violation is proven, the court may only award the recovery of filing fees rather than the rescission of Association financial decisions (like dues increases) unless a specific harm or lack of authority is demonstrated.

Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association

This study guide provides a comprehensive overview of the administrative law case Michael J. Stoltenberg v. Rancho Del Oro Homeowners Association (No. 19F-H1919068-REL). It covers the legal standards, factual findings, and final rulings issued by the Arizona Office of Administrative Hearings.

Core Case Overview

The case centers on a dispute regarding the procedural requirements for notifying homeowners of annual budgets and assessment increases. The Petitioner, Michael J. Stoltenberg, alleged that the Rancho Del Oro Homeowners Association (the Association) failed to comply with its Covenants, Conditions, and Restrictions (CC&Rs) regarding the timely delivery of budget documentation.

Key Legal Standards
  • Jurisdiction: The Arizona Department of Real Estate has authority over this matter pursuant to ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.
  • Burden of Proof: The Petitioner bears the burden of proof.
  • Standard of Proof: The standard is a "preponderance of the evidence," defined as the greater weight of the evidence or evidence that has the most convincing force.
  • Contractual Nature of CC&Rs: Legal precedent establishes that CC&Rs are a contract between the parties, and the tribunal must give effect to the contract’s clear and unambiguous terms.

Factual Findings and Timeline

The dispute focused on the Association's actions leading up to the 2019 fiscal year and its annual meeting.

2019 Budget and Dues Increase
  • Meeting Date: The Association conducted its annual meeting on January 17, 2019.
  • Dues Adjustment: Monthly dues were increased by 10% to a total of $154 per month. Under the Association's rules, dues increases of up to 10% do not require membership approval.
  • Notice of Increase: The Association informed members of the dues increase in November 2018.
CC&R Section 4.3 Requirements

Section 4.3 of the CC&Rs outlines specific timelines for the Board of Directors:

  1. Preparation: The budget must be prepared at least 60 days before the fiscal year and at least 30 days before the meeting where it is presented.
  2. Delivery: A copy of the budget and assessment amounts must be delivered to each unit owner at least 15 days prior to the meeting.
The Violation

The evidence showed that the Association postmarked the 2019 budget on January 2, 2019. While this was 15 days before the January 17 meeting, the budget was not actually delivered to Mr. Stoltenberg 15 days prior. The Administrative Law Judge (ALJ) determined that mailing the document on the 15th day did not satisfy the requirement for delivery "at least fifteen days prior" to the meeting.

Short-Answer Practice Questions

1. Who had the burden of proof in this matter, and what was the required standard?

The Petitioner (Michael J. Stoltenberg) had the burden of proof, and the required standard was a "preponderance of the evidence."

2. Why was the Petitioner required to limit his petition to a single issue?

The Administrative Law Judge informed the Petitioner that his initial petition encompassed multiple issues (violations of CC&R 1.8, 1.9, 2.1, 3.1, etc.). He was required to either identify a single issue for the hearing or pay a fee for a multi-issue hearing.

3. What specific violation did the ALJ find the Association committed?

The Association violated CC&R section 4.3 by failing to deliver a copy of the budget to the Petitioner at least 15 days before the meeting at which the budget was considered.

4. What was the Association’s defense regarding the timing of the budget notification?

The Association postmarked the budget on January 2, 2019, exactly 15 days before the meeting; however, the law requires delivery, not just mailing, by that deadline.

5. Did the dues increase of 10% require a vote from the membership?

No. Dues increases of up to 10% do not require approval of the membership under the Association's governing documents.

6. What was the final remedy awarded to the Petitioner?

The Petitioner was deemed the prevailing party, and the Association was ordered to reimburse his $500 filing fee.

Essay Prompts for Deeper Exploration

1. The Distinction Between Mailing and Delivery in Contractual Obligations Analyze the ALJ’s interpretation of CC&R section 4.3. Discuss why the postmark date of January 2nd was insufficient to meet a "fifteen-day delivery" requirement for a meeting held on January 17th. How does this distinction affect how Homeowners Associations should manage their administrative timelines?

2. Remedies and Limits of Administrative Authority The Petitioner requested that the 2019 dues increase be rescinded and a civil penalty be issued. However, the ALJ denied these requests despite finding a violation. Based on the source context, explore the potential reasons why the procedural violation regarding the budget delivery did not automatically invalidate the dues increase itself.

Glossary of Important Terms

Term Definition
Administrative Law Judge (ALJ) A judge who presides over hearings and adjudicates disputes involving government agencies (in this case, the Office of Administrative Hearings).
CC&Rs Covenants, Conditions, and Restrictions; the governing documents and rules that constitute a contract between a Homeowners Association and its members.
Filing Fee The cost paid by a petitioner to initiate a legal matter. In this case, the fee was $500.00.
Fiscal Year The 12-month period used by the Association for budgeting and financial reporting.
Preponderance of the Evidence The standard of proof where the evidence is of "superior evidentiary weight" and more "convincing" than the opposing evidence.
Prevailing Party The party in a lawsuit or legal proceeding who succeeds on the main issues.
Petitioner The party who brings a legal petition or complaint to the tribunal (Michael J. Stoltenberg).
Respondent The party against whom a legal action is brought (Rancho Del Oro Homeowners Association).
Rescinded To cancel, revoke, or repeal a decision or agreement.

The "Delivery" Deadline: Lessons in HOA Transparency from Stoltenberg v. Rancho Del Oro

1. Introduction: When Procedure Meets Property Rights

For many homeowners, the relationship with their Homeowners Association (HOA) is a balancing act between community standards and personal property rights. However, as any seasoned legal analyst will tell you, this relationship is governed strictly by contract law. When a Board fails to adhere to the procedural requirements of its own governing documents, it risks not only community trust but also a formal administrative remedy.

The case of Michael J. Stoltenberg vs. Rancho Del Oro Homeowners Association stands as a pivotal cautionary tale. It demonstrates that even when an Association acts in good faith to announce a dues increase, a single procedural oversight regarding the definition of the word "delivered" can result in a legal defeat. This post analyzes how a $500 filing fee refund turned on the precise timing of a budget distribution.

2. The Dispute: A Question of Timing

In early 2019, Petitioner Michael J. Stoltenberg challenged the Rancho Del Oro Homeowners Association following a budget meeting that resulted in an assessment increase. While Mr. Stoltenberg’s initial petition alleged a wide array of violations—including CC&Rs 1.8, 1.9, 2.1, 3.1, and various parts of Article 4—he ultimately employed a focused legal strategy, narrowing his claim to a single, provable issue of procedural non-compliance.

The conflict centered on the following facts:

  • The Annual Meeting: Conducted on January 17, 2019.
  • The Assessment Change: A 10% increase, raising monthly dues to $154.
  • The Regulatory Conflict: CC&R Section 4.3, which mandates specific timelines for budget distribution.

The Petitioner’s primary allegation was that the Association committed a contractual breach by failing to deliver the 2019 budget within the mandatory 15-day window prior to the meeting.

3. The Legal Threshold: CC&R Section 4.3 Analyzed

The Association’s obligations were not mere suggestions; they were contractual mandates. The Board's failure to distinguish between "mailing" and "delivery" created the grounds for the dispute.

Legal Spotlight: CC&R Section 4.3 Requirements Under the Association’s governing documents, the Board has two distinct temporal duties: 1. Preparation Duties: The Board must prepare a budget at least 60 days before the fiscal year and at least 30 days before the meeting at which it is presented. 2. Delivery Duties: The Board "shall cause a copy of the budget and the amount of the assessments… to be delivered to each unit owner at least fifteen days prior to that meeting."

The Association, represented by the testimony of Diana Crites of Crites Property Management, argued that they had fulfilled their duty by informing members of the increase in November 2018 and mailing the budget on January 2, 2019. However, the legal standard for "delivery" is not met by the mere act of placing an item into the stream of transit.

4. The ALJ’s Decision: Mailing is Not Delivery

Administrative Law Judge (ALJ) Thomas Shedden applied the Preponderance of the Evidence standard to this matter. As defined in Black’s Law Dictionary, this 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 ALJ’s logic focused on the "15-day math." If a meeting is held on the 17th, and the document is mailed on the 2nd, it is physically and legally impossible for the document to be "delivered" (received) on that same day.

HOA's Position The ALJ's Ruling Legal Logic
The Association mailed the budget on January 2, 2019, exactly 15 days prior to the meeting. Mailing on the deadline day is insufficient to satisfy a delivery requirement. "Delivery" implies receipt. Because the document was in transit on the 15th day, it was not delivered "at least 15 days prior."

The Verdict: The ALJ ruled that the Association violated Section 4.3. As a result, the Association was ordered to pay Mr. Stoltenberg $500 to reimburse his filing fee—effectively shifting the cost of litigation to the non-compliant Association.

5. Nuance in the Verdict: Limits to Homeowner Remedies

While the Petitioner secured a victory on the procedural point, the ruling highlights the limitations of administrative remedies. Homeowners should note that a procedural "win" does not always result in a total reversal of Association policy:

  1. Dues Increase Upheld: Because the 10% increase did not exceed the threshold requiring membership approval under the CC&Rs, the ALJ did not rescind the increase. The $154 monthly rate remained valid.
  2. No Civil Penalties: The ALJ determined that while a violation of the CC&Rs occurred, the circumstances did not warrant additional punitive civil penalties beyond the reimbursement of the filing fee.
6. Final Takeaways for Homeowners and Boards

The Stoltenberg case offers three high-impact lessons for community governance:

  • For Boards: Delivery Means Receipt. If governing documents require "delivery" by a specific deadline, mailing the document on that day is a breach of contract. Boards and management companies—such as Crites Property Management in this instance—must account for postal transit times to ensure documents are in the homeowners' hands by the deadline.
  • For Homeowners: Document Everything. Mr. Stoltenberg’s case was won on evidence, not just anecdotally. His presentation of the January 2nd postmark on the envelope was the pivotal "smoking gun" that proved the Association's timeline was flawed.
  • For Both: Contracts Matter. This ruling reinforces the precedent set in Johnson v. The Pointe Community Association (205 Ariz. 485), which establishes that CC&Rs are binding contracts. Tribunals are legally bound to give effect to the clear and unambiguous terms of these documents. Procedural transparency is a contractual obligation, not a courtesy.
7. Conclusion: The Value of Accountability

The Stoltenberg v. Rancho Del Oro decision serves as a vital reminder that in the world of HOAs, details matter. While the Association had notified members of the increase as early as November, their failure to strictly adhere to the 15-day delivery window for the final budget resulted in a financial penalty and a formal finding of violation. Ultimately, strict adherence to procedural deadlines is the only way for a Board to insulate itself from the costs and scrutiny of administrative litigation.

Case Participants

Petitioner Side

  • Michael J. Stoltenberg (petitioner)
    Appeared on his own behalf

Respondent Side

  • Nicole Payne (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
  • Diana Crites (witness)
    Crites Property Management
    Testified for the Association
  • Lydia A. Peirce Linsmeier (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Listed in transmission block

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of transmitted order
  • F. Del Sol (clerk/staff)
    Office of Administrative Hearings
    Signed the transmission of the order

Marc D Archer v. PMPE Community Association, Inc.

Posted on by

Case Summary

Case ID 19F-H1919063-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-09-03
Administrative Law Judge Velva Moses-Thompson
Outcome The ALJ ruled in favor of the Respondent (HOA) and dismissed the petition. The HOA's rejection of the flat roof design was found to be reasonable and consistent with the architectural rules requiring pitched roofs to predominate and designs to be harmonious with surrounding structures.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Marc D. Archer Counsel —
Respondent PMPE Community Association, Inc. Counsel Nichols C. Hogami

Alleged Violations

A.R.S. § 33-1817(3)

Outcome Summary

The ALJ ruled in favor of the Respondent (HOA) and dismissed the petition. The HOA's rejection of the flat roof design was found to be reasonable and consistent with the architectural rules requiring pitched roofs to predominate and designs to be harmonious with surrounding structures.

Why this result: Petitioner failed to prove by a preponderance of the evidence that the HOA violated the statute; the evidence showed the HOA's decision was based on valid architectural rules.

Key Issues & Findings

Unreasonable withholding of architectural approval

Petitioner sought approval for a garage addition with a flat roof. The Board denied final approval because the design was not harmonious with surrounding structures (pitched roofs) and did not meet the exception for hidden flat roofs.

Orders: The petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1817(3)
  • A.R.S. Title 32, Ch. 20, Art. 11
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

19F-H1919063-REL Decision – 733775.pdf

Uploaded 2026-04-24T11:20:41 (86.0 KB)

Administrative Law Judge Decision: Archer v. PMPE Community Association, Inc.

Executive Summary

This document provides a detailed briefing on the administrative hearing between Petitioner Marc D. Archer and Respondent PMPE Community Association, Inc. (Case No. 19F-H1919063-REL). The dispute centered on the Petitioner's proposal to construct a garage addition with a flat roof, which the Association Board declined to approve in its final form.

The Petitioner alleged that the Association unreasonably withheld approval in violation of Arizona Revised Statutes (A.R.S.) § 33-1817(3), arguing that the design was harmonious and that the Association’s enforcement of rules was arbitrary and discriminatory. The Association maintained that its governing documents—specifically the Covenants, Conditions, and Restrictions (CC&Rs) and Architectural Rules—prioritize pitched roofs and visual harmony with surrounding structures.

On September 3, 2019, Administrative Law Judge Velva Moses-Thompson ruled in favor of the PMPE Community Association, dismissing the petition. The Judge concluded that the Petitioner failed to prove by a preponderance of the evidence that the Association acted unreasonably or violated statutory requirements.

Analysis of Key Themes

1. Architectural Harmony and Structural Consistency

The primary conflict arose from the discrepancy between the Petitioner's proposed design and the existing aesthetic of the community. While the Petitioner’s residence already featured a pitched roof on the existing garage, his plan for the addition utilized a flat roof.

  • Respondent’s Position: The Association argued that pitched roofs are a fundamental component of the community's visual environment and must predominate.
  • Petitioner’s Position: Archer argued the flat roof was harmonious because it mirrored a pitched roof/flat patio combination on the opposite side of his home.
  • Legal Finding: The judge found that the Association’s insistence on a pitched roof was reasonable, as the proposed flat roof was inconsistent with the existing structures, including Archer's own pitched garage roof.
2. The "Visible From Neighboring Property" Standard

A critical point of contention was whether the proposed addition violated visibility standards set forth in CC&R 1.34.

  • The 9-Foot Threshold: The adjoining wall was 9 feet tall. The Petitioner’s proposed flat roof would exceed this height.
  • The Visibility Rule: Under CC&R 1.34, an object is "visible from neighboring property" if it can be seen by a person six feet tall standing at ground level on an adjoining lot or common area. However, objects in a backyard that do not exceed the height of the enclosing wall are exempt from this definition.
  • Association's Compromise: The Board indicated it would allow a flat roof only if its height remained below the adjacent wall to ensure it was not visible from neighboring properties.
3. Allegations of Arbitrary Enforcement

The Petitioner attempted to demonstrate that the Association enforced CC&Rs inconsistently. He cited instances where other homeowners allegedly:

  • Kept a kitchen countertop in a front yard for nearly a year.
  • Constructed patio additions that were purportedly not harmonious with surrounding structures.
  • Kept a cart on their property longer than allowed.

The Association denied these claims, asserting consistent enforcement. Ultimately, the court found the Petitioner's evidence insufficient to prove that the Association’s specific decision regarding his garage was discriminatory or arbitrary.

4. Statutory and Contractual Compliance

The decision reinforced the legal standing of CC&Rs as contracts.

  • A.R.S. § 33-1817(3): This statute prohibits associations from "unreasonably" withholding approval of architectural plans.
  • Contractual Obligation: Citing Johnson v. The Pointe Community Association, the ruling noted that CC&Rs are contracts and all parties are required to comply with their terms.
  • Burden of Proof: The Petitioner held the burden of proof to show a violation by a "preponderance of the evidence." The court defined this as the "greater weight of the evidence" or "evidence that has the most convincing force."

Important Quotes and Context

Quote Context
"“Visible From Neighboring Property” means… that such object is or would be visible to a person six feet tall, standing at ground level on any part of the adjoining Lot or Common Area." CC&R 1.34 Definition: Establishes the objective physical standard used to determine if a structure infringes on the community's visual environment.
"Since roofscapes will form an important part of the visual environment, they must be carefully designed. It is intended that pitched roofs predominate." PMPE Architectural Rules Section 4.4: The specific guideline the Board used to justify requiring a pitched roof instead of a flat one.
"The Board… may promulgate architectural design, with particular regard to the harmony of the design with the surrounding structures and topography." CC&R Article 5.10: Grants the Board the legal authority to judge the "harmony" of a project, which was central to their rejection of Archer's plans.
"Mr. Archer failed to prove by a preponderance of the evidence that PMPE violated A.R.S. § 33-1817(3)." Conclusion of Law: The final determination that the Petitioner's arguments regarding unreasonable withholding of approval were legally insufficient.

Actionable Insights for Stakeholders

For Homeowners’ Associations (HOAs)
  • Maintain Clear Definitions: The use of specific measurements (e.g., the "six-foot tall person" standard in CC&R 1.34) provides a defensible, objective basis for architectural decisions.
  • Document "Harmony": When rejecting a plan based on "harmony with surrounding structures," associations should point to specific existing architectural features (like pitched roofs) that the proposal contradicts.
  • Offer Conditional Approvals: The Board’s willingness to allow the flat roof if it remained below the wall height demonstrated a reasonable attempt at compromise, which likely supported their "reasonable" standing in court.
For Homeowners
  • Align with Predominant Features: If governing documents state that a certain style (like pitched roofs) must "predominate," proposing a different style for a large addition carries a high risk of rejection.
  • Understand the Burden of Proof: In administrative hearings regarding A.R.S. § 33-1817(3), the homeowner must provide "convincing force" that the Board's decision was unreasonable. Simply pointing to other minor violations in the neighborhood (like a countertop in a yard) may not be enough to prove discriminatory enforcement regarding structural additions.
  • Review Visibility Restrictions: Before designing additions, homeowners should measure existing perimeter walls, as these often serve as the height limit for structures to remain exempt from "Visible From Neighboring Property" restrictions.

Archer v. PMPE Community Association: Administrative Law Case Study

This study guide provides a comprehensive overview of the administrative hearing between Marc D. Archer and the PMPE Community Association, Inc. (No. 19F-H1919063-REL). It covers the legal standards, architectural regulations, and the specific findings of fact that led to the dismissal of the petitioner's claim regarding homeowners' association (HOA) architectural approvals.

Key Concepts and Legal Principles

1. Architectural Standards and Harmony

Under the PMPE CC&Rs and Architectural Rules, specific design principles govern modifications to residences.

  • Predominance of Pitched Roofs: According to Architectural Rule 4.4, pitched roofs are intended to predominate because roofscapes form a vital part of the visual environment.
  • Design Harmony: Article 5.10 grants the Board or Architectural Committee the authority to evaluate designs based on their harmony with surrounding structures and topography.
  • Flat Roof Requirements: While flat roofs are permitted in some instances (such as patio areas), they must have parapets. In this case, the Board allowed a flat roof only if it remained below the height of the adjacent wall to ensure it was not visible from neighboring properties.
2. "Visible From Neighboring Property"

CC&R 1.34 establishes a specific objective standard for determining visibility:

  • The Six-Foot Standard: An object is considered visible if it can be seen by a person six feet tall standing at ground level on any part of an adjoining lot or common area.
  • The Wall Exception: Objects in a backyard enclosed by a wall are not deemed "visible" if they do not exceed the height of that wall. In this case, the wall height was established at 9 feet.
3. Legal Standards of Proof and Authority
  • Jurisdiction: The Arizona Department of Real Estate (ADRE) has authority over these matters pursuant to A.R.S. Title 32, Ch. 20, Art. 11.
  • Statutory Restriction (A.R.S. § 33-1817(3)): An association is legally prohibited from "unreasonably" withholding approval of architectural plans.
  • Preponderance of the Evidence: This is the standard of proof required at the hearing. It is defined as the "greater weight of the evidence" or evidence that possesses the most "convincing force," inclining an impartial mind toward one side of the issue.
  • Contractual Nature of CC&Rs: In Arizona, CC&Rs are viewed as a contract between the parties. If the terms are clear and unambiguous, they must be enforced to give effect to the intent of the parties.

Short-Answer Practice Questions

1. What was the specific height of the adjoining wall in the Archer residence dispute?

The adjoining wall was 9 feet high.

2. According to CC&R 1.34, how is a person's height and position defined when determining if an object is "Visible From Neighboring Property"?

The person is defined as being six feet tall and standing at ground level on any part of the adjoining Lot or Common Area.

3. What was the Board’s primary reason for refusing final approval of Mr. Archer’s garage addition?

The Board learned that the addition would have a flat roof enclosed on all sides with a height exceeding the 9-foot adjoining wall, making it visible from neighboring properties.

4. What does A.R.S. § 33-1817(3) stipulate regarding an HOA’s power over construction plans?

It stipulates that an association shall not unreasonably withhold approval of a construction project’s architectural plans.

5. How does PMPE Architectural Rule 4.4 describe the preferred style for roofs?

It states that roofscapes are an important part of the visual environment and that it is intended for pitched roofs to predominate.

6. On what grounds did Mr. Archer argue that the Board's enforcement of the CC&Rs was "arbitrary and discriminatory"?

He contended that the Board allowed other homeowners to have non-harmonious patio additions, a kitchen countertop in a front yard for nearly a year, and a cart for longer than allowed.

Essay Prompts for Deeper Exploration

1. The Balance of Reasonableness in HOA Governance

A.R.S. § 33-1817(3) prohibits an HOA from "unreasonably" withholding approval. Analyze the Board's decision in Archer v. PMPE through the lens of this statute. Consider whether the Board's willingness to allow a flat roof only if it remained below the wall height constitutes a reasonable compromise or an arbitrary restriction, given the neighborhood's preference for pitched roofs.

2. Consistency and Selective Enforcement

Mr. Archer alleged that the HOA practiced arbitrary and discriminatory enforcement by highlighting violations by other residents (e.g., the kitchen countertop and carts). Discuss the legal challenge of proving selective enforcement in an administrative hearing. Why did the Administrative Law Judge find these arguments insufficient to prove that the Board violated the law in Mr. Archer's specific case?

3. Contractual Interpretation of CC&Rs

Arizona law treats CC&Rs as contracts. Explore the implications of this classification. If a CC&R clearly defines a term like "Visible From Neighboring Property," to what extent does the Board have discretion to deviate from that definition? Discuss how the "unambiguous" nature of the PMPE CC&Rs influenced the Judge's final decision.

Glossary of Important Terms

Term Definition
A.R.S. § 33-1817(3) The Arizona Revised Statute that prevents HOAs from unreasonably withholding architectural plan approvals.
Administrative Law Judge (ALJ) The presiding official (in this case, Velva Moses-Thompson) who hears evidence and issues a decision in administrative disputes.
CC&Rs Covenants, Conditions, and Restrictions; the legal governing documents that dictate the rules and residents' obligations within a community.
Harmony of Design A criteria used by the Board to ensure that new construction matches the existing aesthetics and topography of surrounding structures.
Parapet A low protective wall along the edge of a roof; required for all flat roof patio areas under PMPE Architectural Rules.
Pitched Roof A sloping roof; the architectural style that the PMPE rules state should "predominate" in the community.
Preponderance of the Evidence The legal standard of proof requiring that a claim is more likely to be true than not (the "greater weight" of evidence).
Respondent The party against whom a petition is filed; in this case, PMPE Community Association, Inc.
Visible From Neighboring Property An object visible to a six-foot person at ground level on an adjoining lot; objects below the height of a backyard wall are exempt.

Roof Wars: Lessons in HOA Architectural Compliance and Community Standards

1. Introduction: The Conflict Under the Eaves

For homeowners, the boundary between personal property rights and community governance is often defined by the roofline. While a property owner may view a garage addition as a functional necessity, a Homeowners Association (HOA) views that same structure through the lens of aesthetic uniformity and "harmony of design." This tension is the focal point of Marc D. Archer vs. PMPE Community Association, Inc. (No. 19F-H1919063-REL), a case that highlights the legal complexities of architectural compliance.

The core dispute involved a homeowner’s attempt to construct a flat-roof garage addition in a community where pitched roofs are the mandated standard. This case provides a critical look at how administrative courts evaluate "reasonableness" and the high evidentiary bar homeowners must clear when alleging arbitrary enforcement by a Board.

2. The Project and the Initial Denial

Upon review of the Findings of Fact, the dispute began in September 2017 when the Petitioner, Mr. Archer, submitted plans for a garage addition to the Respondent, the PMPE Board. While the Board initially issued a preliminary approval, they withheld final authorization after a detailed review revealed that the proposed structure deviated from the community's architectural standards.

The proposed addition included the following specifications:

  • Roof Style: A flat roof design, enclosed on all sides.
  • Height: A structure reaching a height that would exceed the 9-foot adjoining wall.
  • Visual Relationship: The new flat roof would be physically attached to the Petitioner’s existing garage, which featured an arched/pitched roof.

Critically, the Board did not issue a blanket denial. In an attempt at compromise, the Board notified the Petitioner that the flat roof would be acceptable if—and only if—the height remained below the adjacent wall. This would have utilized the visibility exception in the CC&Rs. However, the Petitioner insisted on a height exceeding the wall, leading to the final denial and subsequent legal challenge.

3. Defining "Visible From Neighboring Property"

The legal pivot point of this case rests on the definition of visibility. If a structure is "visible," it is subject to the full weight of the HOA’s architectural guidelines.

Terms to Know: "Visible From Neighboring Property" Under PMPE CC&R 1.34, an object is "Visible From Neighboring Property" if it can be seen by a six-foot-tall person standing at ground level on any portion of an adjoining lot or common area. The Exception: An object located in a backyard enclosed by a wall is not deemed visible if it does not exceed the height of the wall enclosing that backyard. This "wall height" standard is a safe harbor for homeowners, but once a structure rises above that line, it falls under Board jurisdiction for aesthetic harmony.

4. The Homeowner's Challenge: Claims of Arbitrary Enforcement

The Petitioner challenged the denial under A.R.S. § 33-1817(3), asserting that the Board was unreasonably withholding approval. He presented three primary arguments to the Administrative Law Judge (ALJ):

  1. Harmony of Design: The Petitioner argued the flat roof was harmonious because it mirrored the opposite side of his home, which featured a pitched roof adjacent to a flat-top patio.
  2. Inconsistent Enforcement: He alleged that the HOA was targeting him while ignoring violations by other neighbors, thereby acting in an arbitrary and discriminatory manner.
  3. Specific Examples of Non-Compliance: To support the claim of inconsistency, he cited "whataboutism" examples, such as a neighbor keeping a kitchen countertop in a front yard for a year and others leaving carts in yards past allowable timeframes.
5. The HOA’s Defense: The Predominance of Pitched Roofs

The Respondent argued that the Petitioner's request would violate the fundamental "roofscape" of the community. Their defense was rooted in the specific technical requirements of the governing documents:

HOA Rule/Article Specific Design Requirement
Article 5.10 Grants the Board/Architectural Committee authority to promote design with particular regard to harmony with surrounding structures and topography.
Section 4.4 (Architectural Rules) Establishes that roofscapes are vital to the visual environment; it is mandated that pitched roofs predominate.
Section 4.4 (Technical Specs) Pitched roofs must be hipped whenever possible and maintain a maximum slope of five to 12 feet (5’ to 12’).
Section 4.4 (Flat Roofs) While flat roofs are generally discouraged, all flat roof patio areas must have parapets.

The Respondent emphasized that since the Petitioner’s existing garage featured a pitched roof, an attached flat-roof addition would create a jarring architectural disconnect.

6. The Administrative Decision: Why the HOA Prevailed

Administrative Law Judge Velva Moses-Thompson applied the "Preponderance of the Evidence" standard, as required by Arizona Administrative Code R2-19-119. Under this standard, the Petitioner must prove their case with "the greater weight of the evidence"—meaning the evidence must be more than 50% convincing. In administrative law, a "tie" or a 50/50 split in evidence means the Petitioner has failed to meet their burden, and the HOA prevails.

The ALJ's ruling for the Respondent was based on two key legal conclusions:

  • Reasonableness of the Board: The Board’s decision was deemed reasonable under A.R.S. § 33-1817(3) because the rules explicitly prioritize pitched roofs. The Board's offer of a compromise (keeping the roof below wall height) further demonstrated a lack of malice or unreasonableness.
  • The Failure of "Whataboutism": The judge dismissed the Petitioner’s claims regarding kitchen countertops and yard carts. Legally, the failure to enforce minor maintenance or "clutter" rules does not waive an HOA's right to enforce major, permanent structural and architectural standards. Structural harmony is a distinct legal tier from temporary yard maintenance.
7. Conclusion: 4 Essential Takeaways for Homeowners

The dismissal of the Petitioner’s case provides a roadmap for navigating architectural disputes in Arizona:

  • Understand the "Harmony" Clause: Architectural harmony is not just about matching your neighbors; it is about matching the existing structures on your own lot. As established in Johnson v. The Pointe Community Association, CC&Rs are binding contracts. If your home is designed with pitched roofs, a flat-roof addition is a difficult legal sell.
  • The Visibility Standard: Your "building rights" are often tied to the height of your perimeter wall. If a structure exceeds the wall height and becomes visible to a six-foot-tall neighbor, you lose the "safe harbor" protection and must strictly adhere to architectural design rules.
  • The Petitioner’s Burden of Proof: In an administrative hearing, the homeowner carries the heavy lifting. You must prove the Board is being unreasonable. Per Arizona Administrative Code R2-19-119, if the evidence is only equally balanced, the homeowner loses.
  • Contractual Obligations: Arizona courts, following cases like Powell v. Washburn, treat CC&Rs as unambiguous contracts. Judges will prioritize the clear terms of the document—such as "pitched roofs shall predominate"—to protect the original intent of the community's design.

Homeowners should meticulously review their association's specific "Architectural Rules" before finalizing designs, as these documents often contain technical specifications—like roof slope and parapet requirements—that are just as binding as the CC&Rs themselves.

Case Participants

Petitioner Side

  • Marc D. Archer (petitioner)
    PMPE Community Association, Inc. (Member)
    Appeared on behalf of himself; testified

Respondent Side

  • Nichols C. Hogami (respondent attorney)
    Appeared on behalf of Respondent
  • Keith Scott Kauffman (witness)
    PMPE Board of Directors
    Member of the PMPE Board of Directors; testified

Neutral Parties

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

Myron H Colvin vs. Tierra Del Sol RV Resort Association

Posted on by

Case Summary

Case ID 19F-H19190064-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-08-27
Administrative Law Judge Velva Moses-Thompson
Outcome The Administrative Law Judge dismissed the petition. The Petitioner failed to meet the burden of proof to establish that the HOA violated the CC&Rs. The ALJ ruled that the Tribunal did not have jurisdiction to issue a declaratory judgment regarding the Petitioner's request to determine if his own actions constituted a violation.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Myron H. Colvin Counsel —
Respondent Tierra Del Sol RV Resort Association Counsel Nicholas Nogami

Alleged Violations

CC&R § 4.3

Outcome Summary

The Administrative Law Judge dismissed the petition. The Petitioner failed to meet the burden of proof to establish that the HOA violated the CC&Rs. The ALJ ruled that the Tribunal did not have jurisdiction to issue a declaratory judgment regarding the Petitioner's request to determine if his own actions constituted a violation.

Why this result: Failure to prove HOA violation; lack of jurisdiction for declaratory judgment.

Key Issues & Findings

Dispute over lot setbacks and paver installation violation notice

Petitioner installed concrete pavers in his lot's setback area. The HOA issued a Notice of Violation stating the pavers violated CC&R § 4.3 because they were not small enough to be moved by one person. Petitioner argued he had approval and sought a hearing regarding the alleged violation. The ALJ found Petitioner failed to prove the HOA violated the CC&Rs.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Video Overview

Audio Overview

Decision Documents

19F-H19190064-REL Decision – 733836.pdf

Uploaded 2026-04-24T11:18:46 (83.2 KB)

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

Executive Summary

This briefing examines the administrative law decision in the matter of Myron H. Colvin v. Tierra Del Sol RV Resort Association (No. 19F-H19190064-REL). The dispute arose when the Tierra Del Sol RV Resort Association (the Association) issued a Notice of Violation to Mr. Colvin regarding the installation of concrete pavers within the setback area of his lot.

The primary legal question concerned whether the pavers complied with the community’s Covenants, Conditions, and Restrictions (CC&Rs) § 4.3, which requires improvements in setback areas to be movable by one person without mechanical assistance. While Mr. Colvin sought a determination that he had not violated the CC&Rs, the Administrative Law Judge (ALJ) dismissed the petition. The ruling was based on two factors: the Petitioner’s failure to prove that the Association itself violated the CC&Rs and the tribunal’s lack of jurisdiction to issue a declaratory judgment regarding an owner’s compliance status.

Case Overview

Feature Details
Case Name Myron H. Colvin v. Tierra Del Sol RV Resort Association
Case Number 19F-H19190064-REL
Hearing Date August 7, 2019
Administrative Law Judge Velva Moses-Thompson
Petitioner Myron H. Colvin (Self-represented)
Respondent Tierra Del Sol RV Resort Association (Represented by Nicholas Nogami, Esq.)
Final Order Petition Dismissed

Detailed Analysis of Key Themes

1. Interpretation of CC&R Section 4.3 (Lot Setbacks)

The central technical conflict involves the definition of allowable improvements within designated setback areas. Per the Association’s CC&Rs, setbacks are defined as:

  • Front: Five (5) feet.
  • Sides: Three (3) feet.
  • Rear: Three (3) feet.

Section 4.3 explicitly prohibits permanent or temporary structures, improvements, or vehicles (excluding golf carts and car dollies) in these areas. The only exception is for landscaping features, provided they can be "moved by one person unassisted by mechanical devices."

The dispute focused on whether Mr. Colvin’s concrete pavers met this "movability" requirement. The Association alleged the pavers were too large for manual removal, whereas Mr. Colvin contended the Association had previously approved his plan to cut the pavers into 3 x 5 ft pieces.

2. Procedural Burden of Proof

Under Arizona law (A.R.S. § 41-1092.07(G)(2)), the Petitioner bears the burden of proof to establish a violation by a preponderance of the evidence. This standard requires the Petitioner to prove that their contention is "more probably true than not."

In this matter, the ALJ found that Mr. Colvin failed to meet this burden. Rather than proving the Association violated the CC&Rs, Mr. Colvin focused his arguments on defending his own actions. The ALJ noted that the Association can only be found in violation if it, as an entity, placed an unapproved object or improvement in a setback area—an allegation Mr. Colvin did not make.

3. Jurisdictional Limitations of the OAH

A critical theme in the decision is the distinction between a violation hearing and a request for a declaratory judgment. While the Arizona Department of Real Estate (DRE) has jurisdiction over violations of planned community documents (A.R.S. § 32-2199(B)), that jurisdiction is specific.

The ALJ concluded that the tribunal did not have the authority to grant a "declaratory judgment." Mr. Colvin was essentially asking the court to declare that he was not in violation of the rules. The OAH determined it lacks the legal jurisdiction to provide such a determination for a homeowner seeking to pre-emptively clear their own record of a violation notice.

Important Quotes with Context

On the Definition of Setback Restrictions

"Each Lot shall be subject to a setback area… No permanent or temporary structures, improvements (other than landscaping)… shall be located within such setback area… [any] Improvement, other than landscaping features which can be moved by one person unassisted by mechanical devices, [shall not] encroach on or overhang any area designated in this Declaration as a lot setback."

— CC&R § 4.3 (as cited in Finding of Fact #13)

Context: This quote establishes the specific criteria that led to the Notice of Violation. It defines the strict limitations on what may occupy the three-to-five-foot perimeter of a lot.

On the Burden of Evidence

"A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not… 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."

— Conclusion of Law #3

Context: The ALJ uses this definition to explain the standard Mr. Colvin failed to meet when attempting to challenge the Association's actions.

On the Scope of the Tribunal’s Authority

"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."

— Conclusion of Law #5

Context: This serves as the primary legal basis for the dismissal. It clarifies that the Office of Administrative Hearings is not empowered to issue rulings that merely validate a homeowner's compliance to satisfy an internal HOA dispute.

Actionable Insights

For Homeowners in Planned Communities
  • Clarification of Approval: Even if an Association approves a request for an improvement (as they did twice for Mr. Colvin), the final installation must strictly adhere to the specific text of the CC&Rs. Approval of a "request to place pavers" does not necessarily override the specific material requirements (such as weight and movability) found in the governing documents.
  • Understanding the Petitioner's Role: When filing a petition with the Department of Real Estate, the homeowner must prove that the Association violated the rules. Defending one's own actions against a notice of violation may not be sufficient grounds for an administrative hearing if the Association's own conduct remains within its legal authority.
For Association Boards and Management
  • Enforcement Authority: The decision reinforces that A.R.S. § 33-1803 authorizes associations to enforce CC&Rs. Providing specific remediation steps in a Notice of Violation (e.g., "cutting the concrete… into small 100 pound sections") helps demonstrate that the Association is acting in accordance with its governing documents.
  • Jurisdictional Defense: Associations facing similar petitions can successfully argue for dismissal if the Petitioner is seeking a declaratory judgment of their own compliance rather than proving a specific breach of duty by the Association.
Legal Recourse and Rehearing
  • Time Sensitivity: Parties dissatisfied with an Administrative Law Judge's decision have a strictly defined window of 30 days from the service of the Order to file a request for a rehearing with the Commissioner of the Department of Real Estate (pursuant to A.R.S. § 41-1092.09).

Study Guide: Colvin v. Tierra Del Sol RV Resort Association

This study guide provides a comprehensive overview of the administrative hearing between Myron H. Colvin (Petitioner) and the Tierra Del Sol RV Resort Association (Respondent). It explores the factual background, legal standards, and the final decision rendered by the Office of Administrative Hearings.

I. Case Background and Timeline

The dispute centers on the installation of concrete pavers in a lot's setback area and the interpretation of the community's governing documents.

  • Initial Request (March 2018): Myron H. Colvin submitted a request to Tierra Del Sol to install concrete pavers in the setback area of his lot. This was approved, but the project was delayed because Colvin left the state.
  • Second Request (March 2019): Colvin submitted a second request for the same project, which was also approved by the Association.
  • Notice of Violation (May 8, 2019): After installation, Tierra Del Sol issued a notice alleging a violation of Covenants, Conditions, and Restrictions (CC&Rs) § 4.3. The Association claimed the pavers were too large to be moved by one person without mechanical assistance.
  • Proposed Remedies: The Association suggested Colvin could correct the violation by removing the concrete or cutting it into small sections weighing approximately 100 pounds.
  • Legal Action: On May 10, 2019, Colvin filed a petition with the Arizona Department of Real Estate (DRE). An evidentiary hearing was held on August 7, 2019.

II. Key Legal Concepts and CC&R Interpretation

CC&R Section 4.3: Lot Setbacks

The central regulation in this case defines the restricted areas of a lot and the types of items permitted within them:

  • Setback Dimensions: 5 feet across the front; 3 feet on both sides; 3 feet at the rear.
  • Prohibited Items: Permanent or temporary structures, improvements (except landscaping), vehicles (except golf carts and car dollies), Park Models, or Recreational Vehicles.
  • The "One Person" Rule: Landscaping features are only permitted in the setback if they can be moved by one person unassisted by mechanical devices.
Legal Standards and Burden of Proof

The case was governed by the following legal principles:

  • Jurisdiction: Arizona Revised Statutes (A.R.S.) § 32-2199(B) grants the Department of Real Estate authority over violations of planned community documents.
  • Burden of Proof: The Petitioner (Colvin) bears the burden of establishing that the Respondent (Association) violated the CC&Rs by a preponderance of the evidence.
  • Restrictive Covenants: In Arizona, unambiguous covenants are enforced to reflect the intent of the parties and must be construed as a whole, giving effect to all provisions.

III. Short-Answer Practice Questions

1. According to CC&R § 4.3, what are the specific dimensions of the setback areas for a lot?

Answer: The setback areas consist of five feet across the front and three feet on both sides and the rear.

2. Why did Tierra Del Sol allege that the concrete pavers violated the CC&Rs?

Answer: The Association alleged the pavers were not small enough to be removed by one person without the assistance of a mechanical device, as required for improvements in the setback area.

3. What specific weight did the Association suggest for the concrete sections to bring them into compliance?

Answer: The Association advised cutting the concrete into small 100-pound sections.

4. What is the definition of "preponderance of the evidence" used by the tribunal?

Answer: It is proof that convinces the trier of fact that a contention is "more probably true than not," or evidence that has the "most convincing force."

5. Why was Myron Colvin’s petition ultimately dismissed?

Answer: Colvin failed to establish that the Association violated Section 4.3. Additionally, the tribunal lacked jurisdiction to provide a declaratory judgment on whether Colvin himself had violated the CC&Rs.

IV. Essay Prompts for Deeper Exploration

  1. Analysis of the Burden of Proof: Explain the legal significance of the "Petitioner bears the burden of proof." In the context of this case, why did the Administrative Law Judge find that Mr. Colvin failed to meet this burden even though he was the one who received a notice of violation?
  2. The Limits of Administrative Jurisdiction: Discuss the distinction between a hearing to determine if a Homeowners Association (HOA) violated its own documents and a request for a "declaratory judgment." Why did the tribunal refuse to rule on whether Colvin was actually in violation of the CC&Rs?
  3. Interpretation of Restrictive Covenants: CC&R § 4.3 includes a clause regarding "landscaping features which can be moved by one person unassisted by mechanical devices." Evaluate how such a clause balances the aesthetic interests of the homeowner with the functional requirements of the Association.

V. Glossary of Important Terms

Term Definition
A.R.S. § 32-2199(B) The Arizona Revised Statute that permits owners or planned community organizations to file petitions concerning violations of community documents.
CC&Rs Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and limitations for property use within a community.
Declaratory Judgment A legal determination by a court or tribunal that resolves legal uncertainty for the litigants, which the Office of Administrative Hearings ruled it did not have jurisdiction to provide in this specific context.
Improvement Any structure or addition to a lot; under § 4.3, improvements in setbacks are generally restricted unless they are movable landscaping features.
Mechanical Device Any tool or machinery used to assist in moving objects; its use is prohibited for moving items intended to be placed in the setback area under the "one person" rule.
Preponderance of the Evidence The evidentiary standard where a claim is proved if it is shown to be more likely true than not; superior evidentiary weight.
Setback A specific area of a lot (front, side, or rear) where structures and certain improvements are restricted to ensure space between properties or roads.
Tribunal A person or institution (in this case, the Office of Administrative Hearings) with authority to judge, adjudicate on, or determine claims or disputes.

The Weight of Compliance: Lessons from the Tierra Del Sol Setback Dispute

1. When Lot Improvements Meet the Fine Print

For many RV resort enthusiasts, the appeal of a permanent lot lies in the ability to customize. Whether it’s a new awning or a pristine patio, these improvements define the resort lifestyle. However, as one resident at Tierra Del Sol RV Resort recently discovered, there is a significant legal distance between "getting approval" and "being in compliance."

The dispute between homeowner Myron H. Colvin and the Tierra Del Sol RV Resort Association serves as a cautionary tale for all planned community members. At the center of the conflict was a common upgrade—concrete pavers—that led to a Notice of Violation and an administrative hearing. By examining the nuances of this case, we can uncover how specific CC&R technicalities and jurisdictional boundaries determine the outcome of homeowner disputes.

2. From Green Light to Red Tape: The Project Timeline

The path to litigation began with what appeared to be a straightforward request. The timeline reveals a project that was approved twice but ultimately fell short of the community’s literal standards:

  • March 2018: Mr. Colvin submits his first request to the Association to install concrete pavers in his lot's setback area. The Association grants approval.
  • The Intervening Year: The project is stalled when Mr. Colvin leaves the state, preventing the immediate installation of the pavers.
  • March 2019: Upon his return, Mr. Colvin submits a second request for the same project. Once again, the Association issues an approval.
  • May 8, 2019: Shortly after the pavers are finally installed, the Association issues a formal Notice of Violation.

While the project was approved by the Architectural Officer, the execution—specifically the physical size and weight of the installed pavers—was deemed a breach of the community’s governing documents.

3. Decoding Section 4.3: The "One-Person" Rule and the 100-Pound Safe Harbor

The legal core of this dispute is Section 4.3 of the CC&Rs, which governs lot setbacks. Setbacks are designated "no-build" zones (five feet at the front, three feet on the sides and rear) intended to remain clear for utility access and safety.

The exact text of CC&R § 4.3 states:

"…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."

To clarify this for members, the Association provided a "Safe Harbor" suggestion: the violation could be remedied if the concrete was cut into sections weighing no more than 100 pounds.

Category Restriction Details
Permitted Landscaping Must be movable by 1 person without tools or mechanical devices (e.g., no dollies, forklifts, or heavy machinery).
Prohibited Structures No sheds, Arizona Rooms, or permanent structures of any kind.
Vehicles & Slide-outs Strictly prohibited from overhanging the setback area.
Specific Exemptions Golf carts and car dollies are permitted.

The Association’s grievance was that Mr. Colvin’s pavers were too large and heavy to be moved by a single person unassisted, effectively turning a "landscaping feature" into a "permanent improvement" prohibited in the setback.

4. The Legal Paradox: Why You Can’t Sue the Board for Your Own Violation

On August 7, 2019, the parties met for an administrative hearing. Mr. Colvin’s defense was built on the fact that he had received prior approval to place pavers cut into 3×5 foot pieces. He argued that because the Association approved the plan, he was not in violation.

However, the Association raised a brilliant, albeit frustrating, legal defense. They argued that under A.R.S. § 32-2199(B), the tribunal only has the authority to hear petitions regarding violations committed by the Association. Since the Association did not place the pavers in the setback—Mr. Colvin did—the Association could not have violated Section 4.3.

This created a procedural wall for the homeowner. In these hearings, the Petitioner (Mr. Colvin) bears the Burden of Proof. He had to establish his case by a Preponderance of the Evidence, meaning he had to prove it was "more probably true than not" that the Association broke a rule. Because the CC&Rs restrict what owners do, not what the Board does, the Petitioner’s argument was fundamentally misplaced.

Furthermore, the Association argued that the Office of Administrative Hearings (OAH) lacks the jurisdiction to issue a "declaratory judgment." In layperson’s terms, the court is not a consulting firm; it cannot provide a "stamp of approval" or pre-emptive advice to a homeowner looking to overturn a violation notice.

5. The Verdict: Dismissal and the Limits of Jurisdiction

Administrative Law Judge Velva Moses-Thompson ultimately dismissed the petition. The decision rested on two primary Conclusions of Law:

  1. Failure to Establish a Violation by the Respondent: The Petitioner admitted to placing the pavers himself. Therefore, the Association did not violate the restriction against placing objects in the setback.
  2. Lack of Jurisdiction: The tribunal does not have the legal authority to decide whether a member's personal actions constitute a violation when that member is seeking a "second opinion" to challenge a notice.

The final order was issued on August 27, 2019, and transmitted to the Commissioner of the Arizona Department of Real Estate.

6. Key Takeaways: Lessons for Every Resort Member

This case provides essential insights for anyone living under the governance of an HOA or RV resort:

  1. Approval Is Not Absolute: An initial nod from an Architectural Officer is a green light to proceed, but it is not a shield against the literal text of the CC&Rs. If the finished product (e.g., the weight of a paver) violates the written code, the approval is effectively voided by the non-compliant execution.
  2. The Tribunal is Not a "Second Opinion": Administrative hearings are for adjudicating breaches of law by the Association. They are not a venue to seek "declaratory relief" or to ask a judge to tell the Board to leave you alone.
  3. The Burden of Proof is Yours: When you file a petition, you must prove the Association did something wrong. Proving that you followed a plan that later turned out to be a violation is rarely enough to win a case against the Board.
  4. The Hierarchy of Authority: While an Architectural Officer may review your plans, the Board of Directors and the written CC&Rs remain the ultimate authority. Always ensure your project meets the "fine print" standards—like the "one-person" weight limit—before the concrete is poured.

7. Conclusion: The Constant State of Compliance

The Tierra Del Sol dispute highlights a vital truth of resort living: compliance is a constant state, not a one-time event. Obtaining a permit is only the first step; maintaining the project within the technical bounds of the CC&Rs is what prevents a costly legal setback.

The order in this matter became binding upon its issuance. Under Arizona law, any party wishing to challenge such a decision has a 30-day window to file a request for a rehearing with the Commissioner of the Department of Real Estate. For homeowners, the best defense remains a thorough understanding of the "one-person" rule and a cautious approach to the setback line.

Case Participants

Petitioner Side

  • Myron H. Colvin (petitioner)
    Tierra Del Sol RV Resort Association (member)
    Appeared on behalf of himself

Respondent Side

  • Nicholas Nogami (attorney)
    Tierra Del Sol RV Resort Association
    Esq.

Neutral Parties

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

Sean McCoy v. Barclay Place 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-H1919062-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-08-27
Administrative Law Judge Tammy L. Eigenheer
Outcome Petitioner prevailed on the claim regarding the failure to provide financial compilations (ISS-002) and was awarded a filing fee refund. Respondent prevailed on claims regarding meeting recordings (ISS-001) and communication restrictions (ISS-003). A rehearing on ISS-003 affirmed the decision in favor of the Respondent.
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Sean McCoy Counsel —
Respondent Barclay Place Homeowners Association Counsel Nathan Tennyson

Alleged Violations

A.R.S. § 33-1804(A)
A.R.S. § 33-1810
A.R.S. § 33-1805(A)

Outcome Summary

Petitioner prevailed on the claim regarding the failure to provide financial compilations (ISS-002) and was awarded a filing fee refund. Respondent prevailed on claims regarding meeting recordings (ISS-001) and communication restrictions (ISS-003). A rehearing on ISS-003 affirmed the decision in favor of the Respondent.

Why this result: Petitioner failed to prove violations regarding meeting recordings (as the Board provided recordings) and communication restrictions (as the Board may manage communication channels for onerous requests).

Key Issues & Findings

Failure to allow videotaping

Petitioner alleged the HOA violated statute by prohibiting members from recording meetings. The ALJ found that because the Board recorded the meetings and made them available, prohibiting members from recording did not violate the statute.

Orders: Respondent deemed prevailing party on this item.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Failure to provide compiled financial statements

The HOA failed to complete and provide the 2017 financial compilation within the statutory timeframe (180 days after fiscal year end). Documents were not sent to the accountant until one month prior to the hearing.

Orders: Respondent ordered to pay Petitioner $500.00 (filing fee refund) within 30 days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Denial of reasonable access and communication

Petitioner alleged that requiring him to communicate solely through the HOA's attorney violated his rights. The ALJ found this was standard practice when requests become onerous and did not constitute a violation.

Orders: Respondent deemed prevailing party on this item.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Decision Documents

19F-H1919062-REL-RHG Decision – 761767.pdf

Uploaded 2026-01-27T21:16:51 (125.3 KB)

19F-H1919062-REL-RHG Decision – ../19F-H1919062-REL/733895.pdf

Uploaded 2026-01-27T21:16:51 (120.8 KB)

Case Summary: McCoy v. Barclay Place Homeowners Association Case No. 19F-H1919062-REL-RHG

Procedural Context This summary covers an administrative dispute before the Arizona Department of Real Estate involving a rehearing. It is critical to distinguish between the Original Decision (August 27, 2019) and the Rehearing Decision (January 2, 2020),. The rehearing was granted exclusively to reconsider "Complaint Item Three," while the findings on the first two complaints remained adjudicated under the original decision.

I. Original Decision (August 2019)

In the initial proceeding, Petitioner Sean McCoy alleged three violations by the Respondent, Barclay Place HOA.

  • Complaint Item One (Videotaping): Petitioner alleged the HOA violated A.R.S. § 33-1804(A) by prohibiting him from recording meetings.
  • Finding: The Administrative Law Judge (ALJ) ruled for the Respondent. The Board recorded meetings itself and made them available to members; therefore, restricting members from recording did not violate the statute,.
  • Complaint Item Two (Financials): Petitioner alleged the HOA failed to provide compiled financial statements for 2017.
  • Finding: The ALJ ruled for the Petitioner. The HOA failed to complete the compilation within 180 days of the fiscal year-end, violating A.R.S. § 33-1810,. The HOA was ordered to pay the Petitioner $500.00.
  • Complaint Item Three (Communication Restrictions): Petitioner argued that the HOA violated A.R.S. § 33-1805(A) by requiring him to communicate solely through the Board’s attorney rather than contacting the Board or management directly.
  • Finding: The ALJ initially ruled for the Respondent, determining such restrictions are standard industry practice when a homeowner’s requests become onerous,.
II. Rehearing Proceedings (December 2019)

The Department granted a rehearing specifically for Complaint Item Three regarding the denial of reasonable access and communication,.

Key Facts and Arguments

  • The Restriction: In January 2019, the HOA's attorney issued a "cease and desist" letter to the Petitioner. It instructed him to direct all communications to the law firm via U.S. Mail and explicitly prohibited direct contact with the Board or management company.
  • The Incident: On March 6, 2019, Petitioner emailed the management company directly to request contracts, citing A.R.S. § 33-1805(A). The management company refused to accept the email, citing the legal directive to communicate only through counsel.
  • Petitioner’s Argument: Petitioner argued that a letter sent by his own attorney to the HOA's counsel rescinded or terminated the "cease and desist" letter, restoring his right to direct communication.

Legal Analysis and Decision The ALJ ruled in favor of the Respondent, maintaining the original outcome for Item Three based on the following legal points:

  1. Privileged Information: An earlier request by Petitioner (Jan 14, 2019) sought information regarding Board authorizations. The ALJ found this sought privileged attorney-client communications, which the attorney was not required to provide.
  2. Validity of Communication Restrictions: Regarding the March 6, 2019 request, the ALJ found that the Petitioner failed to provide any legal authority to support his assertion that his attorney's objection unilaterally terminated the HOA's cease and desist letter.
  3. No Statutory Violation: Because the management company was acting under valid legal instructions to route communication through counsel, their failure to respond to Petitioner’s direct email did not violate A.R.S. § 33-1805.
Final Outcome
  • Complaint Item Two: Petitioner prevailed (Original Decision).

Case Participants

Petitioner Side

  • Sean McCoy (petitioner)
    appeared on his own behalf at hearing
  • James A. Whitehill (attorney)
    Sent correspondence on behalf of Petitioner

Respondent Side

  • Nathan Tennyson (HOA attorney)
    Brown/Olcott, PLLC
    Represented Respondent at hearing
  • Frank Puma (witness)
    Arizona Community Management Services, LLC (AZCMS)
    Vice President of Client Operations
  • Jamie Murad (witness)
    Arizona Community Management Services, LLC (AZCMS)
    Community Manager
  • Dana Young Jungclaus (witness)
  • Jonathan Olcott (HOA attorney)
    Brown/Olcott
    Authored cease and desist letters

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Sellers, John A. v. Rancho Madera Condominium Association

Posted on by

Case Summary

Case ID 19F-H1919066-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-08-26
Administrative Law Judge Antara Nath Rivera
Outcome The ALJ dismissed the petition, ruling that the Petitioner failed to prove by a preponderance of the evidence that the Association violated A.R.S. § 33-1258. The Association provided available records, and the remaining requested items either did not exist or were properly withheld under statutory exceptions for privileged communications and pending litigation.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John A Sellers Counsel —
Respondent Rancho Madera Condominium Association Counsel Edward D. O'Brien

Alleged Violations

A.R.S. § 33-1258

Outcome Summary

The ALJ dismissed the petition, ruling that the Petitioner failed to prove by a preponderance of the evidence that the Association violated A.R.S. § 33-1258. The Association provided available records, and the remaining requested items either did not exist or were properly withheld under statutory exceptions for privileged communications and pending litigation.

Why this result: Petitioner failed to establish that the requested documents existed or were improperly withheld. The Respondent successfully demonstrated that it had provided all non-privileged records in its possession and that specific meeting minutes and emails did not exist.

Key Issues & Findings

Failure to Provide Records

Petitioner alleged the Association failed to provide records requested on April 29, 2019, specifically emails regarding specific individuals, legal invoices, executive session minutes, and communications regarding a petition signing.

Orders: The Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 33-1248

Video Overview

Audio Overview

Decision Documents

19F-H1919066-REL Decision – 733561.pdf

Uploaded 2026-04-24T11:21:15 (99.9 KB)

Administrative Law Judge Decision: Sellers v. Rancho Madera Condominium Association

Executive Summary

This briefing document summarizes the administrative law judge (ALJ) decision regarding a dispute between John A. Sellers (Petitioner) and the Rancho Madera Condominium Association (Respondent). The case, presided over by ALJ Antara Nath Rivera, centered on allegations that the Association violated Arizona Revised Statutes (A.R.S.) § 33-1258 by failing to provide requested records in a timely and complete manner.

The Petitioner submitted a consolidated records request on April 29, 2019, seeking legal invoices, communications with specific third parties, executive session minutes, and records regarding a member petition. Following a hearing on August 5, 2019, the ALJ determined that the Petitioner failed to prove the Association withheld existing, non-exempt documents. Consequently, the Petition was dismissed on August 26, 2019.

Analysis of Key Themes

1. Statutory Obligations for Record Disclosure

Under A.R.S. § 33-1258, condominium associations are mandated to make financial and other records "reasonably available for examination" to members within ten business days of a written request. However, the statute provides specific exceptions where an association may withhold records, including:

  • Privileged Communications: Correspondence between the association and its attorney.
  • Pending Litigation: Documents specifically relating to active legal matters.
  • Executive Sessions: Meeting minutes or records of board sessions not required to be open to all members under A.R.S. § 33-1248.

The Respondent successfully argued that they had adhered to these standards by providing redacted documents where the information fell under attorney-client privilege or executive session exemptions.

2. The Burden of Proof and Evidence of Existence

A central theme of the decision is the Petitioner’s burden to prove by a "preponderance of the evidence" that a violation occurred. In administrative proceedings, this means the Petitioner must show that the facts sought to be proved are "more probable than not."

The ALJ found that the Petitioner failed to meet this burden regarding items for which the Association claimed no records existed. Specifically:

  • Item #1 (Third-party communications): The Petitioner believed these emails existed to prove communications about him, but the Association testified they were not in their possession.
  • Item #4 (Meeting records for a notarized petition): The Petitioner opined that 21 signatures could not have been collected without a meeting. The Association clarified that no such meetings occurred; rather, individual residents took actions regarding the Petitioner’s divorce proceedings independently.
3. Transparency vs. Legal Redaction

The Association sought to demonstrate a high degree of transparency to counter the Petitioner's claims. Evidence presented by Association President Jeff Kaplan indicated that:

  • The Association received over 400 emails from the Petitioner in three years, approximately 100 of which were records requests.
  • The Association provided documents beyond those requested to facilitate transparency.
  • Financial and bank records were kept accessible to all residents via the Association’s website.

The ALJ accepted that the Association’s use of redactions for legal invoices and executive session minutes was a lawful application of the exceptions provided in A.R.S. § 33-1258(B).

Key Petitioner Requests and Court Findings

Request Item Description Association Response ALJ Conclusion
Item #1 Communications between the HOA/Agents and ROI/Mrs. Sellers. Records do not exist/not in Association's possession. Petitioner failed to prove documents existed at the time of request.
Item #2 Unredacted legal invoices for the current Petition. Provided redacted versions citing attorney-client privilege. Petitioner acknowledged compliance after receiving documents.
Item #3 Records/minutes for all Executive Sessions since the Petition filing. Provided redacted minutes; cited A.R.S. § 33-1248 exemptions. Petitioner did not dispute that records were exempt under the statute.
Item #4 Records regarding meetings held to sign a petition against the Petitioner. No such meetings occurred; signatures were individual actions. Petitioner failed to prove documents existed.

Important Quotes

Regarding the Records Request

"Please consider this email as one consolidated renewed records request… for the following: 1. Copies of all records and communications… with and between ROI, Mrs D Sellers, and or any of their Agents since Nov 1 2018."

  • Context: Petitioner John Sellers’ formal email to Association President Jeff Kaplan on April 29, 2019, which formed the basis of the dispute.
Regarding Statutory Exceptions

"Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to… Privileged communication between an attorney for the association and the association [and] Pending litigation."

  • Context: A citation of A.R.S. § 33-1258(B), used by the ALJ to define the legal boundaries of what an Association is permitted to keep confidential.
Regarding the Final Ruling

"Petitioner failed to establish by a preponderance of the evidence that these documents existed at the time of the April 29, 2019 request such that Respondent’s failure to provide the documents was a violation of A.R.S. § 33-1258."

  • Context: The ALJ’s legal justification for dismissing the Petition regarding items for which no physical records could be produced.

Actionable Insights

  • Verification of Record Existence: For members filing records requests, the belief that a document "should" exist is insufficient for a legal victory; there must be evidence that the record actually exists or was required to be maintained.
  • Understanding Redactions: Association members should be aware that "unredacted" requests for legal invoices are frequently denied based on attorney-client privilege and pending litigation exceptions established in state law.
  • Association Compliance Strategies: To defend against claims of non-compliance, associations should maintain a clear paper trail of all documents provided and ensure that all residents have standing access to basic financial records (e.g., via a community website).
  • Standard of Evidence: Parties in administrative hearings must prepare to meet the "preponderance of the evidence" standard. Mere opinion or speculation—such as the Petitioner’s opining that a meeting "must have happened" to collect signatures—is typically dismissed if countered by testimony of non-existence.

Case Analysis: Sellers v. Rancho Madera Condominium Association

This study guide examines the administrative law proceedings regarding a dispute between a condominium unit owner and a homeowners association (HOA). It focuses on the statutory requirements for records disclosure, the legal exceptions to such requests, and the burden of proof required in administrative hearings.

Key Legal Concepts and Statutory Framework

Arizona Revised Statutes (A.R.S.) § 33-1258: Records Disclosure

This statute governs the availability of association records to its members. The core requirements include:

  • Reasonable Availability: All financial and other records must be made available for examination by a member or their designated representative.
  • Timeline: The association has ten business days to fulfill a request for examination or provide copies of records.
  • Cost: Associations may not charge for the review of materials but may charge up to fifteen cents per page for copies.
Statutory Exceptions to Disclosure

Under A.R.S. § 33-1258(B), an association may withhold books and records if the portion relates to:

  1. Attorney-Client Privilege: Communications between the association and its legal counsel.
  2. Pending Litigation: Records specifically related to ongoing legal disputes.
  3. Executive Session Minutes: Records of board meetings not required to be open to all members pursuant to A.R.S. § 33-1248.
Burden of Proof

In administrative hearings regarding HOA disputes (A.R.S. § 41-2198.01), the Petitioner bears the burden of proof. They must establish a violation by a preponderance of the evidence, meaning the evidence shows that the alleged fact is more probable than not.

Summary of the Dispute: Case No. 19F-H1919066-REL

The Petitioner, John A. Sellers, filed a petition against the Respondent, Rancho Madera Condominium Association, alleging a violation of A.R.S. § 33-1258 for failure to provide records requested on April 29, 2019.

The Four Record Requests
Item # Petitioner's Request Respondent's Position / ALJ Finding
1 Records/emails between Association agents and ROI, Mrs. D. Sellers, or their agents since Nov 2018. Records do not exist; Petitioner failed to prove existence.
2 Unredacted legal invoices for the current Petition, including those paid by insurance. Redacted versions provided; unredacted versions are protected by attorney-client privilege.
3 Notices, emails, and minutes for Executive Sessions since the AZDRE Petition was filed. Redacted minutes provided; records are exempt under A.R.S. § 33-1248/33-1258(B).
4 Communications/notices regarding member meetings held to sign a notarized petition against the Petitioner. No such meetings occurred; signatures were gathered by residents independently. Records do not exist.

Short-Answer Practice Questions

  1. According to A.R.S. § 33-1258, how many business days does an association have to fulfill a request for records?
  • Answer: Ten business days.
  1. What is the maximum fee per page an association can charge for making copies of records?
  • Answer: Fifteen cents ($0.15) per page.
  1. Under what legal theory did the Respondent justify redacting legal invoices in Item #2?
  • Answer: Attorney-client privilege and the "pending litigation" exception.
  1. Who bears the burden of proof in an HOA dispute process petition before the Arizona Department of Real Estate?
  • Answer: The Petitioner.
  1. Why was the Petitioner's request for records of meetings on April 6 and April 8, 2019 (Item #4) denied?
  • Answer: The Respondent testified that no such meetings occurred, and therefore no minutes or records existed.
  1. What does "preponderance of the evidence" mean in the context of this hearing?
  • Answer: Evidence that is of greater weight or more convincing than the opposition, showing a fact is more probable than not.
  1. Is an association required to provide unredacted minutes of an Executive Session of the Board?
  • Answer: No; under A.R.S. § 33-1258(B)(3), these are exempt from disclosure if the session is not required to be open under A.R.S. § 33-1248.

Essay Prompts for Deeper Exploration

  1. Statutory Boundaries of Transparency: Analyze the balance between a member’s right to transparency and an association’s right to privileged communication. Use the ALJ’s ruling on Item #2 and Item #3 to support your argument regarding why certain records remain protected even when a member claims there is "no litigation exception."
  2. The "Non-Existent Document" Defense: In this case, several requests were dismissed because the Respondent claimed the documents did not exist. Discuss the Petitioner’s responsibility in proving the existence of documents versus the Respondent's duty to provide them. How does the ALJ’s ruling on Item #5 clarify the relevance of "record retention policies" in a disclosure dispute?
  3. The Role of Administrative Jurisdiction: Explain the jurisdictional roles of the Arizona Department of Real Estate and the Office of Administrative Hearings in HOA disputes as outlined in A.R.S. § 41-2198.01. Why is this administrative process used instead of a standard civil court for these specific disputes?

Glossary of Important Terms

  • Administrative Law Judge (ALJ): An official who presides over an administrative hearing, hears evidence, and issues a decision or order.
  • A.R.S. § 33-1248: The Arizona statute governing open meeting requirements for condominium associations.
  • Attorney-Client Privilege: A legal principle that keeps communications between an attorney and their client confidential and protected from disclosure.
  • Executive Session: A portion of a board meeting that is closed to the general membership, typically used to discuss legal, personnel, or sensitive matters.
  • Notice of Hearing: A formal document issued to notify parties of the date, time, and location of a legal proceeding.
  • Petitioner: The party who initiates a lawsuit or petition; in this case, John A. Sellers.
  • Preponderance of the Evidence: The standard of proof in most civil and administrative cases, requiring that a claim be more likely true than not.
  • Respondent: The party against whom a petition is filed; in this case, Rancho Madera Condominium Association.
  • Statutory Exception: A specific condition or circumstance defined in law that exempts a party from a general legal requirement.

HOA Transparency vs. Legal Privacy: Lessons from Sellers v. Rancho Madera Condominium Association

1. Introduction: The Conflict Over Information

In the governed ecosystem of Arizona condominiums, the "right to know" is a frequent flashpoint between unit owners and their associations. While transparency is the bedrock of community trust, it often collides with an association’s statutory right to protect privileged legal strategies and executive deliberations. This tension is not merely academic; it frequently results in high-stakes administrative litigation.

The case of John A. Sellers vs. Rancho Madera Condominium Association (No. 19F-H1919066-REL) provides a masterclass in how these disputes are adjudicated. Decided by the Arizona Department of Real Estate (ADRE) in 2019, the ruling clarifies the boundaries of Arizona Revised Statute § 33-1258, illustrating exactly what records an association must produce—and where the law allows them to shut the door.

2. The Paper Trail: 400 Emails and a Consolidated Request

The dispute reached a boiling point when Petitioner John Sellers, joined by Margaret SwanTKO, issued a "consolidated renewed records request" on April 29, 2019. Alleging that previous requests had been ignored, Sellers demanded four specific categories of documentation under A.R.S. § 33-1258:

  • Third-Party Communications: All records and communications—including emails and conference call notes—between the Association, its agents, and legal counsel (Carpenter Hazelwood) regarding ROI and Mrs. D. Sellers since November 1, 2018.
  • Unredacted Legal Invoices: Complete, unredacted invoices related to the ADRE petition, with Sellers arguing that no litigation exception applied to these financial records.
  • Executive Session Records: All notices, emails, and minutes for every Executive Session of the Board since the filing of the petition, specifically including the meeting where counsel was retained.
  • The "Vendetta" Petition Records: All communications and notices regarding member meetings held to sign a notarized petition—a document that allegedly characterized Sellers as having a "vendetta."

3. The Association’s Defense: "Above and Beyond" Compliance

Represented by Board President Jeff Kaplan, the Rancho Madera Condominium Association countered that it was not the Association being opaque, but rather the Petitioner being overzealous. Kaplan testified to a staggering administrative burden: the Association had received over 400 emails from Sellers in the three years preceding the hearing, approximately 100 of which were formal records requests.

Kaplan argued that the Association had acted with extreme transparency, even going "above and beyond" by providing documents Sellers hadn't specifically requested. To further prove their commitment to disclosure, the Association maintained financial and bank records on a community website accessible to all residents at any time.

4. Legal Analysis: Understanding A.R.S. § 33-1258

The resolution of these disputes hinges on A.R.S. § 33-1258, which serves as the definitive guide for HOA record disclosure in Arizona. The statute establishes a clear "General Rule" for transparency while carving out narrow "Statutory Exceptions" to protect sensitive information.

HOA Records: Disclosure vs. Exclusion
General Rule (A.R.S. § 33-1258(A)) Statutory Exceptions (A.R.S. § 33-1258(B))
Availability: All financial and other records must be made available within ten business days of a written request. Attorney-Client Privilege: Privileged communications between the association and its legal counsel are exempt.
Access: Records must be open for examination by a member or their designated representative. Pending Litigation: Records specifically related to active or pending legal matters may be withheld.
Costs: Associations may charge up to $0.15 per page for copies but cannot charge for the time spent reviewing the materials. Executive Sessions: Meeting minutes or records for board sessions not required to be open under A.R.S. § 33-1248 (e.g., personnel or legal matters).

5. The Judge’s Ruling: The Limits of Discovery

Administrative Law Judge Antara Nath Rivera dismissed the petition on August 26, 2019, after applying the "Preponderance of the Evidence" standard. This required the Petitioner to prove it was "more probable than not" that a violation occurred. The ruling turned on several key findings:

  • Items #1 and #4 (The Existence of Records): Sellers "strongly believed" emails and meeting minutes regarding a "vendetta petition" existed. However, Kaplan testified that no such meetings occurred on the dates Sellers alleged (April 6 or 8, 2019). The Judge ruled that Sellers failed to prove the records existed. Under the law, an association cannot be penalized for failing to produce non-existent documents.
  • Item #2 (The Admission of Satisfaction): While Sellers originally demanded unredacted legal invoices, he admitted during the hearing that he was satisfied with the redacted versions eventually provided. This admission effectively neutralized the claim.
  • Item #3 (Executive Sessions): The Association provided redacted minutes of executive sessions. Sellers did not dispute that these records fell under the statutory exceptions of A.R.S. § 33-1258(B).
  • The "Human Interest" Context: The testimony revealed that the "notarized petition" Sellers sought records for was actually an effort by neighbors who were unhappy with him. These residents had even attended Sellers’ divorce proceedings to influence the court against awarding him the house, as they no longer wished to have him as a neighbor.

6. Key Takeaways for HOA Members and Boards

The Sellers decision offers three critical lessons for community association stakeholders:

  1. The Burden of Proof is on the Requester: It is not enough to suspect that an association is hiding documents. To prove a violation, a member must provide evidence that the records actually exist. Furthermore, a "record retention policy" does not change the outcome; if a record is not in the association's possession at the time of the request, there is no violation of § 33-1258.
  2. Privilege and Redaction are Standard: While members have a right to see legal invoices, they do not have a right to see the legal strategy contained within them. Redacting privileged information regarding current litigation is the legally accepted middle ground.
  3. Statutory Exceptions are Absolute: The protections for attorney-client privilege and executive sessions under A.R.S. § 33-1258(B) and § 33-1248 are robust. Boards that maintain organized records and apply these exceptions consistently are well-positioned to defeat "fishing expedition" style petitions.

7. Conclusion: Balancing Rights and Regulations

The dismissal of John Sellers' petition underscores a fundamental reality of community association law: the right to information is not an absolute right to every scrap of paper. By providing bank records via a website and complying with redacted requests, the Rancho Madera Condominium Association demonstrated the "above and beyond" transparency that judges look for.

For associations, the lesson is to remain organized and responsive. For members, the lesson is to understand that the law protects the board's ability to consult with counsel and deliberate in private. Without this balance, the administrative burden of endless requests can quickly overshadow the actual management of the community.

Case Participants

Petitioner Side

  • John A. Sellers (petitioner)
    Appeared on his own behalf; member of the Association
  • Margaret SwanTKO (member)
    Listed in consolidated records request with John Sellers

Respondent Side

  • Jeff Kaplan (board president)
    Rancho Madera Condominium Association
    Testified on behalf of Respondent
  • Ed O’Brien (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Appeared on behalf of Respondent
  • Edith I. Rudder (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Listed on distribution list

Neutral Parties

  • Antara Nath Rivera (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Listed on distribution list

Other Participants

  • Mrs. D. Sellers (unknown)
    Mentioned in records request regarding communications

Teresa J Johnstonbaugh vs. Clemente Ranch Homeowners

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Case Summary

Case ID 19F-H1919058-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-08-07
Administrative Law Judge Jenna Clark
Outcome The ALJ granted the petition, finding that the Petitioner's boundary walls adjoining the common area were the responsibility of the Association to maintain under the Bylaws and past practice. The Association violated the Bylaws by failing to maintain the wall and attempting to shift costs to the homeowner.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Teresa J Johnstonbaugh Counsel —
Respondent Clemente Ranch Homeowners Association Counsel Lynn Krupnick

Alleged Violations

Bylaws Article 3.11(A)(5)

Outcome Summary

The ALJ granted the petition, finding that the Petitioner's boundary walls adjoining the common area were the responsibility of the Association to maintain under the Bylaws and past practice. The Association violated the Bylaws by failing to maintain the wall and attempting to shift costs to the homeowner.

Key Issues & Findings

Whether Respondent violated Community Document Bylaws Article 3.11(A)(5)

Petitioner alleged the HOA failed to maintain a boundary wall defined as common area (replacing it with chain-link) and attempted to charge her for repairs, violating the duty to maintain common areas outlined in the Bylaws.

Orders: Respondent shall comply with Article 3.11(A)(5) of its Bylaws.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • Bylaws Article 3.11(A)(5)

Video Overview

Audio Overview

Decision Documents

19F-H1919058-REL Decision – 728648.pdf

Uploaded 2026-04-24T11:20:14 (164.4 KB)

Administrative Law Judge Decision: Johnstonbaugh vs. Clemente Ranch Homeowners Association

Executive Summary

This briefing document summarizes the administrative hearing and subsequent decision regarding Case No. 19F-H1919058-REL, involving Petitioner Teresa J. Johnstonbaugh and Respondent Clemente Ranch Homeowners Association. The central issue was whether the Association violated its own Bylaws (Article 3.11(A)(5)) by failing to maintain and repair boundary walls adjoining and adjacent to a common area.

The Petitioner challenged an assessment of $9,342.60 (representing a 50% repair fee) for the renovation of a wall between her property and a common area along Queen Creek Road. On August 7, 2019, Administrative Law Judge Jenna Clark ruled in favor of the Petitioner, finding that the Association had historically accepted responsibility for the wall as a common area and failed to maintain it in accordance with the governing documents. The Association was ordered to comply with its Bylaws and fulfill its maintenance obligations.

Analysis of Key Themes

1. Definition and Scope of Common Areas

The primary conflict centered on whether the walls in question were the responsibility of the individual homeowner or the Association. Under CC&R Section 1.11, "Common Area" is defined to include specific tracts, project boundary walls located adjacent to common areas, and any property deeded to the Association for maintenance.

The Petitioner argued, and the court agreed, that her walls met these criteria:

  • One portion was classified as a "boundary wall adjoining the common area."
  • The other portion was a "boundary wall adjacent to the common area."
  • The Petitioner explicitly denied these were "party walls," which would typically imply shared maintenance costs between neighbors.
2. Impact of Historical Precedent

The Association’s past conduct significantly influenced the ruling. For several years, the Association provided landscaping, repair, and maintenance services for the area in question.

  • 2012 Resolutions: In November 2012, the Board resolved to add reinforcement columns to the rear yard walls at the Association's expense.
  • Efficiency Logic: Meeting minutes from that time indicate the Board believed it was "more efficient" for the Association to pay for the wall repairs and landscape work along Queen Creek Road.
  • Inconsistent Counsel: In June 2019, the Association notified the Petitioner that previous legal counsel had "advised them incorrectly" regarding the responsibilities for wall repair, leading to the Association's attempt to shift costs to the homeowners.
3. Financial Escalation and Assessment Shifts

The Association's willingness to cover costs appeared to change as the scope of the project grew.

  • Initial Estimates: In 2013, the renovation cost was projected at approximately $16,678.12.
  • Discovery of Latent Defects: Following a 2018 engineering report, the Association discovered inherent construction defects that could not be easily cured.
  • Current Project Costs: New bids for the wall project ranged from $2,500,000.00 to $3,100,000.00.
  • The Funding Gap: The Association only secured a $1,500,000.00 loan. This underfunding led the Board to issue special assessments and attempt to charge the Petitioner a 50% fee, a move the judge found violated the established maintenance obligations.
4. Current State of the Property

Evidence revealed that the Association's maintenance efforts had not only ceased but had left the property in a state of disrepair. In March 2019, the Association tore down the Petitioner’s boundary wall and replaced it with a chain-link fence, later adding plywood in May 2019. This temporary structure remained in place through the date of the hearing.

Important Quotes and Context

Regarding Association Duties

"The Board shall have all of the powers and duties necessary for the administration of the affairs of the Association… Provide for the operation, care, upkeep and maintenance of all of the Common Area." — Article 3.11(A)(5) of the Association Bylaws

Context: This is the specific provision the Association was found to have violated. The judge determined that since the walls were common areas, the Association had a non-discretionary duty to maintain them.

Regarding the Shift in Responsibility

"The Board believes its more efficient to have the Association pay for the cost of the wall repair and landscape work needed in the common area along Queen Creek; however the homeowners will need to pay for any damage or landscape work on their side of the wall." — Board of Director Meeting Minutes (November 26, 2012)

Context: This quote establishes that the Board had previously acknowledged its responsibility for the wall's structural integrity and the Association-side maintenance, distinguishing it from the homeowner's interior yard work.

Regarding the Standard 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." — Administrative Law Judge Decision (referencing Morris K. Udall, Arizona Law of Evidence)

Context: The judge used this standard to determine that the Petitioner’s evidence regarding the classification of the walls and the Association's historical maintenance was "more substantially persuasive and credible" than the Association's defense.

Key Data and Fact Summary

Category Detail
Case Number 19F-H1919058-REL
Hearing Date July 19, 2019
Petitioner's Assessment $9,342.60 (50% of repair cost)
Initial 2013 Contract $16,678.12 plus $1,000 for plans/permits
2019 BPC Contract $129,203.00 (before latent defects discovery)
New Project Bids $2.5 Million – $3.1 Million
Association Loan $1.5 Million
Governing Statute ARIZ. REV. STAT. Title 33, Chapter 16, Article 1

Actionable Insights

  • Restoration of Property: The Association is now legally required to move beyond temporary measures (chain-link and plywood) and provide permanent upkeep and maintenance for the common area walls adjacent to the Petitioner's property.
  • Assessment Validity: The decision implies that the Association cannot unilaterally shift 50% of the cost of common area wall repairs to individual homeowners under the current Bylaws, especially when historical conduct has established the Association's responsibility.
  • Member Voting Requirements: Article 3.11(A)(5) requires the consent of members holding at least two-thirds of the total votes to borrow money in excess of $5,000. As the Association is currently underfunded for the multi-million dollar wall project, a member vote on special assessments is a critical next step.
  • Committee Oversight: The Association is encouraged to proceed with the creation of a member-led committee to oversee the new wall project, as noted in the findings of fact, to ensure transparency and adherence to the judge's order.

Study Guide: Johnstonbaugh v. Clemente Ranch Homeowners Association

This study guide provides a comprehensive overview of the administrative hearing between Teresa J. Johnstonbaugh and the Clemente Ranch Homeowners Association. It examines the legal issues, factual background, and the final decision rendered by the Office of Administrative Hearings (OAH).

Case Overview and Key Concepts

The case (No. 19F-H1919058-REL) centered on a dispute regarding the maintenance and repair responsibilities of a homeowners association (HOA) versus an individual homeowner. The primary legal question was whether the Clemente Ranch Homeowners Association violated its own Bylaws by failing to maintain a wall that separated a member's property from a common area.

Core Legal Issue

The central issue was whether the Respondent violated Community Document Bylaws Article 3.11(A)(5). This specific article mandates that the Board of Directors provide for the operation, care, upkeep, and maintenance of all Common Areas.

Jurisdiction and Governance
  • Arizona Department of Real Estate: Authorized by statute to receive and decide petitions regarding disputes between homeowners and associations.
  • Office of Administrative Hearings (OAH): An independent state agency that conducts evidentiary hearings on these matters.
  • Governing Documents: The Association is governed by its Declaration of Covenants, Conditions, and Restrictions (CC&Rs) and its Bylaws, while also being regulated by Arizona Revised Statutes (A.R.S.) Title 33, Chapter 16, Article 1.
The Burden of Proof

In this administrative proceeding, the Petitioner (Johnstonbaugh) bore the burden of proving the violation by a preponderance of the evidence. This legal standard means the evidence must show that the contention is "more probably true than not."

Short-Answer Practice Questions

1. Who were the primary parties involved in this case? The Petitioner was Teresa J. Johnstonbaugh, a property owner and member of the Association. The Respondent was the Clemente Ranch Homeowners Association.

2. What financial assessment did the Petitioner challenge in her petition? The Petitioner was being assessed a fifty percent fee of $9,342.60 for the repair of a wall located between her property and a common area.

3. What specific action did the Association take regarding the Petitioner’s wall in March 2019? The Association tore down the Petitioner’s adjacent boundary wall and replaced it with a chain-link fence, later adding plywood to the fencing in May 2019.

4. Why did the Association change its legal stance on wall maintenance in June 2019? The Association informed the Petitioner that it had retained new legal counsel because previous counsel had allegedly advised them incorrectly regarding the rights and responsibilities of wall repair and maintenance within the community.

5. What did the 2012 Board Meeting Minutes reveal about the Association’s historical stance on wall repairs? The 2012 minutes stated that the Board believed it was more efficient for the Association to pay for wall repairs and landscape work along Queen Creek Road because the costs were under $20,000.

6. What "latent defects" were discovered during the construction project that began in early 2019? The Association was informed that there were inherent flaws in the original construction of the subdivision’s walls that the current repair project could not cure or repair.

7. How much was the loan the Association secured, and how did it compare to the actual bids for the new wall project? The Association secured a $1,500,000 loan, but bids for the necessary repairs ranged from $2,500,000 to $3,100,000, leaving the project underfunded.

8. What was the final ruling of the Administrative Law Judge (ALJ)? The ALJ granted the petition, concluding that the Association had violated Article 3.11(A)(5) of its Bylaws by failing to maintain the common area wall over the course of seven years.

Essay Prompts for Deeper Exploration

1. The Evolution of Responsibility: 2012 vs. 2019 Analyze how the Association's interpretation of its responsibilities changed between 2012 and 2019. In your essay, discuss the significance of the 2012 Board Meeting Minutes as evidence of the Association's established patterns of maintenance. How did the discovery of "latent defects" and increased repair costs influence the Board's decision to shift financial responsibility to the homeowners?

2. Defining "Common Area" and "Boundary Wall" The case hinged significantly on the classification of the walls. Using the definitions provided in Section 1.11 of the CC&Rs and the findings of fact, evaluate the distinction between a "party wall," a "boundary wall adjoining the common area," and a "boundary wall adjacent to the common area." Explain how these definitions dictate maintenance obligations under the Association's governing documents.

3. The Preponderance of Evidence in Administrative Law The Administrative Law Judge noted that both parties presented conflicting evidence regarding what constituted a "common area." Discuss the factors that led the Judge to find the Petitioner’s evidence "more substantially persuasive and credible." How does the "preponderance of evidence" standard function in a case where historical practice (maintenance history) conflicts with new legal interpretations?

Glossary of Important Terms

Term Definition
Administrative Law Judge (ALJ) A judge who conducts hearings and issues decisions for state agencies, such as the OAH.
Bylaws The internal rules that govern the administration of a homeowners association, including the powers and duties of the Board.
CC&Rs Declaration of Covenants, Conditions, and Restrictions; the legal documents that lay out the rules for a common interest development.
Common Area Property owned and maintained by the association for the use and benefit of all members (e.g., Tracts A-E in Clemente Ranch).
Latent Defects Hidden flaws in design or construction that are not discoverable by a reasonable inspection.
Petitioner The party who initiates the legal action or petition (in this case, the homeowner).
Preponderance of the Evidence The standard of proof in civil and administrative cases, meaning the evidence shows the claim is more likely true than not.
Respondent The party against whom a petition is filed (in this case, the HOA).
Special Assessment A fee charged to association members for a specific, often unexpected, expense that is not covered by regular dues.
Tract B A specific section of common area adjacent to the Petitioner's boundary wall, identified in the CC&Rs.

The Great Wall Dispute: Lessons from the Clemente Ranch HOA Legal Ruling

1. Introduction: When "Common Area" Becomes an Uncommon Problem

In the complex landscape of community living, the boundary between individual property rights and Association responsibility is often governed by a delicate set of legal definitions. When these definitions are ignored or reinterpreted to suit a budget, conflict is inevitable. The case of Teresa J. Johnstonbaugh vs. Clemente Ranch Homeowners Association serves as a landmark administrative ruling in Arizona, highlighting the limits of an HOA’s authority to shift maintenance costs onto homeowners.

At the center of this dispute was a crumbling masonry wall and a fundamental legal question: Is a boundary wall bordering a public road the responsibility of the homeowner or the Association? What began as a localized repair project evolved into a $3 million crisis, ultimately forcing a legal reckoning over how governing documents must be enforced, regardless of the price tag.

2. Case Background: From Masonry to Plywood

The deterioration of the walls along Queen Creek Road was first identified in 2012. For seven years, the Clemente Ranch Homeowners Association (the Association) operated under the assumption that it was responsible for the upkeep of these project boundary walls. However, as repair costs escalated, the Association's commitment to its own precedents began to waver.

The timeline of the Association's shifting stance reveals a sudden pivot in 2019:

Feature HOA’s Initial Stance (2012–2018) HOA’s Actions in 2019
Responsibility Accepted full responsibility for wall repair and common area landscaping. Attempted to shift 50% of the costs to homeowners via special assessments.
Proposed Action 2012: Add reinforcement columns; 2018: Full engineering evaluation. Tore down masonry wall; replaced with chain-link and plywood (Petitioner’s property).
Contractual Commitment Approved $16,678.12 (2013); signed $129,203 contract (Jan 2019). Stopped work; sought member approval for bids between $2.5M and $3.1M.

By March 2019, the Association had demolished the Petitioner’s masonry wall, replacing it with a temporary chain-link fence. By May, they added plywood to the fence, leaving the property with a makeshift barrier that failed to meet community standards while the Board attempted to resolve a massive financial shortfall.

3. The Legal Pivot: The HOA’s $3 Million Dilemma

The Association’s financial strategy shifted dramatically following the discovery of "Latent Defects." In June 2018, a structural engineering report revealed that the walls were fundamentally flawed from their original construction. Despite this, the Board moved forward, signing a $129,203 contract in January 2019 to begin repairs.

The crisis peaked when construction began in February 2019. Contractors informed the Board that the existing project could not fix the inherent structural defects. New bids for a complete overhaul skyrocketed to between $2.5 million and $3.1 million. Faced with a reserve fund that was woefully inadequate and a loan capacity capped at $1.5 million, the Association attempted a legal retreat.

Claiming they had been "incorrectly advised" by previous legal counsel, the Board sought to redefine the walls as shared responsibilities. Consequently, the Petitioner was hit with a specific assessment for a fifty percent fee of $9,342.60. This move effectively attempted to monetize the Association’s failure to plan for long-term structural maintenance.

4. Decoding the Governing Documents: CC&Rs and Bylaws

The resolution of this case hinged on the precise language of the community’s governing documents. As a legal analyst, one must look at the specific definitions that the Board attempted to circumvent.

  • CC&R Section 1.11(d): This is the "smoking gun" of the ruling. It explicitly defines "Common Area" to include "the Project boundary walls located adjacent to Common Areas on the boundary lines of Lots."
  • Bylaw Article 3.11(A)(5): This mandates that the Board "provide for the operation, care, upkeep and maintenance of all of the Common Area."

The Petitioner argued successfully that her wall was a boundary wall adjacent to Tract B (a common area) and facing a public roadway. She specifically challenged the Association’s attempt to reclassify the structure as a "party wall." In legal terms, a party wall is shared between two private neighbors, with shared costs. Because this wall bordered a common area owned by the Association, it was a boundary wall, making the Association 100% responsible for its maintenance under the CC&Rs.

5. The Administrative Law Judge's Decision

Administrative Law Judge Jenna Clark applied the "Preponderance of the Evidence" standard. This requires the Petitioner to prove her case is "more probably true than not." In this instance, the Association’s "shifting defense" worked against them. The Judge found the Petitioner’s evidence—years of consistent maintenance by the Association—to be more persuasive than the Association's sudden discovery of a "new" legal interpretation once the price of repairs became inconvenient.

The Judge’s "Conclusions of Law" emphasized two critical points:

  1. The Avoidance of Absurdity: The Judge noted that Bylaws must be construed to avoid an "absurdity." It would be absurd to allow an Association to abandon its clear maintenance duties simply because the costs of those duties increased due to poor financial planning or the discovery of structural defects.
  2. Failure of Duty: The ruling found that by tearing down the masonry wall and leaving the property with chain-link and plywood for seven years (dating back to the initial 2012 signs of deterioration and culminating in the 2019 demolition), the Association had failed in its duty to maintain the common area.

The Judge ultimately ordered the Association to comply with Bylaw Article 3.11(A)(5) and assume its rightful responsibility for the wall.

6. Final Takeaways for Homeowners and Boards

The Johnstonbaugh vs. Clemente Ranch case provides a vital roadmap for community governance and homeowner advocacy:

  1. Consistency Establishes Precedent: When an HOA consistently performs landscaping and repairs on a structure for years, it reinforces the legal interpretation that the structure is a common area. A Board cannot unilaterally reverse this precedent to avoid a high-cost project.
  2. Governance Trumps Budgeting: An HOA’s legal obligation to maintain the community is not a "sliding scale" based on the current bank balance. A lack of funds, underfunded reserves, or loan shortfalls does not absolve a Board of its duties under the Bylaws. Financial mismanagement is not a legal defense for non-performance.
  3. Definitions are Decisive: The distinction between a "party wall" (shared between neighbors) and a "boundary wall adjacent to common areas" (Association responsibility) is worth thousands of dollars. Homeowners must hold Boards strictly to the definitions found in CC&R Section 1.11.

Community associations are governed by contracts, not by the convenience of the Board. This ruling serves as a powerful reminder that when an Association attempts to shift its $3 million problems onto individual homeowners, the governing documents remain the final authority.

Case Participants

Petitioner Side

  • Teresa J. Johnstonbaugh (petitioner)
    Appeared on her own behalf

Respondent Side

  • Lynn Krupnick (HOA attorney)
    Krupnik & Speas, PLLC
  • Timothy Krupnick (HOA attorney)
    Krupnik & Speas, PLLC
  • Jaime Therrien (community manager)
    Clemente Ranch Homeowners Association
    Witness for Respondent
  • Joseph Therrien (observer)
    Appeared with Respondent
  • Nick Ferre (observer)
    Appeared with Respondent
  • Barbara Dewitt (observer)
    Appeared with Respondent

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of the transmitted order