Case Summary
| Case ID | 22F-H2221026-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2022-03-29 |
| Administrative Law Judge | Velva Moses-Thompson |
| Outcome | The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove that the Forest Trails Homeowners Association violated its governing documents when it approved landscaping that obstructed parking in a common area. |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Judy Clapp | Counsel | Kevin Harper |
|---|---|---|---|
| Respondent | Forest Trails Homeowners Association | Counsel | Edward D. O'Brien; Edith I. Rudder |
Alleged Violations
Declaration § 2.2; Declaration § 2.21; Architectural Guidelines
Outcome Summary
The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove that the Forest Trails Homeowners Association violated its governing documents when it approved landscaping that obstructed parking in a common area.
Why this result: The Petitioner failed to meet the evidentiary burden that the HOA violated the Declaration or related statutes. The ALJ found that the Declaration permits landscaping in the common area (Section 2.2) and the petitioner presented no legal authority mandating the disputed area remain solely available for parking.
Key Issues & Findings
Alleged violation concerning landscaping in common area preventing parking.
Petitioner Judy Clapp alleged the HOA improperly approved the adjacent homeowner's (Normans) landscaping project in the common area next to Lot 1473 Trailhead. She claimed this blocked a historical parking area used by multiple homeowners, violating Declaration Section 2.2 (common area use for benefit of all members, including parking as a permitted use) and Architectural Guidelines (prohibiting exclusive use of common area).
Orders: The petition was dismissed. The ALJ found that the Petitioner failed to meet the burden of proof to establish that the Respondent violated the Declaration or any statute.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
- Declaration § 2.2
- Declaration § 2.21
- Architectural Guidelines
- A.R.S. § 32-2199(B)
- Declaration § 3.4
- Declaration § 4.1
Analytics Highlights
- Declaration § 2.2
- Declaration § 2.21
- Architectural Guidelines
- A.R.S. § 32-2199(B)
- Declaration § 3.4
- Declaration § 4.1
Video Overview
Audio Overview
Decision Documents
22F-H2221026-REL Decision – 958497.pdf
22F-H2221026-REL Decision – HO22-21026_ElectronicNotice_Hearing.pdf
22F-H2221026-REL Decision – HO22-21026_ElectronicNotice_Petition.pdf
22F-H2221026-REL Decision – HO22-21026_Hearing_Scheduled.pdf
22F-H2221026-REL Decision – HO22-21026_Notice_AppearanceRespondent.pdf
22F-H2221026-REL Decision – HO22-21026_Notice_Hearing.pdf
22F-H2221026-REL Decision – HO22-21026_Notice_Petition.pdf
22F-H2221026-REL Decision – HO22-21026_Payment.pdf
22F-H2221026-REL Decision – HO22-21026_Petition.pdf
22F-H2221026-REL Decision – HO22-21026_Response_Petition_Form.pdf
Case Briefing: Judy Clapp v. Forest Trails Homeowners Association
Executive Summary
This document synthesizes the proceedings of the administrative hearing held on March 9, 2022, regarding Docket Number 22F-H2221026-l. The dispute involves a challenge by petitioner Judy Clapp against the Forest Trails Homeowners Association (HOA) concerning the landscaping of an eight-foot unpaved common area adjacent to 1473 Trail Head (the “Norman lot”).
The central conflict involves the Board’s decision to allow a homeowner to install a rock berm on association-owned land that had historically functioned as a parking lane for residents accessing a nearby trail head. The petitioner alleges this action violates the community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) by granting exclusive use of common area to one homeowner and eliminating a long-standing community benefit. The association contends that the Board acted within its authority to approve architectural requests, maintained consistency with community-wide landscaping standards, and addressed legitimate nuisance and erosion concerns.
——————————————————————————–
Case Overview and Hearing Details
• Date of Hearing: March 9, 2022
• Administrative Law Judge: Alvin Moses Thompson
• Petitioner: Judy Clapp (Represented by Kevin Harper)
• Respondent: Forest Trails Homeowners Association (Represented by Ed O’Brien)
• Key Witnesses: Judy Clapp (Petitioner); Dean Meyers (Board Member/Witness for Respondent)
• Subject Property: Common area adjacent to 1473 Trail Head, Prescott, Arizona.
——————————————————————————–
Primary Legal and Regulatory Framework
The dispute centers on the interpretation of specific governing documents produced as evidence:
Amended Declaration of Covenants, Conditions, and Restrictions (CC&Rs)
• Section 2.2 (Common Areas and Open Space): States that common areas “shall be for the use and benefit of all members” and should be left in their natural state unless used for specific purposes, including “trails, walkways, driveways, parking areas, appropriate signs, recreational amenities, [and] landscaping.”
• Section 3.4: Grants the association the authority to “own, repair, manage, operate, and maintain” common areas according to the plat.
• Section 3.4.9: Designates the Architectural Control Committee (ACC) as the “judge of all aesthetic matters” on the common area.
• Section 4.1: Provides the Board with flexibility in its decision-making regarding association property.
Architectural Guidelines
• Landscaping Provisions: Permitted on the unpaved association-owned area (approx. 8 feet) between the lot line and the street only with ACC approval.
• Exclusive Use Restriction: Mandates that any such approval “will not give the property owner exclusive use of this association property.”
——————————————————————————–
Main Themes and Arguments
1. Historical Use vs. New Architectural Approval
The petitioner argues that the area in question served as a de facto parking lane for approximately 15–20 years, accommodating up to three vehicles.
• Petitioner Position: The removal of this parking area harms residents who now must walk an additional mile or more to access trail heads. Clapp asserts the association consistently denied similar requests in the past to protect common area access.
• Respondent Position: The HOA argues that parking was never a “guaranteed right” or a “written amenity” in the declaration. They contend the Board could not “say no” to the Normans’ request because hundreds of other homeowners have similar roadside landscaping.
2. Allegations of “Exclusive Use”
A major point of contention is whether the rock berm constitutes a violation of the rule against “exclusive use.”
• Petitioner’s Argument: The installation of large boulders and a rock berm makes it impossible for vehicles to park and “unsafe” or “risky” for pedestrians to walk over, effectively gifting the land to the adjacent homeowner.
• Respondent’s Argument: The area is not fenced or walled. Members of the public or homeowners can still theoretically walk on it, meaning use is not exclusive. Dean Meyers testified that the area is “less accessible” but still accessible at the ends.
3. Nuisance Mitigation and Safety
The HOA justifies the landscaping as a solution to long-standing issues.
• Respondent’s Evidence: Dean Meyers testified that the parking area created nuisances including noise (dogs, yelling), trash, and public intrusion 40 feet from the Normans’ kitchen. Furthermore, Meyers cited an erosion issue where water was undermining the cement curb, a problem he claims the landscaping resolved.
• Petitioner’s Rebuttal: Clapp, a former board member of 10 years, testified she never heard of safety, noise, or trash complaints regarding this site until February 2021, four months after the rocks were installed. She suggested the “safety” argument was an after-the-fact justification.
4. Conflict of Interest and Procedure
The petitioner raised concerns regarding the motivations behind the approval.
• Self-Serving Motivation: Witness Dean Meyers is a permanent board member and also the owner of the landscaping company hired by the Normans to perform the work.
• Lack of Formal Vote: Clapp testified that the work appeared to be allowed without a formal board vote, though respondent minutes from October 27, 2020, show the board requested gravel samples for the project.
——————————————————————————–
Critical Evidence and Testimony
Photographic Evidence (Exhibit 6)
The hearing reviewed nine photographs showing the evolution of the site:
• Before: A dirt “parking lane” capable of holding cars.
• After: A “rock berm” consisting of large boulders and smaller rocks that completely prohibit vehicle access.
Comparison to Other Amenities
Clapp pointed to the community tennis courts as evidence of unfair treatment.
• Tennis Court Parking: The HOA recently expanded and paved parking for tennis players (Exhibits 17, 18).
• Trail Head Parking: Conversely, the HOA eliminated parking for hikers at the trail head, which Clapp described as the community’s only other amenity.
Legal Opinion of Jim Atkinson
An email exchange (Exhibit 7) involving former Board President and attorney Jim Atkinson was introduced. Atkinson’s noted opinion stated:
• The 8-foot area is common area property, “no different than its ownership of the paved areas.”
• Parking is a permitted use under Section 2.2.
• The Board “never agreed to allow a lot owner to block access to the shoulder area.”
——————————————————————————–
Conclusions and Sought Relief
The Petitioner seeks an order confirming that the CC&Rs prohibit these specific landscaping changes and requiring the association to restore the common area to its original condition.
The Respondent maintains that the Board acted within its discretionary authority to manage common areas and treat all members fairly by approving a standard landscaping request. They argue the Petitioner is seeking a “prescriptive easement” to park in a specific spot, a right they claim does not exist under the governing documents or Arizona law.
Summary Table of Arguments
Petitioner’s View
Respondent’s View
Land Use
Reserved for the benefit of all members (parking/trails).
Subject to Board management and aesthetic discretion.
Accessibility
Rock berm creates “exclusive use” by blocking access.
No fence exists; property remains technically accessible.
Safety/Nuisance
No evidence of prior complaints; “punitive” decision.
Resolved erosion, trash, and noise nuisances.
Consistency
Association has historically denied such requests.
Hundreds of other lots have identical landscaping.
Board Ethics
Decision was self-serving (witness was the contractor).
Business was private between the contractor and homeowner.
Study Guide: Judy Clapp v. Forest Trails Homeowners Association (Docket No. 22F-H2221026-I)
This study guide provides a comprehensive overview of the administrative hearing held on March 9, 2022, regarding a dispute over common area usage, landscaping rights, and parking access within the Forest Trails community.
——————————————————————————–
Part I: Short-Answer Quiz
Instructions: Answer the following questions in 2–3 sentences based on the provided hearing transcript and documents.
1. What is the central issue of the dispute between Judy Clapp and the Forest Trails Homeowners Association?
2. How does Section 2.2 of the Forest Trails Declaration define the purpose and permitted uses of “common areas”?
3. What physical modification to the area near 1473 Trail Head triggered this legal action, and who performed the work?
4. What is the Petitioner’s primary argument regarding the “exclusive use” of the landscaped common area?
5. How does the Association justify its decision to approve the Normans’ landscaping request despite member objections?
6. What did the 2002–2003 review of the plat and CC&Rs reveal to the Association board regarding the 8-foot strips alongside the roadways?
7. What “nuisances” did the Respondent cite as reasons for prohibiting parking at the trail head location?
8. How does the Petitioner use the example of the community tennis courts to argue that the Association’s parking policy is inconsistent?
9. According to the testimony of Dean Myers, what is the Association’s policy regarding damage to homeowner-installed landscaping caused by snowplows?
10. What specific legal relief is the Petitioner seeking from the Administrative Law Judge?
——————————————————————————–
Part II: Answer Key
1. The dispute centers on the Association’s decision to allow a specific homeowner (the Normans) to landscape a common area in a way that prohibits long-standing member parking. The Petitioner argues this violates the Declaration’s provision that common areas benefit all members, while the Association claims the right to manage aesthetics and address nuisances.
2. Section 2.2 states that common areas are for the “use and benefit of all members” and should generally be left in their natural state. However, it explicitly allows these areas to be used for specific purposes, including trails, walkways, driveways, parking areas, landscaping, and utility easements.
3. The Normans installed large boulders and a rock berm on the association-owned unpaved roadway shoulder to prevent vehicles from parking there. This work was executed by Dean Myers, who is a permanent member of the Association’s Board of Directors and the owner of a landscaping company.
4. The Petitioner argues that the installation of the rock berm effectively grants the Normans “exclusive use” of the common area by making it physically inaccessible to others. She contends this violates the Architectural Guidelines, which state that landscaping approval shall not give a property owner exclusive use of association property.
5. The Association argues it must treat all members fairly, noting that hundreds of other residents have been allowed to landscape the common area up to the roadside. They assert that denying the Normans’ request would have unfairly “singled them out” when similar requests are universally approved.
6. The board realized that the 8-foot unpaved areas on each side of the paved roads were not private property but were actually “common areas” owned and managed by the Association. Following this discovery, the Association took over maintenance responsibilities, such as weed control and erosion management, for these strips.
7. The Respondent claimed that parking at the trail head created nuisances including trash, noise, and “public intrusion” from non-residents. Additionally, Dean Myers testified that parking was exacerbating erosion issues that were beginning to undermine the concrete street curb.
8. The Petitioner points out that the Association recently expanded and paved parking at the community tennis courts to benefit members who play tennis. She argues it is discriminatory to improve amenities for one group of members while removing a traditional parking benefit for those who use the hiking trails.
9. The Association generally holds the homeowner responsible for the costs of repairing any landscaping that extends into the common area if it is damaged by a snowplow. This serves as a condition of allowing private landscaping on association-owned land; the board only pays if the plow operator acted “stupidly.”
10. The Petitioner is seeking an order confirming that the Declaration prohibits these specific landscaping changes. Furthermore, she is requesting that the Association be ordered to restore the common area to its original condition to allow for continued member parking.
——————————————————————————–
Part III: Essay Questions
Instructions: Use the source context to develop comprehensive responses to the following prompts. (Answers not provided).
1. Aesthetics vs. Utility: Analyze the tension between the Board’s authority to judge “aesthetic matters” (Section 3.4.9) and the “permitted uses” of common areas (Section 2.2). Which authority should take precedence when a visual improvement eliminates a functional use?
2. The Definition of Exclusive Use: Evaluate the Respondent’s argument that the rock berm does not constitute “exclusive use” because there is no fence. Contrast this with the Petitioner’s testimony regarding the physical safety and accessibility of the area for members.
3. Conflicts of Interest in Governance: Discuss the implications of Dean Myers serving as both the board member approving (or allowing) the project and the contractor performing the work. How does this dual role affect the Association’s “fairness” argument?
4. Safety and Nuisance as Justification: Examine the evidence provided for safety concerns and nuisances at the trail head. Was the Association’s response (permitting boulders) a proportionate and evidenced-based solution to the problems described?
5. Historical Practice vs. Written Code: Explore the legal weight of “decades of practice” versus the literal interpretation of the Plat and Declaration. Should sixteen years of uninterrupted use by members create a protected right to park, even if not explicitly marked on a plat map?
——————————————————————————–
Part IV: Glossary of Key Terms
Definition
Architectural Control Committee (ACC)
The body (often the Board of Directors in this case) responsible for reviewing and approving or denying changes to property and common areas.
Common Area
Land owned by the Homeowners Association for the use, benefit, and enjoyment of all members, such as the 8-foot strips adjacent to roadways.
Declaration (CC&Rs)
The “Amended Declaration of Covenant Conditions and Restrictions,” which serves as the primary governing document for the Forest Trails community.
Developer Position
A permanent seat on the Board of Directors reserved for the original developer or their representative (currently held by Dean Myers).
Easement
A legal right to use another’s land for a specific limited purpose; in this case, the trail head access is described as an easement between two lots.
Exclusive Use
The sole right to use a portion of property to the exclusion of others; prohibited for private owners on association common areas.
GIS (Geographic Information System)
Digital mapping technology used in the hearing to show property lines and the relationship between lots and association-owned streets.
Natural State
The original, undeveloped condition of land; Section 2.2 mandates common areas be kept this way unless used for specific permitted purposes like trails or parking.
Petitioner
The party initiating the legal grievance or “petition” (Judy Clapp).
Plat / Plat Map
An official map drawn to scale, showing the divisions of a piece of land, including lots, streets, and common areas.
Respondent
The party responding to the legal grievance (Forest Trails Homeowners Association).
Rock Berm
A man-made barrier or mound constructed of rocks and boulders used in this case to physically block vehicle access to a shoulder.
Study Guide: Judy Clapp v. Forest Trails Homeowners Association (Docket No. 22F-H2221026-I)
This study guide provides a comprehensive overview of the administrative hearing held on March 9, 2022, regarding a dispute over common area usage, landscaping rights, and parking access within the Forest Trails community.
——————————————————————————–
Part I: Short-Answer Quiz
Instructions: Answer the following questions in 2–3 sentences based on the provided hearing transcript and documents.
1. What is the central issue of the dispute between Judy Clapp and the Forest Trails Homeowners Association?
2. How does Section 2.2 of the Forest Trails Declaration define the purpose and permitted uses of “common areas”?
3. What physical modification to the area near 1473 Trail Head triggered this legal action, and who performed the work?
4. What is the Petitioner’s primary argument regarding the “exclusive use” of the landscaped common area?
5. How does the Association justify its decision to approve the Normans’ landscaping request despite member objections?
6. What did the 2002–2003 review of the plat and CC&Rs reveal to the Association board regarding the 8-foot strips alongside the roadways?
7. What “nuisances” did the Respondent cite as reasons for prohibiting parking at the trail head location?
8. How does the Petitioner use the example of the community tennis courts to argue that the Association’s parking policy is inconsistent?
9. According to the testimony of Dean Myers, what is the Association’s policy regarding damage to homeowner-installed landscaping caused by snowplows?
10. What specific legal relief is the Petitioner seeking from the Administrative Law Judge?
——————————————————————————–
Part II: Answer Key
1. The dispute centers on the Association’s decision to allow a specific homeowner (the Normans) to landscape a common area in a way that prohibits long-standing member parking. The Petitioner argues this violates the Declaration’s provision that common areas benefit all members, while the Association claims the right to manage aesthetics and address nuisances.
2. Section 2.2 states that common areas are for the “use and benefit of all members” and should generally be left in their natural state. However, it explicitly allows these areas to be used for specific purposes, including trails, walkways, driveways, parking areas, landscaping, and utility easements.
3. The Normans installed large boulders and a rock berm on the association-owned unpaved roadway shoulder to prevent vehicles from parking there. This work was executed by Dean Myers, who is a permanent member of the Association’s Board of Directors and the owner of a landscaping company.
4. The Petitioner argues that the installation of the rock berm effectively grants the Normans “exclusive use” of the common area by making it physically inaccessible to others. She contends this violates the Architectural Guidelines, which state that landscaping approval shall not give a property owner exclusive use of association property.
5. The Association argues it must treat all members fairly, noting that hundreds of other residents have been allowed to landscape the common area up to the roadside. They assert that denying the Normans’ request would have unfairly “singled them out” when similar requests are universally approved.
6. The board realized that the 8-foot unpaved areas on each side of the paved roads were not private property but were actually “common areas” owned and managed by the Association. Following this discovery, the Association took over maintenance responsibilities, such as weed control and erosion management, for these strips.
7. The Respondent claimed that parking at the trail head created nuisances including trash, noise, and “public intrusion” from non-residents. Additionally, Dean Myers testified that parking was exacerbating erosion issues that were beginning to undermine the concrete street curb.
8. The Petitioner points out that the Association recently expanded and paved parking at the community tennis courts to benefit members who play tennis. She argues it is discriminatory to improve amenities for one group of members while removing a traditional parking benefit for those who use the hiking trails.
9. The Association generally holds the homeowner responsible for the costs of repairing any landscaping that extends into the common area if it is damaged by a snowplow. This serves as a condition of allowing private landscaping on association-owned land; the board only pays if the plow operator acted “stupidly.”
10. The Petitioner is seeking an order confirming that the Declaration prohibits these specific landscaping changes. Furthermore, she is requesting that the Association be ordered to restore the common area to its original condition to allow for continued member parking.
——————————————————————————–
Part III: Essay Questions
Instructions: Use the source context to develop comprehensive responses to the following prompts. (Answers not provided).
1. Aesthetics vs. Utility: Analyze the tension between the Board’s authority to judge “aesthetic matters” (Section 3.4.9) and the “permitted uses” of common areas (Section 2.2). Which authority should take precedence when a visual improvement eliminates a functional use?
2. The Definition of Exclusive Use: Evaluate the Respondent’s argument that the rock berm does not constitute “exclusive use” because there is no fence. Contrast this with the Petitioner’s testimony regarding the physical safety and accessibility of the area for members.
3. Conflicts of Interest in Governance: Discuss the implications of Dean Myers serving as both the board member approving (or allowing) the project and the contractor performing the work. How does this dual role affect the Association’s “fairness” argument?
4. Safety and Nuisance as Justification: Examine the evidence provided for safety concerns and nuisances at the trail head. Was the Association’s response (permitting boulders) a proportionate and evidenced-based solution to the problems described?
5. Historical Practice vs. Written Code: Explore the legal weight of “decades of practice” versus the literal interpretation of the Plat and Declaration. Should sixteen years of uninterrupted use by members create a protected right to park, even if not explicitly marked on a plat map?
——————————————————————————–
Part IV: Glossary of Key Terms
Definition
Architectural Control Committee (ACC)
The body (often the Board of Directors in this case) responsible for reviewing and approving or denying changes to property and common areas.
Common Area
Land owned by the Homeowners Association for the use, benefit, and enjoyment of all members, such as the 8-foot strips adjacent to roadways.
Declaration (CC&Rs)
The “Amended Declaration of Covenant Conditions and Restrictions,” which serves as the primary governing document for the Forest Trails community.
Developer Position
A permanent seat on the Board of Directors reserved for the original developer or their representative (currently held by Dean Myers).
Easement
A legal right to use another’s land for a specific limited purpose; in this case, the trail head access is described as an easement between two lots.
Exclusive Use
The sole right to use a portion of property to the exclusion of others; prohibited for private owners on association common areas.
GIS (Geographic Information System)
Digital mapping technology used in the hearing to show property lines and the relationship between lots and association-owned streets.
Natural State
The original, undeveloped condition of land; Section 2.2 mandates common areas be kept this way unless used for specific permitted purposes like trails or parking.
Petitioner
The party initiating the legal grievance or “petition” (Judy Clapp).
Plat / Plat Map
An official map drawn to scale, showing the divisions of a piece of land, including lots, streets, and common areas.
Respondent
The party responding to the legal grievance (Forest Trails Homeowners Association).
Rock Berm
A man-made barrier or mound constructed of rocks and boulders used in this case to physically block vehicle access to a shoulder.
Case Participants
Petitioner Side
- Judy Clapp (Petitioner)
Homeowner
Also referred to as Judith Ellen Black - Kevin Harper (Petitioner Attorney)
Harper Law PLC - Rick Ohanesian (Petitioner)
Homeowner
Listed in Respondent's Amended Notice of Appearance - Lucy McMillan (Former Board Member)
Forest Trails HOA
Listed as witness but not present
Respondent Side
- Edward D. O'Brien (Respondent Attorney)
Carpenter, Hazlewood, Delgado & Bolen, LLP - Edith I. Rudder (Respondent Attorney)
Carpenter, Hazlewood, Delgado & Bolen, LLP - Dean Meyers (Board Member)
Forest Trails HOA Board
Developer position on board; Professional landscaper hired by the Normans; Witness - James Norman (Homeowner)
Forest Trails HOA
Owner of lot 30; requested landscaping - Cynthia Norman (Homeowner)
Forest Trails HOA
Owner of lot 30 - Jim Atkinson (HOA Attorney)
Former Board President; identified as Association attorney in testimony - Nancy Char (Board President)
Forest Trails HOA
Current president mentioned in testimony - Marissa (Property Manager)
Community Asset Management LLC
Mentioned in meeting minutes regarding sample handling
Neutral Parties
- Velva Moses-Thompson (ALJ)
Office of Administrative Hearings
Transcribed as 'Alvin Moses Thompson' in audio transcript - Dan Gardner (HOA Coordinator)
ADRE - Louis Dettorre (Commissioner)
ADRE
Other Participants
- Lenor Hemphill (Former Board Member)
Forest Trails HOA
Sent email regarding landscaping issue