Bonnie Senftner v. Desert Wind Condominium Association

Posted on July 22, 2019 by [email protected]

Case Summary

Case ID	19F-H1919056-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-07-22
Administrative Law Judge	Thomas Shedden
Outcome	The ALJ dismissed the petition, ruling that the Petitioner failed to prove the Association violated the CC&Rs. The preponderance of evidence showed the damage was caused by an adjoining unit owner, and the CC&Rs assign liability to that owner, not the Association.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Bonnie Senftner	Counsel	—
Respondent	Desert Wind Condominium Association	Counsel	Shlomit Gruber

Alleged Violations

Article XIV, Section 14.2

Outcome Summary

The ALJ dismissed the petition, ruling that the Petitioner failed to prove the Association violated the CC&Rs. The preponderance of evidence showed the damage was caused by an adjoining unit owner, and the CC&Rs assign liability to that owner, not the Association.

Why this result: Petitioner relied on a CC&R section that assigns liability to the specific owner causing damage rather than the HOA, and failed to produce evidence or legal authority obligating the HOA to pay.

Key Issues & Findings

Party Walls and Damage by Adjoining Owners

Petitioner alleged the HOA violated the CC&Rs regarding party walls by not reimbursing her for mold testing costs after a washing machine in an adjoining unit caused water damage. The ALJ found the cited section places responsibility on the owner causing the damage, not the HOA.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

Article XIV, Section 14.2
Section 1.12
Section 10.5

Video Overview

Audio Overview

Decision Documents

19F-H1919056-REL Decision – 724318.pdf

Uploaded 2026-04-24T11:20:01 (88.8 KB)

Administrative Law Judge Decision: Senftner v. Desert Wind Condominium Association

Executive Summary

This document provides a comprehensive briefing on the administrative hearing (Case No. 19F-H1919056-REL) between Bonnie Senftner (Petitioner) and the Desert Wind Condominium Association (Respondent). The dispute centered on alleged violations of the Association’s Covenants, Conditions, and Restrictions (CC&Rs) regarding damage to a party wall.

The Petitioner sought reimbursement for mold testing and argued that the Association’s voluntary repair of water damage constituted an admission of liability. However, the Administrative Law Judge (ALJ) determined that under the specific language of the CC&Rs, the responsibility for damage caused by an adjoining owner lies with that owner, not the Association. Consequently, the petition was dismissed on July 22, 2019.

Detailed Analysis of Key Themes

Interpretation of CC&R Section 14.2 (Party Walls)

The core of the dispute rested on the interpretation of Article XIV, Section 14.2 of the Association’s CC&Rs. The Petitioner alleged that the Association violated this provision when it failed to reimburse her for mold testing following water damage.

The ALJ's analysis focused on two primary definitions within the CC&Rs:

Party Wall Definition: Section 1.12 defines a party wall as a wall located on the division line between adjoining units used by both owners.
Liability for Damage: Section 14.2 explicitly states that if a party wall is damaged by the act of an adjoining owner (whether willful, negligent, or accidental), that owner is responsible for the repairs "without cost to the other adjoining Owner."

The findings established that the Association is not an "adjoining owner" in the context of a party wall between two private units. Therefore, the obligation to repair under Section 14.2 falls upon the owner of the unit where the damage originated, not the Association.

Causation and Association Intervention

The evidence presented during the hearing identified the source of the damage as unit 216. A plumber's inspection revealed that a washing machine in unit 216 was improperly installed, draining into a sink and over-topping a drain pipe. A second inspection confirmed that the discharge had damaged the pipe shared with unit 116 (owned by the Petitioner's LLC).

Despite the CC&R language placing responsibility on the unit owner, the Association voluntarily:

Repaired the damaged pipe.
Completed mold remediation.
Repaired the drywall.

The Petitioner argued that these actions evidenced the Association's acceptance of legal responsibility. The ALJ rejected this, noting that the Petitioner provided no legal authority to support the claim that voluntary repairs create a mandatory obligation for further reimbursements.

Jurisdictional and Procedural Scope

The ALJ clarified the limits of the Association's duty to intervene in owner-to-owner disputes. While the Petitioner argued that the Association must act when unit owners disagree on repair costs, she could provide no CC&R provision to support this. The ALJ noted that while CC&R Section 10.5 involves arbitration, it is strictly limited to disputes regarding common areas, not private party walls.

Important Quotes with Context

Quote	Source/Context	Significance
"If any party wall is damaged or destroyed through the act or acts of one adjoining Owner… such adjoining Owner shall forthwith proceed to rebuild or repair the same to as good a condition as formerly, without cost to the other adjoining Owner."	CC&R Section 14.2	This is the primary clause used to determine liability, placing the burden on the neighbor rather than the HOA.
"Petitioner presented no credible evidence or legal authority showing that by making those repairs, Respondent became obligated to reimburse Petitioner for any expenses she incurred."	Conclusion of Law #5	This addresses the Petitioner's argument that the HOA's voluntary repairs established a legal precedent for liability.
"The preponderance of the evidence shows that the water damage for which Petitioner seeks redress was caused by the Owner of unit 218 [sic], and Section 14.2 imposes no duty on the Respondent to repair such damage."	Conclusion of Law #5	This summarizes the legal basis for the dismissal, confirming the Association has no duty under the cited section.
"A wall located upon or at the division line between adjoining Units and used by both Owners of such Units…"	CC&R Section 1.12	Provides the technical definition of a "party wall" used to apply the rules of Article XIV.

Actionable Insights

For Association Governance

Voluntary Repairs Do Not Equal Liability: An Association may choose to perform repairs to mitigate damage or mold within the community without necessarily assuming legal liability for all associated costs (such as third-party testing conducted by owners).
Clear Distinction of Roles: It is critical to distinguish between "Common Areas" and "Party Walls." Association responsibilities and arbitration requirements for common areas (Section 10.5) do not automatically extend to disputes between individual unit owners regarding shared walls.

For Unit Owners

Burden of Proof: In administrative hearings, the Petitioner bears the burden of proof by a "preponderance of the evidence." To succeed, a Petitioner must prove it is "more likely than not" that a specific CC&R violation occurred.
Direct Recourse Against Adjoining Owners: Under Section 14.2, when damage is caused by a neighbor’s appliance or negligence, the legal remedy is typically against that neighbor directly, rather than the Association.
Citing Specific Authority: Claims regarding an Association’s duty to mediate or pay for testing must be backed by specific language in the CC&Rs. General assertions of "responsibility" are insufficient if the contract language (CC&Rs) points elsewhere.

Case Study Guide: Senftner v. Desert Wind Condominium Association

This study guide provides a comprehensive overview of the administrative law case Bonnie Senftner v. Desert Wind Condominium Association (No. 19F-H1919056-REL). It covers the legal frameworks, factual findings, and judicial conclusions derived from the July 10, 2019, hearing before the Arizona Office of Administrative Hearings.

Key Legal Concepts and Factual Overview

The Nature of CC&Rs

Covenants, Conditions, and Restrictions (CC&Rs) function as a contract between a homeowners association and the unit owners. Under Arizona law (specifically referencing Johnson v. The Pointe Community Association), all parties are required to comply with the terms set forth in these documents.

Party Wall Definitions and Liabilities

Under the Desert Wind Condominium Association CC&Rs:

Definition (Section 1.12): A "party wall" is a wall located at the division line between adjoining units and used by both owners in the construction of their respective units.
Liability (Section 14.2): If a party wall is damaged or destroyed by the acts of an adjoining owner (or their guests, tenants, or agents), that owner is responsible for rebuilding or repairing the wall to its former condition at their own cost. This applies whether the act was willful, negligent, or accidental.

The Dispute

The Petitioner, Bonnie Senftner, alleged that the Respondent, Desert Wind Condominium Association, violated Article XIV, Section 14.2 of the CC&Rs. The core of the dispute involved water damage to a wall in unit 116 (owned by Senftner) caused by an issue in unit 216.

Factual Findings

Source of Damage: A washing machine in unit 216 was improperly installed, draining into a sink. The discharge exceeded the drain pipe's capacity, causing water to enter the wall.
Association Actions: The Association hired plumbers to investigate, repaired the damaged pipe, completed mold remediation, and performed drywall repairs.
Petitioner's Argument: Senftner argued that because the Association performed these repairs, they accepted legal responsibility for the damage and should therefore reimburse her for independent mold testing she conducted.

Short-Answer Practice Questions

1. Who bears the burden of proof in this administrative hearing, and what is the required standard of proof?

Answer: The Petitioner (Bonnie Senftner) bears the burden of proof. The standard of proof is a "preponderance of the evidence."

2. According to CC&R Section 14.2, who is responsible for the cost of repairing a party wall damaged by a tenant's negligence?

Answer: The "adjoining Owner" whose tenant caused the damage is responsible for the cost.

3. What specific mechanical failure led to the water damage in unit 116?

Answer: A washing machine in unit 216 was draining into a sink; the drain pipe was over-topped because it could not accommodate the volume of the washer’s discharge.

4. Why did the Administrative Law Judge (ALJ) determine that CC&R Section 10.5 did not apply to this case?

Answer: Section 10.5 deals with disputes between the Association and owners regarding repairs to common areas, whereas this dispute involved a party wall between two owners.

5. Does the Association's voluntary repair of a pipe or mold remediation constitute a legal admission of liability under the CC&Rs?

Answer: No. The ALJ found no credible evidence or legal authority suggesting that making repairs obligated the Association to reimburse the Petitioner for additional expenses.

Essay Prompts for Deeper Exploration

1. The Distinction Between Common Areas and Party Walls

Explain the legal distinction between common area disputes and party wall disputes as outlined in the case. In your essay, analyze why the Petitioner's inability to cite a specific CC&R provision regarding Association mediation of owner-to-owner disputes was fatal to her claim.

2. Contractual Obligations and Voluntary Performance

The Petitioner argued that the Association "accepted responsibility" by performing repairs. Discuss the implications of this argument in the context of contract law. Should an Association be penalized for taking proactive steps to mitigate damage (such as mold remediation) even if they are not strictly required to do so by the CC&Rs?

3. Analyzing the "Preponderance of the Evidence"

Define "preponderance of the evidence" as used in this decision. Use the facts of the Senftner case to demonstrate how the evidence "inclined a fair and impartial mind" toward the Respondent’s side, despite the Association’s decision to pay for the initial repairs.

Glossary of Important Terms

Term	Definition
Adjoining Owner	The owner of a unit that shares a common boundary or party wall with another unit.
CC&Rs	Covenants, Conditions, and Restrictions; the governing legal documents that establish the rules for a common interest development.
Common Areas	Portions of the condominium project intended for the use and enjoyment of all owners, typically managed by the Association.
Party Wall	A wall located on or at the division line between adjoining units, used by both owners.
Preponderance of the Evidence	The standard of proof in civil cases where the evidence must show that a fact is more likely true than not; the "greater weight" of the evidence.
Petitioner	The party who brings a petition or claim to a court or administrative body (in this case, Bonnie Senftner).
Respondent	The party against whom a petition or claim is filed (in this case, Desert Wind Condominium Association).
Administrative Law Judge (ALJ)	A judge who presides over hearings and adjudicates disputes involving administrative agencies.

Who Pays for the Leak? A Lesson in HOA Liability and Party Walls

1. The "Neighbor's Leak" Nightmare: An Introduction

It is a scenario every condo owner dreads: you return home to find a water stain spreading across your ceiling or dampness buckling your drywall. When the source is identified as a neighbor’s unit, the immediate reaction is often to call the Homeowners Association (HOA) and demand they "fix it." But as many owners learn the hard way, just because a leak happens inside an Association building doesn't mean the Association is the one who has to pay for it.

The case of Bonnie Senftner vs. Desert Wind Condominium Association, adjudicated by the Arizona Department of Real Estate, provides a masterclass in the boundaries of HOA responsibility. It centers on a critical question: If an HOA steps in to help with initial repairs, does that voluntary act make them legally liable for every other related cost?

2. The Incident: When Washing Machines Go Wrong

The dispute began when Unit 116 (owned by a family LLC) suffered water damage to a wall shared with the unit above. To resolve the mystery, the Association sent in two different plumbers to investigate.

The findings were a classic example of "owner-induced" damage. The first plumber discovered that a washing machine in Unit 216 had been improperly installed. Rather than having a dedicated discharge line, the machine was draining directly into a sink. Because the sink’s drain pipe couldn't handle the high-volume discharge of a washing machine, the pipe would "over-top"—essentially overflowing—and send water into the wall. A second plumber confirmed that this excessive discharge had physically damaged the drain line where Unit 216 ties into the line for Unit 116.

Recognizing the potential for the water to spread and damage structural studs or other units, the Association acted quickly. They paid for the pipe repair, mold remediation, and drywall restoration. However, when the owner of Unit 116 conducted her own private mold testing and demanded reimbursement, the Association drew a line in the sand.

3. Understanding the "Party Wall" Rule

The resolution of this case hinged on whether the damaged area was a "Common Area" (the HOA’s responsibility) or a "Party Wall." Per CC&R Section 1.12, a party wall is any wall located on the division line between adjoining units that is used by both owners.

The governing rules for these walls are found in the "Gold Standard" provision of the Association’s documents:

CC&R Article XIV, Section 14.2: Damage by One of the Adjoining Owners "If any party wall is damaged or destroyed through the act or acts of one adjoining Owner, or any of his guests, tenants, licensees, agents, servants or members of his family (whether such act is willful, negligent or accidental), such adjoining Owner shall forthwith proceed to rebuild or repair the same to as good a condition as formerly, without cost to the other adjoining Owner."

The Legal Obligation: This section is unambiguous. If an owner (or their tenant) causes damage to a shared wall, that owner is the one legally responsible for the costs—not the innocent neighbor and not the Association.

4. The Turning Point: When Good Deeds Don't Equal Legal Liability

The Petitioner argued that because the Association paid for the remediation and drywall, they had effectively admitted liability for the entire event. As a consultant, I see this misunderstanding often: owners assume that "management is fixing it" equals "management is responsible."

The Administrative Law Judge dismissed this logic. Here is why the Petitioner’s claim for mold testing reimbursement failed:

Strategic Mitigation vs. Admission of Fault: The Association likely stepped in to mitigate damage to shared structural elements. The judge found no legal authority suggesting that an HOA’s choice to facilitate repairs creates a binding obligation to pay for an owner’s private, ancillary expenses.
The 10.5 vs. 14.2 Distinction: The Petitioner attempted to cite Section 10.5, which involves the Association’s role in arbitrating disputes. However, the judge clarified that Section 10.5 applies to Common Areas. Because this was a Party Wall dispute between two owners, Section 14.2 was the only relevant rule.
The "Preponderance of Evidence" Burden: In legal disputes, the Petitioner bears the "Burden of Proof." The judge used the definition from Black’s Law Dictionary, noting that the Petitioner must provide evidence with "convincing force" that inclines an impartial mind to their side. Since the Petitioner "could cite no provision in the CC&Rs" to shift the cost of testing to the Association, she failed this standard.
A Note on Accuracy: While the Judge’s final conclusion (Finding #5) mistakenly references Unit 218, the established facts of the case (Finding #6) confirm Unit 216 was the source. This minor clerical discrepancy did not change the reality: the upstairs owner, not the HOA, was the liable party.

5. Key Takeaways for Condo Owners

This case is a vital reminder that the HOA is a community manager, not a free insurance policy for individual negligence.

Identify the Source of Origin Immediately: Determining exactly where a leak started is the only way to trigger Section 14.2.

Consultant’s Tip: Always secure a written plumber’s report that identifies the "point of origin" before any walls are closed back up. Without this evidence, you cannot hold a neighbor accountable.

Audit Your Governing Documents for "Party Wall" Specifics: Do not assume every wall is a "common element." Knowing the difference between Section 10.5 (Common Areas) and Section 14.2 (Party Walls) can save you thousands in legal fees.
Understand the "Voluntary Act" Logic: If your HOA offers to help with remediation, they are likely doing so to protect the building's shell and prevent a larger insurance claim. This is a protective measure for the community, not an admission of guilt.
Owner-to-Owner Liability: Recognize that many interior leaks are private civil matters between two unit owners. The HOA is often a bystander, even if they provide the plumber who finds the leak.

6. Conclusion: The Final Verdict

The Administrative Law Judge ultimately ordered the petition dismissed. The ruling was clear: the water damage was caused by the upstairs owner's improperly installed appliance. Under the CC&Rs, the Association had no duty to pay for the repairs in the first place, and certainly no duty to reimburse the Petitioner for her private testing.

Living in a community association requires a sophisticated understanding of where your property rights—and your liabilities—begin. While an HOA will often act to preserve the integrity of the building, the ultimate financial responsibility for "neighbor-to-neighbor" damage rests with the person who caused it. Read your CC&Rs, document everything, and remember: a helping hand from the board is not a blank check for your private expenses.

Case Participants

Petitioner Side

Bonnie Senftner (Petitioner)
Owner of LLC that owns unit 116
Michael Senftner (Witness)
Husband of Petitioner

Respondent Side

Shlomit Gruber (Respondent Attorney)
Resnick & Louis, P.C.
Counsel for Desert Wind Condominium Association
Harman Cadis (Witness)
Focus HOA Management

Neutral Parties

Thomas Shedden (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Listed on mailing distribution
Felicia Del Sol (Administrative Staff)
Mailed/processed the order

Colonia Del Rey Homeowners Association v. Gregory Czekaj

Posted on July 8, 2019 by [email protected]

Case Summary

Case ID	19F-H1918040-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-07-08
Administrative Law Judge	Kay Abramsohn
Outcome	Petitioner failed to prove HOA violated records, voting, or notice statutes. HOA failed to prove Petitioner violated Bylaws by misrepresenting himself as an officer.
Filing Fees Refunded	$2,000.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Gregory L. Czekaj	Counsel	Gary Wolf
Respondent	Colonia Del Rey HOA, Inc.	Counsel	Carolyn Goldschmidt

Alleged Violations

A.R.S. § 33-1805
A.R.S. § 33-1812(A)
A.R.S. § 33-1804(B)
Bylaws Sections 6.1, 7.1, 9.2

Outcome Summary

Petitioner failed to prove HOA violated records, voting, or notice statutes. HOA failed to prove Petitioner violated Bylaws by misrepresenting himself as an officer.

Why this result: Petitioner's interpretations of statutes regarding notice and voting were incorrect, and HOA complied with records requests. HOA lacked evidence for its claim against Petitioner.

Key Issues & Findings

Failure to provide records

Petitioner alleged HOA failed to provide requested organizational, business, corporate, and financial records.

Orders: The HOA was deemed the prevailing party. Petitioner bears his filing fees.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Invalid fee increase due to proxy vote

Petitioner alleged a $5 fee increase was invalid because a proxy vote was used in violation of statutes and rules.

Orders: The HOA was deemed the prevailing party. Petitioner bears his filing fees.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Failure to provide ten-day meeting notice

Petitioner alleged HOA failed to give ten-day notice for a meeting to vote on Bylaws amendments.

Orders: The HOA was deemed the prevailing party. Petitioner bears his filing fees.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Petitioner exceeded rights as member

HOA alleged Petitioner misrepresented himself as an officer to obtain insurance and tax information.

Orders: The HOA did not prevail. HOA bears its filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_win

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Video Overview

Audio Overview

Decision Documents

19F-H1919054-REL Decision – 720897.pdf

Uploaded 2026-04-24T11:19:52 (224.6 KB)

Administrative Law Judge Decision: Czekaj v. Colonia Del Rey HOA, Inc.

Executive Summary

On July 8, 2019, the Arizona Office of Administrative Hearings issued a decision regarding a multi-faceted dispute between Gregory L. Czekaj (Petitioner) and Colonia Del Rey HOA, Inc. (Respondent). The proceedings consolidated four separate complaints: three filed by the Petitioner regarding records access, voting validity, and meeting notices, and one filed by the HOA alleging the Petitioner misrepresented himself as an officer to third-party entities.

The Administrative Law Judge (ALJ) ruled overwhelmingly in favor of the HOA. The HOA was deemed the prevailing party in three of the four complaints. The ALJ concluded that the HOA had fulfilled its statutory obligations regarding records disclosure and meeting notices and that a contested $5.00 assessment increase was legally valid. Regarding the fourth complaint, neither party prevailed, as the evidence was insufficient to prove the Petitioner had intentionally misrepresented himself, though the ALJ noted the Petitioner was "mistaken" in his belief that individual members possess board-level administrative authority.

Detailed Analysis of Key Themes

1. Statutory Obligations vs. Member Demands for Records

A central theme of the dispute was the interpretation of A.R.S. § 33-1805, which governs the inspection of association records. The Petitioner argued that the HOA "withheld" documents, while the HOA maintained that the Petitioner's requests were overly broad and burdensome.

Burdensome Requests: The ALJ determined that the Petitioner’s request to review "any and all" documents since 1984 was inherently burdensome for a small, volunteer-run HOA with no central office.
Response Standards: The ruling clarified that associations are permitted to ask members to narrow their requests. Once a member provides clarification and acknowledges receipt (e.g., saying "thank you"), the HOA is justified in considering the request fulfilled until a new, specific request is made.
Electronic Disclosure: The HOA’s provision of electronic documents at no cost was found to be an appropriate response to records requests, fulfilling the statutory requirement for reasonable availability.

2. Validity of Governance and Voting Procedures

The Petitioner challenged a $5.00 monthly assessment increase (from $75 to $80) based on the initial use of an illegal proxy vote.

Correction of Errors: Although a proxy vote was initially and incorrectly counted, the HOA subsequently corrected the tally.
Defining "Votes Cast": The ALJ found that under the HOA’s CC&Rs, the requirement for a 2/3 majority applies to the "votes cast" by those present, not 2/3 of the total membership. With 6 members present, a vote of 5 YES and 1 NO (83.3%) exceeded the required 2/3 threshold (4 votes), rendering the increase valid regardless of the discarded proxy.
Record Retention: The destruction of original ballots after one year was found to be in compliance with the HOA’s one-year record retention policy and A.R.S. § 33-1812(A)(7).

3. Standards for Meeting Notices

The dispute highlighted a common member misconception regarding notice periods. The Petitioner argued that a meeting was invalid because he did not receive the notice 10 days in advance.

Mailing vs. Receipt: The ALJ clarified that A.R.S. § 33-1804(B) requires the HOA to "cause notice to be hand-delivered or sent" at least 10 days prior to a meeting. The law does not mandate that the member receive the notice within that timeframe.
Validity: The ruling confirmed that a member's failure to receive actual notice does not invalidate the actions taken at a meeting, provided the HOA can demonstrate the notice was sent (e.g., through testimony or mailing records).

4. Limits of Member Authority

The final theme involved the boundaries between individual member rights and Board administrative authority. The Petitioner attempted to contact the HOA’s insurance agent and the IRS to obtain sensitive information, such as the HOA’s Taxpayer Identification Number (TIN).

Administrative Rights: The ALJ concluded that HOA Bylaws vest management and administrative authority exclusively in the Board of Directors.
The "Right to Enforce": The Petitioner argued that CC&R provisions allowing owners to "enforce" restrictions gave him the right to contact vendors and the IRS. The ALJ rejected this, stating that the right to enforce allows a member to petition the Board or seek legal remedy, but does not bestow board-level administrative powers upon individual homeowners.

Analysis of Complaints and Outcomes

Complaint Number	Subject Matter	Primary Allegation	Prevailing Party
One	Records Access	HOA withheld requested financial and corporate records.	HOA
Two	Assessment Vote	A $5.00 fee increase was invalid due to the use of a proxy vote.	HOA
Three	Meeting Notice	HOA failed to provide 10-day notice for a Bylaw amendment meeting.	HOA
Four	Misrepresentation	Petitioner allegedly posed as an HOA officer to the IRS and insurance agent.	Neither

Important Quotes with Context

On Burdensome Record Requests

"The Administrative Law Judge concludes that the request, as stated, was burdensome and needed to be clarified given that the HOA has been in existence since 1984, has no office, and various persons have been officers over the past years." (Finding 62)

Context: The ALJ rejected the Petitioner's claim that the HOA was "withholding" information, noting that the HOA acted reasonably by asking the Petitioner to narrow his broad request for all documents since the association's inception.

On the Definition of Statutory Notice

"The Administrative Law Judge concludes that Petitioner’s argument fails that the notice packages had to be 'received' more than ten days prior to the meeting; such a position is a misreading of the statutory requirement." (Finding 68)

Context: This quote addresses Complaint Three, establishing that the legal standard for notice is the act of mailing or sending, not the confirmed receipt by the homeowner.

On Member Privileges vs. Board Authority

"Petitioner is mistaken if he believes that he, as a member, may undertake to dictate or manage actions of the Board. The HOA Bylaws do not vest any of the Board’s authority in the members." (Finding 71)

Context: The ALJ used this statement to clarify that while members have the right to review records and vote, they do not have the right to perform administrative tasks, such as contacting the IRS or HOA vendors on behalf of the association.

Actionable Insights

For Homeowners Association Boards

Formalize Record Requests: Require members to clarify broad requests. Document all responses and utilize electronic delivery to satisfy statutory requirements for "reasonable availability" at minimal cost.
Correct Procedural Errors Promptly: As seen in the assessment vote, an initial procedural error (like an improper proxy) does not necessarily invalidate an action if the corrected tally still meets the required legal threshold.
Maintain Proof of Mailing: Ensure the Secretary maintains records of when meeting notices are sent. Under A.R.S. § 33-1804(B), proving the date of mailing is the standard for legal compliance, not proof of delivery.

For Homeowners

Distinguish Between "Review" and "Manage": Members have a statutory right to review records, but this does not grant them the authority to act as an agent of the HOA or manage its business affairs (e.g., contacting the IRS).
Understand Voting Thresholds: Carefully review CC&Rs to determine if a required majority applies to the entire membership or only the votes cast by those present at a meeting where a quorum is met.
Verify Statutory Timelines: Be aware that "notice" is legally defined by the date the HOA initiates delivery, not the date the mail is received. Failing to receive mail does not legally excuse a member from the outcomes of a meeting.

Study Guide: Czekaj v. Colonia Del Rey HOA Administrative Case

This study guide provides a comprehensive overview of the administrative hearing between Gregory L. Czekaj (Petitioner/Homeowner) and Colonia Del Rey HOA, Inc. (Respondent/HOA), heard by the Arizona Office of Administrative Hearings on June 14, 2019. It examines the legal requirements for homeowners' associations regarding records access, voting procedures, meeting notices, and the limitations of member authority.

I. Case Overview

Case Numbers: 19F-H1918040-REL and 19F-H1919054-REL.
Parties: Gregory L. Czekaj, a homeowner since March 2017, and Colonia Del Rey HOA, Inc., a nine-home association established in 1984.
Central Issues: Alleged violations of Arizona Revised Statutes (A.R.S.) regarding records requests, voting irregularities, and meeting notice timelines, as well as an HOA allegation regarding a member's unauthorized use of authority.

II. Key Legal Concepts and Statutory Interpretations

1. Access to HOA Records (A.R.S. § 33-1805)

Availability: All financial and other records must be made reasonably available for examination.
Timeline: The HOA has ten (10) business days to fulfill a written request.
Costs: Statutes do not require an HOA to provide copies at no cost. The HOA may charge up to 15 cents per page for copies, which must be reimbursed upon delivery.
Scope: Requests must be specific. Requests to review "all documents" may be considered burdensome, especially for older associations without formal offices.

2. Meeting Notices (A.R.S. § 33-1804(B))

Timing: Notice must be provided not fewer than ten (10) days in advance of a meeting.
Legal Requirement: The statute requires the HOA to "cause notice to be hand-delivered or sent prepaid by [U.S.] mail."
Receipt vs. Sending: The legal obligation is satisfied when the notice is sent. The validity of actions taken at a meeting is not affected if a member fails to receive the actual notice, provided the HOA followed the sending procedures.

3. Voting and Proxies (A.R.S. § 33-1812)

Proxies: Arizona state law and specific HOA resolutions (e.g., Resolution 20140315-01) may prohibit the use of proxy votes.
Absentee Ballots: These are acceptable and may be cast via email if permitted by the association.
Quorum and Thresholds:
A quorum is often met by the presence of members entitled to cast 50% of the votes.
Assessments exceeding 10% of the previous year's amount may require a two-thirds (2/3) vote of those voting (not 2/3 of the entire membership).

4. Member vs. Board Authority

Member Privileges: Under HOA Bylaws (Section 3.1), privileges are limited to voting, holding office, and enjoying common areas.
Management Rights: Business affairs are managed by the Board of Directors (Section 6.1). Members do not possess administrative rights, authority, or responsibility to manage vendors, contractors, or government agencies (like the IRS) on behalf of the HOA.
Enforcement Rights: While CC&Rs may allow an owner to "enforce" restrictions (Article XIV, Section 1), this typically means the right to petition the Board to act, rather than the right to assume Board duties.

III. Short-Answer Practice Questions

How many business days does an HOA have to fulfill a written records request under A.R.S. § 33-1805(A)?
Does a member’s failure to receive a meeting notice invalidate the actions taken at that meeting? Explain why or why not.
According to the ALJ decision, what is the maximum fee an HOA can charge per page for copies of records?
In the context of the $5 assessment increase, how was the two-thirds (2/3) majority calculated?
Why was the proxy vote cast for Ed Freeman eventually disregarded in the final tabulation of the May 2017 vote?
Under the Colonia Del Rey Bylaws, who is responsible for the management of the HOA's business affairs?
What was the Petitioner’s argument regarding his right to contact the IRS and the HOA’s insurance agent?
What constitutes a "preponderance of the evidence" in an administrative hearing?

IV. Essay Prompts for Deeper Exploration

The Tension Between Transparency and Burdensome Requests: Analyze the ALJ's conclusion regarding Complaint One. How should an HOA balance its statutory duty to provide records with the practical limitations of being a small, volunteer-run organization without a physical office?
Statutory Interpretation of "Notice": Discuss the legal distinction between "causing notice to be sent" and the member's "actual receipt" of notice. Why is this distinction vital for the administrative functioning of a homeowners' association?
The Limits of Homeowner Enforcement Rights: Petitioner argued that CC&R Article XIV gave him the right to enforce rules, which he interpreted as authority to contact vendors and the IRS. Critique this interpretation based on the ALJ’s findings regarding the separation of member privileges and Board authority.
Validity of HOA Actions: Evaluate the May 6, 2017, assessment vote. Even though the HOA initially provided incorrect information on the ballot (stating 6 votes were needed) and allowed an invalid proxy, the ALJ upheld the vote. Explain the legal reasoning that allowed the vote to stand.

V. Glossary of Important Terms

A.R.S. § 33-1804(B): The Arizona statute governing the requirements and timelines for notifying members of HOA meetings.
A.R.S. § 33-1805: The Arizona statute mandating that HOA financial and other records be made reasonably available to members.
Absentee Ballot: A ballot cast by a member who is not physically present at a meeting; in this case, permitted via email.
Administrative Law Judge (ALJ): A judge who presides over hearings and makes decisions in cases involving government agency rules or specialized statutes (e.g., the Department of Real Estate).
Bylaws: The rules governing the internal management of the HOA, including the duties of the Board and the rights of members.
CC&Rs (Covenants, Conditions, and Restrictions): The legal documents that lay out the guidelines for the community and the rights/obligations of the homeowners.
Preponderance of the Evidence: The legal standard of proof in this case, meaning that a claim is "more probably true than not."
Proxy Vote: A vote cast by one person on behalf of another. In this case, the ALJ confirmed that such votes were prohibited by state law and HOA resolution.
Quorum: The minimum number of members who must be present (in person or by absentee ballot) at a meeting to make the proceedings of that meeting valid.
Ramada: A common area structure in the Colonia Del Rey HOA used for records review and meetings.
TIN (Taxpayer Identification Number): A unique number used by the IRS to identify a business entity or organization like an HOA.

Lessons from the Courtroom: A Homeowner’s Legal Challenge to HOA Governance

1. Introduction: Small Association, Big Legal Stakes

The legal landscape of homeowner associations (HOAs) often involves sprawling master-planned communities with hundreds of residents. However, the case of Gregory L. Czekaj v. Colonia Del Rey HOA, Inc. (No. 19F-H1918040-REL) serves as a potent reminder that legal stakes remain high regardless of community size.

Colonia Del Rey is a micro-community in Tucson, Arizona, consisting of just nine homes on a private road. It has no central office and no pool, and its Board is comprised entirely of elected volunteers. Yet, this tiny association found itself before the Office of Administrative Hearings defending its governance against four separate complaints from a single homeowner. As a legal analyst, I find this case particularly instructive because the Administrative Law Judge’s (ALJ) decision provides a definitive roadmap for record requests, voting thresholds, and the strict boundaries of homeowner authority versus Board management.

2. Record Requests: "Burdensome" vs. "Legal Right"

In Complaint One, the Petitioner alleged the HOA violated A.R.S. § 33-1805 by failing to provide requested records. The conflict began when the Petitioner issued a sweeping request to review "any and all" association documents. The HOA President initially pushed back, labeling the request "burdensome" and asking for specificity—a move the Tribunal later interpreted as a reasonable administrative response for a small, volunteer-run entity.

The following table analyzes the friction between the Petitioner’s allegations and the HOA’s documented compliance:

Petitioner’s Allegations	HOA’s Documented Responses & Legal Context
Withholding Organizational Docs: Claimed the HOA failed to provide current Articles of Incorporation, forcing him to pay $54 to the state for them.	Fulfilled Electronically: The HOA provided the Articles, Bylaws, and CC&Rs via email on May 14. The Tribunal ruled the request was satisfied once the member replied "thank you."
Incomplete Financial Review: Alleged tax returns and insurance policies were missing during a November 23 records review.	Coordinated Access: The HOA facilitated a two-hour review session. Remaining records (tax returns/invoices) were emailed on Nov 30 after being finalized by the CPA.
Access to Physical Copies: Challenged the logistics of obtaining hard copies of the records reviewed.	Governance Rule: Per A.R.S. § 33-1805(A), HOAs may charge up to 15 cents per page for copies and have 10 business days to produce them after a specific request is made.

Analyst’s Note: The ALJ concluded the HOA complied with the law because they provided records within 10 business days of the Petitioner clarifying his broad request. For boards, the takeaway is clear: broad requests can be legally treated as burdensome, but once specified, the statutory clock starts.

3. The $5 Assessment Increase: Navigating Voting Math

Complaint Two challenged a 2017 vote that raised monthly assessments from $75 to $80. The Petitioner argued the vote was invalid because a proxy was cast for a tenant (Ed Freeman), which violated both A.R.S. § 33-1812(A) and the HOA’s own policies.

While the proxy vote was indeed improper and eventually discarded, the Tribunal’s analysis of the "Math of Governance" is where the most critical professional insight lies. Many associations struggle to distinguish between a "majority of all members" and a "majority of votes cast."

The Voting Requirement: Under Article IV, Section 5(b) and (f) of the CC&Rs, the increase required approval by 2/3 of the votes cast—not 2/3 of the total membership.
The Final Valid Tally: After discarding the invalid proxy and accounting for eligible members present, the count was 5 "YES" and 1 "NO."
The Calculation: 5 (Yes) / 6 (Total) = 83.3% Approval.

Governance Tip: Because the 83.3% approval rate comfortably exceeded the 66.6% (2/3) threshold, the Judge ruled the assessment increase valid. Associations must meticulously check their CC&Rs to see if thresholds apply to "total membership" or "votes cast," as this distinction often saves a vote from failure due to low turnout.

4. The Notice Requirement: "Sent" vs. "Received"

In Complaint Three, the Petitioner sought to invalidate Bylaw amendments, claiming he received the meeting notice only nine days before the vote—one day short of the 10-day requirement in A.R.S. § 33-1804(B).

The Tribunal’s interpretation reinforces a vital legal standard: The law requires the HOA to "cause notice" (hand-deliver or mail) at least 10 days in advance; it does not require the HOA to guarantee the date of receipt by the member.

The HOA Secretary proved that notice packages were mailed on November 5 for the November 18 meeting (13 days prior). Furthermore, the Board utilized a "multi-channel" approach by emailing the notice on November 4. The Judge clarified that a member's failure to receive actual notice does not invalidate the meeting's actions, provided the HOA initiated the mailing within the statutory window.

5. The Limits of Membership: You are an Owner, Not an Officer

The most contentious conflict (Complaint Four) involved the Petitioner contacting the HOA’s insurance agent and the IRS to obtain the association’s Taxpayer Identification Number (TIN). The HOA filed a police report, citing fiduciary responsibility after the IRS suggested the inquiry could indicate potential identity theft.

The Judge used this as a teaching moment regarding the hierarchy of authority:

Privileges vs. Administrative Rights: A member’s privileges (voting, holding office, using common areas) do not grant "administrative rights."
The Enforcement Misconception: The Petitioner cited Article XIV, Section 1 of the CC&Rs, which gives owners the right to "enforce" restrictions. The Judge ruled this only allows an owner to petition the Board to take action—it does not authorize a homeowner to manage vendors, contact insurance agents, or engage with the IRS on the association’s behalf.

Analyst’s Note: The Judge noted the Petitioner was "propelled by certain motives" (personal disagreement with Board policy) rather than statutory violations. Neither party prevailed on this complaint because there was no "preponderance of evidence" of intentional misrepresentation, but the legal warning was clear: ownership does not equal agency.

6. Conclusion: Key Takeaways for HOA Members and Boards

The Final Order deemed the HOA the prevailing party on three out of four complaints. Under A.R.S. § 32-2199, the Petitioner bore the burden of proof—he had to prove his claims were "more probably true than not." His failure to do so highlights the importance of evidence over grievance.

Critical Takeaways for HOA Governance:

Clarity in Record Requests: Overly broad "any and all" requests are often deemed burdensome. Boards should provide access but can insist on specificity to manage limited volunteer resources.
Statutory Compliance over Perception: For meeting notices, the legal benchmark is the date the notice is sent. Associations should document mailing dates (and utilize email as a backup) to provide a "belt and suspenders" defense against notice claims.
Respect the Governance Hierarchy: While owners have a right to review records, they have no authority to manage the association’s administrative affairs. A board’s fiduciary duty includes protecting sensitive data like the TIN from unauthorized member inquiries.

In the end, this case demonstrates that even in a community of nine homes, a deep understanding of Arizona Revised Statutes (A.R.S.) and the specific language of the CC&Rs is the only way to navigate—and successfully resolve—the complexities of HOA governance.

Case Participants

Petitioner Side

Gregory L. Czekaj (petitioner)
Homeowner
Appeared on his own behalf; also Respondent in consolidated counter-claim
Gary Wolf (petitioner's attorney)
Contacted HOA attorney regarding records request

Respondent Side

Marybeth Andree (HOA President)
Colonia Del Rey HOA, Inc.
Represented the HOA; testified at hearing
Carolyn Goldschmidt (HOA attorney)
Responded to Petitioner's attorney regarding records
Sarah Hitch (proxy holder)
Colonia Del Rey HOA, Inc.
Member who cast a proxy vote for Ed Freeman
Phil Oliver (board member)
Colonia Del Rey HOA, Inc.
Provided email clarification regarding the vote; wrote letter regarding irregularities
Susan Sotelo (HOA secretary)
Colonia Del Rey HOA, Inc.
Mailed the ballots for the meeting

Neutral Parties

Kay Abramsohn (ALJ)
Office of Administrative Hearings
Administrative Law Judge presiding over the hearing
Mr. Tick (witness)
State Farm (implied)
HOA insurance agent; testified regarding Petitioner's request for policy
Ed Freeman (tenant)
Tenant living in Oregon; subject of proxy vote dispute
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Recipient of the transmitted order

Peter de Scheel vs. Sandpiper Scottsdale Association, Inc.

Posted on June 19, 2019 by [email protected]

Case Summary

Case ID	19F-H1919048-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-06-19
Administrative Law Judge	Velva Moses-Thompson
Outcome	The ALJ granted the petition, finding that the HOA violated the CC&Rs. The evidence established that architectural beams are part of the 'exterior' which the Association must maintain, rather than the 'roof' which is excluded from Association maintenance. The HOA failed to prove by a preponderance of the evidence that beams were part of the roof.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Peter de Scheel	Counsel	—
Respondent	Sandpiper Scottsdale Association, Inc.	Counsel	Bradley R. Jardine

Alleged Violations

Article V Section 1; Article VI Section 1(c)

Outcome Summary

The ALJ granted the petition, finding that the HOA violated the CC&Rs. The evidence established that architectural beams are part of the 'exterior' which the Association must maintain, rather than the 'roof' which is excluded from Association maintenance. The HOA failed to prove by a preponderance of the evidence that beams were part of the roof.

Key Issues & Findings

Exterior Maintenance Responsibility (Architectural Beams)

Petitioner alleged the HOA violated CC&Rs by requiring him to repair architectural beams. The dispute centered on whether beams were part of the 'roof' (owner responsibility) or 'exterior' (HOA responsibility).

Orders: Respondent shall reimburse Petitioner the $500.00 filing fee. Respondent is responsible for the repair and maintenance of architectural beams.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

Article V Section 1
Article VI Section 1(c)

Video Overview

Audio Overview

Decision Documents

19F-H1919048-REL Decision – 716710.pdf

Uploaded 2026-04-24T11:19:18 (103.6 KB)

Administrative Law Judge Decision: de Scheel v. Sandpiper Scottsdale Association, Inc.

Executive Summary

This briefing document analyzes the administrative decision in the matter of Peter de Scheel vs. Sandpiper Scottsdale Association, Inc. (No. 19F-H1919048-REL). The dispute centered on whether the Sandpiper Scottsdale Association (the Respondent) or the homeowner, Peter de Scheel (the Petitioner), was responsible for the repair and maintenance of architectural wood beams on the Petitioner’s property.

The Administrative Law Judge (ALJ), Velva Moses-Thompson, ruled in favor of the Petitioner. The decision determined that under the Association's Covenants, Conditions, and Restrictions (CC&Rs), architectural wood beams are classified as part of the "exterior building surfaces," which the Association is obligated to maintain. The Association's argument that the beams were part of the roof—an item specifically excluded from Association maintenance—was rejected. As a result, the Association was ordered to cease requiring the Petitioner to perform these repairs and to reimburse his $500 filing fee.

Analysis of Key Themes

1. Interpretation of Maintenance Obligations under CC&Rs

The core of the legal dispute rested on the interpretation of Article V, Section 1 and Article VI, Section 1(c) of the Respondent’s CC&Rs.

Association Obligations: The CC&Rs mandate that the Association provide exterior maintenance for each "Improved Lot." This includes painting, repairing, replacing, and caring for "exterior building surfaces and other such exterior improvements."
Specific Exclusions: The CC&Rs list specific items for which the Association is not responsible. These include:
Roofs (except for Condominium Lots).
Glass surfaces, air conditioning units, and landscaping (trees, shrubs, grass).
Walks, driveways, and parking areas.
Improvements within a patio or enclosed yard.

The Petitioner successfully argued that because architectural wood beams were not specifically listed in these exclusions, they fell under the general category of "exterior building surfaces" maintained by the Association.

2. The Distinction Between "Roof" and "Architectural Beams"

The Respondent attempted to classify the architectural beams as part of the "roof" to trigger the maintenance exclusion. However, the ALJ found this argument inconsistent with the Association's own communications. Both the community manager and the Board President had issued communications (newsletters and emails) that listed "roofs" and "architectural beams" as separate items.

The Judge concluded that the Respondent failed to prove by a preponderance of the evidence that architectural beams are legally or functionally part of the roof. Instead, the evidence supported the conclusion that they are exterior building surfaces.

3. Burden of Proof and Evidentiary Standards

The case was decided based on the preponderance of the evidence—meaning the proof showed the Petitioner’s contention was "more probably true than not."

Petitioner’s Burden: To establish that the Association violated the CC&Rs by shifting maintenance responsibility to the homeowner.
Respondent’s Burden: To establish affirmative defenses (e.g., that the beams were part of the roof and thus excluded from Association maintenance).

The court found the Petitioner met his burden, while the Respondent did not provide sufficient evidence to support its reclassification of the beams.

4. Association Classification (Planned Unit Development vs. Condominium)

A secondary theme involved the legal nature of the Association. While the CC&Rs contained language regarding "Condominium Lots," the Board President testified that the development is a Planned Unit Development (PUD) and never met the criteria for a condominium association because a "declaration of horizontal property regime" was never submitted. This distinction influenced the application of Article V, Section 1, which has different roof maintenance rules for Condominium Lots versus standard Improved Lots.

Important Quotes with Context

Quote	Context
"The Association shall provide exterior maintenance upon each Improved Condominium Lot and Improved Lot… as follows: paint, repair, replace and care for exterior building surfaces."	Article V, Section 1 of the CC&Rs. This serves as the primary basis for the Association's duty to maintain the exterior of the homes.
"Such exterior maintenance shall not include roofs, except in the case of Improved Condominium Lots."	Article V, Section 1 of the CC&Rs. This is the specific exclusion the Association attempted to use to avoid responsibility for the beams.
"Please remember that our CC&Rs require each owner to maintain their property including driveways, roofs, architectural beams and posts…"	Newsletter/Email from Respondent. This internal communication was used as evidence against the Association, as it listed roofs and beams as separate entities.
"Respondent did not establish by a preponderance of the evidence that the architectural beams are a part of the roof."	ALJ Conclusion of Law. The Judge's final determination on the Association's primary defense.
"Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein."	Legal Standard cited by the ALJ. Explains the methodology used to interpret the Association's governing documents.

Actionable Insights

For Homeowners’ Associations (HOAs)

Consistency in Communication: Associations must ensure that newsletters and informal communications do not contradict or broaden the scope of the CC&Rs. By listing "beams" separately from "roofs" in a newsletter, the Association undermined its own legal argument that beams were part of the roof.
Definition of Exclusions: If an Association intends for specific exterior elements (like beams or posts) to be the owner's responsibility, those items should be explicitly listed in the "Exclusions" section of the CC&Rs.
Historical Practice vs. Written Code: The Association argued that homeowners had "historically" repaired roofs. However, historical practice does not override unambiguous language in the CC&Rs regarding "exterior building surfaces."

For Homeowners

Reviewing Specific CC&R Articles: When faced with a repair notice, homeowners should cross-reference the specific repair requested against the "Exterior Maintenance" sections of their CC&Rs.
Identifying Omissions: If a specific architectural feature is not listed in the "Association shall not maintain" list, there is a strong legal argument that it remains the Association's responsibility as an "exterior surface."

Legal Implications

Reimbursement of Fees: Under A.R.S. § 32-2199.02(B), if an Association is found in violation of its governing documents, it may be ordered to reimburse the Petitioner’s filing fees ($500 in this case).
Binding Nature: The ALJ’s order is binding unless a rehearing is granted by the Commissioner of the Department of Real Estate within 30 days.

Study Guide: de Scheel v. Sandpiper Scottsdale Association, Inc.

This study guide provides a comprehensive overview of the administrative law case Peter de Scheel v. Sandpiper Scottsdale Association, Inc. (No. 19F-H1919048-REL). It covers the legal disputes regarding homeowner association (HOA) maintenance responsibilities, the interpretation of restrictive covenants, and the evidentiary standards used in Arizona administrative hearings.

1. Case Overview and Background

Core Dispute

The primary issue in this case was determining whether the homeowner (Petitioner) or the Homeowners Association (Respondent) was responsible for the repair and maintenance of disintegrating architectural wood beams.

Petitioner: Peter de Scheel, a homeowner in the Sandpiper Scottsdale Association.
Respondent: Sandpiper Scottsdale Association, Inc., a planned unit development.
Initial Action: In August 2018, the HOA notified the Petitioner that he must repair his architectural wood beams by December 25, 2018. The Petitioner argued the HOA was responsible under the community's governing documents.

Legal Context

The case was heard by the Office of Administrative Hearings under the authority of the Arizona Department of Real Estate (ADRE). Per A.R.S. § 32-2199(B), the ADRE is authorized to decide petitions regarding violations of planned community documents.

2. Key Legal Concepts

The Burden of Proof

In this administrative matter, the Petitioner held the burden of proof to establish a violation of the Covenants, Conditions, and Restrictions (CC&Rs) by a preponderance of the evidence.

Definition: A preponderance of the evidence means that the contention is "more probably true than not" or possesses "superior evidentiary weight."
Affirmative Defenses: The Respondent bears the burden to establish any affirmative defenses using the same standard.

Interpretation of CC&Rs

Arizona law requires that unambiguous restrictive covenants be enforced to give effect to the intent of the parties. Covenants must be:

Construed as a whole.
Interpreted in view of their underlying purposes.
Evaluated to give effect to all provisions contained within them.

Governing CC&R Articles

The case centered on the following provisions from the Sandpiper Scottsdale Association CC&Rs:

Provision	Title	Key Language/Requirement
Article V, Section 1	Exterior Maintenance	The Association shall provide exterior maintenance upon each Improved Lot (paint, repair, replace exterior building surfaces).
Article VI, Section 1(c)	Duties and Powers	The Association shall maintain the exterior of Living Units subject to the limitations in Article V.
Article I, Section 9	Definitions	Defines "Lot" and "Improved Lot" (a lot with a completed single-family residence).

3. Evidence and Testimony

Arguments for the Homeowner (Petitioner)

Architectural beams are part of the exterior building surface.
Article V, Section 1 does not list "architectural beams" as an exception to the Association’s maintenance duties.
While roofs are an exception, architectural beams are distinct from the roof.

Arguments for the Association (Respondent)

Historical Practice: The Association has consistently required homeowners to repair beams for years.
Roof Categorization: The Board President argued that architectural beams are functionally part of the roof (which homeowners are responsible for maintaining).
Association Status: Although the CC&Rs mention "condominiums," the Association argued it is a planned unit development because no declaration of horizontal property regime was ever submitted.

Findings of the Administrative Law Judge (ALJ)

The ALJ determined that the Association failed to prove that architectural beams are part of the roof. Because the CC&Rs specifically distinguished roofs from architectural beams in newsletters and failed to list beams as an exception in Article V, the Association was found responsible for their maintenance.

4. Short-Answer Practice Questions

What was the specific deadline given to the Petitioner to repair the wood beams?

Answer: December 25, 2018.

According to Article V, Section 1, what are the specific exceptions to the Association's exterior maintenance responsibility?

Answer: Roofs (except for Improved Condominium Lots), glass surfaces, air conditioning units, trees, shrubs, grass, walks, driveways, parking areas, landscaping, and improvements within patio or enclosed yard spaces.

What amount was the Respondent ordered to reimburse the Petitioner following the decision?

Answer: $500.00 (the filing fee for the petition).

Who served as the Administrative Law Judge for this case?

Answer: Velva Moses-Thompson.

How does Article I, Section 9 define an "Improved Lot"?

Answer: A Lot upon which has been completed a single-family residence.

Under what Arizona Revised Statute is the Order binding on the parties?

Answer: A.R.S. § 32-2199.02(B).

5. Essay Prompts for Deeper Exploration

The Role of Historical Practice vs. Written Contract: Analyze the Association's argument that they had "consistently required" homeowners to repair beams since 1984. Why did the ALJ prioritize the written text of the CC&Rs over the historical testimony of the community managers?
Ambiguity in Restrictive Covenants: The Respondent argued that architectural beams should be considered part of the roof. Discuss how the Association’s own communication (newsletters and emails) undermined this argument and how it impacted the ALJ’s determination that the beams were part of the "exterior."
Condominium vs. Planned Unit Development: The CC&Rs describe a "planned residential area consisting of townhouses, interspersed condominiums and common area." However, testimony suggested the Association never met the criteria for a condominium. Explain how this distinction (or lack thereof) influenced the interpretation of maintenance responsibilities for roofs under Article V.

6. Glossary of Important Terms

A.R.S. § 32-2199: The Arizona statute granting the Department of Real Estate the authority to hear disputes between homeowners and associations.
CC&Rs (Covenants, Conditions, and Restrictions): The governing documents that outline the rules, requirements, and responsibilities of homeowners and the association within a development.
Declarant: The entity (usually the developer) that originally created the CC&Rs and the community.
Horizontal Property Regime: A legal structure required to officially establish a condominium; the Respondent argued this was never submitted.
Improved Lot: A plot of land within the subdivision that has a completed single-family residence.
Living Unit: A term used in the CC&Rs to refer to the individual residential structures within the development.
Preponderance of the Evidence: The evidentiary standard in civil and administrative cases requiring that a claim be more likely true than not.
Restrictive Covenant: A provision in a deed or a set of CC&Rs that limits or dictates the use of the property or the obligations of the owner.

Homeowner vs. HOA: Who Really Pays for Architectural Wood Beams?

1. Introduction: The High Stakes of HOA Maintenance

In the often-contentious world of planned communities, few things trigger a legal battle faster than a high-cost repair bill. For many homeowners, the relationship with their Homeowners’ Association (HOA) is a delicate balance of shared benefits and individual burdens. However, when an Association attempts to shift its maintenance obligations onto individual owners through creative—and often legally flawed—interpretations of governing documents, the stakes escalate from mere disagreement to a pivotal fight for property rights.

The case of Peter de Scheel vs. Sandpiper Scottsdale Association, Inc. serves as a landmark victory for homeowners facing arbitrary assessments. At the center of this dispute was a seemingly simple question: Who is responsible for "disintegrating" architectural wood beams? The outcome provides a masterclass in how to hold a Board accountable to the literal text of the law.

2. The "Beams of Contention": Background of the Dispute

The conflict began on August 21, 2018, when the Sandpiper Scottsdale Association (the Association) issued a formal notification to homeowner Peter de Scheel. The Association alleged that the architectural wood beams on his property were "disintegrating" and demanded their repair by December 25, 2018.

Mr. de Scheel, recognizing the financial implications of this demand, challenged the Board's authority. He argued that under the community’s Covenants, Conditions, and Restrictions (CC&Rs), the maintenance of these structural exterior elements was the Association's responsibility, not his. When the Association refused to yield, de Scheel took the necessary legal step to protect his interests: he filed a single-issue petition with the Arizona Department of Real Estate on February 14, 2019. He alleged a direct violation of Article V and Article VI of the CC&Rs, setting the stage for an evidentiary hearing to determine the boundaries of contractual obligation.

3. Decoding the CC&Rs: What the Rules Actually Say

As any seasoned legal analyst knows, the CC&Rs are the "constitution" of the community. In this case, the Administrative Law Judge (ALJ) focused on Article V, Section 1 and Article VI, Section 1(c) to determine where the Association’s duties ended and the Homeowner’s began.

The Association’s Maintenance Scope Per the CC&Rs, the Association is mandated to provide exterior maintenance upon each Improved Lot, specifically to:

Paint, repair, and replace exterior building surfaces.
Maintain and care for "other such exterior improvements."

The Explicit Exceptions The governing documents also provide a definitive list of items the Association is not responsible for. These exceptions are narrow and must be interpreted strictly:

Roofs (Except in the case of Improved Condominium Lots).
Glass surfaces and air conditioning units.
Landscaping, including trees, shrubs, and grass.
Walks, driveways, and parking areas.
Improvements built by an owner within a patio or enclosed yard space.

The Critical Omission Under the principle of contractual interpretation, what is not listed is often as important as what is. The ALJ noted that "architectural beams" were conspicuously absent from the list of exceptions. Furthermore, the definition of an "Improved Lot" in Article I, Section 13 made a clear distinction between a standard Lot and a Condominium Lot—a distinction that would later prove fatal to the Association’s defense.

4. The HOA’s Defense: A Failure of Legal Consistency

The Association’s defense strategy relied on a blend of witness testimony and a shifting legal identity. Witnesses Mary Lou Pace (Community Manager), Pamela L. Polo (Former Property Manager), and Carol Nesland (Board President) all attempted to argue that architectural beams should be classified as part of the "roof," thereby falling under the maintenance exception.

However, the Association struggled with its own legal standing. In its initial written answer to the petition, the Association claimed to be a condominium association. Yet, during the hearing, Board President Carol Nesland reversed this position, admitting the Association was actually a planned unit development (PUD). She conceded that the developers had never filed a "declaration of horizontal property regime"—the legal instrument required to create a condominium. Without this regime, the Association could not legally enforce the "roof" exception against Mr. de Scheel, as the CC&Rs only applied that exception to "Improved Condominium Lots."

Perhaps most damaging to the Association was its own history of communication. The Homeowner presented a January 2019 email from the Community Manager and a newsletter from the Board President that explicitly listed "roofs" and "architectural beams" as separate maintenance items. In legal terms, this constituted a "party admission." By distinguishing between the two in their own correspondence, the Association undermined their affirmative defense that the beams were merely an extension of the roof.

5. The Verdict: A Victory for Homeowner Clarity

The ALJ applied the "Preponderance of the Evidence" standard, which requires the evidence to show that a contention is "more probably true than not." While the Homeowner bore the initial burden of proving a violation, the Association bore the burden of proving its affirmative defense—that the beams fell under the roof exception.

The judge found the Association’s arguments unconvincing. The evidence demonstrated that the beams were exterior building surfaces, and the Association failed to prove they were legally part of the roof.

The Final Order On June 19, 2019, the ALJ ruled in favor of the Homeowner, Peter de Scheel. The Association was found in violation of the CC&Rs for attempting to force the Homeowner to repair the beams. In a final symbolic and financial victory for de Scheel, the judge ordered the Association to reimburse the Homeowner’s $500.00 filing fee.

6. Key Takeaways for Homeowners and Boards

This case serves as a vital reminder that an HOA's power is not absolute; it is strictly limited by its own governing documents.

Specificity in CC&Rs is Mandatory: If an item is not explicitly listed as an exception to the Association’s maintenance duties, it generally remains the Association’s responsibility under "exterior building surfaces." Courts will not "read in" exceptions that aren't there.
Internal Communications are Evidence: Newsletters and emails are not just community updates; they are legal records. When a Board separates items in a newsletter for "clarity," they may inadvertently create evidence that those items are legally distinct entities.
The Burden of Affirmative Defenses: If an HOA claims a maintenance item is a homeowner’s responsibility based on an exception in the CC&Rs, the HOA bears the burden of proving that exception applies. A failure to maintain legal consistency—such as the "Condo vs. PUD" flip-flop seen here—can destroy the Board's credibility.

Homeowners should never accept a Board's demand for repair at face value. Before opening your wallet, conduct an audit of your CC&Rs. If the documents do not explicitly exempt the Association from maintaining a specific exterior element, the Law may be on your side.

Case Participants

Petitioner Side

Peter de Scheel (Petitioner)
Homeowner
Appeared on behalf of himself

Respondent Side

Bradley R. Jardine (Attorney)
Jardine, Baker, Hickman & Houston, P.L.L.C.
Attorney for Sandpiper Scottsdale Association, Inc.
Mary Lou Pace (Community Manager)
Sandpiper Scottsdale Association, Inc.
Witness; also referred to as Mary Loud Pace
Carol Nesland (Board President)
Sandpiper Scottsdale Association, Inc.
Witness; President of the Board of Directors
Pamela L. Polo (Former Property Manager)
Sandpiper Scottsdale Association, Inc.
Witness; manager from 1984 to 2015

Neutral Parties

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

Victor L Pattarozzi v. Estrella Vista Homeowners Association

Posted on June 5, 2019 by [email protected]

Case Summary

Case ID	19F-H1919047-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-06-05
Administrative Law Judge	Thomas Shedden
Outcome	The Administrative Law Judge dismissed the petition, ruling that the Architectural Committee meetings of the HOA were not 'regularly scheduled' within the meaning of ARIZ. REV. STAT. § 33-1804, and therefore the HOA was not required to hold them open to association members.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Victor L Pattarozzi	Counsel	—
Respondent	Estrella Vista Homeowners Association	Counsel	Andrew Apodaca, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the Architectural Committee meetings of the HOA were not 'regularly scheduled' within the meaning of ARIZ. REV. STAT. § 33-1804, and therefore the HOA was not required to hold them open to association members.

Why this result: The petitioner failed to prove that the committee meetings met the requirement of being 'regularly scheduled' because the committee did not meet at fixed or uniform intervals, but rather considered applications as they were received.

Key Issues & Findings

Whether the Architectural Committee meetings are 'regularly scheduled' and thus required to be open to members.

Petitioner alleged the HOA violated ARS 33-1804 by failing to hold open meetings of its Architectural Committee (ARC). The ALJ found that because the ARC did not meet on a set schedule or at uniform intervals, it did not hold 'regularly scheduled' meetings as required by the statute, and thus was not required to be open.

Orders: Petitioner's petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

ARIZ. REV. STAT. § 33-1804
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
Gutierrez v. Industrial Commission of Arizona
State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)

Analytics Highlights

Topics: HOA Open Meetings, Architectural Review Committee, Statutory Interpretation, Regularly Scheduled

Additional Citations:

ARIZ. REV. STAT. § 33-1804
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
Gutierrez v. Industrial Commission of Arizona
State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)

Video Overview

Audio Overview

Decision Documents

19F-H1919047-REL Decision – 713039.pdf

Uploaded 2026-04-24T11:19:09 (89.8 KB)

Briefing Document: Pattarozzi vs. Estrella Vista Homeowners Association (Case No. 19F-H1919047-REL)

Executive Summary

This document provides an analysis of the Administrative Law Judge Decision in the matter of Victor L. Pattarozzi vs. Estrella Vista Homeowners Association, Case No. 19F-H1919047-REL. The central issue was whether the homeowner association’s Architectural Review Committee (ARC) was in violation of Arizona state law by not holding open meetings for its members.

The petition, brought by Mr. Pattarozzi, was ultimately dismissed. The Administrative Law Judge, Thomas Shedden, concluded that the Petitioner failed to prove that the Respondent violated ARIZ. REV. STAT. § 33-1804. The decision hinged on the interpretation of the phrase “regularly scheduled committee meetings.” The Judge found that since the ARC did not meet at fixed, uniform, or recurring intervals, but rather on an as-needed basis to review applications, its meetings were not “regularly scheduled” within the meaning of the statute. Consequently, the legal requirement for such meetings to be open to all association members did not apply. The Judge further determined that the state’s declared policy in favor of open meetings explicitly referenced only the association’s and board of directors’ meetings, not committee meetings, and therefore could not be used to compel the ARC meetings to be open.

Case Overview

Case Number

19F-H1919047-REL

Petitioner

Victor L. Pattarozzi

Respondent

Estrella Vista Homeowners Association

Presiding Judge

Thomas Shedden, Administrative Law Judge

Hearing Date

May 16, 2019

Decision Date

June 5, 2019

Jurisdiction

Office of Administrative Hearings, Arizona Department of Real Estate

Allegation: The Petitioner, Victor L. Pattarozzi, alleged that the Estrella Vista Homeowners Association violated ARIZ. REV. STAT. § 33-1804 by failing to hold open meetings for its Architectural Committee (referred to as the Architectural Review Committee or ARC).

Defense: The Respondent association contended that its ARC meetings were not required to be open to members because the meetings were not “regularly scheduled.”

Central Legal Issue: The Definition of “Regularly Scheduled”

The case revolved entirely around the interpretation of a key phrase within Arizona’s planned community statutes.

Governing Statute: ARIZ. REV. STAT. § 33-1804(A) states:

“Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association….”

The core legal question was whether the ARC’s method of conducting business constituted “regularly scheduled” meetings.

Competing Arguments

• Petitioner’s Position (Mr. Pattarozzi):

◦ Mr. Pattarozzi argued that the association could hold weekly ARC meetings and simply cancel them if no applications were pending for review.

◦ He supplied dictionary definitions for “regular” and “regularly” to support his interpretation:

▪ Regularly: (1) “in a regular manner”; (2) “on a regular basis: at regular intervals”.

▪ Regular: (1) “constituted, conducted, scheduled, or done in conformity with established or prescribed usages, rules, or discipline”; (2) “recurring, attending, or functioning at fixed, uniform, or normal intervals”.

◦ He also contended that the state’s declared policy in favor of open meetings, as outlined in subsection 33-1804(F), should be broadly construed to require ARC meetings to be open.

• Respondent’s Position (Estrella Vista HOA):

◦ The association maintained that its ARC meetings were not required to be open because they do not occur on a set schedule. Instead, they are convened only as needed when applications are received.

Findings of Fact

The decision outlined the specific operational procedures of the Architectural Review Committee.

• Composition and Process: The ARC consists of five members. It does not meet on a predetermined schedule. Instead, applications are forwarded by the management company to the Board President, Stuart Glenn.

• “Rubber Stamp” Approvals: The ARC has a pre-approved “rubber stamp” process for certain requests, such as solar panel installations and repainting with a pre-approved color. These requests are approved without further review by the full committee.

• Application Volume: As of the May 16, 2019 hearing, the ARC had received twelve applications in 2019. Of these, eight were subject to the “rubber stamp” approval process.

• Non-Standard Applications: For any application not meeting the rubber-stamp criteria, Mr. Glenn forwards it to the other four ARC members, who individually report back on their approval or disapproval.

Legal Reasoning and Decision

The Administrative Law Judge’s conclusions of law provided a detailed statutory interpretation that led to the dismissal of the petition.

Interpretation of “Regularly Scheduled”

The Judge determined that the legislature intentionally distinguished between different types of meetings. While the law mandates that all meetings of the members’ association and the board of directors must be open, it applies a specific qualifier—”regularly scheduled”—to committee meetings. This implies that not all committee meetings must be open.

The Judge adopted the Petitioner’s second definition of “regular”: “recurring, attending, or functioning at fixed, uniform, or normal intervals.” This interpretation was deemed to provide a fair and sensible result.

The Judge explicitly rejected the Petitioner’s first definition—”done in conformity with established or prescribed usages, rules, or discipline”—on the grounds that it would render the word “regular” redundant. The Judge reasoned that all committee meetings are presumed to be conducted according to established rules, so applying this definition would make the statutory language trivial.

Rejection of the “Open Meeting Policy” Argument

The Petitioner argued that subsection 33-1804(F), which declares a state policy in favor of open meetings, should apply. The Judge rejected this argument based on the specific text of the statute:

“It is the policy of this state as reflected in this section that all meetings of a planned community, whether meetings of the members’ association or meetings of the board of directors of the association, be conducted openly ….”

The Judge noted that this policy statement explicitly references only meetings of the “members’ association” and the “board of directors,” and omits any mention of committee meetings. Therefore, the policy could not be used to compel the ARC meetings to be open.

Final Order

Ruling: IT IS ORDERED that Victor L. Pattarozzi’s petition is dismissed.

Justification: The Petitioner, who bore the burden of proof, did not establish by a preponderance of the evidence that the Estrella Vista Homeowners Association violated ARIZ. REV. STAT. § 33-1804. The Judge concluded that the ARC “does not hold ‘regularly scheduled’ meetings within the meaning of” the statute.

Next Steps: The decision is binding unless a party files a request for rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

Study Guide: Pattarozzi v. Estrella Vista Homeowners Association

This study guide provides a comprehensive review of the Administrative Law Judge Decision in case number 19F-H1919047-REL, concerning a dispute between Victor L. Pattarozzi and the Estrella Vista Homeowners Association. The guide includes a quiz with an answer key, a set of 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 2-3 complete sentences, based on the information provided in the source document.

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

2. What specific violation did Petitioner Victor L. Pattarozzi allege against the Respondent, the Estrella Vista Homeowners Association?

3. What was the central argument made by the Estrella Vista Homeowners Association to defend its Architectural Review Committee’s meeting practices?

4. Describe the composition of the Architectural Review Committee (ARC) and its method for reviewing applications.

5. What was the “rubber stamp” process used by the ARC, and how many of the 12 applications received in 2019 were approved this way?

6. What suggestion did Mr. Pattarozzi offer for how the ARC could schedule its meetings to comply with his interpretation of the statute?

7. Which of Mr. Pattarozzi’s proposed definitions for the word “regular” did the Administrative Law Judge ultimately accept as the most appropriate interpretation in this context?

8. According to the judge’s Conclusions of Law, why was Mr. Pattarozzi’s argument regarding the open meetings policy statement in subsection 33-1804(F) rejected?

9. Who bears the burden of proof in this matter, and what is the required standard of proof?

10. What was the final Order issued by the Administrative Law Judge in this case, and on what date was it issued?

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Answer Key

1. The primary parties were the Petitioner, Victor L. Pattarozzi, who brought the complaint, and the Respondent, the Estrella Vista Homeowners Association, which was defending its actions. Mr. Pattarozzi appeared on his own behalf, while the HOA was represented by Andrew Apodaca, Esq. and its Board president, Stuart Glenn.

2. Mr. Pattarozzi alleged that the Estrella Vista Homeowners Association violated ARIZ. REV. STAT. sections 33-1804 and 33-1805. His specific claim was that the HOA’s Architectural Review Committee (ARC) was failing to hold open meetings as required by section 33-1804.

3. The HOA’s position was that its ARC meetings were not required to be open to all members because the meetings were not “regularly scheduled.” The statute only mandates that “regularly scheduled committee meetings” must be open.

4. The ARC consists of five members and does not meet on a set schedule, instead considering applications as they are received. The Board president, Mr. Glenn, receives applications, determines if they meet “rubber-stamp” criteria, and if not, forwards them to the other four members for their agreement or disagreement.

5. The “rubber stamp” process was a pre-approved method for approving requests for solar panels and repainting using preapproved colors without further review. Of the twelve applications received by the ARC in 2019, eight were subject to this rubber-stamp approval.

6. Mr. Pattarozzi argued that the Respondent could schedule ARC meetings on a weekly basis. If there were no applications pending for a given week, the HOA could simply cancel the meeting.

7. The judge accepted Mr. Pattarozzi’s second definition of “regular,” which was “recurring, attending, or functioning at fixed, uniform, or normal intervals.” The judge concluded this meant only committee meetings scheduled on a recurring basis at uniform intervals must be open.

8. The argument was rejected because the policy statement in subsection 33-1804(F) explicitly references only the “meetings of the members’ association or meetings of the board of directors.” Because committee meetings were not mentioned in that specific subsection, the judge ruled that its strong policy in favor of open meetings did not apply to them.

9. The Petitioner, Mr. Pattarozzi, bears the burden of proof. The standard of proof required to decide all issues in the matter is a “preponderance of the evidence.”

10. The final Order was that Victor L. Pattarozzi’s petition be dismissed. This Order was issued on June 5, 2019.

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Essay Questions

1. Analyze the Administrative Law Judge’s interpretation of ARIZ. REV. STAT. section 33-1804. Discuss how the judge used principles of statutory interpretation, such as giving meaning to every word and considering legislative intent, to differentiate between board meetings and committee meetings.

2. Evaluate the strength of Victor L. Pattarozzi’s case. What were his key arguments, including his use of dictionary definitions and the policy statement in subsection 33-1804(F), and why did the judge ultimately find them unconvincing?

3. Discuss the concept of “preponderance of the evidence” as defined in the decision. Explain how this standard of proof applied to Mr. Pattarozzi’s petition and why he failed to meet it.

4. Examine the operational procedures of the Architectural Review Committee (ARC). How did the “rubber stamp” process and the ad-hoc nature of their meetings support the Respondent’s position that the meetings were not “regularly scheduled”?

5. Based on the judge’s reasoning, what specific changes would the Estrella Vista Homeowners Association’s Architectural Committee need to make for its meetings to be considered “regularly scheduled” and therefore required to be open to all members under Arizona law?

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Glossary of Key Terms

Definition

Administrative Law Judge

An official, in this case Thomas Shedden, who presides over administrative hearings, weighs evidence, and makes legal decisions and orders.

Architectural Review Committee (ARC)

A committee of the Estrella Vista Homeowners Association, consisting of five members, responsible for reviewing and approving member applications for things like solar panels and house painting.

ARIZ. ADMIN. CODE

The Arizona Administrative Code, a set of state regulations. In this case, § R2-19-119 established the standard of proof.

ARIZ. REV. STAT.

Arizona Revised Statutes, the laws enacted by the Arizona state legislature. Sections 33-1804 and 33-1805 were the statutes central to this case.

Burden of Proof

The obligation to prove one’s assertion. In this matter, the burden of proof was on the Petitioner, Mr. Pattarozzi.

Department of Real Estate

The Arizona state agency with legal authority over this matter, which issued the initial Notice of Hearing.

Dismissed

The legal term for the final Order in this case, meaning the Petitioner’s petition was rejected and no action was taken against the Respondent.

Office of Administrative Hearings

The venue where the hearing for this case was held on May 16, 2019.

Petitioner

The party who files a petition or brings a legal action against another. In this case, Victor L. Pattarozzi.

Preponderance of the Evidence

The standard of proof required in this case, defined as “The greater weight of the evidence…sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Respondent

The party against whom a petition is filed or an action is brought. In this case, the Estrella Vista Homeowners Association.

Statutory Interpretation

The process by which judges interpret and apply legislation. The decision outlines several principles, such as giving words their ordinary meanings and ensuring no part of a statute is redundant.

Briefing Document: Pattarozzi vs. Estrella Vista Homeowners Association (Case No. 19F-H1919047-REL)

Executive Summary

Case Overview

Case Number

19F-H1919047-REL

Petitioner

Victor L. Pattarozzi

Respondent

Estrella Vista Homeowners Association

Presiding Judge

Thomas Shedden, Administrative Law Judge

Hearing Date

May 16, 2019

Decision Date

June 5, 2019

Jurisdiction

Office of Administrative Hearings, Arizona Department of Real Estate

Defense: The Respondent association contended that its ARC meetings were not required to be open to members because the meetings were not “regularly scheduled.”

Central Legal Issue: The Definition of “Regularly Scheduled”

The case revolved entirely around the interpretation of a key phrase within Arizona’s planned community statutes.

Governing Statute: ARIZ. REV. STAT. § 33-1804(A) states:

The core legal question was whether the ARC’s method of conducting business constituted “regularly scheduled” meetings.

Competing Arguments

• Petitioner’s Position (Mr. Pattarozzi):

◦ Mr. Pattarozzi argued that the association could hold weekly ARC meetings and simply cancel them if no applications were pending for review.

◦ He supplied dictionary definitions for “regular” and “regularly” to support his interpretation:

▪ Regularly: (1) “in a regular manner”; (2) “on a regular basis: at regular intervals”.

◦ He also contended that the state’s declared policy in favor of open meetings, as outlined in subsection 33-1804(F), should be broadly construed to require ARC meetings to be open.

• Respondent’s Position (Estrella Vista HOA):

Findings of Fact

The decision outlined the specific operational procedures of the Architectural Review Committee.

• Application Volume: As of the May 16, 2019 hearing, the ARC had received twelve applications in 2019. Of these, eight were subject to the “rubber stamp” approval process.

Legal Reasoning and Decision

The Administrative Law Judge’s conclusions of law provided a detailed statutory interpretation that led to the dismissal of the petition.

Interpretation of “Regularly Scheduled”

Rejection of the “Open Meeting Policy” Argument

The Petitioner argued that subsection 33-1804(F), which declares a state policy in favor of open meetings, should apply. The Judge rejected this argument based on the specific text of the statute:

Final Order

Ruling: IT IS ORDERED that Victor L. Pattarozzi’s petition is dismissed.

Next Steps: The decision is binding unless a party files a request for rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

Case Participants

Petitioner Side

Victor L Pattarozzi (petitioner)
Appeared and testified on his own behalf

Respondent Side

Andrew Apodaca (attorney)
Goering, Roberts, Rubin, Brogna, Enos & Treadwell-Rubin, P.C.
Attorney for Respondent Estrella Vista Homeowners Association
Stuart Glenn (board member)
Estrella Vista Homeowners Association
Board president who presented testimony for Respondent

Neutral Parties

Thomas Shedden (ALJ)
Office of Administrative Hearings
Judy Lowe (ADRE Commissioner)
Arizona Department of Real Estate
Recipient of transmittal
Felicia Del Sol (Administrative Staff)
Listed in the final section of the document

Vicky Glover v. Foothills Community Association

Posted on May 30, 2019 by [email protected]

Case Summary

Case ID	19F-H1919046-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-05-30
Administrative Law Judge	Tammy L. Eigenheer
Outcome	The Administrative Law Judge denied the petition, concluding that Petitioner failed to establish any violation of A.R.S. § 33-1804 regarding both the DRC's restriction on speaking during specific deliberations and the use of email communications for non-regularly scheduled committee business.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

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

Alleged Violations

A.R.S. § 33-1804

Outcome Summary

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

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

Key Issues & Findings

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

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

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: respondent_win

Cited:

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

Analytics Highlights

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

Additional Citations:

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

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Video Overview

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Decision Documents

19F-H1919046-REL Decision – 712028.pdf

Uploaded 2026-04-24T11:19:00 (94.0 KB)

Briefing Document: Glover v. Foothills Community Association (Case No. 19F-H1919046-REL)

Executive Summary

This document summarizes the Administrative Law Judge Decision in the case of Vicky Glover versus the Foothills Community Association (FCA), where the petitioner’s claims were denied. The petitioner alleged that the FCA’s Design Review Committee (DRC) violated Arizona’s open meeting laws (A.R.S. § 33-1804) on two fronts: first, by conducting unannounced “email meetings” to vote on non-emergency matters, and second, by preventing members from speaking at appropriate times during regularly scheduled DRC meetings.

The Administrative Law Judge (ALJ), Tammy L. Eigenheer, concluded that the petitioner failed to prove any statutory violation. The decision rested on a strict textual interpretation of A.R.S. § 33-1804. Regarding speaking rights, the ALJ determined that while members have a right to speak at an “appropriate time” in committee meetings, the more specific right to speak on an agenda item before a formal vote applies exclusively to Board of Directors meetings, not committee meetings. The judge found it was reasonable for the DRC to rule that a member speaking on another member’s application was not an “appropriate time.”

Concerning the email communications, the ALJ ruled that they do not constitute “regularly scheduled committee meetings” as defined by the statute. Because the email discussions and decisions did not occur at a set weekly, monthly, or quarterly time, they are not subject to the open meeting requirements. The general state policy favoring open meetings was found to be subordinate to the specific statutory language. The petition was therefore denied in its entirety.

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Case Overview

This case involved a dispute between a homeowner and a homeowners association regarding the application of Arizona’s open meeting laws to a committee of the association.

Name / Entity

Representation / Title

Petitioner

Vicky Glover

Appeared on her own behalf

Respondent

Foothills Community Association (FCA)

B. Austin Baillio (Maxwell & Morgan, P.C.)

Adjudicator

Tammy L. Eigenheer

Administrative Law Judge

Jurisdiction

Office of Administrative Hearings

Phoenix, Arizona

Case Timeline

• December 13, 2018 & January 9, 2019: Petitioner attends and records DRC meetings where the alleged violations occurred.

• January 23, 2019: Vicky Glover files a petition with the Arizona Department of Real Estate.

• January 28, 2019: The Department issues a notice to the FCA regarding the petition.

• May 10, 2019: An administrative hearing is held.

• May 30, 2019: The Administrative Law Judge issues the final decision.

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Petitioner’s Allegations

The petitioner, Vicky Glover, alleged that the Foothills Community Association violated Arizona Revised Statutes (A.R.S.) § 33-1804 in two specific ways:

1. Improper Email Meetings: The FCA’s Design Review Committee (DRC) held unannounced meetings via email to vote on non-emergency matters, which should have been handled in open, public meetings.

2. Denial of Speaking Rights: The DRC refused to allow community members, including the petitioner, to speak at an appropriate time during its regularly scheduled meetings, specifically when she wished to speak on other members’ pending requests.

Key Factual Findings

The facts underlying the petition were not in dispute by the parties during the hearing. The key findings of fact established were:

• Organizational Structure:

◦ The FCA Board of Directors is comprised of seven members and meets on the fourth Wednesday of the month at 6:00 p.m.

◦ The Design Review Committee (DRC) is appointed by the Board, is comprised of five members (two of whom are also on the Board), and meets on the second Wednesday of the month at 2:00 p.m.

• Events at DRC Meetings:

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

◦ During these meetings, she was not permitted to speak on issues being discussed related to other members’ pending requests.

• Use of Email by the DRC:

◦ During meetings, DRC members mentioned that additional information for certain requests would be shared via email after the meeting.

◦ Based on this emailed information, DRC members would approve or deny the request.

◦ Decisions made via email between meetings were formally “ratified” at the subsequent DRC meeting.

◦ FCA Manager Pat Wontor testified, denying that the DRC took initial action via email, asserting instead that emails were only used to gather additional information on matters that had already been discussed in an open meeting.

• DRC Policies: A request submitted to the DRC is deemed approved if it is not denied within 60 days.

——————————————————————————–

Legal Analysis and Judge’s Conclusions

The Administrative Law Judge’s decision centered on a strict interpretation of the plain language of A.R.S. § 33-1804. The petitioner bore the burden of proving a violation by a preponderance of the evidence and failed to do so on both counts.

I. Member Speaking Rights at Committee Meetings

The judge analyzed the petitioner’s claim that she was wrongfully denied the right to speak at DRC meetings.

• Governing Statute: A.R.S. § 33-1804(A) states that at “any regularly scheduled committee meetings… all members… shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings.”

• ALJ’s Interpretation: The judge found a critical distinction within the statute’s text. A later clause specifies that “the board… shall permit a member… to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item.”

• Conclusion: The judge ruled that this specific right to speak on an item before a vote applies only to meetings of the Board of Directors, not to committee meetings. For committee meetings, the standard is the more general “appropriate time.” The ALJ concluded it was reasonable for the DRC to determine that having one member speak on another member’s private application was not an “appropriate time.” Therefore, the DRC’s refusal to allow the petitioner to speak did not violate the statute.

II. Email Deliberations and “Meetings”

The judge next addressed the claim that email communications constituted illegal, non-public meetings.

• Governing Statute: A.R.S. § 33-1804(A) mandates that open meeting rules apply to “regularly scheduled committee meetings.”

• ALJ’s Interpretation: The judge concluded that the email discussions, deliberations, and decisions among DRC members did not meet the definition of “regularly scheduled.” These communications did not occur at a set time on a recurring basis (e.g., weekly, monthly, quarterly). While they could be considered a form of meeting, they were not regularly scheduled ones.

• Effect of State Policy: The judge acknowledged the policy statement in A.R.S. § 33-1804(F), which expresses a legislative preference for open meetings. However, the judge ruled that this general policy “does not override the specific provisions of A.R.S. § 33-1804(A) that only ‘regularly scheduled’ committee meetings must be open to the members.”

• Conclusion: Because the email communications were not regularly scheduled, they did not fall under the open meeting requirements of the statute, and no violation occurred.

Final Order and Implications

Based on the legal analysis, the Administrative Law Judge found that the petitioner did not establish any violation of A.R.S. § 33-1804.

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

• Next Steps: The decision is binding on the parties. A party may file a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order, pursuant to A.R.S. § 32-2199.04 and § 41-1092.09.

Study Guide: Glover v. Foothills Community Association (No. 19F-H1919046-REL)

This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Vicky Glover (Petitioner) and the Foothills Community Association (Respondent). It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined and used within the source document.

Quiz: Short-Answer Questions

Instructions: Answer the following questions based on the provided legal decision. Each answer should be two to three sentences long.

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

2. What were the two specific violations of state statutes that the Petitioner alleged?

3. Describe the composition and meeting schedules of the Board of Directors and the Design Review Committee (DRC).

4. What specific action did the Petitioner take during the DRC meetings on December 13, 2018, and January 9, 2019?

5. According to the decision, what was the DRC’s practice regarding decisions made via email between meetings?

6. What is the standard of proof the Petitioner was required to meet, and how does the decision define it?

7. How did the Administrative Law Judge interpret the statutory phrase “an appropriate time” for a member to speak during a committee meeting?

8. Why did the Judge conclude that the DRC’s email communications did not violate the open meeting requirements of A.R.S. § 33-1804?

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

10. What recourse did the parties have if they disagreed with the Judge’s order?

Answer Key

1. The primary parties were Vicky Glover, the Petitioner who filed the complaint, and the Foothills Community Association (FCA), the Respondent homeowners association. The case was heard by Administrative Law Judge Tammy L. Eigenheer in the Office of Administrative Hearings.

2. The Petitioner alleged that the Respondent violated state statutes by holding unannounced email meetings to vote on non-emergency matters. She also alleged that the Respondent would not allow community members to speak at appropriate times during Design Review Committee (DRC) meetings.

3. The Board of Directors has seven members and meets at 6:00 p.m. on the fourth Wednesday of the month. The Design Review Committee (DRC) is appointed by the Board, has five members (two of whom are also on the Board), and meets at 2:00 p.m. on the second Wednesday of the month.

4. During the DRC meetings on December 13, 2018, and January 9, 2019, the Petitioner attended and recorded the proceedings. She was not allowed to speak on other members’ pending requests during these meetings.

5. The DRC would gather additional information via email after a meeting and members would then approve or deny the request via email. Any decisions made via email between DRC meetings were then “ratified” at the next formal DRC meeting.

6. The Petitioner had the burden of proving her case by a “preponderance of the evidence.” The decision defines this as evidence that is of greater weight or more convincing than the opposing evidence, showing the fact sought to be proved is more probable than not.

7. The Judge determined that the statute does not define what constitutes “an appropriate time” to speak at a committee meeting. Therefore, it was reasonable for the DRC to decide that the deliberation regarding a different member’s request was not an appropriate time for the Petitioner to speak.

8. The Judge concluded that email communications are not “regularly scheduled committee meetings” because they do not occur at a set time on a weekly, monthly, quarterly, or annual basis. Since A.R.S. § 33-1804 only requires regularly scheduled committee meetings to be open, the email discussions were not a violation.

9. The final Order was that the Petitioner’s petition is denied. The Administrative Law Judge concluded that the Petitioner did not establish any violation of A.R.S. § 33-1804.

10. Pursuant to A.R.S. §32-2199.02(B), the order is binding unless a rehearing is granted. A request for a rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

Essay Questions

Instructions: The following questions are designed for longer-form essay responses to encourage a deeper synthesis of the case details and legal reasoning. Answers are not provided.

1. Analyze the Administrative Law Judge’s statutory construction of A.R.S. § 33-1804. How does the judge distinguish between the open meeting requirements for Board of Directors meetings versus committee meetings, and what role does the “plain language” of the statute play in this interpretation?

2. Discuss the two central allegations made by Vicky Glover. For each allegation, detail the undisputed facts of the events and explain the specific legal reasoning the judge used to conclude that no statutory violation occurred.

3. Examine the conflict between the state’s declared policy in favor of open meetings (A.R.S. § 33-1804(F)) and the specific statutory language governing committee meetings (A.R.S. § 33-1804(A)). How did the judge resolve this apparent conflict in her final decision?

4. Based on the “Findings of Fact,” describe the operational procedures of the Design Review Committee, including its use of email for decision-making and subsequent ratification. How did these procedures become central to the legal dispute?

5. Explain the concept of “burden of proof” as it applied in this case. How did the standard of “preponderance of the evidence” shape the proceedings, and why was the Administrative Law Judge’s conclusion that the Petitioner “did not establish” a violation critical to the final order?

Glossary of Key Terms

Definition from Source Context

Administrative Law Judge

Tammy L. Eigenheer, the judge who presided over the hearing and issued the decision in this case.

A.R.S. § 33-1804

The Arizona Revised Statute that the Petitioner alleged was violated. It governs open meetings for planned communities, including member associations, boards of directors, and regularly scheduled committees.

Arizona Department of Real Estate (Department)

The state agency with which the Petitioner filed her petition and which has jurisdiction to hear disputes between property owners and condominium owners associations.

Board of Directors

The governing body of the Foothills Community Association, comprised of seven members. It appoints the Design Review Committee.

Design Review Committee (DRC)

A five-member committee appointed by the Board of Directors. Two of its members are also on the Board. The DRC’s meetings were the subject of the Petitioner’s complaint.

Foothills Community Association (FCA)

The Respondent in the case. An association of homeowners located in Phoenix, Arizona.

Petitioner

Vicky Glover, who filed a petition on January 23, 2019, with the Arizona Department of Real Estate against the Foothills Community Association.

Preponderance of the evidence

The burden of proof required of the Petitioner. It is defined 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.”

Ratified

The term used to describe the process where decisions made by the DRC via email between meetings were formally approved at the next DRC meeting.

Regularly scheduled committee meetings

The specific type of meeting subject to the open meeting requirements of A.R.S. § 33-1804. The Judge concluded that email communications do not meet this definition as they do not occur at a set time.

Respondent

The Foothills Community Association (FCA), against which the petition was filed. Represented in the hearing by B. Austin Baillio.

Statutory Construction

The process of interpreting a statute. The primary goal is to ascertain the legislature’s intent, first by looking at the plain text of the statute.

3 Shocking Loopholes in HOA ‘Open Meeting’ Laws This Homeowner Discovered the Hard Way

Introduction: The Illusion of Transparency

For anyone living in a homeowner’s association (HOA), there’s a fundamental expectation: the business of the community is conducted in the open. We assume that as members, we have a right to attend meetings, understand the decisions being made, and voice our opinions before our board takes action.

But a startling court decision from an Arizona Administrative Law Judge throws a wrench in that assumption. One homeowner’s legal challenge against her association didn’t just fail—it inadvertently created a roadmap for how HOAs can legally operate behind closed doors, affecting millions of residents in planned communities.

This article will break down the three most counter-intuitive takeaways from this legal battle, revealing how the specific wording of the law can create major gaps in transparency and challenge everything you thought you knew about your rights as a homeowner.

1. Your Right to Speak is Weaker Than You Think—Especially in Committee Meetings

Most homeowners believe they have a protected right to speak on any agenda item at any official HOA meeting. The case of petitioner Vicky Glover shows this is a dangerous assumption.

On December 13, 2018, and January 9, 2019, Ms. Glover attended meetings of her community’s Design Review Committee (DRC) and was not permitted to speak about other members’ pending architectural requests. She argued this violated Arizona’s open meeting law for planned communities (A.R.S. § 33-1804).

The Administrative Law Judge (ALJ), however, pointed out a critical distinction in the law’s text. The statute explicitly guarantees a member the right “to speak once after the board has discussed a specific agenda item but before the board takes formal action.” This specific right, the ALJ concluded, applies only to meetings of the Board of Directors.

For committee meetings, the law sets a much vaguer standard, requiring only that members “be permitted to attend and speak at an appropriate time.” The ALJ found it was reasonable for the DRC to decide that having Ms. Glover speak on another member’s application was not an “appropriate time.”

This is a crucial distinction because committees—like architectural, design, or finance committees—often make the decisions that most directly impact homeowners’ property and daily lives. Yet, this ruling clarifies that the guaranteed right to be heard before a vote is taken is significantly weaker in those very forums.

2. “Email Meetings” Can Be a Legal Way to Sidestep Open Meeting Rules

The common understanding of open meeting laws is that they exist to prevent boards and committees from deliberating and making decisions in private. But what if the meeting doesn’t happen in a room, but in an email chain?

Ms. Glover’s second claim was that the DRC was conducting business and making decisions via email between its official meetings. Evidence showed that after a meeting, additional information would be shared with committee members who could then “approve or deny the request… via email.” The association’s manager, Pat Wontor, denied this, claiming emails were only used to gather information on matters already discussed in a meeting.

The ALJ’s conclusion on this matter was stunning and sidestepped the conflicting testimony entirely. The Arizona open meeting law in question only applies to “regularly scheduled committee meetings.” Because email exchanges do not occur at a set, scheduled time—like the second Wednesday of the month—the judge ruled they do not fall under the open meeting requirements of the statute, regardless of their content.

The implication of this loophole is profound. It allows a committee to conduct significant deliberation and decision-making entirely outside of public view. This practice can turn the open meeting into a hollow formality. A committee can present a “done deal” for public ratification, rendering the member’s right to observe and speak effectively meaningless. The public meeting becomes a theatrical rubber stamp for a decision already made in secret.

3. The “Spirit of the Law” Doesn’t Beat the Letter of the Law

Many laws contain a policy statement that outlines their overarching goal—the “spirit of the law.” Arizona’s statute on HOA meetings has an exceptionally strong one, stating that all meetings should be open and that the law should be interpreted to favor transparency. The text explicitly declares:

“It is the policy of this state as reflected in this section that all meetings of a planned community… be conducted openly… and shall construe any provision of this section in favor of open meetings.” (from A.R.S. § 33-1804(F))

Ms. Glover and many homeowners would read this and assume it guarantees broad transparency. The ALJ, however, ruled that this powerful policy statement “does not override the specific provisions” of the law.

In other words, the literal, specific text—like the distinction between “board” and “committee” meetings, or the “regularly scheduled” requirement—takes precedence over the law’s general intent.

This is perhaps the most important lesson for all homeowners. Relying on the assumed purpose or “spirit” of a rule is not enough. In a legal dispute, the precise, technical wording is what matters most. It highlights the critical importance for homeowners to read and understand the exact text of state statutes and their own governing documents, because the loopholes are often found in the fine print.

Conclusion: Knowledge is Your Best Defense

While Vicky Glover lost her petition, her case provides an invaluable education for every member of a community association. It is a stark warning that transparency in an HOA is not a guaranteed principle but a legal standard with specific, and at times counter-intuitive, boundaries that can be exploited.

The loopholes her case exposed reveal a sobering reality: your right to speak is conditional, “meetings” can legally occur out of sight in an email chain, and the stated “spirit” of the law can be rendered toothless by its literal text. HOA governance is not guided by general principles of fairness, but by very specific legal language.

Given these loopholes, it’s worth asking: How many of the most important decisions in your community are happening in an inbox instead of the boardroom?

Case Participants

Petitioner Side

Vicky Glover (petitioner)

Respondent Side

B. Austin Baillio (respondent attorney)
Maxwell & Morgan, P.C.
Pat Wontor (manager)
Manager for DRC/Foothills Community Association

Neutral Parties

Tammy L. Eigenheer (ALJ)
Judy Lowe (Commissioner)
Arizona Department of Real Estate

Other Participants

Del Sol (staff/clerk)
Transmitting staff

David & Brenda Norman v. Rancho Del Lago Community Association

Posted on May 28, 2019 by [email protected]

Case Summary

Case ID	19F-H1919051-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-05-28
Administrative Law Judge	Diane Mihalsky
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	David and Brenda Norman	Counsel	—
Respondent	Rancho Del Lago Community Association	Counsel	Ashley N. Moscarello

Alleged Violations

CC&Rs § 3.11(D)(1) / Common Project Guidelines § 3.11(D)(1)

Outcome Summary

The Administrative Law Judge dismissed the petition filed by David and Brenda Norman against Rancho Del Lago Community Association, finding that the Department of Real Estate did not have jurisdiction to hear the dispute, as it was essentially a conflict between neighboring owners (Petitioners and Hendersons) regarding a wall.

Why this result: The Department lacked jurisdiction over the dispute among or between owners, per A.R.S. § 32-2199.01(A)(1).

Key Issues & Findings

Alleged violation by HOA approving a block wall built by neighbors (Hendersons)

Petitioners alleged that Respondent HOA violated CC&Rs § 3.11(D)(1) by approving a block wall built by their next-door neighbors, the Hendersons, and requested the Department require the Hendersons to permit Petitioners to connect to the wall or require the Hendersons to tear the wall down.

Orders: The petition was dismissed because the Department lacked jurisdiction to hear a dispute primarily among or between owners to which the association is not a party, pursuant to A.R.S. § 32-2199.01(A)(1).

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

Topics: Jurisdiction, HOA Governance, Architectural Review Committee (ARC), Party Wall, Neighbor Dispute, CC&Rs

Additional Citations:

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

Video Overview

Audio Overview

Decision Documents

19F-H1919051-REL Decision – 737050.pdf

Uploaded 2026-04-24T11:19:28 (40.9 KB)

19F-H1919051-REL Decision – 710478.pdf

Uploaded 2026-04-24T11:19:32 (150.0 KB)

19F-H1919051-REL Decision – 711115.pdf

Uploaded 2026-04-24T11:19:36 (149.9 KB)

19F-H1919051-REL Decision – 710478.pdf

Uploaded 2026-01-23T17:29:06 (150.0 KB)

19F-H1919051-REL Decision – 711115.pdf

Uploaded 2026-01-23T17:29:10 (149.9 KB)

Case Briefing: Norman v. Rancho Del Lago Community Association

Executive Summary

This briefing document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 19F-H1919051-REL, involving homeowners David and Brenda Norman (Petitioners) and the Rancho Del Lago Community Association (Respondent). The core of the dispute centers on the Petitioners’ allegation that the Respondent’s Architectural Review Committee (ARC) violated community guidelines by approving a wall built by the Petitioners’ neighbors, the Hendersons.

The Petitioners claimed the Henderson’s wall, constructed 6 inches inside the property line, created a situation where any wall they might build on their property would be a “closely parallel wall,” which is prohibited by the community’s Common Project Guidelines § 3.11(D)(1). They requested that the Respondent either force the Hendersons to allow the Petitioners to connect to their wall, effectively making it a shared “party wall,” or compel the Hendersons to demolish it.

The Administrative Law Judge dismissed the petition entirely. The primary legal basis for the dismissal was a lack of jurisdiction; under Arizona statute A.R.S. § 32-2199.01(A)(1), the Arizona Department of Real Estate cannot hear disputes solely between homeowners in which the association is not a party. The judge concluded this was fundamentally a neighbor-versus-neighbor conflict. Furthermore, the judge characterized the wall the Petitioners sought to build as an “archetypical spite fence” and noted that the Petitioners had failed to prove the Respondent had violated any community documents.

Case Overview

Parties and Key Entities

Name/Entity

Description

Petitioners

David and Brenda Norman

Homeowners in the Rancho Del Lago Community.

Respondent

Rancho Del Lago Community Association

The homeowners’ association (HOA) for the community.

Neighbors

The Hendersons

The Petitioners’ next-door neighbors who built the disputed wall.

Management Co.

Management Solutions

The company managing the Respondent HOA.

Witness (Respondent)

Spencer Brod

Employee of Management Solutions overseeing the Respondent’s affairs.

Administrative Law Judge

Diane Mihalsky

Presiding judge from the Office of Administrative Hearings.

Regulating Body

Arizona Department of Real Estate

State agency authorized to hear certain HOA disputes.

Adjudicating Body

Office of Administrative Hearings

Independent state agency that conducted the evidentiary hearing.

Procedural Details

Detail

Information

Case Number

19F-H1919051-REL

Petition Filed

On or about February 28, 2019

Hearing Date

May 8, 2019

Amended Decision Date

May 28, 2019

Timeline of Key Events

• December 2003: The Respondent’s ARC adopts the Common Project Guidelines, which govern all exterior improvements.

• March 8, 2017: The Hendersons submit an Architectural Variance Request (AVR) to extend the common wall between their property and the Petitioners’. Mrs. Norman signs the request, giving consent. The ARC approves this request.

• April 27, 2017: The Hendersons submit a new AVR to build a wall extension 6 inches inside their property line, making it a private wall rather than a shared party wall. The record suggests Mrs. Norman may have rescinded her earlier approval for the common wall.

• May 10, 2017: The ARC approves the Hendersons’ request to build the wall 6 inches inside their property line.

• September 5, 2017: The Petitioners submit an AVR to build an 11-foot wide concrete driveway. The ARC denies the request.

• Post-September 5, 2017: Despite the denial, the Petitioners construct the 11-foot wide driveway and are subsequently issued a Notice of Violation by the Respondent.

• September 7, 2017: The Petitioners submit an AVR to build a wall extension on their property, positioned at least 3 feet away from the Hendersons’ wall.

• October 13, 2017: The ARC approves the Petitioners’ wall extension request.

• Post-October 13, 2017: The Petitioners decide not to build the approved wall, stating their contractor advised them against “giving up” the 3 feet of property that would lie between the two walls.

• By November 2017: The Hendersons’ wall appears to have been constructed.

• February 28, 2019: The Petitioners file a petition with the Arizona Department of Real Estate, alleging the Respondent violated community rules.

• March 27, 2019: The Petitioners file a new AVR to build a wall directly on the property line. This request did not include the Hendersons’ required consent and was still pending at the time of the hearing.

Governing Documents and Key Provisions

The dispute and subsequent legal decision referenced several specific articles from the community’s Covenants, Conditions, and Restrictions (CC&Rs) and the Common Project Guidelines.

Document

Provision

Description

Article I § (p)

Defines “Party Walls” built on a property line, establishing equal right of use, joint responsibility for maintenance and repair, and a process for the Board to resolve disputes over construction or cost-sharing.

Article II § 2(a)

Requires prior written approval from the ARC for any improvements that alter the exterior appearance of a property.

Article XII § 1

Establishes the ARC, noting that its decisions are “sole, absolute and final on all matters submitted to it.”

Common Project Guidelines

Section 3.11(D)(1)

States that “Closely parallel walls shall be disapproved.” The term “closely parallel” is not defined in the guidelines. This provision was the central focus of the Petitioners’ complaint.

Common Project Guidelines

Section 4.21

Grants the ARC the right “to waive, vary, or otherwise modify any of the standards or procedures set forth herein at its discretion, for good cause shown.”

Summary of Testimony and Evidence

Testimony of Brenda Norman (Petitioner)

• Motivation for Wall: Stated that she and her husband are in law enforcement and want to enclose their side yard to protect utility meters from potential vandalism.

• Reason for Not Building Approved Wall: Explained that their contractor advised them it was “crazy to give up the 3’ of property” that would be inaccessible between their proposed wall and the Hendersons’ wall.

• Relationship with Neighbors: Acknowledged that the Petitioners “do not get along very well with the Hendersons” and therefore never asked for their consent for a wall on the property line.

• Belief Regarding Parallel Walls: Believes that if she submitted a plan for a wall just inside her property line, it would be denied under the “close parallel wall” rule.

• Requested Action: Opined that the Respondent should force the Hendersons to tear down their wall because it is not uniformly 6 inches from the property line.

Testimony of Spencer Brod (for Respondent)

• HOA Policy: Testified that the HOA “never gets involved in disputes between neighbors” and that it is the homeowner’s responsibility to obtain neighbor consent for common wall projects.

• Party vs. Private Walls: Explained that neighbor consent is required only for “party walls” on the property line due to shared maintenance liability. The Hendersons’ wall was approved because it was on their own property and therefore not a party wall.

• Enforcement and Inspection: Admitted that the Hendersons’ wall may not be uniformly 6 inches from the line but stated the Respondent has no one to perform a “thorough inspection” and had not sent a violation letter.

• “Closely Parallel Walls” Interpretation: Testified that while the term is undefined, the ARC’s approval of the Petitioners’ plan for a wall 3 feet away indicates that “closely parallel” means a distance of less than 3 feet.

• Petitioners’ Unauthorized Construction: Confirmed that the Respondent sent the Petitioners a Notice of Violation for building a driveway that the ARC had explicitly denied.

Administrative Law Judge’s Conclusions of Law

The judge’s decision was based on a detailed analysis of the evidence, governing documents, and relevant state law.

1. Jurisdictional Failure: The primary reason for dismissal was a lack of jurisdiction. The judge cited A.R.S. § 32-2199.01(A)(1), which explicitly states, “The department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.” The judge determined this was a quintessential neighbor dispute, not a dispute with the HOA.

2. Failure to Meet Burden of Proof: The Petitioners bore the burden of proving by a “preponderance of the evidence” that the Respondent violated its own rules. The judge found they failed to do so.

3. Characterization as a “Spite Fence”: The decision describes the wall the Petitioners wish to build as an “archetypical spite fence between neighbors who cannot agree to mutually work for the improvement of their adjacent properties.”

4. HOA’s Limited Role: The judge affirmed that neither the CC&Rs nor the Common Project Guidelines compel the HOA to mediate or resolve disputes between neighbors by taking a side.

5. Distinction of Wall Types: The analysis distinguished between a party wall on a property line, which requires neighbor consent, and a private wall built entirely on one owner’s property, which does not. The Hendersons’ wall was approved as the latter.

6. Hypothetical Outcome: A concluding footnote in the decision states that even if the Department had jurisdiction, the Petitioners had not established that Guideline 3.11(D)(1) would authorize or require the Respondent to grant the relief they requested.

Final Order

IT IS ORDERED that the petition filed by David and Brenda Norman against the Respondent, Rancho Del Lago Community Association, is dismissed. The dismissal is based on the finding that the Arizona Department of Real Estate does not have jurisdiction to hear their dispute with the Hendersons.

Study Guide: Norman v. Rancho Del Lago Community Association

This guide is designed to review the administrative legal case between homeowners David and Brenda Norman and their homeowners’ association, the Rancho Del Lago Community Association, concerning a dispute over a neighbor’s wall.

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Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences, drawing only from the information provided in the case documents.

1. What was the central violation of the homeowners’ association rules alleged by the Petitioners in their February 28, 2019, petition?

2. Identify the three main groups of individuals or entities involved in the dispute: the Petitioners, the Respondent, and the neighbors.

3. According to the Respondent’s CC&Rs, what is a “Party Wall” and what primary responsibility does it create for adjacent homeowners?

4. Describe the two separate wall-related Architectural Variance Requests (AVRs) submitted by the Hendersons in March and April of 2017.

5. Why did the Architectural Review Committee (ARC) initially deny the Petitioners’ request to build a new driveway, and what was the outcome of this denial?

6. What is the role of the “Declarant” within the Rancho Del Lago Community Association, and what influence do they hold over the board and the ARC?

7. The ARC approved a wall proposal for the Petitioners on October 13, 2017. Why did the Petitioners choose not to build this approved wall?

8. According to the CC&Rs, what is the ultimate authority of the Architectural Review Committee (ARC) in rendering its decisions?

9. On what legal grounds did the Administrative Law Judge ultimately dismiss the Petitioners’ case?

10. Who bore the “burden of proof” in this hearing, and what does this legal standard require?

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Quiz Answer Key

1. The Petitioners alleged that the Respondent (the homeowners’ association) violated Section 3.11(D)(1) of the Common Project Guidelines. This section states that “closely parallel walls shall be disapproved,” and the Petitioners argued that the association violated this rule by approving the wall built by their neighbors, the Hendersons.

2. The Petitioners were homeowners David and Brenda Norman. The Respondent was the Rancho Del Lago Community Association. The neighbors, who were central to the dispute but not a party to the case, were the Hendersons.

3. A “Party Wall” is a wall situated on the property line between two or more contiguous lots. It creates a shared right of use and a joint obligation for all adjoining owners to rebuild and repair the wall at their shared expense.

4. The Hendersons first submitted an AVR on March 8, 2017, to extend the existing common party wall, for which Mrs. Norman gave consent. On April 27, 2017, they submitted a different AVR to build a new wall located entirely on their property, 6 inches inside the property line, which did not require the Normans’ consent.

5. The ARC denied the Petitioners’ September 5, 2017, request for an 11-foot wide driveway because a driveway already existed on the opposite side of the house where the garage was located. Despite the denial, the Petitioners built the driveway anyway, which resulted in the Respondent issuing them a Notice of Violation.

6. The “Declarant” is the original developer that built the subdivision. At the time of the hearing, the Respondent association was still under the control of the Declarant, who appointed all three directors of the board and was also a member of the Architectural Review Committee (ARC).

7. The Petitioners did not build the approved wall because the plan required it to be built at least 3 feet inside their property line to avoid being a party wall. Their contractor advised them they would be “crazy to give up the 3’ of property” that would lie between their new wall and the Hendersons’ wall.

8. According to Article XII, § 1 of the CC&Rs, “the decision of the [ARC] shall be sole, absolute and final on all matters submitted to it pursuant to this Declaration and/or the Design Guidelines.”

9. The judge dismissed the case due to a lack of jurisdiction. According to Arizona statute A.R.S. § 32-2199.01(A)(1), the Arizona Department of Real Estate does not have jurisdiction to hear disputes between owners to which the association is not a party. The judge framed the issue as a private dispute between the Normans and the Hendersons.

10. The Petitioners (the Normans) bore the burden of proof to establish that the Respondent violated the community rules. This standard, known as a “preponderance of the evidence,” requires presenting evidence that is more convincing and more likely true than not.

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Essay Questions

Instructions: The following questions are designed to test a deeper, more analytical understanding of the case. Formulate a comprehensive response to each prompt, citing specific facts and rules from the case documents to support your arguments.

1. Analyze the concept of a “Party Wall” versus a privately-owned wall within the context of this case. How did the distinction between these two types of walls become the central point of contention and influence the decisions made by the Hendersons, the Normans, and the ARC?

2. Discuss the powers and limitations of the Rancho Del Lago Community Association’s Architectural Review Committee (ARC) as outlined in the CC&Rs and Common Project Guidelines. How did the ARC’s discretionary authority, particularly under Section 4.21 of the guidelines, impact the events of this dispute?

3. Trace the timeline of Architectural Variance Requests (AVRs) submitted by both the Normans and the Hendersons. Evaluate how the sequence of approvals, denials, and unbuilt projects contributed to the escalation of the dispute and ultimately led to the legal hearing.

4. Explain the legal reasoning behind the Administrative Law Judge’s final decision. Why was the concept of “jurisdiction” more critical to the outcome than the merits of the Normans’ claim regarding “closely parallel walls”? Refer to the specific Arizona Revised Statute (A.R.S.) cited in the decision.

5. The judge described the potential wall the Petitioners wish to build as an “archetypical spite fence.” Based on the testimony and evidence presented in the case, argue for or against this characterization.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Diane Mihalsky, who presides over hearings at the Office of Administrative Hearings and renders decisions on disputes involving state agencies.

Architectural Review Committee (ARC)

A committee established by the Declarant and governed by the CC&Rs, responsible for reviewing and approving or denying any proposed improvements that alter the exterior appearance of properties within the community. Its decisions are described as “sole, absolute and final.”

Architectural Variance Request (AVR)

The formal application submitted by a homeowner to the ARC to request approval for an exterior improvement or modification to their property.

Arizona Department of Real Estate (the Department)

The state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations regarding violations of community documents.

CC&Rs (Covenants, Conditions, and Restrictions)

The legal documents that establish the rules, regulations, and obligations for homeowners within a planned community like Rancho Del Lago.

Closely Parallel Walls

A term from Section 3.11(D)(1) of the Common Project Guidelines that are to be disapproved. The term is not explicitly defined, but testimony suggests a wall 3 feet from another would be approved, making the threshold for “close” less than that.

Common Project Guidelines

A set of rules adopted by the ARC in December 2003 that govern all exterior improvements and provide standards for the Design Review Process. These guidelines supplement the CC&Rs.

Declarant

The original developer that built the subdivision. In this case, the Declarant still controlled the association’s Board of Directors and the ARC.

Jurisdiction

The legal authority of a court or agency to hear and decide a case. The petition was dismissed because the Department was found to lack jurisdiction over disputes solely between homeowners.

Office of Administrative Hearings

An independent state agency in Arizona where evidentiary hearings, like the one in this case, are conducted by an Administrative Law Judge.

Party Wall

As defined in the CC&Rs, a wall on the property line between contiguous lots. Owners have equal rights to use it and share joint financial responsibility for its repair and maintenance.

Petitioners

The party that initiates a legal action or petition. In this case, homeowners David and Brenda Norman.

Preponderance of the Evidence

The standard of proof required in this civil administrative hearing. It means the evidence presented must be sufficient to convince the judge that a claim is more probably true than not.

Respondent

The party against whom a petition is filed. In this case, the Rancho Del Lago Community Association.

Restrictive Covenant

A provision in a deed or community document (like a CC&R) that limits the use of the property. Arizona law holds that unambiguous restrictive covenants are enforced to give effect to the intent of the parties.

The Six-Inch Wall That Ignited a Legal Battle: 4 Shocking Lessons from a Brutal HOA War

1.0 Introduction: The Neighbor Next Door

Living next to someone is a universal experience, and it’s remarkable how quickly a small disagreement over a fence or a property line can spiral into a full-blown conflict. For two families in an Arizona HOA, what started as a plan for a backyard wall ended in a formal administrative law hearing, providing a stark case study in property law, association rules, and human nature.

This dispute, involving homeowners David and Brenda Norman and their neighbors, the Hendersons, dissects four critical lessons that challenge common assumptions about homeowner rights and association duties. Their story is a powerful cautionary tale about property lines, HOA authority, and the high cost of a neighborhood war.

2.0 Takeaway 1: The Six-Inch Difference That Changes Everything

1. A Wall on the Property Line Isn’t the Same as a Wall Near It

In property law, inches are everything. The community’s Covenants, Conditions, and Restrictions (CC&Rs) defined a “Party Wall” as a structure sitting directly on the property line between two lots. By this definition, these walls are a shared responsibility, requiring mutual consent from both homeowners for construction and shared costs for maintenance.

This distinction became the pivot on which the entire case turned. Initially, the Hendersons submitted plans to build a shared Party Wall, and the Normans gave their required consent. But then the plan changed. The Hendersons withdrew that request and submitted a new one: to build a wall located just six inches inside their own property line. The record doesn’t state definitively why the Hendersons changed their plan, though testimony suggested the Normans may have rescinded their initial consent.

This was a masterstroke of procedural navigation; by sacrificing a mere six inches of their yard, the Hendersons effectively bought the legal right to build without their neighbors’ consent, turning a potential year-long dispute into a matter of a simple ARC approval. By moving the structure entirely onto their own lot, it was no longer a “Party Wall” but their private property. While the Hendersons had successfully navigated the HOA’s rules, the Normans’ next step was to try and force the HOA to intervene directly—a move that would expose a common misunderstanding about the limits of an association’s power.

3.0 Takeaway 2: Your HOA Isn’t the Neighborhood Referee

2. The HOA’s Power to Intervene Has Surprising Limits

A common assumption among homeowners is that the HOA must mediate any and all disputes between residents. This case proves that assumption is fundamentally incorrect.

When the conflict escalated, the HOA’s position was unwavering. Spencer Brod, an employee of the association’s management company, testified that the association “never gets involved in disputes between neighbors.” Its role is to enforce community rules as they relate to the association, not to take sides in personal conflicts between homeowners.

The Administrative Law Judge presiding over the case reinforced this legal reality, citing Arizona law to clarify the limits of both the HOA’s and the state’s jurisdiction. The judge’s finding was unequivocal:

Neither the CC&Rs nor the Common Project Guidelines require Respondent [the HOA] to mediate or resolve a dispute between neighbors by taking one side or the other. A.R.S. § 32-2199.01(A)(1) provides that ‘[t]he department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.’

This finding is a crucial lesson: while an HOA enforces its governing documents, it is not a neighborhood court and cannot be compelled to referee personal disagreements.

4.0 Takeaway 3: You Can’t Demand a Neighbor Play by the Rules If You Don’t

3. Coming to the Table with Clean Hands Matters

The case contained a powerful element of irony that proved fatal to the Normans’ petition. The judge’s official Findings of Fact reveal that while demanding the HOA enforce its rules against the Hendersons, the Normans had a significant compliance issue of their own.

In September 2017, the Normans submitted a request to build an 11-foot wide concrete driveway “to provide a solid walking surface because Mrs. Norman was disabled and had difficulty walking.” While the motivation was sympathetic, the Architectural Review Committee (ARC) denied the request. Despite the denial, the Normans built the driveway anyway and were subsequently issued a Notice of Violation by the HOA.

Critically, the Normans’ own rule-breaking occurred after the Hendersons’ wall was approved. In the very midst of their dispute, while formulating a case against their neighbors, they chose to defy the ARC themselves. This is a classic illustration of the “unclean hands” doctrine. In any legal or administrative forum, one’s credibility is paramount. The Normans were asking the HOA to be a strict enforcer of rules they themselves had flagrantly violated, a position that is almost always untenable.

5.0 Takeaway 4: When a Judge Calls It a “Spite Fence”

4. The Court May Look Past the Rules and See Your Intent

Even in a hearing focused on the technicalities of CC&Rs, the underlying human motivations of the conflict did not go unnoticed. The HOA’s ARC had previously approved a plan for the Normans to build their own wall, provided it was located three feet inside their property line. They refused. Brenda Norman testified that their contractor told them they were “crazy to give up the 3’ of property.” Mrs. Norman also argued that a wall on her property would be denied as a prohibited “closely parallel wall,” but this claim was directly contradicted by the ARC’s own actions—they had already approved her wall at the three-foot distance.

The judge’s “spite fence” comment wasn’t just an observation; it was the legal culmination of the Normans’ entire pattern of behavior. Their refusal to accept an approved wall on their own property (losing 3 feet) while demanding their neighbor tear down a wall built on theirs (losing 0 feet) painted a clear picture of animosity, not a genuine need for property protection. The judge saw through the legal arguments to the core of the issue:

The wall that Petitioners testified that they must build to protect their property appears to be an archetypical spite fence between neighbors who cannot agree to mutually work for the improvement of their adjacent properties.

A “spite fence” is a legal term for a structure erected with malicious intent, where the primary purpose is not to improve one’s own property but to annoy, inconvenience, or harm a neighbor. The judge’s use of this term was a powerful signal that, in the court’s view, the dispute was no longer about property rights, but about personal animus.

6.0 Conclusion: A Wall Is a Wall, But a Neighbor Is Forever

This case is a cautionary tale written in concrete and legal filings. It shows how a dispute over six inches of soil can metastasize, fueled by a misunderstanding of HOA rules and an unwillingness to compromise, ultimately costing both parties time, money, and peace of mind. From the critical importance of a few inches of land to the defined limits of an HOA’s authority, the details matter.

Ultimately, the story of the Normans and the Hendersons serves as a powerful reminder that navigating HOA living requires a clear-eyed understanding of the actual rules, not just a sense of what seems “fair.” It leaves us with a critical question to consider.

When it comes to our homes and neighbors, is it more important to be right, or to find a way to live in peace?

Case Participants

Petitioner Side

David Norman (petitioner)
Appeared telephonically on own behalf
Brenda Norman (petitioner)
Testified on Petitioners' behalf

Respondent Side

Ashley N. Moscarello (HOA attorney)
Goodman Law Group
Represented Rancho Del Lago Community Association
Spencer Brod (property manager/witness)
Management Solutions
Employee of Respondent's management company; testified

Neutral Parties

Diane Mihalsky (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Felicia Del Sol (administrative staff)
Transmitted decision electronically

Other Participants

Anthony Henderson (homeowner/neighbor)
Next-door neighbor who built the wall in dispute
Mabel Gummere (property manager predecessor)
Predecessor to Spencer Brod

Pointe Tapatio Community Association vs. Lanye C. and Devin E. Wilkey

Posted on May 7, 2019 by [email protected]

Case Summary

Case ID	19F-H1919044-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-05-07
Administrative Law Judge	Thomas Shedden
Outcome	partial
Filing Fees Refunded	$0.00
Civil Penalties	$500.00

Parties & Counsel

Petitioner	Pointe Tapatio Community Association	Counsel	Lauren Vie
Respondent	Lanye C. Wilkey and Devin E. Wilkey	Counsel	Joseph Velez

Alleged Violations

CC&R Article 3, section 3.1

Outcome Summary

The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.

Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.

Key Issues & Findings

Violation of Residential Use covenant prohibiting traffic/parking generation by business

The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.

Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.

Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. section 32-2199.04
ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: HOA, CC&Rs, Business Use, Home Business, Parking, Traffic, Civil Penalty

Additional Citations:

ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. section 32-2199.04
ARIZ. REV. STAT. section 41-1092.09

Video Overview

Audio Overview

Decision Documents

19F-H1919044-REL Decision – /home/jeremy/azhoa/repos/azoah_decisions/portal_documents/19F-H1919044-REL-RHG/733509.pdf

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Administrative Hearing Briefing: Pointe Tapatio Community Association vs. Wilkey

Executive Summary

This document details the findings and decision of an administrative law judge in the case of Pointe Tapatio Community Association versus residents Layne C. and Devin E. Wilkey. The core issue was the operation of a payroll processing company, Devau Human Resources, from the Wilkeys’ residential unit. The Association alleged this violated community CC&Rs, which prohibit non-residential uses that create traffic or parking. The Wilkeys admitted that two employees commuted to the unit daily but argued they had received permission from a former property manager.

The judge found in favor of the Association, concluding that the daily commute of two employees constituted the creation of “traffic and parking,” a direct and unambiguous violation of the CC&Rs. The judge deemed the residents’ claims of verbal permission to be unsubstantiated and irrelevant, as the covenant’s language was clear. Consequently, the judge ordered the Wilkeys to cease all business operations at the unit within 35 days and imposed a civil penalty of $500.

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Case Overview

Case Name

Pointe Tapatio Community Association, Petitioner, vs. Lanye C. Wilkey and Devin E. Wilkey, Respondent.

Case Number

19F-H1919044-REL

Jurisdiction

Office of Administrative Hearings (Arizona Department of Real Estate)

Hearing Date

April 26, 2019

Decision Date

May 7, 2019

Administrative Law Judge

Thomas Shedden

Petitioner’s Counsel

Lauren Vie, Esq.

Respondent’s Counsel

Joseph Velez, Esq.

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Central Allegation and Governing Covenant

The Pointe Tapatio Community Association (Petitioner) alleged that Layne C. Wilkey and Devin E. Wilkey (Respondents) violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by using their residential unit as an office for their business.

The specific provision at issue is Article 3, Section 3.1 of the CC&Rs, which states:

“Residential. Each Residence shall be used, improved, and devoted exclusively to first class residential use, and no gainful occupation, profession, trade, business, religion, or other non-residential use which creates traffic [or] parking … shall be conducted from any Residence [or part thereof.]”

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Key Findings of Fact

The Business Operation

• Respondents: Layne C. Wilkey (mother) and Devin E. Wilkey (son) are co-owners of the unit at 720 E. North Lane, Unit 1 (Lot 50).

• Company: They own and operate Devau Human Resources, a payroll processing company, from this unit. The business also operates from a second, commercial site in Tempe.

• History: The business was moved into the residential unit from a commercial location in late 2009.

• Public Presence: Devau’s website and Google Maps both list the 720 E. North Lane address as an office location, with stated office hours from 9:00 a.m. to 5:00 p.m., Monday through Friday. The website notes it is a “mailing address only.”

• Admission: Ms. Wilkey acknowledged during testimony that they consider the unit to be an office.

Employee Activity and Impact

• The Wilkeys acknowledged that two Devau employees commute to the unit to work.

• One employee works from 9:30 a.m. to 4:00 p.m., Monday through Thursday.

• A second employee works from 9:30 a.m. to 5:00 p.m., Monday through Friday.

• These employees at times park their vehicles on the community’s streets.

• The business does not have clients or customers who visit the unit.

The Dispute Over Permission

• Respondents’ Claim: The Wilkeys asserted they had permission to operate the business from Howard Flisser, a former property manager. They admitted they had no written confirmation and had never spoken to Mr. Flisser directly about it.

◦ Ms. Wilkey testified that in 2009, she asked her husband, who asked a salesperson, who then allegedly asked Mr. Flisser and relayed that it was permissible.

◦ Mr. Wilkey testified that his now-deceased father would not have taken the risk of moving the business without permission.

• Petitioner’s Rebuttal: Board member Paula Duistermars testified that Mr. Flisser stated a few days before the hearing that he could not recall giving permission and, on two occasions during the conversation, volunteered that he had never given permission.

• Authority: Ms. Duistermars also testified that Mr. Flisser lacked the authority to grant such permission; only the Board of Directors could do so.

Association’s Stance and Actions

• Notification: Through a letter dated August 8, 2018, the Association informed the Wilkeys of the violation and required compliance by August 31, 2018.

• Petition: The Association filed the petition that initiated the hearing on or about January 17, 2019.

• Other Businesses: The Association permits certain home-based businesses that do not generate traffic or parking, such as telecommuting and online teaching, without requiring Board permission.

• Complaints: Ms. Duistermars acknowledged she was unaware of any specific complaints regarding traffic, parking, or noise from the Wilkeys’ unit. However, she testified that the Board was first made aware of the business operation when another resident brought the issue to its attention.

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Legal Analysis and Conclusions

• Standard of Proof: The judge determined all issues based on a “preponderance of the evidence,” defined as evidence with the most convincing force.

• CC&Rs as Contract: The CC&Rs are a legally binding contract between the Association and the residents.

• Unambiguous Language: The judge found the language in CC&R Article 3, Section 3.1 to be clear and unambiguous. Such covenants must be enforced to give effect to the parties’ original intent.

• Direct Violation: The judge concluded that the evidence overwhelmingly showed the Wilkeys were operating a business from their unit. The admission that two employees drive to the unit and park on the street proves that the business creates both traffic and parking.

• Violation Trigger: The creation of any traffic or parking by the business is sufficient to constitute a violation. The CC&R does not require that the traffic or parking cause a secondary violation or generate resident complaints. Therefore, the lack of other complaints was deemed to have little probative value.

• Final Conclusion: Based on the facts, the Wilkeys are in clear violation of CC&R Article 3, Section 3.1.

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Final Order and Penalties

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

1. Compliance Order: Respondent Layne C. Wilkey and Devin E. Wilkey must cease all business operations at 720 E. North Lane, Unit 1 (Lot 50) within thirty-five (35) days of the Order’s effective date.

2. Civil Penalty: The Respondents must pay a civil penalty of $500.00 to the Department of Real Estate within sixty (60) days of the Order’s effective date. Payment must be made by cashier’s check or money order.

3. Filing Fee: The Petitioner’s request for a refund of its filing fee was denied, as the judge found no legal authority to grant it.

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

Study Guide:Pointe Tapatio Community Association v. Wilkey

This guide provides a comprehensive overview of the administrative law case Pointe Tapatio Community Association v. Wilkey, Case No. 19F-H1919044-REL, heard before the Arizona Office of Administrative Hearings. It details the central conflict, the arguments presented by both parties, the legal standards applied, and the final judgment.

Case Summary

The Pointe Tapatio Community Association (Petitioner) filed a complaint against homeowners Layne C. Wilkey and Devin E. Wilkey (Respondent), alleging that they were violating the community’s Covenants, Conditions, and Restrictions (CC&Rs) by operating a business, Devau Human Resources, from their residential unit. The Association argued that the business, which employed two individuals who commuted to the property, generated traffic and parking, explicitly prohibited by the CC&Rs for non-residential activities. The Wilkeys contended they had received verbal permission years prior and that the business was not disruptive. The Administrative Law Judge found in favor of the Association, ruling that the Wilkeys were in clear violation of the community’s governing documents.

Key Parties & Entities

Name / Entity

Key Actions & Involvement

Pointe Tapatio Community Association

Petitioner

The homeowners’ association that filed the petition alleging a CC&R violation. Represented by Lauren Vie, Esq.

Layne C. Wilkey & Devin E. Wilkey

Respondent

Mother and son, co-owners of the unit at 720 E. North Lane, Unit 1. Operators of Devau Human Resources. Represented by Joseph Velez, Esq.

Thomas Shedden

Administrative Law Judge (ALJ)

Presided over the hearing, made findings of fact, drew conclusions of law, and issued the final order.

Arizona Department of Real Estate

Regulatory Body

Issued the initial Notice of Hearing and has legal authority over such disputes under ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.

Paula Duistermars

Board Member, Pointe Tapatio

Testified on behalf of the Association, detailing the Board’s position and interactions regarding the violation.

Howard Flisser

Property Manager (Former or Current)

Named by the Wilkeys as the source of verbal permission to operate their business; Flisser denied recalling this.

Devau Human Resources

Business Entity

A payroll processing company owned by the Wilkeys, operating out of the residential unit and a commercial site in Tempe.

Office of Administrative Hearings

Adjudicative Body

The venue for the hearing, located at 1740 West Adams Street, Lower Level, in Phoenix, Arizona.

Case Timeline

• Late 2009: The Wilkeys move their business, Devau Human Resources, from a commercial location into their unit at Pointe Tapatio.

• August 8, 2018: Pointe Tapatio sends a letter informing the Wilkeys they are out of compliance with the CC&Rs and must comply by August 31, 2018.

• January 17, 2019 (approx.): Pointe Tapatio files a petition with the Arizona Department of Real Estate.

• February 28, 2019: The Arizona Department of Real Estate issues a Notice of Hearing.

• April 26, 2019: The administrative hearing is held before ALJ Thomas Shedden.

• May 7, 2019: ALJ Thomas Shedden issues the final decision and order.

Central Conflict: CC&R Article 3, Section 3.1

The core of the dispute revolved around the interpretation and enforcement of a specific restrictive covenant within the community’s governing documents.

• The Allegation: Pointe Tapatio alleged that the Wilkeys were using their unit as an office for a “gainful occupation,” which is not a “first class residential use.”

• The Specific Provision: Article 3, Section 3.1 of the CC&Rs states:

• The Triggering Condition: The prohibition is not absolute. It applies specifically to non-residential uses that create traffic or parking.

Arguments and Evidence

Arguments & Evidence Presented

Petitioner (Pointe Tapatio)

Employee Activity: The Wilkeys acknowledged two employees drive to the unit to work Monday through Friday, creating traffic and parking on community streets.
Public Information: Devau’s website and Google Maps listed the residential unit as an office address with set business hours (9:00 a.m. to 5:00 p.m.).
Owner Admission: Ms. Wilkey acknowledged during testimony that they consider the unit to be an office.
Lack of Authority: Board member Paula Duistermars testified that property manager Howard Flisser did not have the authority to grant permission for a business; only the Board could. She also testified that Flisser could not recall giving permission and had volunteered that he never did.

Respondent (The Wilkeys)

Verbal Permission: The Wilkeys claimed they received verbal permission from property manager Howard Flisser in 2009. They admitted they never spoke to him directly and had nothing in writing.
Implied Permission: Mr. Wilkey argued his father would not have taken the risk of moving the payroll business without permission, implying it must have been granted.
No Direct Complaints: It was acknowledged that the Association was not aware of specific complaints filed against the Wilkeys for traffic, parking, or noise issues.
Residential Use: Mr. Wilkey testified that he considers the unit one of his two primary residences, though he did not provide a responsive answer when asked how often he stayed there.

The Judge’s Decision & Legal Reasoning

ALJ Thomas Shedden concluded that the Wilkeys were in violation of the CC&Rs based on a “preponderance of the evidence.”

• The Wilkeys operate Devau Human Resources, a payroll processing company, from the unit.

• Two employees commute to the unit for work and sometimes park on community streets.

• The business is publicly listed at the residential address.

• The Wilkeys’ claim of verbal permission from Howard Flisser was not substantiated. Testimony from Paula Duistermars indicated Flisser could not recall, and in fact denied, giving such permission.

• The Association does permit some home businesses (e.g., telecommuting, online teaching) that do not create traffic or parking and do not require Board permission.

1. CC&Rs as a Contract: The CC&Rs constitute a binding contract between the homeowners and the Association.

2. Unambiguous Language: The language in Article 3, section 3.1 is clear and unambiguous. It prohibits businesses that create traffic or parking.

3. Violation Proven: The evidence clearly showed the Wilkeys’ business created both traffic and parking due to its two commuting employees. This is a direct violation of the unambiguous terms of the CC&R.

4. No Other Violation Needed: The fact that no other rules (e.g., specific parking ordinances) were broken is irrelevant. The creation of any traffic or parking by the business is sufficient to trigger the violation as written.

1. Cease Operations: The Wilkeys were ordered to comply with CC&R Article 3, section 3.1 by ceasing business operations at the unit within 35 days.

2. Civil Penalty: The Wilkeys were ordered to pay a civil penalty of $500.00 to the Department of Real Estate within 60 days.

3. Filing Fee Request Denied: The Association’s request to have its filing fee refunded was denied because it cited no legal authority showing the judge had the power to grant it.

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Answer the following questions in 2-3 complete sentences based on the information in the case file.

1. Who were the petitioner and the respondents in this case, and what was their relationship?

2. What specific activity led the petitioner to claim the respondents were violating the CC&Rs?

3. According to Article 3, section 3.1, what condition makes a non-residential use of a property a violation?

4. What was the respondents’ primary defense for operating their business from the unit?

5. Why did the Administrative Law Judge find the respondents’ primary defense unconvincing?

6. What two specific pieces of evidence demonstrated that the business created traffic and parking?

7. What is the legal standard of proof required in this type of administrative hearing, and what does it mean?

8. What two penalties were imposed on the Wilkeys in the final order?

9. Does the Pointe Tapatio Community Association prohibit all home-based businesses? Explain.

10. Who was Howard Flisser, and what was his significance to the respondents’ case?

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Answer Key

1. The petitioner was the Pointe Tapatio Community Association. The respondents were Layne C. Wilkey and Devin E. Wilkey, who were homeowners within the community and co-owners of the unit in question.

2. The Wilkeys were operating their payroll processing company, Devau Human Resources, out of their residential unit. This included having two employees commute to the property to work during business hours.

3. A non-residential use becomes a violation if it “creates traffic [or] parking.” The rule does not require a certain amount of traffic or parking, only that it is created by the business activity.

4. The respondents’ primary defense was that they had received verbal permission to operate the business from the community’s property manager, Howard Flisser, back in 2009.

5. The judge found the defense unconvincing because the Wilkeys had no written proof, had not spoken to Mr. Flisser directly, and testimony from a board member indicated Mr. Flisser could not recall—and later denied—ever giving such permission. Furthermore, the property manager likely lacked the authority to grant it.

6. The evidence was the Wilkeys’ own acknowledgement that two of their employees drive to the unit to work on a weekly basis. This commuting by non-resident employees necessarily creates traffic and, at times, requires them to park on community streets.

7. The standard of proof is a “preponderance of the evidence.” This means the greater weight of the evidence must be sufficient to incline a fair and impartial mind to one side of the issue over the other, even if it does not remove all reasonable doubt.

8. The Wilkeys were ordered to cease all business operations at the unit within 35 days. They were also ordered to pay a civil penalty of $500.00 to the Department of Real Estate within 60 days.

9. No, the association does not prohibit all home-based businesses. It allows for activities like telecommuting and teaching online classes, which do not require board permission because they do not create traffic or parking.

10. Howard Flisser was the property manager whom the Wilkeys claimed gave them verbal permission to run their business. His significance was central to their defense, but his alleged permission was unsubstantiated and contradicted by later testimony.

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Essay Questions

The following questions are designed for longer-form analysis. No answers are provided.

1. Analyze the concept of “preponderance of the evidence” as applied in this case. How did the evidence presented by Pointe Tapatio meet this standard, while the Wilkeys’ evidence did not?

2. Discuss the legal principle that CC&Rs are treated as contracts. Explain how Judge Shedden applied contract law principles, particularly regarding “unambiguous” language, to reach his conclusion.

3. Evaluate the Wilkeys’ defense strategy, focusing on their claim of verbal permission from Howard Flisser. Why was this argument legally insufficient? What kind of evidence would have been necessary to make it successful?

4. Examine the distinction the Pointe Tapatio Community Association makes between permissible home-based businesses (like telecommuting) and impermissible ones (like Devau Human Resources). What is the key factor in this distinction according to the CC&Rs, and how does it relate to the core purpose of residential covenants?

5. Based on the judge’s order, discuss the remedies available to a homeowner’s association in Arizona when a CC&R violation is proven. What penalties were imposed, and what penalty was requested but denied?

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Glossary of Key Terms

• Administrative Law Judge (ALJ): A judge and trier of fact who presides over administrative hearings, such as disputes handled by the Office of Administrative Hearings. The ALJ renders decisions, called orders, based on evidence and legal arguments.

• CC&Rs (Covenants, Conditions, and Restrictions): The governing legal documents that set out the rules for a planned community or subdivision. In this case, they are treated as a legally binding contract between the association and the homeowners.

• Civil Penalty: A monetary fine levied by a government agency or administrative court for a violation of a statute or rule. In this case, a $500 penalty was imposed on the Wilkeys for violating the community documents.

• Conclusions of Law: The section of a judicial decision where the judge applies legal principles and statutes to the established facts of the case to reach a judgment.

• Findings of Fact: The section of a judicial decision that formally lists the factual determinations made by the judge based on the evidence presented at the hearing.

• Order: The final ruling or judgment issued by an Administrative Law Judge that directs the parties on what actions they must take.

• Petitioner: The party who initiates a legal action or files a petition seeking a legal remedy. In this case, the Pointe Tapatio Community Association.

• Preponderance of the Evidence: The standard of proof in most civil and administrative cases. It requires the trier of fact to believe that it is more likely than not that a claim is true, based on the evidence presented.

• Respondent: The party against whom a petition is filed or an appeal is brought. In this case, Layne C. Wilkey and Devin E. Wilkey.

4 Surprising Lessons from an HOA Lawsuit That Shut Down a 10-Year-Old Home Business

Introduction: The Rise of the Home Office and the Rules You Didn’t Know Existed

In an age where the line between the living room and the corner office has all but vanished, millions of us have embraced working from home. But as we settle into our home-based routines, a critical question often goes unasked: Are you truly familiar with your homeowner’s association (HOA) rules regarding home-based businesses?

For the Wilkey family, owners of Devau Human Resources, the answer to that question proved to be a costly one. After operating their payroll processing company from their home for nearly a decade without a single complaint, they found themselves in a legal battle that ultimately shut them down. Their case serves as a powerful cautionary tale about what can happen when long-standing home businesses collide with the fine print of HOA rules.

1. It’s Not About Complaints, It’s About the Contract

One of the most chilling lessons from the Wilkey case is that the HOA’s action wasn’t triggered by angry neighbors complaining about noise or traffic. In fact, Board member Paula Duistermars testified that she was unaware of any such complaints. The issue arose simply because “a resident brought the issue to [the Board’s] attention.”

This reveals a crucial legal reality: your business’s existence, not its impact, can be the sole trigger for enforcement. It doesn’t take a chorus of angry neighbors—just one person notifying the Board of a potential rule violation is enough. The Covenants, Conditions, and Restrictions (CC&Rs) are a legally binding contract, and the court’s decision was not based on whether the business was a nuisance, but simply whether it complied with the contract’s terms. Your takeaway: You must operate as if the rulebook will be enforced literally, because it can be.

2. The Deciding Factor: A Single Clause About “Traffic and Parking”

The entire legal dispute hinged on the precise wording of one specific rule. The HOA wasn’t enforcing a vague, blanket ban on all home businesses; its power came from a single, carefully worded clause in the CC&Rs.

The relevant section, Article 3, section 3.1, stated:

“Each Residence shall be used, improved, and devoted exclusively to first class residential use, and no gainful occupation, profession, trade, business, religion, or other non-residential use which creates traffic [or] parking … shall be conducted from any Residence [or part thereof.]”

As a legal analyst, I can tell you why this clause was so powerful: its focus on a tangible impact (“creates traffic [or] parking”) made it highly defensible. A blanket prohibition on “all businesses” might be open to challenge, but this specific, impact-based rule was nearly impossible to argue against once the facts were established. The Wilkeys’ business was found in violation specifically because it created traffic and parking, which is also why the HOA permitted other home businesses, like telecommuting, that did not.

3. Your Two-Person TeamIsa Traffic Problem

Many homeowners assume that business traffic rules are meant to prevent a steady stream of clients visiting a residential property. The Wilkeys had no clients come to their unit. However, this did not protect them.

The undisputed fact that proved decisive was that two of the company’s employees commuted to the home to work—one from Monday to Thursday and the other from Monday to Friday. The judge concluded that this daily employee commute constituted the creation of “traffic and parking” as prohibited by the CC&Rs. The employees at times parking on the community’s common streets provided concrete, undeniable evidence of this. This case sets a precedent that a micro-business with just one or two employees commuting to the home can be deemed in violation—a scenario many entrepreneurs wouldn’t even consider a “traffic” issue.

4. “He Said We Could” Is Not a Legal Defense

The Wilkeys asserted that they had received verbal permission to operate their business from the property manager back in 2009. This defense completely fell apart under legal scrutiny.

Courts prioritize written agreements and official board actions over “he said/she said” accounts, especially when they involve multi-level hearsay (in this case, a husband asking a salesperson who asked the manager). The defense failed for several clear reasons: the Wilkeys had no written proof, the manager denied recalling or ever giving such permission, and most importantly, a Board member testified that the manager lacked the authority to grant this permission anyway. Only the Board could.

The takeaway is unambiguous: Never rely on verbal assurances. Get all permissions from your HOA Board in writing, or they do not legally exist.

Conclusion: Know Your Rules Before You Unpack Your Desk

The story of the Wilkey family is a stark reminder that HOA documents are not mere suggestions; they are legally binding contracts where every word matters. The Wilkeys’ experience is a costly lesson for every home-based professional. Proactive compliance is your only true protection. The final outcome was an order for them to cease all business operations from their home within 35 days and pay a $500 civil penalty.

You might have been working from home for years without a problem, but have you ever read the fine print on what your community actually allows?

Case Participants

Petitioner Side

Lauren Vie (HOA attorney)
Attorney for Petitioner
Paula Duistermars (board member)
Pointe Tapatio Community Association
Presented testimony for Petitioner
Beth Mulchay (HOA attorney)
Mulchay Law Firm, P.C.
Listed on transmission list

Respondent Side

Layne C. Wilkey (respondent)
Devin E. Wilkey (respondent)
Joseph A Velez (respondent attorney)
For Respondent

Neutral Parties

Thomas Shedden (ALJ)
Judy Lowe (Commissioner)
Arizona Department of Real Estate

Other Participants

Howard Flisser (property manager)
Statements regarding alleged business permission were discussed
Felicia Del Sol (unknown)

Tom J Martin v. SaddleBrooke Home Owners Association #1, Inc.

Posted on April 26, 2019 by [email protected]

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

Case Summary

Case ID	19F-H1918022-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2019-05-10
Administrative Law Judge	Thomas Shedden
Outcome	The Administrative Law Judge affirmed the dismissal of the petition on rehearing, ruling that the HOA's website and policy manual are not 'community documents' as defined by statute, and therefore the Department has no jurisdiction to adjudicate disputes regarding them. Additionally, the requested financial relief was outside the ALJ's authority.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Tom J Martin	Counsel	—
Respondent	SaddleBrooke Home Owners Association #1, Inc.	Counsel	Carolyn B. Goldschmidt

Alleged Violations

ARIZ. REV. STAT. § 32-2199.01(A); ARIZ. REV. STAT. § 33-1802(2)

Outcome Summary

The Administrative Law Judge affirmed the dismissal of the petition on rehearing, ruling that the HOA's website and policy manual are not 'community documents' as defined by statute, and therefore the Department has no jurisdiction to adjudicate disputes regarding them. Additionally, the requested financial relief was outside the ALJ's authority.

Why this result: Lack of subject matter jurisdiction because the alleged violations did not involve the declaration, bylaws, articles of incorporation, or rules of the planned community.

Key Issues & Findings

Alleged violation of HOA website and Policy Manual (Policy BC-3) regarding pickleball courts

Petitioner alleged that the HOA violated its website and policy manual by failing to provide pickleball courts as marketed. The Respondent moved to dismiss for lack of jurisdiction, arguing these documents are not community documents. The ALJ affirmed the dismissal, finding that policies and website statements do not fall under the statutory definition of community documents in A.R.S. § 33-1802(2), thus the Department lacked jurisdiction.

Orders: Petitioner Tom J. Martin’s petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 33-1802
ARIZ. REV. STAT. § 32-2199.02
McNally v. Sun Lakes Homeowners Ass’n #1, Inc.

Analytics Highlights

Topics: jurisdiction, community documents, policy manual, pickleball courts, dismissal, rehearing

Additional Citations:

ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 33-1802(2)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 1-213
ARIZ. REV. STAT. § 12-904
Walker v. Scottsdale, 163 Ariz. 206, 786 P.2d 1057 (App. 1989)
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)

Video Overview

Audio Overview

Decision Documents

19F-H1918022-REL-RHG Decision – 704322.pdf

Uploaded 2026-01-23T17:27:17 (89.7 KB)

Briefing Document: Martin v. SaddleBrooke Home Owners Association #1, Inc. (Case No. 19F-H1918022-REL-RHG)

Executive Summary

This document synthesizes the Administrative Law Judge Decision in the case of Tom J. Martin versus SaddleBrooke Home Owners Association #1, Inc., which resulted in the dismissal of the petitioner’s case. The decision, issued on May 10, 2019, centered on a critical jurisdictional question: whether an HOA’s website content and internal policy manual constitute “community documents” under Arizona state law.

The Administrative Law Judge (ALJ) concluded they do not. The petitioner’s claim, which alleged the HOA failed to provide pickleball courts as promised on its website and in its “Policy Number BC-3,” was dismissed because it did not allege a violation of a legally recognized “community document.” According to Arizona Revised Statutes, such documents are strictly defined as the declaration, bylaws, articles of incorporation, and formally adopted rules. As the petitioner’s initial filing cited only the website and a policy not adopted as a rule, the Office of Administrative Hearings lacked the statutory jurisdiction to hear the case. Furthermore, the ALJ determined that the petitioner’s requested relief—a financial award of $463,112 or the construction of eight new courts—was beyond the scope of the tribunal’s authority.

Case Overview

Case Name

Tom J. Martin v. SaddleBrooke Home Owners Association #1, Inc.

Case Number

19F-H1918022-REL-RHG

Tribunal

Arizona Office of Administrative Hearings

Petitioner

Tom J. Martin

Respondent

SaddleBrooke Home Owners Association #1, Inc.

Presiding Judge

Administrative Law Judge Thomas Shedden

Date of Decision

May 10, 2019

Petitioner’s Core Allegations and Requested Relief

The petition filed by Tom J. Martin on September 28, 2018, was founded on the central allegation that the SaddleBrooke HOA violated its own website content and its internal policy manual, specifically “Policy Number BC-3.”

• Primary Allegation: The HOA failed to fulfill its advertised and marketed promise to provide pickleball courts.

• Cited Violations: In the initial petition, Martin explicitly alleged violations of the HOA’s website and policy manual. While he checked boxes on the petition form indicating violations of the CC&Rs and Bylaws, he failed to identify any specific provisions from those documents.

• Requested Relief: The petitioner sought a significant remedy from the HOA, requesting one of the following:

1. Financial support in the amount of $463,112.00 for the expansion of pickleball courts in Bobcat Canyon.

2. The provision of eight new pickleball courts within a two-mile radius of the community within one year.

3. A commitment from the HOA to be financially responsible for the maintenance of pickleball courts in an amount equal to its spending on eight tennis courts.

Procedural History and Key Arguments

The case progressed through several key stages, culminating in a rehearing and a final dismissal.

1. Initial Petition (September 28, 2018): Mr. Martin filed his single-issue petition with the Arizona Department of Real Estate.

2. Respondent’s Motion to Dismiss (November 30, 2018): The HOA argued that the Department of Real Estate lacked jurisdiction over the matter. Its core argument was that hearings under ARIZ. REV. STAT. § 32-2199.01 are limited to violations of “community documents,” and that a website and an internal policy do not meet the legal definition of such documents. The HOA also contended the requested relief was outside the tribunal’s authority.

3. Petitioner’s Response (December 4, 2018): In his response, Mr. Martin argued that a “policy” should be interpreted as a “rule” under its ordinary meaning. He further asserted that another HOA policy (CE-3) defined “governing documents” to include “Rules and Regulations,” and therefore Policy BC-3 should be considered a governing document.

4. Initial Dismissal (December 12, 2018): The ALJ dismissed the petition, finding that it had not alleged a violation meeting the statutory requirements.

5. Request for Rehearing (December 31, 2018): Mr. Martin requested a rehearing, reasserting that a “policy” is a “rule.” In this request, he newly alleged that the HOA had violated specific provisions: Bylaws article 4, section 6(3) and Articles of Incorporation Article XII, by failing to implement policy BC-3.

6. Rehearing (April 16, 2019): A rehearing was conducted where both parties presented their cases. The respondent renewed its argument regarding lack of jurisdiction.

Central Legal Dispute: The Definition of “Community Documents”

The determinative issue of the case was the precise legal definition of “community documents” and whether the petitioner’s claims fell within that scope.

• Statutory Definition: The court’s decision was anchored in ARIZ. REV. STAT. § 33-1802(2), which defines community documents as:

◦ The declaration (CC&Rs)

◦ Bylaws

◦ Articles of incorporation, if any

◦ Rules, if any

• The Court’s Finding: The ALJ concluded that this legislative definition is exclusive and does not include “a planned community’s statements of policy, statements on its website, or advertising and marketing material.”

• Petitioner’s Argument Rejected: Mr. Martin’s argument that Policy BC-3 should be considered a rule was found to be “not persuasive.” A critical finding of fact was that the “Respondent has not adopted policy BC-3 as a rule” under the authority granted in its CC&Rs (section 4.5). The tribunal must follow the legislature’s explicit definition.

Administrative Law Judge’s Conclusions and Final Order

The ALJ’s conclusions of law led directly to the dismissal of the petition on jurisdictional grounds.

• Lack of Jurisdiction: Because Mr. Martin’s original petition only alleged that the respondent violated its website and policy manual—neither of which are “community documents” under Arizona law—the petition failed to meet the foundational requirements for a hearing under ARIZ. REV. STAT. § 32-2199.01(A).

• Improper Relief Requested: The ALJ also concluded that the relief Mr. Martin sought was not within the tribunal’s authority. Under ARIZ. REV. STAT. § 32-2199.02, an ALJ may order a party to abide by statutes or community documents and may levy civil penalties. The statute does not grant the authority to order large financial payments for construction or to mandate specific capital improvement projects.

• Final Order: Based on these conclusions, the petition was dismissed.

IT IS ORDERED that Petitioner Tom J. Martin’s petition is dismissed.

The decision, having been issued as the result of a rehearing, is binding on the parties. Any appeal must be filed for judicial review with the superior court within thirty-five days from the date of the order’s service.

Study Guide: Martin v. SaddleBrooke Home Owners Association #1, Inc.

This guide provides a detailed review of the Administrative Law Judge Decision in the case of Tom J. Martin vs. SaddleBrooke Home Owners Association #1, Inc. (No. 19F-H1918022-REL-RHG). It is designed to test and deepen understanding of the case’s facts, legal arguments, and final outcome.

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Short-Answer Quiz

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

1. Who were the Petitioner and Respondent in case No. 19F-H1918022-REL-RHG?

2. What was the central allegation made by the Petitioner in his initial petition filed on or about September 28, 2018?

3. Describe the two alternative forms of relief the Petitioner requested in his petition.

4. On what primary legal grounds did the Respondent file its Motion to Dismiss?

5. According to Arizona Revised Statute section 33-1802(2), what are the four types of documents that constitute “community documents”?

6. Explain the two main arguments the Petitioner made in his Response to the Motion to Dismiss for why Policy BC-3 should be considered a governing document.

7. What new violation did the Petitioner allege in his request for a rehearing on December 31, 2019?

8. According to the Administrative Law Judge’s findings, what was the final outcome of the Petitioner’s petition and the primary reason for this decision?

9. According to A.R.S. § 32-2199.02, what powers does an administrative law judge have if a violation of community documents is found?

10. What is the process and time frame for a party wishing to appeal this Administrative Law Judge order?

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Answer Key

1. The Petitioner was Tom J. Martin, who appeared on his own behalf. The Respondent was SaddleBrooke Home Owners Association #1, Inc., which was represented by Carolyn B. Goldschmidt, Esq.

2. In his initial petition, Mr. Martin’s single-issue allegation was that the Respondent violated its website and its policy manual, specifically Policy Number BC-3. He included printouts from the website and a copy of the policy with his petition.

3. The Petitioner requested financial support in the sum of $463,112.00 for the expansion of pickleball courts in Bobcat Canyon. Alternatively, he requested that the Respondent provide eight pickleball courts within a two-mile radius of the community within one year, and be financially responsible for their maintenance at a level equal to its spending on eight tennis courts.

4. The Respondent argued that the Arizona Department of Real Estate lacked jurisdiction over the matter. This was because hearings are limited to disputes over “community documents,” and neither the website nor Policy BC-3 qualified as such under the definition provided in ARIZ. REV. STAT. section 33-1802(2).

5. Arizona Revised Statute section 33-1802(2) defines “community documents” as “the declaration, bylaws, articles of incorporation, if any, and rules, if any.”

6. First, Mr. Martin argued that based on A.R.S. § 1-213, the word “policy” should be given its ordinary meaning, which is a rule. Second, he asserted that because the Respondent’s own policy CE-3 defines “governing documents” to include Rules and Regulations, then BC-3 must be a governing document.

7. In his request for a rehearing, Mr. Martin alleged for the first time that the Respondent had violated its bylaws, specifically article 4, section 6(3), by failing to implement policy BC-3. He also alleged a violation of Articles of Incorporation Article XII.

8. The Administrative Law Judge ordered that Mr. Martin’s petition be dismissed. The dismissal was based on the finding that the petition did not meet the requirements of A.R.S. § 32-2199.01(A) because it alleged violations of a website and a policy manual, which are not legally defined as “community documents.”

9. If a violation is found, an administrative law judge may order any party to abide by the statute or document at issue. The judge may also levy a civil penalty for each violation and, if the petitioner prevails, order the respondent to pay the petitioner’s filing fee.

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 a copy of the order was served upon the parties, as prescribed by A.R.S. section 12-904(A).

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Essay Questions

The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response for each question based on the facts and legal principles presented in the decision.

1. Analyze the concept of jurisdiction as it applies to this case. Why was the distinction between “community documents” and other materials like websites or policy manuals the central factor in the judge’s jurisdictional decision?

2. Trace the procedural history of this case, from Mr. Martin’s initial petition to the final order of dismissal. Identify the key filings, arguments, and decisions at each stage of the process.

3. Evaluate the legal arguments presented by Mr. Martin. Explain his reasoning for equating a “policy” with a “rule” and why the Administrative Law Judge ultimately found this argument unpersuasive, citing relevant statutes and case law mentioned in the decision.

4. Discuss the limitations on the relief an Administrative Law Judge can grant in disputes involving planned communities, as outlined in A.R.S. § 32-2199.02. How did Mr. Martin’s requested relief fall outside the scope of the judge’s authority?

5. Explain the legal principle that when a legislature defines a word or term, a tribunal must follow that definition. How did this principle, as cited in Walker v. Scottsdale, directly influence the outcome of Mr. Martin’s petition?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, the ALJ was Thomas Shedden.

ARIZ. REV. STAT. (A.R.S.)

The abbreviation for Arizona Revised Statutes, which are the codified laws of the State of Arizona.

Articles of Incorporation

A set of formal documents filed with a government body to legally document the creation of a corporation. Defined in A.R.S. § 33-1802(2) as one of the “community documents.”

Bylaws

A set of rules adopted by an organization, such as an HOA, to govern its internal management and operations. Defined in A.R.S. § 33-1802(2) as one of the “community documents.”

CC&Rs (Covenants, Conditions, and Restrictions)

Rules governing the use of land within a particular planned community. Section 4.5 of the Respondent’s CC&Rs sets out its authority to adopt rules.

Community Documents

As defined by A.R.S. § 33-1802(2), these are “the declaration, bylaws, articles of incorporation, if any, and rules, if any.” The central legal issue of the case was whether the Respondent’s website and policy manual qualified as community documents.

Jurisdiction

The official power to make legal decisions and judgments. The Respondent argued, and the ALJ agreed, that the Office of Administrative Hearings did not have jurisdiction because the alleged violations did not involve “community documents.”

Motion to Dismiss

A formal request by a party for a court or tribunal to dismiss a case. The Respondent filed a Motion to Dismiss on November 30, 2018, arguing a lack of jurisdiction.

Petitioner

The party who files a petition initiating a legal case. In this matter, the Petitioner was Tom J. Martin.

Rehearing

A second hearing of a case to reconsider the issues and arguments, granted in this instance after the initial dismissal. The rehearing was conducted on April 16, 2019.

Respondent

The party against whom a petition is filed. In this matter, the Respondent was SaddleBrooke Home Owners Association #1, Inc.

Regulations adopted by a planned community association. The decision notes that while the Respondent has the authority to adopt rules, it had not adopted policy BC-3 as a rule.

4 Harsh Lessons from a Homeowner’s Failed Lawsuit Against His HOA

Introduction: The Promise vs. The Paperwork

Imagine finding the perfect community. Its website advertises fantastic amenities, including the pickleball courts you’ve been dreaming of. The association’s own policy manual seems to confirm this commitment. But what happens when the courts are never built and the homeowner association (HOA) doesn’t deliver on these perceived promises?

This isn’t a hypothetical scenario. It’s the central conflict in the case of Tom J. Martin versus the SaddleBrooke HOA in Arizona. Mr. Martin believed his HOA was legally obligated to provide pickleball courts based on its policies and marketing materials. His subsequent lawsuit, however, failed spectacularly, revealing some surprising truths about HOA disputes. This case provides several critical, counter-intuitive lessons for any current or future homeowner about the difference between a promise and a legally enforceable contract.

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1. A “Policy” Isn’t Always a Legally Binding “Rule”

Mr. Martin’s argument was straightforward: he believed the HOA violated its own “policy manual,” specifically a section referred to as Policy BC-3, by not providing pickleball courts. He contended that, in the ordinary sense of the word, a “policy” is a rule that must be followed.

The judge, however, dismissed the case based on a harsh legal reality. According to Arizona law, the court’s jurisdiction in this type of hearing is limited to violations of official “community documents.” The judge was bound by the statute’s specific definition of what constitutes these documents.

Based on Arizona Revised Statute § 33-1802(2), “community documents” are strictly defined as:

• The declaration (often called CC&Rs)

• Bylaws

• Articles of incorporation

• Rules

Crucially, the HOA’s own CC&Rs specified the exact procedure for how to adopt an enforceable rule, and the association had never subjected Policy BC-3 to that formal process. It wasn’t just a legal technicality; the HOA was following its own governing documents about how to create—or not create—a binding rule. Because the pickleball policy had not been formally adopted, it was legally unenforceable in this hearing.

Key Takeaway Analysis: In a legal dispute, the common-sense meaning of a word can be overruled by a specific statutory definition. It’s not enough to read an HOA’s policy manual. As a homeowner, you must cross-reference that policy with the CC&Rs or Bylaws to confirm the HOA has followed its own stated procedure for adopting it as a formal, legally binding rule.

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2. Marketing Materials Are Not Governing Documents

To support his case, Mr. Martin presented printouts from the HOA’s website. He felt these materials advertised and marketed the availability of pickleball courts, stating in a legal filing that “the Association is in violation for not providing pickleball courts as advertised and marketed….”

The judge’s conclusion was unequivocal: advertising and marketing materials, just like the internal policy manual, do not qualify as “community documents.” The legal definition is exclusive, and an HOA’s website is not on the list. Therefore, promises or suggestions made on a website carry no legal weight in a dispute over violations of governing documents.

Key Takeaway Analysis: There is a significant gap between marketing promises and legally enforceable obligations. For potential buyers, this is a critical warning. The glossy brochure, the community website, and the sales pitch might paint a picture of community life, but that picture is not guaranteed by the legally binding documents you sign at closing.

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3. You Must Allege a Violation of theRightDocument

The case also reveals a crucial lesson in legal procedure. In his initial petition, Mr. Martin only alleged violations of the HOA’s website and its policy manual. While his petition form indicated alleged violations of the “CC&Rs and Bylaws,” he failed to identify any specific provisions within those official documents that the HOA had actually violated.

It was only after his case was first dismissed that he attempted to specify violations of the Bylaws and Articles of Incorporation in his request for a rehearing. By then, it was too late. The initial petition failed to allege a violation of a legitimate community document.

Key Takeaway Analysis: Precision is paramount. To successfully challenge an HOA in an administrative hearing, a homeowner cannot just have a general grievance. You must be able to pinpoint the exact article, section, and provision of an official “community document” (like the CC&Rs or Bylaws) that was violated and state it clearly in your initial complaint.

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4. The Court May Not Have the Power to Grant Your Request

Mr. Martin was clear about what he wanted the court to do. He requested one of two specific forms of relief:

• Provide financial support of $463,112.00 for the expansion of pickleball courts in Bobcat Canyon.

• Alternatively, construct eight new pickleball courts within a two-mile radius of the community within one year, with the HOA being financially responsible for their maintenance.

The judge noted a final, critical problem with the case: the requested relief was “not within the scope of the Administrative Law Judge’s authority.” The law governing these hearings simply did not give the judge the power to order an HOA to undertake a massive, six-figure construction project.

Key Takeaway Analysis: Even if you have a valid case and prove the HOA violated a rule, the court or tribunal you are in has limits. An administrative hearing might only be empowered to levy a civil penalty or issue an order for the HOA to abide by an existing rule. It likely cannot force the HOA to build new facilities or make large capital expenditures. This highlights the need to research the legal venue before you file to ensure it has the authority to grant the specific outcome you are seeking.

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Conclusion: Read Before You Litigate

The outcome of Mr. Martin’s lawsuit underscores the critical difference between a homeowner’s reasonable expectations and an HOA’s legally enforceable covenants. For homeowners, disputes are won or lost based on the precise wording of official governing documents—the CC&Rs, bylaws, and formal rules.

Before you challenge your HOA, have you read the fine print to see if their promise is written in the one place that truly matters?

Case Participants

Petitioner Side

Tom J. Martin (petitioner)
Appeared on his own behalf

Respondent Side

Carolyn B. Goldschmidt (respondent attorney)
Goldschmidt, Shupe, PLLC
Michael S. Shupe (attorney)
Goldschmidt, Shupe, PLLC
Recipient of transmittal

Neutral Parties

Thomas Shedden (ALJ)
Judy Lowe (ADRE Commissioner)
Arizona Department of Real Estate
Recipient of transmittal
LDettorre (ADRE staff)
Arizona Department of Real Estate
Recipient of transmittal (Identified by email handle portion)
AHansen (ADRE staff)
Arizona Department of Real Estate
Recipient of transmittal (Identified by email handle portion)
djones (ADRE staff)
Arizona Department of Real Estate
Recipient of transmittal (Identified by email handle portion)
DGardner (ADRE staff)
Arizona Department of Real Estate
Recipient of transmittal (Identified by email handle portion)
ncano (ADRE staff)
Arizona Department of Real Estate
Recipient of transmittal (Identified by email handle portion)

Other Participants

JS (Unknown staff)
Transmittal initials

Tom Barrs v. Desert Ranch Homeowners Association

Posted on April 10, 2019 by [email protected]

Case Summary

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

Parties & Counsel

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

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

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

Key Issues & Findings

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

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

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

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

Disposition: petitioner_win

Cited:

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

Analytics Highlights

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

Additional Citations:

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

Video Overview

Audio Overview

Decision Documents

19F-H1918037-REL Decision – 737525.pdf

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19F-H1918037-REL Decision – 700566.pdf

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19F-H1918037-REL Decision – 737525.pdf

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Briefing Document: Barrs v. Desert Ranch Homeowners Association (Case No. 19F-H1918037-REL)

Executive Summary

This briefing document synthesizes two Administrative Law Judge (ALJ) decisions concerning a records request dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent). The core of the dispute was the Association’s failure to fully comply with a request for records under Arizona Revised Statutes (A.R.S.) § 33-1805.

The case is notable for its complete reversal upon rehearing. An initial ruling on April 10, 2019, favored the Association, finding that the Petitioner had failed to properly submit his request by not emailing all Board members. However, this decision was overturned in a final, binding order on September 12, 2019. In the rehearing, the Petitioner presented new evidence demonstrating he was following the Association’s own prior written instructions for submitting such requests.

The ALJ ultimately concluded that the Association did violate A.R.S. § 33-1805 by providing only a summary document instead of making the full records available for examination. Consequently, the final order granted the Petitioner’s petition, mandated the full reimbursement of his $500 filing fee, and levied an additional $500 civil penalty against the Association. The case underscores the critical importance of procedural compliance and the weight of documented instructions in governing interactions between homeowners and their associations.

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I. Case Overview

• Parties:

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

◦ Respondent: Desert Ranch Homeowners Association (“the Association”).

• Venue: Arizona Office of Administrative Hearings (OAH).

• Presiding Judge: Administrative Law Judge (ALJ) Jenna Clark.

• Core Allegation: Whether the Desert Ranch Homeowners Association violated A.R.S. § 33-1805 by failing to fulfill a records request submitted by the Petitioner.

• Case Numbers:

◦ 19F-H1918037-REL (Initial Decision)

◦ 19F-H1918037-REL-RHG (Rehearing Decision)

II. Chronology of the Dispute

Jul. 19, 2017

Association President Catherine Overby appoints Environmental Design Committee (EDC) Director Brian Schoeffler as the Petitioner’s primary contact for records requests.

Jul. 18, 2018

Ms. Overby instructs the Petitioner to direct all requests to the Association’s management company, Associated Asset Management (AAM), specifically to Lori Lock-Lee.

Nov. 1, 2018

Petitioner submits the records request at issue via email to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee.

Nov. 2, 2018

Ms. Loch-Lee acknowledges the request, states she will forward it to all Board members, and clarifies that AAM is only the Association’s accounting firm.

Nov. 18, 2018

Mr. Schoeffler responds on behalf of the Association, providing a summary table of EDC actions but not the full records. He also advises the Petitioner that all Board members must be copied on future requests.

Dec. 17, 2018

Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500 fee.

Mar. 6, 2019

Petitioner sends a follow-up email specifying the exact documents he is seeking, referencing items listed in the summary table he received.

Mar. 11, 2019

Mr. Schoeffler replies, asserting the request was already fulfilled and instructing the Petitioner to submit a new request for the additional items.

Mar. 17, 2019

Mr. Schoeffler emails again, claiming the original request was improperly submitted to only two of four Board members and that providing more documents could be seen as an “admission of guilt.”

Mar. 21, 2019

The first evidentiary hearing is held at the OAH.

Apr. 10, 2019

The initial ALJ Decision is issued, denying the Petitioner’s petition.

Jun. 10, 2019

Petitioner submits an appeal to the Department, which is granted.

Aug. 27, 2019

A rehearing is held at the OAH.

Sep. 12, 2019

The final ALJ Decision is issued, reversing the initial ruling and granting the Petitioner’s petition.

III. The Records Request and Response

Petitioner’s Request (November 1, 2018)

The Petitioner submitted a clear and direct request for specific records via email, citing the relevant statute:

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

Association’s Response (November 18, 2018)

The Association did not provide the requested documents (e.g., letters, emails, applications). Instead, it provided a “summary table listing of some, not all, EDC actions.” As of the August 27, 2019, rehearing, the Petitioner had still not received the full documentation he originally requested.

Petitioner’s Clarification (March 6, 2019)

In an attempt to resolve the issue, the Petitioner sent a detailed follow-up email outlining the specific missing records by referencing the line items in the Association’s own summary table. This demonstrated that his request was not for a vague “list of actions” but for the underlying correspondence. This included requests for:

• Copies of violation notices and “Full Compliance” correspondence.

• Complaint correspondence from homeowners regarding shrubs and subsequent citations.

• Submittal correspondence for a project from Mr. Schoeffler himself, along with approvals.

• Original submittals and approvals for a garage remodel and septic install.

IV. Analysis of the Two Administrative Rulings

The opposite outcomes of the two hearings hinged entirely on the validity of the Petitioner’s original email submission.

A. Initial ALJ Decision (April 10, 2019) – In Favor of Respondent (HOA)

• Central Finding: The Petitioner failed to properly submit his records request because he sent it to only two Board members, not the entire Board.

• Reasoning: The ALJ concluded that because the request was improperly submitted, the Association was not obligated to fulfill it under A.R.S. § 33-1805. Therefore, its failure to provide the full records did not constitute a violation. The decision noted, “Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation…”

• Outcome: The petition was denied. The Association was not required to reimburse the Petitioner’s filing fee, and his request for a civil penalty was denied.

B. Rehearing ALJ Decision (September 12, 2019) – In Favor of Petitioner (Barrs)

• Central Finding: The Petitioner did properly submit his records request by emailing the designated contacts.

• Key New Evidence: The Petitioner introduced two exhibits proving he had received explicit instructions from the Association President on where to direct his requests:

1. A July 19, 2017 communication appointing EDC Chairman Brian Schoeffler as his primary records request contact.

2. A July 18, 2018 communication instructing him to direct requests to the management company (AAM).

• Reasoning: The ALJ found this evidence dispositive, stating, “Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.” With the submission deemed proper, the focus shifted to the response. The ALJ concluded that providing a summary table was not compliant with the statute’s requirement to make records “reasonably available for examination.”

• Outcome: The initial decision was reversed, and the Petitioner’s petition was granted.

V. Key Arguments and Testimonies

• Petitioner (Tom Barrs):

◦ Argued his dispute was with the adequacy of the Association’s response, not its timeliness.

◦ Alleged the Association acted in bad faith and willfully withheld records, citing a previous OAH adjudication over a similar request.

◦ Successfully demonstrated he had followed the Association’s own prior instructions for submitting requests.

• Respondent (via Brian Schoeffler):

◦ Maintained that the request was invalid because it was not sent to all four Board members, an argument that collapsed during the rehearing.

◦ Admitted the Association’s governing documents do not contain a requirement that all Board members be copied on records requests.

◦ Justified the incomplete response by stating that providing additional documents after the petition was filed could be “interpreted as an admission of guilt.”

◦ Reasoned that the Association acted as it did because a previous, similar dispute had been decided in its favor.

VI. Final Order and Penalties

The binding order issued on September 12, 2019, following the rehearing, mandated the following:

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

2. Filing Fee Reimbursement: The Association was ordered to reimburse the Petitioner’s $500 filing fee.

3. Civil Penalty: The Association was ordered to pay a civil penalty of $500 to the Arizona Department of Real Estate for its violation of A.R.S. § 33-1805.

Study Guide: Barrs v. Desert Ranch Homeowners Association

This guide provides a comprehensive review of the administrative legal case between petitioner Tom Barrs and respondent Desert Ranch Homeowners Association, covering the initial hearing and the subsequent rehearing. It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms.

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Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences based on the provided source documents.

1. Who are the primary parties in this legal dispute, and what are their respective roles?

2. What specific Arizona Revised Statute was the Desert Ranch Homeowners Association accused of violating, and what does this statute generally require?

3. What was the exact nature of the records request Tom Barrs submitted on November 1, 2018?

4. In the initial hearing, what was the key reason the Administrative Law Judge ruled in favor of the Association?

5. What was the Association’s initial response to Barrs’ records request, and why did Barrs consider it incomplete?

6. Upon what grounds was a rehearing of the case granted?

7. What crucial new evidence presented at the rehearing changed the outcome of the case?

8. How did the Association’s own bylaws and concessions during the rehearing weaken its defense?

9. What was the final ruling in the Administrative Law Judge’s decision after the rehearing?

10. What financial penalties were imposed on the Desert Ranch Homeowners Association in the final order?

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Answer Key

1. The primary parties are Tom Barrs, the Petitioner, and the Desert Ranch Homeowners Association, the Respondent. Barrs, a homeowner and member of the Association, filed a petition alleging the Association failed to comply with a records request. The Association, represented in the hearings by Brian Schoeffler, defended its actions against this claim.

2. The Association was accused of violating A.R.S. § 33-1805. This statute requires a homeowners’ association to make its financial and other records reasonably available for examination by a member within ten business days of a request. It also allows the association to charge a fee of not more than fifteen cents per page for copies.

3. On November 1, 2018, Tom Barrs requested “a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018.” He specified that electronic copies were preferable but that he was also willing to pick up hard copies.

4. In the initial hearing, the judge ruled for the Association because the evidence indicated Barrs had failed to properly submit his request to all members of the Association’s Board. This procedural error meant Barrs failed to establish by a preponderance of the evidence that the Association was in violation of the statute.

5. The Association responded on November 18, 2018, by providing Barrs with a summary table of Environmental Design Committee (EDC) actions. Barrs considered this incomplete because his request was for the underlying communications, including all written requests and approvals, not just a summary list of actions.

6. A rehearing was granted after Petitioner Tom Barrs submitted an appeal to the Arizona Department of Real Estate on June 10, 2019. The Department granted the appeal and referred the matter back to the Office of Administrative Hearings for a new evidentiary hearing.

7. The crucial new evidence showed that the Association’s President had previously appointed Brian Schoeffler as Barrs’ primary contact for records requests. This evidence demonstrated that Barrs had, in fact, followed the specific instructions given to him and was not required to send his request to all board members, directly contradicting the basis for the initial ruling.

8. The Association conceded that its governing documents do not require members to copy all Board members on records requests. It also admitted that its own bylaws regarding the submission of forms for such requests were not adhered to or enforced, which undermined its argument that Barrs had failed to follow proper procedure.

9. The final ruling, issued September 12, 2019, granted the Petitioner’s petition. The Administrative Law Judge concluded that the Association’s conduct violated A.R.S. § 33-1805 because it did not fully comply with Barrs’ specific and properly submitted request.

10. The Association was ordered to reimburse Petitioner Tom Barrs’ $500.00 filing fee. Additionally, a civil penalty of $500.00 was levied against the Association, payable to the Arizona Department of Real Estate.

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Essay Questions

Instructions: The following questions are designed for longer, essay-format answers that require critical thinking and synthesis of information from the case documents. Answers are not provided.

1. Compare and contrast the Findings of Fact and Conclusions of Law in the initial decision (April 10, 2019) with those in the rehearing decision (September 12, 2019). Analyze how specific factual clarifications led to a complete reversal of the legal conclusion.

2. Explain the legal standard of “preponderance of the evidence” as defined in the decisions. Detail why the petitioner initially failed to meet this burden and what specific evidence allowed him to successfully meet it in the rehearing.

3. Analyze the testimony and arguments presented by Brian Schoeffler on behalf of the Association across both hearings. Discuss the consistency of his defense, his reasoning based on prior OAH decisions, and his stated fear that providing more documents could be interpreted as an “admission of guilt.”

4. Trace the complete procedural timeline of case No. 19F-H1918037-REL, from the filing of the initial petition on December 17, 2018, to the final, binding order on September 12, 2019. Highlight the roles of the Arizona Department of Real Estate and the Office of Administrative Hearings (OAH).

5. Using the details of this case, write an analysis of the function and importance of A.R.S. § 33-1805 in regulating the relationship between a homeowner and a homeowners’ association. Discuss the statute’s requirements for both parties and the consequences of non-compliance.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent, impartial judge who presides over administrative hearings at government agencies like the Office of Administrative Hearings. In this case, the ALJ was Jenna Clark.

A.R.S. § 33-1805

The section of the Arizona Revised Statutes that governs a homeowner’s right to access the records of a homeowners’ association. It mandates that an association must make records available for examination within ten business days of a request.

Associated Asset Management (AAM)

The management company that served as the accounting firm for the Desert Ranch Homeowners Association. Petitioner was instructed at one point to direct requests to Lori Lock-Lee at AAM.

Board of Directors (the Board)

The governing body that oversees the operations of the Desert Ranch Homeowners Association.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the rules for a planned community or subdivision. The Desert Ranch HOA is governed by its CC&Rs.

Environmental Design Committee (EDC)

A committee within the Desert Ranch Homeowners Association responsible for reviewing and approving architectural and landscaping changes. Brian Schoeffler was the Chairman of the EDC.

Petitioner

The party who files a petition to initiate a legal proceeding. In this case, Tom Barrs is the Petitioner.

Preponderance of the evidence

The standard of proof in this civil administrative case. It is defined as evidence that is more convincing and has superior weight, inclining a fair mind to one side of the issue over the other.

Rehearing

A second hearing of a case, granted upon appeal, to re-examine the issues and evidence. The rehearing in this case took place on August 27, 2019, and resulted in the reversal of the initial decision.

Respondent

The party against whom a petition is filed. In this case, the Desert Ranch Homeowners Association is the Respondent.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona that conducts evidentiary hearings for other state agencies, providing a neutral forum for resolving disputes like the one between Barrs and the Association.

Briefing Document: Barrs v. Desert Ranch Homeowners Association (Case No. 19F-H1918037-REL)

Executive Summary

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I. Case Overview

• Parties:

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

◦ Respondent: Desert Ranch Homeowners Association (“the Association”).

• Venue: Arizona Office of Administrative Hearings (OAH).

• Presiding Judge: Administrative Law Judge (ALJ) Jenna Clark.

• Core Allegation: Whether the Desert Ranch Homeowners Association violated A.R.S. § 33-1805 by failing to fulfill a records request submitted by the Petitioner.

• Case Numbers:

◦ 19F-H1918037-REL (Initial Decision)

◦ 19F-H1918037-REL-RHG (Rehearing Decision)

II. Chronology of the Dispute

Jul. 19, 2017

Association President Catherine Overby appoints Environmental Design Committee (EDC) Director Brian Schoeffler as the Petitioner’s primary contact for records requests.

Jul. 18, 2018

Ms. Overby instructs the Petitioner to direct all requests to the Association’s management company, Associated Asset Management (AAM), specifically to Lori Lock-Lee.

Nov. 1, 2018

Petitioner submits the records request at issue via email to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee.

Nov. 2, 2018

Ms. Loch-Lee acknowledges the request, states she will forward it to all Board members, and clarifies that AAM is only the Association’s accounting firm.

Nov. 18, 2018

Dec. 17, 2018

Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500 fee.

Mar. 6, 2019

Petitioner sends a follow-up email specifying the exact documents he is seeking, referencing items listed in the summary table he received.

Mar. 11, 2019

Mr. Schoeffler replies, asserting the request was already fulfilled and instructing the Petitioner to submit a new request for the additional items.

Mar. 17, 2019

Mr. Schoeffler emails again, claiming the original request was improperly submitted to only two of four Board members and that providing more documents could be seen as an “admission of guilt.”

Mar. 21, 2019

The first evidentiary hearing is held at the OAH.

Apr. 10, 2019

The initial ALJ Decision is issued, denying the Petitioner’s petition.

Jun. 10, 2019

Petitioner submits an appeal to the Department, which is granted.

Aug. 27, 2019

A rehearing is held at the OAH.

Sep. 12, 2019

The final ALJ Decision is issued, reversing the initial ruling and granting the Petitioner’s petition.

III. The Records Request and Response

Petitioner’s Request (November 1, 2018)

The Petitioner submitted a clear and direct request for specific records via email, citing the relevant statute:

Association’s Response (November 18, 2018)

Petitioner’s Clarification (March 6, 2019)

• Copies of violation notices and “Full Compliance” correspondence.

• Complaint correspondence from homeowners regarding shrubs and subsequent citations.

• Submittal correspondence for a project from Mr. Schoeffler himself, along with approvals.

• Original submittals and approvals for a garage remodel and septic install.

IV. Analysis of the Two Administrative Rulings

The opposite outcomes of the two hearings hinged entirely on the validity of the Petitioner’s original email submission.

A. Initial ALJ Decision (April 10, 2019) – In Favor of Respondent (HOA)

• Central Finding: The Petitioner failed to properly submit his records request because he sent it to only two Board members, not the entire Board.

• Outcome: The petition was denied. The Association was not required to reimburse the Petitioner’s filing fee, and his request for a civil penalty was denied.

B. Rehearing ALJ Decision (September 12, 2019) – In Favor of Petitioner (Barrs)

• Central Finding: The Petitioner did properly submit his records request by emailing the designated contacts.

• Key New Evidence: The Petitioner introduced two exhibits proving he had received explicit instructions from the Association President on where to direct his requests:

1. A July 19, 2017 communication appointing EDC Chairman Brian Schoeffler as his primary records request contact.

2. A July 18, 2018 communication instructing him to direct requests to the management company (AAM).

• Outcome: The initial decision was reversed, and the Petitioner’s petition was granted.

V. Key Arguments and Testimonies

• Petitioner (Tom Barrs):

◦ Argued his dispute was with the adequacy of the Association’s response, not its timeliness.

◦ Alleged the Association acted in bad faith and willfully withheld records, citing a previous OAH adjudication over a similar request.

◦ Successfully demonstrated he had followed the Association’s own prior instructions for submitting requests.

• Respondent (via Brian Schoeffler):

◦ Maintained that the request was invalid because it was not sent to all four Board members, an argument that collapsed during the rehearing.

◦ Admitted the Association’s governing documents do not contain a requirement that all Board members be copied on records requests.

◦ Justified the incomplete response by stating that providing additional documents after the petition was filed could be “interpreted as an admission of guilt.”

◦ Reasoned that the Association acted as it did because a previous, similar dispute had been decided in its favor.

VI. Final Order and Penalties

The binding order issued on September 12, 2019, following the rehearing, mandated the following:

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

2. Filing Fee Reimbursement: The Association was ordered to reimburse the Petitioner’s $500 filing fee.

3. Civil Penalty: The Association was ordered to pay a civil penalty of $500 to the Arizona Department of Real Estate for its violation of A.R.S. § 33-1805.

Case Participants

Petitioner Side

Tom Barrs (petitioner)
Appeared on his own behalf in the initial hearing; appeared as a witness in the rehearing.
Jonathan Dessaules (petitioner attorney)
Dessaules Law Group
Appeared on behalf of Petitioner in the rehearing.

Respondent Side

Brian Schoeffler (respondent representative / EDC chairman / witness)
Desert Ranch Homeowners Association
Also identified as a Board Director.
Catherine Overby (HOA president / board member)
Desert Ranch Homeowners Association
Appointed Mr. Schoeffler as Petitioner’s primary records request contact.
Lori Loch-Lee (property manager)
Associated Asset Management (AAM)
Vice President of Client Services.
Amanda Shaw (property manager)
AAM LLC
Contact for Respondent.
B. Austin Baillio (HOA attorney)
Maxwell & Morgan, P.C.
Received electronic transmission of the rehearing decision.

Neutral Parties

Jenna Clark (ALJ)
OAH
Judy Lowe (Commissioner)
ADRE
Dan Gardner (ADRE staff)
ADRE
HOA Coordinator.

Other Participants

Gerard Manieri (observer)
Listed as 'G. Mangiero' in initial hearing source.
Peter Ashkin (observer)
Observed initial hearing.
Stephen Banks (observer)
Observed initial hearing.
Noah Banks (observer)
Observed initial hearing.
Stephen Barrs (observer)
Observed rehearing.
Abraham Barrs (observer)
Observed rehearing.

James Dutton vs. Cielo Noche Community Association

Posted on April 5, 2019 by [email protected]

Case Summary

Case ID	19F-H1918014-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-04-05
Administrative Law Judge	Jenna Clark
Outcome	The Administrative Law Judge granted the petition, finding that the Association violated A.R.S. § 33-1804 by failing to notice at least one meeting which was improperly held in closed session. The Tribunal noted that while some executive sessions regarding pending litigation were permissible, meetings regarding vendor changes (management and landscaping) required open session and notice. The filing fee was refunded, but no civil penalty was assessed as the conduct was not found to be intentional or in bad faith.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	James Dutton	Counsel	Steven W. Cheifetz
Respondent	Cielo Noche Community Association	Counsel	Lydia Linsmeier; Nicholas Nogami

Alleged Violations

A.R.S. § 33-1804

Outcome Summary

The Administrative Law Judge granted the petition, finding that the Association violated A.R.S. § 33-1804 by failing to notice at least one meeting which was improperly held in closed session. The Tribunal noted that while some executive sessions regarding pending litigation were permissible, meetings regarding vendor changes (management and landscaping) required open session and notice. The filing fee was refunded, but no civil penalty was assessed as the conduct was not found to be intentional or in bad faith.

Key Issues & Findings

Failure to provide notice of meetings and acting on results of secret meetings

Petitioner alleged the Association violated open meeting laws by failing to provide notice of meetings held between November 2017 and May 2018, specifically regarding the hiring of new management and landscaping companies in executive session without community input or proper notice.

Orders: The Tribunal found the Respondent held at least one closed meeting that should have been open/noticed. Respondent is ordered to pay Petitioner the filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

Video Overview

Audio Overview

Decision Documents

19F-H1918014-REL Decision – 693361.pdf

Uploaded 2026-04-24T11:16:30 (45.6 KB)

19F-H1918014-REL Decision – 699583.pdf

Uploaded 2026-04-24T11:16:35 (194.0 KB)

Administrative Decision Briefing: Dutton vs. Cielo Noche Community Association

Executive Summary

This document summarizes the administrative proceedings and final decision in the case of James Dutton v. Cielo Noche Community Association (No. 19F-H1918014-REL). The dispute centered on allegations that the Association’s Board of Directors violated Arizona Revised Statutes (A.R.S.) § 33-1804 by holding "secret" meetings, failing to provide proper notice to members, and taking actions in executive sessions that should have occurred in open meetings.

Following hearings held on January 4 and March 7, 2019, Administrative Law Judge (ALJ) Jenna Clark determined that the Respondent violated the Arizona Open Meeting Law. While the Board’s actions were not found to be in bad faith or intentionally negligent, the Petitioner's request for relief was granted, and the Association was ordered to reimburse the Petitioner’s $500 filing fee.

Detailed Analysis of Key Themes

1. Transparency and the Open Meeting Law (A.R.S. § 33-1804)

The central conflict of this matter was the tension between the Board’s perceived need for privacy during vendor transitions and the statutory requirement for transparency. Arizona law mandates that all meetings of a homeowners' association and its board be open to all members, with very narrow exceptions.

Violations Identified: The Tribunal found that the Board held at least one closed meeting that should have been open to the community. Specifically, the Board discussed and acted upon the hiring of a new management company (Tri-City) and a new landscaping vendor (Peak) in executive sessions.
Notice Failures: Testimony revealed a "miscommunication" between the community manager and the Board that led to a complete lack of notice for a meeting held on July 23, 2018.
The Scope of Executive Sessions: The Board argued that discussions regarding the management company were "employee performance" matters. However, the ALJ ruled that these topics did not meet the strict statutory criteria for closed sessions.

2. Governance and Management Transitions

The evidence highlighted a period of significant transition for the Cielo Noche subdivision, which consists of 164 homes in Queen Creek, Arizona.

Management Shift: The Association transitioned from Trestle Management Group to Tri-City Management Company. Petitioner James Dutton, a former Board President, argued that the community was denied input on this critical decision, which resulted in a 3% increase in management costs.
Vendor Influence: The Board also replaced the community landscaper via executive vote. This was a point of contention because the landscaping vendor receives approximately one-third of the community's annual budget.
Role of the Community Manager: Kari Moyer, the Tri-City manager, testified that she repeatedly had to "issue reminders" to the Board between June and November 2018 that they were not permitted to hold executive sessions for the reasons they were citing.

3. Legal and Procedural Missteps

The proceedings underscored the importance of legal counsel in maintaining HOA compliance.

Lack of Counsel: Testimony indicated that during the period when many of the contested decisions were made, the Association did not have its own legal counsel, relying instead on advice from the management company.
Emergency Meetings: The Petitioner provided evidence of "emergency meetings" held in September and November 2018 where the Board failed to read or approve minutes at subsequent open meetings, a violation of A.R.S. § 33-1804(E)(2).

Key Entities and Roles

Entity	Role	Key Contributions/Findings
James Dutton	Petitioner	Former Board President; filed the petition alleging secret meetings and lack of notice.
Cielo Noche Community Association	Respondent	The HOA governing a 164-home subdivision; found in violation of Open Meeting Law.
Jenna Clark	ALJ	Presided over the hearings; issued the final order in favor of the Petitioner.
Kari Moyer	Witness	Community Manager for Tri-City; admitted to notice failures and correcting the Board's improper use of executive sessions.
David Hibler	Witness	Association Treasurer; testified regarding the Board’s rationale for closed sessions during developer negotiations.

Important Quotes with Context

On Statutory Requirements

"It is the policy of this state… that all meetings of a planned community… be conducted openly and that notices and agendas be provided… any person or entity that is charged with the interpretation of these provisions… shall construe any provision of this section in favor of open meetings."

— A.R.S. § 33-1804(F) (Cited in the Conclusions of Law to emphasize the legal preference for transparency).

On the Finding of Violation

"Based on a review of the credible and relevant evidence in the record the Tribunal holds that Respondent held at least one closed meeting which should have been held either partly or entirely in open session."

— Administrative Law Judge Decision, Page 12 (The core legal conclusion of the case).

On Notice Failures

"Ms. Moyer conceded that the Board’s July 18, 2018, meeting was not noticed. Ms. Moyer explained that there was a miscommunication between herself and the Board. Specifically, each party believed the other was going to post notice to the community, but neither did."

— Finding of Fact 46 (Contextualizing the lack of notice for a specific meeting).

On Management's Corrective Actions

"Ms. Moyer testified that… after the Board meeting held that day [May 30, 2018] she informed the Board that they were not permitted to hold executive sessions for the reason(s) they did, and that in the future such discussions needed to take place in open session."

— Finding of Fact 43 (Showing that the management company recognized and attempted to correct the Board's errors).

Actionable Insights for Association Governance

Based on the Findings of Fact and Conclusions of Law in this matter, the following principles are established for HOA compliance under A.R.S. § 33-1804:

Strict Adherence to Executive Session Criteria: A board may only close a meeting for five specific reasons: legal advice, pending/contemplated litigation, personal/financial/medical information of members, employee job performance, or discussions regarding a member's appeal of a violation.
Vendor Contracts are Open Business: Discussing the performance of a third-party contractor (like a landscaping company) or the hiring of a new management firm generally does not qualify as an "employee job performance" exception and should be handled in open session.
Mandatory Notice Requirements: Boards must ensure that notice is posted for all meetings, including informal "workshops" where a quorum of the board meets to discuss association business, regardless of whether a vote is taken.
Emergency Meeting Protocol: If an emergency meeting is called to handle business that cannot wait 48 hours, the minutes must state the reason for the emergency and must be read and approved at the next regularly scheduled meeting.
Email Voting Limitations: While minor administrative tasks (like architectural requests) might be handled via email per certain bylaws, substantive business and voting should generally occur in a noticed, open forum to avoid "secret meeting" allegations.
Documentation of Legal Basis: Before entering a closed session, the board must identify the specific statutory paragraph that authorizes the closure.

Study Guide: Dutton v. Cielo Noche Community Association

This study guide provides a comprehensive overview of the administrative hearing between James Dutton and the Cielo Noche Community Association. It explores the application of Arizona Open Meeting Laws, the powers of homeowners' association (HOA) boards, and the procedural requirements for administrative law proceedings.

Section 1: Case Overview and Legal Framework

Case Background

The case of James Dutton vs. Cielo Noche Community Association (No. 19F-H1918014-REL) centers on allegations that the Association's Board of Directors violated state statutes by failing to provide notice for meetings and conducting business in "secret" or executive sessions that should have been open to the membership.

Key Entities

Entity	Description
James Dutton	The Petitioner; a property owner in the Cielo Noche subdivision and former Board President.
Cielo Noche Community Association	The Respondent; a homeowners' association for a 164-home development in Queen Creek, Arizona.
Arizona Department of Real Estate (ADRE)	The state agency authorized to receive and decide petitions from HOA members regarding violations of community documents or state statutes.
Office of Administrative Hearings (OAH)	The independent state agency that conducts evidentiary hearings for the ADRE.
Jenna Clark	The Administrative Law Judge (ALJ) who presided over the hearing and issued the decision.

Governing Documents and Statutes

A.R.S. § 33-1804: The primary statute in question, which mandates that meetings of homeowners' associations and their boards be open to all members, with specific, narrow exceptions for closed (executive) sessions.
Covenants, Conditions, and Restrictions (CC&Rs): The enforceable contract between the Association and property owners that empowers the Association to control property use.
Association Bylaws: The internal rules governing Board conduct, including meeting frequency, quorum requirements, and the ability to act via unanimous written consent.

Section 2: Key Concepts and Legal Standards

The Open Meeting Law (A.R.S. § 33-1804)

The state policy dictates that all meetings must be conducted openly, with notices and agendas provided to members.

Authorized Reasons for Executive Sessions: Under A.R.S. § 33-1804(A), a board may only close a portion of a meeting to discuss:

Legal advice from an attorney for the board or association.
Pending or contemplated litigation.
Matters relating to the job performance of an individual employee of the association or a contractor's employee.
Personal, health, or financial information of an individual member or employee.
Discussions regarding a member's appeal of a violation (unless the member requests it be open).

Procedural Requirements for Closed Meetings:

Identification: The board must identify the specific statutory paragraph authorizing the closure before entering the executive session.
Emergency Meetings: May be called for business that cannot wait 48 hours. Minutes must state the reason for the emergency and be read/approved at the next regularly scheduled meeting.
Informal Meetings: Any quorum of the board meeting informally to discuss association business (workshops, etc.) must still comply with open meeting and notice provisions.

The Burden of Proof

In administrative proceedings of this nature, the Petitioner bears the burden of proving the allegations by a preponderance of the evidence. This means the evidence must show that the contention is "more probably true than not."

Section 3: Short-Answer Practice Questions

What was the central issue the Petitioner paid to have adjudicated?

Answer: Whether the Association violated A.R.S. § 33-1804 by failing to provide notice of meetings and acting on the results of secret meetings.

What was the Respondent’s justification for hiring Tri-City Management and Peak Landscaping in executive sessions?

Answer: The Association argued these discussions related to employee performance (for Trestle Management) and were part of privileged negotiations regarding construction defects with the developer (KHOV).

According to the Bylaws, what constitutes a quorum for the Cielo Noche Board of Directors?

Answer: A majority of the number of Directors.

How much was the filing fee the Petitioner had to pay to the Department?

Answer: $500.00.

What was the ALJ’s finding regarding the Board’s conduct?

Answer: The ALJ found that the Board held at least one closed meeting that should have been open and failed to provide proper notice for at least one meeting (July 18/23, 2018), thus violating the Arizona Open Meeting Law.

Why did the ALJ decline to assess a civil penalty against the Respondent?

Answer: The record did not reflect that the Association’s conduct was intentional, negligent, or in bad faith.

What is required of the Board regarding the minutes of an emergency meeting?

Answer: The minutes must state the reason for the emergency and must be read and approved at the next regularly scheduled meeting.

Who were the two primary witnesses called by the Respondent?

Answer: Kari Moyer (Tri-City Community Manager) and David Hibler (Association Treasurer).

Section 4: Essay Prompts for Deeper Exploration

The Tension Between Privacy and Transparency: Analyze the Board’s decision to hire a new management company and landscaping vendor in executive session. Discuss whether "employee performance" exceptions should extend to the selection and hiring of third-party corporate contractors, or if such actions fundamentally impact the community's budget and require open-session deliberation.
Statutory Construction and Policy: A.R.S. § 33-1804(F) states that any person interpreting the statute "shall construe any provision of this section in favor of open meetings." Evaluate the Board’s actions regarding the July 23, 2018 meeting notice. How does the "miscommunication" defense presented by the Association weigh against the state’s explicit policy of transparency?
The Role of Legal Counsel and Management Advice: During the hearing, it was revealed that Trestle Management and later Kari Moyer provided advice regarding executive sessions. Discuss the extent to which a Board’s reliance on professional management or legal counsel mitigates their liability for statutory violations, specifically in the context of the ALJ’s decision to waive civil penalties.

Section 5: Glossary of Important Terms

Administrative Law Judge (ALJ): An official who presides over hearings and makes findings of fact and conclusions of law in cases involving state agencies.
A.R.S. § 33-1804: The Arizona Revised Statute governing open meetings for planned communities.
CC&Rs: Covenants, Conditions, and Restrictions; the governing documents that dictate the rules of the community and the powers of the HOA.
Electronic Signature: As defined by A.R.S. § 44-7002(8), an electronic sound, symbol, or process attached to a record and executed by an individual with the intent to sign.
Executive Session: A portion of a board meeting that is closed to the general membership to discuss sensitive or legally protected matters.
Petitioner: The party who initiates the legal action or petition (in this case, James Dutton).
Preponderance of the Evidence: The standard of proof in civil and administrative cases; evidence that has the most convincing force and shows a claim is more likely true than not.
Quorum: The minimum number of board members who must be present (personally or via communication means) for the transaction of business to be legal.
Respondent: The party against whom a petition is filed (in this case, Cielo Noche Community Association).
Stipulated Order: A legal order where both parties agree to certain terms, such as extending a deadline for a decision.
Unanimous Written Consent: A provision in the Bylaws (Article VII, Section 5) allowing Directors to take action without a meeting if all Directors provide written consent.

Transparency Behind Closed Doors: Lessons from the Dutton vs. Cielo Noche HOA Decision

1. Introduction: The Conflict Over Community Governance

For homeowners in a planned community, the Board of Directors acts as a local government with significant power over property values and daily life. However, this power is not absolute. In Arizona, the law is designed to prevent "secret governance," yet the tension between Board efficiency and a member’s right to transparency remains a primary source of litigation.

The case of James Dutton vs. Cielo Noche Community Association (No. 19F-H1918014-REL) stands as a stark warning to Boards that treat executive sessions as a convenient shield for uncomfortable public business. When even a former Board President—an insider familiar with the gears of power—must petition the state to force transparency, it signals a systemic failure in accountability. The central question of this case remains vital for every Arizona homeowner: When exactly can an HOA Board legally shut its doors, and when does "privacy" become a statutory violation?

2. The Case Context: From President to Petitioner

The conflict within the Cielo Noche Community Association, a high-end development in Queen Creek, began following a leadership transition. James Dutton served as the Association’s Board President from August 2016 until his resignation in November 2017. Upon returning to the rank of a concerned member, Dutton discovered that the governance of the community had shifted toward a culture of closed-door decision-making.

On July 25, 2018, Dutton filed a petition with the Arizona Department of Real Estate, triggering an adjudication by the Office of Administrative Hearings. The core of the dispute was the Association’s adherence—or lack thereof—to A.R.S. § 33-1804, the Arizona Open Meeting Law. The Administrative Law Judge was tasked with determining whether the Board had systematically bypassed notice requirements and improperly used executive sessions to decide matters that, by law, belonged in the public eye.

3. Timeline of the "Secret" Decisions

The hearing revealed a troubling chronology of actions taken between November 2017 and July 2018. The Board frequently utilized executive sessions to conduct business that had direct, significant financial impacts on the community without the membership’s knowledge:

November 2017: Immediately following Dutton’s resignation, the Board used an executive session to vote on hiring a specific law firm, accept bids for a community reserve study, and deliberate on the retention of their management company.
April – May 2018: The Board negotiated and signed a contract with Tri-City Management, replacing Trestle Management. This decision not only changed the community’s primary administrative partner but also saddled the homeowners with a 3% increase in management fees—all without a public vote.
May 30, 2018: In a further closed-door session, the Board voted to replace the community’s landscaping vendor with a company called "Peak."
July 18, 2018: The Board held a meeting to vote on financial documents without providing any notice to the community. While the Association later claimed this was a "miscommunication," the manager conceded that no notice was posted.
Secret Administrative Tasks: Beyond major vendor changes, the Board used closed sessions to discuss mundane community business that strictly required open deliberation, including drainage issues, parking variances, gate lighting, and the community website.

4. The "Open Meeting" Standard: A.R.S. § 33-1804

Arizona law is not ambiguous regarding HOA transparency. The statutory construction of A.R.S. § 33-1804(F) mandates that any ambiguity must be resolved in favor of the homeowner’s right to observe:

"It is the policy of this state… that all meetings of a planned community… be conducted openly… any person or entity that is charged with the interpretation of these provisions… shall construe any provision of this section in favor of open meetings."

The Board at Cielo Noche attempted to justify their secrecy through broad interpretations of the law. The following table contrasts those legal justifications with the reality found by the Tribunal:

Legal Justification (A.R.S. § 33-1804(A))	The Association's Argument	The Reality & Legal Finding
Legal Advice (A1): Private advice from an attorney regarding litigation.	The Board argued that negotiations with the developer (KHOV) were privileged legal matters.	The Board held several "legal" executive sessions in Nov 2017 before they had actually secured legal counsel in Dec 2017 or Jan 2018. Secrecy is only permitted for actual legal advice.
Personnel Matters (A4): Job performance of an individual employee.	Management and landscaper changes were characterized as "employee performance" reviews.	A.R.S. § 33-1804(A)(4) applies only to individual employees. Management firms and landscaping companies are corporate contractors; their performance is community business, not a private personnel matter.
Proper Notice (D/E): 48-hour notice is mandatory for all Board meetings.	The failure to notice the July 18 meeting was a "miscommunication" between the Board and Manager.	Notice is a statutory mandate, not a courtesy. A "miscommunication" does not excuse an illegal meeting.

5. Key Testimonies: Management vs. Membership

The evidentiary record highlights a Board that disregarded professional warnings in favor of autonomy.

James Dutton (Petitioner): Dutton’s testimony emphasized the high stakes of these secret meetings. He noted that the landscaping vendor alone accounted for one-third of the community’s budget, and the management company controlled all financial records and resident correspondence. Excluding members from these decisions deprived them of oversight over the Association's most critical financial pillars.
Kari Moyer (Tri-City Manager): In perhaps the most damaging testimony for the Association, Moyer—a CAAM-certified manager—admitted she had to repeatedly warn the Board from May through November 2018 that they were holding executive sessions for reasons not permitted by law. Despite these professional warnings from a certified expert, the Board continued its practice of "secret" governance.
David Hibler (Board Treasurer): Hibler, an engineer by trade, conceded that the Board conducted early closed-door negotiations regarding developer settlements without legal counsel present, undermining the Association's claim that these sessions were protected by "legal advice" exceptions.

6. The Verdict: Accountability without Penalties

Administrative Law Judge Jenna Clark ruled that the Cielo Noche Community Association had indeed violated the Arizona Open Meeting Law. The Tribunal found that the Board held at least one closed meeting that should have been open and failed to provide proper notice to the community.

The Order:

Petition Granted: The Tribunal formally concluded the Association violated A.R.S. § 33-1804.
Mandatory Reimbursement: Pursuant to A.R.S. § 32-2199.02(A), the Association was ordered to reimburse James Dutton for his $500 filing fee.
No Civil Penalty: While the Judge did not find "bad faith" sufficient to warrant additional civil penalties, the ruling serves as a permanent record of the Board’s failure to adhere to the strict requirements of Arizona law.

7. Conclusion: 4 Essential Takeaways for HOA Members

The Dutton decision provides a clear roadmap for ensuring Board accountability:

The Default is Open: All meetings where a quorum of the Board meets to discuss Association business—including informal "workshops"—must be noticed and open. The five exceptions in A.R.S. § 33-1804(A) are to be narrowly construed.
Corporate Vendors are Not "Employees": Boards cannot hide the hiring or firing of management companies or landscaping firms behind "personnel" exceptions. Those exceptions apply only to individual employees of the HOA or the contractor.
Notice is a Strict Liability Requirement: There is no "oops" in the Open Meeting Law. If a Board fails to provide the required 48-hour notice, any action taken is a violation of the law, regardless of intent or "miscommunication."
Emergency Meeting Transparency: Emergency meetings are for true emergencies only. The minutes must explicitly state the "reason necessitating the emergency" and must be read and approved at the very next regular meeting.

Closing Statement

The case of Cielo Noche serves as a reminder that transparency is not a gift granted by a Board; it is a right owned by the members. Homeowners must remain vigilant, and when Boards ignore the warnings of their own professional managers, the Arizona Department of Real Estate stands as a critical venue for restoring the rule of law.

The final decision in this matter was transmitted on April 5, 2019.

Case Participants

Petitioner Side

James Dutton (petitioner)
Cielo Noche subdivision
Former Board President; property owner
Steven W. Cheifetz (attorney)
Cheifetz Law, PLLC
Counsel for Petitioner

Respondent Side

Nicholas C. Nogami (attorney)
Carpenter, Hazelwood, Delgado & Bolen PLC
Counsel for Respondent
Lydia Linsmeier (attorney)
Carpenter, Hazelwood, Delgado & Bolen PLC
Counsel for Respondent
Kari Moyer (witness)
Tri-City Property Management Services
Community Manager
David Hibler (witness)
Cielo Noche Community Association
Board Treasurer

Neutral Parties

Jenna Clark (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Judy Lowe (Commissioner)
Arizona Department of Real Estate
c. serrano (clerk)
Signed minute entries/transmission

Other Participants

Cindo Dutton (observer)
Attended hearing
Aaron Smith (observer)
Attended hearing
Bob Willis (observer)
Attended hearing
Thomas Pruit (observer)
Attended hearing
Kenny Shepherd (observer)
Attended hearing
Luke Clesceri (observer)
Attended hearing
Carol Clesceri (observer)
Attended hearing
Derek Zeigler (observer)
Attended hearing
Carole Cozzi (observer)
Attended hearing
Anthony Cozzi (observer)
Attended hearing