Category Archives: HOA Cases

Sam & Pipper O’ Shaughnessy Stangl v. Sabino Vista Townhouse

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Case Summary

Case ID 22F-H2221009-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2022-04-25
Administrative Law Judge Velva Moses-Thompson
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Sam & Pipper O' Shaughnessy Stangl Counsel —
Respondent Sabino Vista Townhouse Association Counsel Nathan Tennyson

Alleged Violations

Article VI of the CC&Rs

Outcome Summary

The Administrative Law Judge deemed Petitioners the prevailing party. Respondent HOA violated Article VI of the CC&Rs by failing to maintain and remove rubbish from the natural desert area within the Common Area up to the exterior building lines, as the Board's determination not to maintain the area lacked proper authority without a CC&R amendment. The Respondent was ordered to comply with the CC&Rs and refund the Petitioners' filing fee.

Key Issues & Findings

HOA maintenance obligations for common area up to exterior building lines

Petitioners alleged the HOA failed to maintain and otherwise manage all property up to the exterior building lines and patio enclosures, specifically a natural desert area within the Common Area. The ALJ found that the CC&Rs require the Association to maintain and remove all rubbish within its property up to the exterior building lines, and the Board lacked the authority to refuse maintenance of the natural desert area without amending the CC&Rs.

Orders: Respondent is ordered to comply with the requirements of Article VI of the CC&Rs going forward and must pay Petitioners their filing fee of $500.00 within thirty (30) days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • Article VI of the CC&Rs
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Analytics Highlights

Topics: HOA Maintenance, CC&R Interpretation, Common Area Maintenance, Filing Fee Refund, Prevailing Party
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

22F-H2221009-REL Decision – 959583.pdf

Uploaded 2026-04-24T11:38:59 (49.7 KB)

22F-H2221009-REL Decision – 964651.pdf

Uploaded 2026-04-24T11:39:03 (18.7 KB)

22F-H2221009-REL Decision – 964655.pdf

Uploaded 2026-04-24T11:39:07 (99.7 KB)

22F-H2221009-REL Decision – 927714.pdf

Uploaded 2026-04-24T11:39:13 (95.3 KB)

22F-H2221009-REL Decision – 927747.pdf

Uploaded 2026-04-24T11:39:19 (37.5 KB)

Stangl v. Sabino Vista Townhouse Association: A Dispute Over Common Area Maintenance

Executive Summary

This briefing document synthesizes the key facts, arguments, and legal decisions in the administrative case of Sam & Pipper O’ Shaughnessy Stangl versus the Sabino Vista Townhouse Association. The central conflict revolves around the Association’s legal obligation, as defined by its Covenants, Conditions, and Restrictions (CC&Rs), to maintain a common area behind the Petitioners’ property.

The Petitioners alleged that the Association violated Article 6 of its CC&Rs by failing to maintain this area for over two decades, resulting in the accumulation of rubbish and the creation of a habitat for pests. The Association countered that the area in question was designated “natural desert” to serve as a buffer, and that maintaining it was not required and would be cost-prohibitive.

An initial hearing in November 2021 resulted in a decision in favor of the Petitioners. The Association was granted a rehearing, which took place in April 2022. Despite new arguments from the Association regarding budget constraints, historical precedent, and alleged interference by the Petitioners, the Administrative Law Judge (ALJ) upheld the original decision.

The final ruling on April 25, 2022, found that the language of CC&R Article 6 is unambiguous and requires the Association to maintain “all property up to the exterior building lines.” The ALJ concluded that the Board of Directors does not have the authority to unilaterally designate a common area as “unmaintained” without formally amending the CC&Rs. Consequently, the Association was ordered to comply with Article 6 and reimburse the Petitioners’ filing fee.

Case Overview

Case Name

Sam & Pipper O’ Shaughnessy Stangl, Petitioners, vs. Sabino Vista Townhouse Association, Respondent.

Case Numbers

22F-H2221009-REL (Initial Hearing)
22F-H2221009-REL-RHG (Rehearing)

Adjudicating Body

Arizona Office of Administrative Hearings

Administrative Law Judge

Velva Moses-Thompson

Key Dates

Petition Filed: August 6, 2021
Initial Hearing: November 8, 2021
Initial Decision: November 29, 2021
Rehearing: April 4, 2022
Final Decision: April 25, 2022

The Central Allegation: Violation of CC&R Article 6

The dispute is founded on the interpretation of Article 6 of the Sabino Vista Townhouse Association’s CC&Rs concerning “Common Maintenance.”

Key Provisions of Article 6:

• Maintenance Obligation: “The Association, or its duly authorized representative, shall maintain and otherwise manage all property up to the exterior building lines and patio enclosures including but not limited to the landscaping… roofs, common elements, decorative walls, drainage… and be responsible for the rubbish removal of all areas within the common properties.”

• Standard of Care: “The Board of Directors of the Association shall use a reasonably high standard of care in providing for the repair, management and maintenance of said property, so that said townhouse project will reflect high pride of ownership.”

Petitioners’ Core Claim: Filed on August 6, 2021, the petition alleged that the Association violated Article 6 by failing to maintain the property behind their townhome unit. They asserted this neglect had persisted for the approximately 24 years they had lived there, leading to overgrowth and pest infestations.

The First Hearing and Decision (November 2021)

Summary of Arguments

• Petitioners (Sam & Pipper O’ Shaughnessy Stangl):

◦ Alleged observing only 12 hours of landscaping work in their immediate back area over 24 years.

◦ Claimed the accumulated rubbish and overgrowth served as a habitat for pests, specifically mentioning “a pack rat for rattlesnakes.”

◦ Submitted a photograph of a rattlesnake skin found in their backyard as evidence.

• Respondent (Sabino Vista Townhouse Association):

◦ Testimony was provided by Charles Taylor Ostermeyer, secretary of the Board of Directors.

◦ Argued the area in question is a “natural desert area and underbrush” that begins 30 to 40 feet behind the homes.

◦ Initially claimed the Board had adopted a rule limiting maintenance to just 4 feet behind residences, citing Board meeting minutes. However, when pressed by the ALJ, Ostermeyer conceded that believing a formal rule was adopted “would be conjecture on my part.”

◦ Asserted it would be too costly to clear the entire region.

◦ Contended that the decision not to maintain the open desert area was a valid exercise of the “business judgment rule” applicable to non-profit organizations.

November 29, 2021 Decision

The ALJ, Velva Moses-Thompson, ruled in favor of the Petitioners.

• Finding: The preponderance of the evidence showed the Respondent failed to maintain the property as required by the unambiguous language of Article 6.

• Reasoning: The Respondent provided “no evidence of an Amendment to Article VI” and “no evidence of a rule properly adopted by the Board that would limit the common area to be maintained.”

• Order: The Petitioners were deemed the prevailing party, and the Association was ordered to reimburse their $500 filing fee and comply with Article 6 going forward.

The Rehearing and Final Decision (April 2022)

The Association’s request for a rehearing was granted, with the new hearing held on April 4, 2022. The Association was represented by Nathan Tennyson, Esq., and presented testimony from John Polasi, a Board member and Chairman of the Landscape Committee.

Rehearing Testimony and Arguments

Petitioner Arguments (Sam O’ Shaughnessy Stangl)

Respondent Arguments (John Polasi, HOA Board)

Core Issue is Deflection: Argued the Association’s narrative was a “deflection from the main issue.” Stated the HOA focused on irrelevant topics to circumvent the court’s correct original ruling.

Area is a “Natural Buffer”: The unmaintained area has existed since 1974 and serves as a natural buffer from Tanque Verde Creek, keeping wildlife out and preventing hikers/bikers from wandering into the neighborhood.

Tree Trimming Incident: Claimed the HOA falsely accused him of “singlehandedly” stopping all tree trimming. Clarified a December 2021 interaction with a contractor (Leon’s Tree Service) lasted only 30 seconds, where he refused permission to cut three shade branches in his private front courtyard.

Petitioner Hindrance: Alleged the Petitioners actively hindered tree trimming in December 2021 by refusing the contractor entry into their courtyard and blocking their driveway with an SUV to prevent the trimming of a low-hanging branch.

Pest Infestations: Maintained that pests are a significant problem, citing a recent rattlesnake sighting on his birthday (March 21) and his personal removal of “252 packrats in the last three years.”

Pest Control is Managed: Stated the HOA contracts “Mr. Packrat” to inspect the entire property quarterly. Polasi testified he had been chairman for a year and had “never heard of a single pack rider or rattlesnake anywhere.”

Misuse of Common Area: Dismissed accusations of misusing the common area as “pure deflection.” He stated his use (grilling, sitting outdoors) was adjudicated in court 18 years prior and found to be in compliance with CC&Rs.

Petitioner Misuse of Common Area: Accused the Petitioners of violating CC&Rs by placing personal items (barbecue, smoker, tables, chairs) in the common area and cutting a hole in their patio wall for water and electric lines.

Developer’s Intent: Cited a statement from Dale Chastine, the original developer, asserting the CC&Rs were written to “strictly forbid any unfettered wild growth” and require all common areas to be maintained in the same manner.

Board Authority and Historical Precedent: Cited 2020 Board Minutes that formally designated the area “35 ft to the south of southern homeowner rear wall” as “unmaintained natural desert landscape.” Referenced 1999 minutes indicating a 4-foot maintenance rule was previously in place.

New Issues: Attempted to introduce new evidence regarding a “complete drainage channel that… is now buried under debris and soil,” but the ALJ did not admit it as it was a new allegation not in the original petition.

Budgetary Constraints: Argued that maintaining the entire two-to-four-acre area would be excessively expensive. He noted the HOA had recently spent $15,000 on front-area tree trimming and $10,000 on tree repairs, and had other costs like a new pool pump.

April 25, 2022 Final Decision

The ALJ again ruled in favor of the Petitioners, affirming the initial decision.

• Core Conclusion: “Although the Board determined that it would not maintain the natural desert, the Board does not have authority under its CC&Rs to refuse to maintain any of the area of its property up to the exterior building lines.”

• Legal Reasoning: The CC&Rs are unambiguous and require the Association to maintain and remove rubbish from all property within its boundaries, including the area designated as “natural desert.”

• Path Forward for HOA: The ALJ explicitly stated, “If the Association does not want to maintain any area within its property up to the exterior building lines, the Association should amend its CC&Rs.”

• Final Order: The order from the November 29, 2021 decision was reiterated: Petitioners were deemed the prevailing party, the Respondent was ordered to pay the $500 filing fee, and the Respondent was directed to comply with Article VI of the CC&Rs.

Stangl v. Sabino Vista Townhouse Association: A Case Study Guide

This study guide provides a comprehensive review of the administrative case between homeowners Sam & Pipper O’ Shaughnessy Stangl and the Sabino Vista Townhouse Association. It includes a short-answer quiz with a corresponding answer key, a set of essay questions for deeper analysis, and a glossary of key terms found within the case documents.

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Short Answer Quiz

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

1. What was the central violation alleged by the Petitioners in their August 6, 2021, petition?

2. According to Article 6 of the CC&Rs, what is the Sabino Vista Townhouse Association’s responsibility regarding property maintenance?

3. In the first hearing on November 8, 2021, what was the Respondent’s primary argument for not maintaining the area behind the Petitioners’ home?

4. What was the outcome of the first Administrative Law Judge Decision issued on November 29, 2021?

5. Who testified for the Respondent at the April 4, 2022, rehearing, and what were his roles within the Association?

6. What two historical documents did the Respondent present at the rehearing to support its maintenance policy for the area in question?

7. Describe the Respondent’s accusation against the Petitioners regarding the tree trimming service in December 2021.

8. What strategic reasons did the Respondent’s witness, John Polasi, give for leaving the desert area unmaintained?

9. In the final decision of April 25, 2022, why did the Administrative Law Judge rule against the Association despite its evidence of a board-approved maintenance plan?

10. What specific orders were issued to the Respondent in the final court decision?

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Answer Key

1. The Petitioners alleged that the Sabino Vista Townhouse Association violated Article 6 of its Covenants, Conditions, and Restrictions (CC&Rs). Specifically, they claimed the Association failed to maintain and otherwise manage all property up to the exterior lines and patio enclosures, focusing on the unkempt two-acre area behind their townhome.

2. Article 6 requires the Association to “maintain and otherwise manage all property up to the exterior building lines and patio enclosures.” This includes landscaping, common elements, and rubbish removal, and mandates that the Board of Directors use a “reasonably high standard of care” so the project reflects a high pride of ownership.

3. In the first hearing, the Respondent argued that it had applied the “business judgment rule” applicable to non-profit organizations. The Association contended it would be too costly to clear out the entire region, which it described as an open desert area with many trees and weeds.

4. The Administrative Law Judge (ALJ) found the Petitioners to be the prevailing party. The ALJ ordered the Respondent to comply with Article 6 of the CC&Rs going forward and to pay the Petitioners their filing fee of $500.00.

5. John Polasi testified for the Respondent at the rehearing. He was identified as a member of the Respondent’s Board of Directors and the Chairman of the Landscaping Committee.

6. The Respondent presented minutes from a Board Meeting in February 1999, which stated that only 4 feet behind residences were maintained, with the remainder left natural. They also presented minutes from a 2020 Board Meeting that revised this policy, designating an area 35 feet from the southern homeowner walls as the maintenance boundary.

7. The Respondent alleged that the Petitioners interfered with and prevented a tree trimming project conducted by Leon’s Tree Service. The witness claimed the Petitioners refused entry into their front patio to trim overhanging limbs and moved a vehicle into their driveway to block the work.

8. John Polasi testified that the unmaintained desert area serves as a “natural buffer.” He stated it keeps animals from the adjacent Tanque Verde Creek area from coming onto homeowner property and also prevents bikers and hikers from wandering into the neighborhood.

9. The ALJ ruled that although the Board had determined it would not maintain the natural desert area, the Board does not have the authority under its CC&Rs to refuse maintenance. The judge concluded that the CC&Rs require the Association to maintain all property up to the exterior lines and that if the Association wishes to change this, it must formally amend its CC&Rs.

10. The final order deemed the Petitioners the prevailing party and directed the Respondent to pay the Petitioners’ $500.00 filing fee within thirty days. It further ordered the Respondent to comply with the requirements of Article VI of the CC&Rs going forward.

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Essay Questions

Instructions: The following questions are designed for essay-length responses to encourage a deeper analysis of the case. Answers are not provided.

1. Analyze the legal reasoning of the Administrative Law Judge in both the initial and final decisions. Why was Article 6 of the CC&Rs consistently interpreted as unambiguous, and how did this interpretation override the Respondent’s “business judgment” defense and subsequent board resolutions?

2. Compare and contrast the evidence and arguments presented by the Respondent in the first hearing versus the rehearing. How did the Association’s defense strategy evolve, and what new evidence did it introduce in the second hearing?

3. Discuss the concept of “preponderance of the evidence” as defined in the case documents. Using specific examples from the testimony and exhibits, explain how the Petitioners met this burden of proof and why the Respondent’s affirmative defenses failed to meet the same standard in both hearings.

4. Examine the tension between a homeowners’ association’s governing documents (like CC&Rs) and the operational decisions made by its Board of Directors. How does this case illustrate the limits of a Board’s authority to interpret or modify its responsibilities without formally amending the core documents?

5. Evaluate the various pieces of evidence introduced during the rehearing, such as the Board Minutes from 1999 and 2020, the letter from Leon’s Tree Service, and the attempted introduction of the developer’s affidavit. What role did each piece of evidence play in shaping the arguments, and why was some evidence given more weight or deemed inadmissible by the judge?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact, and issues decisions and orders. In this case, the ALJ was Velva Moses-Thompson.

Affidavit

A written statement confirmed by oath or affirmation, for use as evidence in court. An affidavit from the original developer, Dale Chastain, was presented but not admitted into evidence.

Affirmative Defense

A defense in which the defendant introduces evidence that, if found to be credible, will negate liability, even if it is proven that the defendant committed the alleged acts.

Arizona Dept. of Real Estate

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

Business Judgment Rule

A legal principle that grants directors of a corporation (or non-profit association) immunity from liability for losses incurred in corporate transactions if the directors acted in good faith. This was used as a defense by the Respondent in the first hearing.

Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision. The interpretation of Article 6 of the CC&Rs was the central issue of the case.

Common Area

Property in a planned community that is owned by the homeowners’ association and intended for the use and enjoyment of all members. The dispute centered on the maintenance of a common area behind the Petitioners’ home.

Conjecture

An opinion or conclusion formed on the basis of incomplete information. A witness for the Respondent admitted his belief about a maintenance rule was “conjecture.”

Evidentiary Hearing

A formal proceeding where parties present evidence and testimony before a judge to resolve a disputed issue.

Homeowners’ Association (HOA)

An organization in a subdivision, planned community, or condominium building that makes and enforces rules for the properties and its residents. In this case, the Sabino Vista Townhouse Association.

Office of Administrative Hearings

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

Petitioners

The party that files a petition to initiate a legal proceeding. In this case, Sam & Pipper O’ Shaughnessy Stangl.

Preponderance of the Evidence

The standard of proof in most civil cases, defined as “such proof as convinces the trier of fact that the contention is more probably true than not.” The Petitioners had the burden of proving their case by this standard.

Rehearing

A second hearing of a case, granted upon request, to reconsider the original decision. The April 4, 2022, hearing was a rehearing, treated as a “complete and new hearing.”

Respondent

The party against whom a petition is filed. In this case, the Sabino Vista Townhouse Association.

Restrictive Covenant

A provision in a deed or other legal document that limits the use of real property. The court noted that unambiguous restrictive covenants are enforced to give effect to the intent of the parties.

Riparian Area

An area of land adjacent to a river or stream. The Respondent’s witness described the community as being in a riparian area next to Tanque Verde Creek.

He Sued His HOA Over Landscaping and Won. They Demanded a Do-Over. He Won Again. Here Are the Lessons.

Introduction: The David vs. Goliath Tale of a Homeowner and His HOA

For many homeowners, dealing with a Homeowners Association (HOA) can feel like a constant struggle. Disputes over rules, maintenance, and responsibilities are common frustrations. But what happens when a homeowner believes their HOA is fundamentally failing to uphold its end of the bargain?

This is the story of Sam O’ Shaughnessy Stangl, a homeowner who took his HOA to court over its failure to maintain a common area behind his home. The outcome was surprising enough: he won. But when the HOA was granted a complete “do-over” hearing to re-argue the case from scratch, he won a second time.

This case, Stangl vs. Sabino Vista Townhouse Association, offers a powerful case study in the hierarchy of governing documents and the legal principle of plain language in contract law. Here are the surprising and powerful lessons from the repeated legal victory that every homeowner should know.

1. An HOA Board Vote Can’t Override Its Own Founding Documents

The HOA’s core defense was that its Board of Directors had made a decision to leave the area behind the homes as an “unmaintained natural desert.” This argument, however, proved legally insufficient across two separate hearings.

In the first hearing, board secretary Charles Taylor Ostermeyer testified that the board had decided to limit maintenance. However, when pressed by the judge, he admitted that claiming this decision was a formal “rule” would be “conjecture on my part.” For the rehearing, the association presented board member John Polaski, who formalized the argument, claiming the unmaintained area served as a “natural buffer.” To support this, they presented minutes from a 2020 board meeting, arguing that the board’s decision recorded in those minutes effectively created a new policy for that common area.

In both instances, the Administrative Law Judge delivered a decisive counter-ruling. The judge found that the association’s primary governing documents—the Covenants, Conditions, and Restrictions (CC&Rs)—were the superior legal authority. A simple board vote recorded in meeting minutes could not nullify the binding requirements of the CC&Rs. The judge’s final order from the rehearing was unequivocal:

Although the Board determined that it would not maintain the natural desert, the Board does not have authority under its CC&Rs to refuse to maintain any of the area of its property up to the exterior building lines. … If the Association does not want to maintain any area within its property up to the exterior building lines, the Association should amend its CC&Rs.

This is a critical lesson for every homeowner. The CC&Rs function as a legally binding contract between the association and its members. A simple board resolution, a new rule, or a long-standing “tradition” cannot legally contradict the foundational covenants.

2. When the Contract is Clear, “All” Simply Means All

The entire case ultimately hinged on a single sentence in Article VI of the Sabino Vista Townhouse Association CC&Rs. This piece of text was so clear and powerful that the judge cited it as the deciding factor in both the original hearing and the rehearing. The language stated:

“The Association, or its duly authorized representative, shall maintain and otherwise manage all property up to the exterior building lines and patio enclosures including but not limited to the landscaping…”

The HOA attempted to argue around this plain language. Its representatives claimed that maintaining the entire area was too costly, that it had been unmaintained since the community was built in 1974, and that it was a “riparian area” (land adjacent to a river or stream) that should be left wild.

In both hearings, the judge rejected these arguments. The word “all” was not open to interpretation. The language of the CC&Rs was unambiguous and therefore had to be enforced as it was written. This illustrates a fundamental legal principle: when contract language is clear, arguments about convenience, cost, or past practice often fail when pitted against the plain text of a governing legal document.

3. Facts are Stubborn, Even in a “Complete New Hearing”

In a highly unusual procedural twist, after losing the first hearing in November 2021, the HOA was granted a “re-hearing” in April 2022. This was not an appeal, which reviews an original decision for errors, but a complete strategic reset. The judge explained its legal significance:

“And this is a re-hearing. So it is a complete and new hearing. … as if the first hearing didn’t happen.”

The HOA used this second chance to launch a new strategy. While the first hearing’s defense centered on cost and a vague, unwritten policy, the second hearing featured a new witness and a new, two-pronged approach: formalizing the “natural buffer” argument and adding an ad hominem strategy that attempted to portray Mr. Stangl as an uncooperative resident who had personally interfered with tree trimming.

But while the HOA’s tactics shifted, the central fact of the case could not be changed. The text of the CC&Rs was the same in April 2022 as it was in November 2021. The final outcome was identical to the first. The judge once again ruled in favor of the homeowner, ordering the HOA to comply with its own CC&Rs and to reimburse Mr. Stangl’s $500 filing fee.

This demonstrates a key legal reality: while procedural tactics can create new opportunities for argument, they cannot alter the foundational text of a contract. The HOA’s strategy shifted, but the CC&Rs—the central fact of the case—remained immutable.

Conclusion: A Final Takeaway for Every Homeowner

The case of Stangl vs. Sabino Vista Townhouse Association offers three profound takeaways for homeowners: the CC&Rs are supreme over board decisions, the plain language of those documents is incredibly powerful, and a fact-based argument is resilient. It serves as a potent reminder that an association’s governing documents are not just suggestions—they are enforceable contracts.

The next time you question an HOA policy, will you stop at their latest newsletter, or will you go back to the source?

Case Participants

Petitioner Side

  • Sam O' Shaughnessy Stangl (petitioner)
  • Pipper O' Shaughnessy Stangl (petitioner)
  • Dale Chastine (developer/witness)
    Original developer who provided an affidavit supporting petitioners
  • Lisa Chastine (witness)
    Signed father's affidavit as a witness

Respondent Side

  • Blake R. Johnson (HOA attorney)
    The Brown Law Group, PLLC
  • Nathan Tennyson (HOA attorney)
    The Brown Law Group, PLLC
    Appeared for rehearing; also referred to as Nathan Henderson in transcript
  • Charles Taylor Ostermeyer (board member)
    Sabino Vista Townhouse Association
    Secretary of Board; testified at original hearing
  • John Polasi (board member)
    Sabino Vista Townhouse Association
    Chairman of the Landscaping Committee; testified at rehearing
  • Leon (contractor)
    Leon's Tree Service
    Tree trimmer hired by HOA; provided a signed statement/testimony

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • c. serrano (clerk)
    Transmitted order
  • Miranda Alvarez (clerk)
    Transmitted order

Other Participants

  • Barbara Barski (property manager)
    Former manager of the association

Susan L Jarzabek v. Hillcrest Improvement Association #2

Posted on by

Case Summary

Case ID 22F-H2221008-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-11-19
Administrative Law Judge Thomas Shedden
Outcome Petitioner's complaint regarding the wrongful assessment of attorney's fees was dismissed because she failed to prove, by a preponderance of the evidence, that the HOA violated its Policy regarding pre-attorney notification requirements.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Susan L Jarzabek Counsel —
Respondent Hillcrest Improvement Association #2 Counsel Haidyn DiLorenzo, Esq.

Alleged Violations

CC&R Article 1, Section 10; Enforcement, Fines and Appeals Policy ("Policy")

Outcome Summary

Petitioner's complaint regarding the wrongful assessment of attorney's fees was dismissed because she failed to prove, by a preponderance of the evidence, that the HOA violated its Policy regarding pre-attorney notification requirements.

Why this result: Petitioner failed to meet her burden of proof; the ALJ found the Policy does not require the two notices prior to attorney escalation, as Petitioner had alleged.

Key Issues & Findings

Alleged violation of Policy concerning attorney's fees assessment and required pre-litigation notices.

Petitioner alleged the Association wrongfully assessed attorney's fees, arguing the Policy required providing the owner two warning notices and a certified letter before escalating a matter to attorney involvement.

Orders: Petitioner's petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.07(F)(6)

Analytics Highlights

Topics: attorney fees, HOA policy enforcement, notice requirements, CC&Rs, due process
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.07(F)(6)

Video Overview

Audio Overview

Decision Documents

22F-H2221008-REL Decision – 926455.pdf

Uploaded 2026-04-24T11:38:50 (93.9 KB)

This summary pertains to the Administrative Law Judge Decision in the case of Susan L Jarzabek (Petitioner) vs. Hillcrest Improvement Association #2 (Respondent), heard on November 5, 2021.

Key Facts and Main Issues

The Petitioner, Susan L. Jarzabek, filed a petition alleging that the Respondent Association violated CC&R Article 1, Section 10 and its Enforcement, Fines and Appeals Policy ("Policy") by wrongfully charging her attorney’s fees. The underlying dispute involved a neighbor's complaint regarding a tree on Ms. Jarzabek's property.

Ms. Jarzabek, the sole record owner, argued that the Association’s Policy requires the owner of record to be provided two warning notices and a certified letter before a matter can be escalated to attorney involvement, thus making the assessment of fees improper. She also contended she was denied due process because she did not receive proper notice of the allegations. Although the Association assessed fines and interest related to the violation, these charges were rescinded prior to the hearing.

The Association’s documents grant it the ability to recover enforcement costs, including attorney’s fees (CC&R Art. VIII, Section 1). Crucially, the Association’s Policy provides that if a matter is escalated to the attorney, the standard notice-procedure will no longer apply, and the owner is responsible for the associated fees and costs.

The facts showed that the Association sent a certified letter (January 15, 2019) regarding the tree violation, but it was addressed to Ms. Jarzabek’s husband, John Jarzabek, and was not claimed by either party. Furthermore, this January 15, 2019 letter did not meet all the required elements for a Notice of Violation under the Association’s policy. The Association engaged counsel (The Mulcahy Law Firm) on October 15, 2019, which subsequently sent Notices of Violation to Ms. Jarzabek.

Legal Analysis and Outcome

The matter was governed by the Department of Real Estate's authority concerning alleged violations of community documents. The Petitioner bore the burden of proof to show the alleged violation occurred by a preponderance of the evidence. The Administrative Law Judge (ALJ) considered the Policy a contract with which both parties must comply.

The ALJ concluded that Ms. Jarzabek did not meet her burden to prove the Association violated the Policy. The central legal finding was that the Policy, as written, does not require that an owner receive two notices before a matter is escalated to attorney involvement.

Final Decision

Based on this finding, the ALJ ordered that Susan L. Jarzabek’s petition be dismissed. The ALJ noted that the tribunal lacked jurisdiction to determine whether the attorney’s fees levied against Ms. Jarzabek constituted a valid debt, offering no opinion on that specific debt issue.

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{ “case”: { “docket_no”: “22F-H2221008-REL”, “case_title”: “Susan L Jarzabek vs. Hillcrest Improvement Association #2”, “decision_date”: “2021-11-19”, “alj_name”: “Thomas Shedden”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can my HOA send a violation directly to their attorney without sending me warning letters first?”, “short_answer”: “Yes, if the community’s enforcement policy allows for immediate escalation to legal counsel.”, “detailed_answer”: “In this case, the ALJ ruled that the HOA did not violate its policy by involving a lawyer without prior notices, because the policy contained a provision stating that the standard notice procedure ceases to apply once a matter is escalated to an attorney.”, “alj_quote”: “The Policy also provides in pertinent part that the Association may escalate a matter to its attorney for further action, if a matter is escalated to the attorney, the notice-procedure will no longer apply”, “legal_basis”: “HOA Enforcement Policy / Contract Law”, “topic_tags”: [ “enforcement process”, “attorney referral”, “notice requirements” ] }, { “question”: “If the HOA sends my violation to a lawyer, do I have to pay the attorney’s fees?”, “short_answer”: “Yes, generally, if the CC&Rs and enforcement policy state that the owner is responsible for enforcement costs.”, “detailed_answer”: “The decision notes that the governing documents (CC&Rs) specifically allow the Association to recover enforcement costs, including attorney’s fees, from the owner. Additionally, the specific policy noted that upon escalation, the owner becomes responsible for these costs.”, “alj_quote”: “CC&R Art. VIII, Section 1, Enforcement, provides that the Association may recover from an owner its enforcement costs, including attorney’s fees.”, “legal_basis”: “CC&Rs Article VIII, Section 1”, “topic_tags”: [ “attorney fees”, “fines and penalties”, “collection costs” ] }, { “question”: “Who has to prove that the HOA did something wrong in a hearing?”, “short_answer”: “The homeowner (petitioner) filing the complaint bears the burden of proof.”, “detailed_answer”: “When a homeowner petitions the Department of Real Estate alleging a violation by the HOA, it is up to the homeowner to provide sufficient evidence to prove that the violation occurred.”, “alj_quote”: “Ms. Jarzabek bears the burden of proof to show that the alleged violation occurred.”, “legal_basis”: “ARIZ. ADMIN. CODE § R2-19-119”, “topic_tags”: [ “burden of proof”, “legal procedure”, “hearing standards” ] }, { “question”: “Is an HOA’s enforcement policy legally considered a binding contract?”, “short_answer”: “Yes, the policy is treated as part of the contract between the HOA and the homeowners.”, “detailed_answer”: “The Administrative Law Judge affirmed that community policies are part of the contractual agreement between the parties, meaning both the homeowner and the HOA are legally required to follow the terms written in that policy.”, “alj_quote”: “The Policy is part of contract between the parties and the parties are required to comply with its terms.”, “legal_basis”: “Contract Law; Johnson v. The Pointe Community Association”, “topic_tags”: [ “contract law”, “governing documents”, “policy enforcement” ] }, { “question”: “Can the Administrative Law Judge cancel the specific debt or fees I owe the HOA?”, “short_answer”: “Not necessarily; the tribunal’s jurisdiction may be limited to determining if a violation of documents occurred, not the validity of the debt itself.”, “detailed_answer”: “The ALJ explicitly noted in a footnote that while they can determine if the HOA violated its policy, they did not have the jurisdiction to decide if the specific attorney’s fees charged constituted a valid debt.”, “alj_quote”: “it is not within this tribunal’s jurisdiction to determine whether the attorney’s fees levied against Ms. Jarzabek are a valid debt, and the tribunal offers no opinion on that issue.”, “legal_basis”: “ARIZ. REV. STAT. § 41-1092.07(F)(6)”, “topic_tags”: [ “jurisdiction”, “debt validity”, “tribunal limitations” ] }, { “question”: “What standard of evidence is used to make a decision in an HOA dispute?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The standard is ‘preponderance of the evidence,’ which means the evidence must show it is more likely than not that the claim is true. It is described as the greater weight of the evidence.”, “alj_quote”: “The standard of proof on all issues in this matter is that of a preponderance of the evidence.”, “legal_basis”: “ARIZ. ADMIN. CODE § R2-19-119”, “topic_tags”: [ “legal standards”, “evidence”, “administrative hearing” ] } ] }

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{ “case”: { “docket_no”: “22F-H2221008-REL”, “case_title”: “Susan L Jarzabek vs. Hillcrest Improvement Association #2”, “decision_date”: “2021-11-19”, “alj_name”: “Thomas Shedden”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can my HOA send a violation directly to their attorney without sending me warning letters first?”, “short_answer”: “Yes, if the community’s enforcement policy allows for immediate escalation to legal counsel.”, “detailed_answer”: “In this case, the ALJ ruled that the HOA did not violate its policy by involving a lawyer without prior notices, because the policy contained a provision stating that the standard notice procedure ceases to apply once a matter is escalated to an attorney.”, “alj_quote”: “The Policy also provides in pertinent part that the Association may escalate a matter to its attorney for further action, if a matter is escalated to the attorney, the notice-procedure will no longer apply”, “legal_basis”: “HOA Enforcement Policy / Contract Law”, “topic_tags”: [ “enforcement process”, “attorney referral”, “notice requirements” ] }, { “question”: “If the HOA sends my violation to a lawyer, do I have to pay the attorney’s fees?”, “short_answer”: “Yes, generally, if the CC&Rs and enforcement policy state that the owner is responsible for enforcement costs.”, “detailed_answer”: “The decision notes that the governing documents (CC&Rs) specifically allow the Association to recover enforcement costs, including attorney’s fees, from the owner. Additionally, the specific policy noted that upon escalation, the owner becomes responsible for these costs.”, “alj_quote”: “CC&R Art. VIII, Section 1, Enforcement, provides that the Association may recover from an owner its enforcement costs, including attorney’s fees.”, “legal_basis”: “CC&Rs Article VIII, Section 1”, “topic_tags”: [ “attorney fees”, “fines and penalties”, “collection costs” ] }, { “question”: “Who has to prove that the HOA did something wrong in a hearing?”, “short_answer”: “The homeowner (petitioner) filing the complaint bears the burden of proof.”, “detailed_answer”: “When a homeowner petitions the Department of Real Estate alleging a violation by the HOA, it is up to the homeowner to provide sufficient evidence to prove that the violation occurred.”, “alj_quote”: “Ms. Jarzabek bears the burden of proof to show that the alleged violation occurred.”, “legal_basis”: “ARIZ. ADMIN. CODE § R2-19-119”, “topic_tags”: [ “burden of proof”, “legal procedure”, “hearing standards” ] }, { “question”: “Is an HOA’s enforcement policy legally considered a binding contract?”, “short_answer”: “Yes, the policy is treated as part of the contract between the HOA and the homeowners.”, “detailed_answer”: “The Administrative Law Judge affirmed that community policies are part of the contractual agreement between the parties, meaning both the homeowner and the HOA are legally required to follow the terms written in that policy.”, “alj_quote”: “The Policy is part of contract between the parties and the parties are required to comply with its terms.”, “legal_basis”: “Contract Law; Johnson v. The Pointe Community Association”, “topic_tags”: [ “contract law”, “governing documents”, “policy enforcement” ] }, { “question”: “Can the Administrative Law Judge cancel the specific debt or fees I owe the HOA?”, “short_answer”: “Not necessarily; the tribunal’s jurisdiction may be limited to determining if a violation of documents occurred, not the validity of the debt itself.”, “detailed_answer”: “The ALJ explicitly noted in a footnote that while they can determine if the HOA violated its policy, they did not have the jurisdiction to decide if the specific attorney’s fees charged constituted a valid debt.”, “alj_quote”: “it is not within this tribunal’s jurisdiction to determine whether the attorney’s fees levied against Ms. Jarzabek are a valid debt, and the tribunal offers no opinion on that issue.”, “legal_basis”: “ARIZ. REV. STAT. § 41-1092.07(F)(6)”, “topic_tags”: [ “jurisdiction”, “debt validity”, “tribunal limitations” ] }, { “question”: “What standard of evidence is used to make a decision in an HOA dispute?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The standard is ‘preponderance of the evidence,’ which means the evidence must show it is more likely than not that the claim is true. It is described as the greater weight of the evidence.”, “alj_quote”: “The standard of proof on all issues in this matter is that of a preponderance of the evidence.”, “legal_basis”: “ARIZ. ADMIN. CODE § R2-19-119”, “topic_tags”: [ “legal standards”, “evidence”, “administrative hearing” ] } ] }

Case Participants

Petitioner Side

  • Susan L Jarzabek (petitioner, witness)

Respondent Side

  • Haidyn DiLorenzo (HOA attorney)
    Counsel for Respondent
  • Robert Cody (board president, witness)
    Hillcrest Improvement Association #2
  • Beth Mulcahy (HOA attorney)
    Mulcahy Law Firm, PC
    Recipient of transmission; firm engaged by Association

Neutral Parties

  • Thomas Shedden (ALJ)
  • Louis Dettorre (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission (via email)
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission (via email)
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission (via email)
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission (via email)
  • Miranda Alvarez (OAH staff)
    Transmitter of Decision

Other Participants

  • John Jarzabek (spouse)
    Petitioner's husband, named on certified letter sent by Association

Richard J. Jones v. Desert Oasis of Surprise Master Association

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Case Summary

Case ID 21F-H2121038-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-11-15
Administrative Law Judge Thomas Shedden
Outcome The Administrative Law Judge dismissed the petition, finding that Petitioner Richard J. Jones failed to meet his burden of proof to show the Association violated its Design Guidelines or engaged in selective enforcement.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Richard J Jones Counsel —
Respondent Desert Oasis of Surprise Master Association Counsel Troy Stratman, Esq.

Alleged Violations

Design Guidelines; CC&Rs Section 4.1.1

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that Petitioner Richard J. Jones failed to meet his burden of proof to show the Association violated its Design Guidelines or engaged in selective enforcement.

Why this result: Petitioner did not show by a preponderance of the evidence that the Association violated the Guidelines or engaged in selective enforcement. Evidence indicated that the Petitioner was in violation of the existing Guidelines by failing to obtain prior approval for his driveway extension and failing to meet the required setback.

Key Issues & Findings

Petitioner alleged the Association violated Design Guidelines regarding setback requirements for driveway extensions and engaged in selective enforcement.

Petitioner filed a single issue petition asserting that Design Guidelines did not require a twelve-inch setback for driveway extensions from the property line and that the Association was selectively enforcing its rules. The Petitioner had installed a concrete driveway extension without obtaining prior ARC approval, and approval was denied due to the lack of the twelve-inch setback.

Orders: Richard J. Jones’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Tierra Ranchos Homeowners Ass’n v Kitchukov, 216 Ariz. 173, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: Driveway Extension, Architectural Review Committee, Setback Requirements, Design Guidelines, Selective Enforcement, HOA Violation
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Tierra Ranchos Homeowners Ass’n v Kitchukov, 216 Ariz. 173, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

21F-H2121038-REL Decision – 924982.pdf

Uploaded 2026-04-24T11:34:04 (100.9 KB)

21F-H2121038-REL Decision – 924983.pdf

Uploaded 2026-04-24T11:34:07 (94.9 KB)

Briefing Document: Jones v. Desert Oasis of Surprise Master Association

Executive Summary

This document synthesizes the findings and conclusions of the Administrative Law Judge in the case of Richard J. Jones versus the Desert Oasis of Surprise Master Association (Case No. 21F-H2121038-REL). The dispute centered on a concrete driveway extension installed by Mr. Jones without the prior approval of the Association’s Architectural Review Committee (ARC). Mr. Jones contested the Association’s denial of his post-installation application, alleging that the Design Guidelines were misinterpreted and selectively enforced.

The Administrative Law Judge, Thomas Shedden, ultimately dismissed Mr. Jones’s petition. The decision rested on three key determinations:

1. Clear Violation: Mr. Jones was in direct violation of the Design Guidelines by failing to obtain prior approval for the modification and by not adhering to a mandatory 12-inch setback from the common block wall, a fact he acknowledged.

2. Reasonable Interpretation: The Association’s interpretation that the 12-inch setback requirement applied to the entire property line—not just the block wall—was deemed “not unreasonable,” particularly since the common wall is part of the property line.

3. Failure to Prove Selective Enforcement: Mr. Jones did not meet the “preponderance of the evidence” standard to prove his claim of selective enforcement. The Association provided credible evidence demonstrating consistent application of the setback rule to other homeowners.

The final order upholds the Association’s enforcement actions and dismisses the petitioner’s claims.

Case Overview

Parties and Jurisdictional Details

Name / Entity

Representation

Petitioner

Richard J. Jones

On his own behalf

Respondent

Desert Oasis of Surprise Master Association

Troy Stratman, Esq.

Adjudicator

Thomas Shedden

Administrative Law Judge

Case No.

21F-H2121038-REL

Hearing Date

November 2, 2021

Decision Date

November 15, 2021

Core Dispute

The central conflict arose from a concrete driveway extension installed by Richard J. Jones on his property on May 11, 2020. The installation was performed without submitting a request for prior approval to the Association’s Architectural Review Committee (ARC), a violation of the community’s CC&Rs. Following the installation, the ARC denied Mr. Jones’s retroactive application, citing its failure to meet a required 12-inch setback from the property line. This led to a notice of non-compliance and a fine, prompting Mr. Jones to file a petition with the Arizona Department of Real Estate.

Chronology of Events

• April 2020: Mr. Jones contacted AAM, LLC, the Association’s property management company, to inquire about adding concrete strips. He was informed this was not allowed but that an employee could assist with an approval process for a paver driveway extension.

• May 11, 2020: Having not received further guidance from the management company, Mr. Jones proceeded to have the concrete driveway extension installed.

• Post-May 11, 2020: Mr. Jones submitted an application to the ARC for retroactive approval of the already-installed extension.

• December 2, 2020: The ARC formally denied Mr. Jones’s application. The denial letter stated the extension did not meet the 12-inch setback requirement and advised him to reapply after cutting the driveway back from the property line.

• January 12, 2021: The Association issued a Second Notice of Non-compliance/Fine.

• February 12, 2021: Mr. Jones filed a petition with the Department of Real Estate, alleging the Association was misinterpreting and selectively enforcing its Design Guidelines.

• November 2, 2021: The administrative hearing was conducted.

• November 15, 2021: The Administrative Law Judge issued a decision dismissing Mr. Jones’s petition.

Analysis of Arguments and Evidence

Petitioner’s Position (Richard J. Jones)

Mr. Jones’s case was built on two primary arguments:

• Interpretation of Design Guidelines: He contended that the Guidelines in effect at the time of installation required a 12-inch setback from the “common wall” but were silent regarding the “property line.” He argued that since the Guidelines explicitly mandated a property line setback for sidewalks, the absence of such language for driveway extensions meant the requirement did not apply.

• Allegation of Selective Enforcement: He asserted that the Association was applying its Guidelines and Rules inconsistently among homeowners.

During testimony, Mr. Jones acknowledged that his driveway extension did not comply with the 12-inch setback from the common wall and expressed a willingness to correct that specific deficiency. He also testified that his neighbors did not object to the extension as installed.

Respondent’s Position (Desert Oasis of Surprise Master Association)

The Association, represented by counsel, presented a multi-faceted defense:

• Procedural Failure: A core issue was Mr. Jones’s failure to obtain prior approval from the ARC before installation, as mandated by Section 4.1.1 of the CC&Rs.

• Violation of Setback Rule: The Association maintained that the extension violated the required 12-inch setback. The property manager, Paul Favale, testified that this rule is intended to ensure water does not drain onto a neighbor’s property.

• Evidence of Consistent Enforcement: To counter the claim of selective enforcement, the Association submitted an “Architectural Status Report” for the period of August 27, 2020, through April 21, 2021. This report demonstrated that other homeowners’ requests for driveway extensions had also been denied for failing to meet the 12-inch property line setback.

It was also noted that the Design Guidelines have since been modified to explicitly require a 12-inch setback from both the common wall and the property line.

Administrative Law Judge’s Findings and Conclusions

The Judge’s decision was based on a thorough analysis of the evidence presented and the applicable legal standards.

Key Findings of Fact

• Mr. Jones installed the driveway extension on May 11, 2020, without prior approval from the ARC.

• The extension does not have a 12-inch setback from the common block wall, which is part of the property line.

• The Design Guidelines at the time explicitly required a 12-inch setback from the block wall.

• Mr. Jones acknowledged his non-compliance with the block wall setback requirement.

Conclusions of Law

The Judge concluded that Mr. Jones failed to meet his burden of proof, which required demonstrating a violation by the Association by a “preponderance of the evidence.”

1. Petitioner’s Violation: Mr. Jones was found to be in violation of the Guidelines. His acknowledgment that the driveway did not comply with the 12-inch setback from the common wall was a critical factor.

2. Reasonableness of Association’s Interpretation: The Judge determined that the Association’s interpretation of the Guidelines—requiring a 12-inch setback along the entire property line—was “not unreasonable.” This conclusion was supported by two points: the common wall is physically part of the property line, and Mr. Jones had failed to follow the required prior approval process, where such ambiguities would have been clarified.

3. No Evidence of Selective Enforcement: The Association presented “credible evidence” via its Architectural Status Report showing that other members were subject to the same rule. Consequently, Mr. Jones “did not show by a preponderance of the evidence that the Association was selectively enforcing the Guidelines.”

Final Order and Implications

• Order: The Judge ordered that Richard J. Jones’s petition be dismissed.

• Legal Standing: The decision is binding on both parties.

• Appeal Process: The order can only be challenged through a request for rehearing, which must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order (November 15, 2021).

Study Guide: Jones v. Desert Oasis of Surprise Master Association

This guide provides a comprehensive review of the administrative case No. 21F-H2121038-REL, involving Petitioner Richard J. Jones and Respondent Desert Oasis of Surprise Master Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and final judgment.

——————————————————————————–

Short-Answer Quiz

Answer each of the following questions in 2-3 sentences based on the provided case documents.

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

2. What specific modification did Richard J. Jones make to his property, and on what date did he complete it?

3. What critical step did Mr. Jones fail to take before installing the modification, as required by Section 4.1.1 of the CC&Rs?

4. According to the Design Guidelines in effect at the time of installation, what was the specific rule regarding the placement of driveway extensions that Mr. Jones’s project violated?

5. What was Mr. Jones’s main argument regarding the ambiguity of the Design Guidelines concerning the twelve-inch setback requirement?

6. What justification did the Association’s property manager, Paul Favale, provide for the setback requirement?

7. What were the two primary claims Mr. Jones made against the Association in his petition filed on February 12, 2021?

8. What is the standard of proof required in this matter, and which party carried the burden of meeting that standard?

9. How did the Association counter Mr. Jones’s claim that it was selectively enforcing its rules?

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

——————————————————————————–

Answer Key

1. The primary parties were the Petitioner, Richard J. Jones, a homeowner who appeared on his own behalf, and the Respondent, the Desert Oasis of Surprise Master Association, which was represented by its counsel, Troy Stratman, Esq.

2. On May 11, 2020, Mr. Jones added a concrete driveway running from the street to a side gate on his property. This modification is referred to in the documents as a “driveway extension.”

3. Mr. Jones did not submit a request for prior approval to the Architectural Review Committee (ARC) before installing his driveway extension. This pre-approval is required for such modifications under the Association’s CC&Rs.

4. The driveway extension violated the rule requiring a twelve-inch setback from the common block wall. Mr. Jones acknowledged that his driveway did not comply with this specific requirement of the Design Guidelines.

5. Mr. Jones argued that since the Design Guidelines explicitly required a twelve-inch setback from the property line for sidewalks but did not explicitly state the same for driveway extensions, the requirement did not apply to his project along the full property line.

6. Mr. Favale testified that the purpose of the setback requirement is functional. It is designed to help ensure that water does not drain from one property onto a neighboring property.

7. Mr. Jones’s petition asserted that the Design Guidelines for driveway extensions did not require a setback from the property line (only the common wall). He also claimed that the Association was selectively enforcing its Guidelines and Rules against him.

8. The standard of proof was a preponderance of the evidence. The Petitioner, Mr. Jones, bore the burden of proof to show that the Association had violated its own guidelines.

9. The Association submitted an Architectural Status Report covering August 27, 2020, to April 21, 2021. This report provided credible evidence that other Association members had also been denied requests for driveway extensions due to a failure to meet the twelve-inch setback requirement.

10. The Administrative Law Judge, Thomas Shedden, ordered that Richard J. Jones’s petition be dismissed. The judge concluded that Mr. Jones had not met his burden of proof to show the Association had violated its guidelines or enforced them selectively.

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Essay Questions

The following questions are designed to encourage deeper analysis of the case. Answers are not provided.

1. Discuss the concept of “burden of proof” and the “preponderance of the evidence” standard as they were applied in this case. Explain specifically how Mr. Jones failed to meet this burden for both of his primary claims.

2. Analyze the legal reasoning used by the Administrative Law Judge to determine that the Association’s interpretation of its Design Guidelines was “not unreasonable.” Consider the judge’s reference to the common wall being part of the property line and Mr. Jones’s failure to obtain prior approval.

3. Trace the timeline of events from Mr. Jones’s initial inquiry to AAM, LLC in April 2020 to the final order in November 2021. Discuss how Mr. Jones’s decision to proceed with construction without explicit approval ultimately weakened his legal position.

4. Evaluate the claim of “selective enforcement.” What kind of evidence would Mr. Jones have needed to present to successfully prove this claim, and why was the Association’s Architectural Status Report considered more compelling evidence by the court?

5. The “Conclusions of Law” section states that the Design Guidelines are part of a contract between the parties. Using the facts of this case, explain the legal and practical implications of this principle for a homeowner living within a master association.

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Glossary of Key Terms

Definition

AAM, LLC

The property management company for the Desert Oasis of Surprise Master Association.

Administrative Law Judge (ALJ)

The judge who presides over administrative hearings and renders decisions. In this case, the ALJ was Thomas Shedden.

Architectural Review Committee (ARC)

The committee within the homeowners’ association responsible for reviewing and granting prior approval for modifications to properties, such as driveway extensions.

Burden of Proof

The obligation on a party in a dispute to provide sufficient evidence to support their claim. In this case, the burden of proof was on the petitioner, Mr. Jones.

An abbreviation for Covenants, Conditions, and Restrictions, which are the governing legal documents for a planned community or homeowners’ association.

Design Guidelines

A set of rules that are part of the contract between homeowners and the association, detailing requirements for property modifications.

Driveway Extension

As defined by the parties, a concrete driveway running from the street to a gate at the side of a house.

Petitioner

The party who files a petition to initiate a legal proceeding. In this case, Richard J. Jones.

Preponderance of the Evidence

The standard of proof required in this case. It is defined as evidence that has “the most convincing force” and is 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. In this case, the Desert Oasis of Surprise Master Association.

Selective Enforcement

The legal claim that an association is not applying its rules and guidelines uniformly, instead penalizing some members while allowing others to violate the same rules.

Setback

A required distance that a structure must be located away from a property line or other feature, such as a common wall. In this case, the requirement was for a twelve-inch setback.

He Fought the HOA Over 12 Inches of Concrete—and Lost. Here Are 4 Surprising Lessons from His Case.

Navigating the rules of a Homeowners’ Association (HOA) can feel like walking through a minefield of regulations, where a small misstep can lead to notices, fines, and protracted disputes. For one homeowner, Richard J. Jones, a conflict with his HOA, the Desert Oasis of Surprise Master Association, over a new driveway extension escalated all the way to a formal hearing. The official legal decision in his case reveals several counter-intuitive truths about how these disputes are won and lost, offering valuable lessons for any homeowner living under HOA governance.

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1. “Asking for Forgiveness” is a Losing Strategy.

The first major takeaway is that violating rules first and hoping for retroactive approval is an approach doomed to fail, even when the situation feels complex. The story here is more nuanced than simple defiance. In April 2020, before any work began, Mr. Jones contacted the HOA’s management company about his plans. After being told his initial idea for “two concrete strips” was not allowed, he was directed to another employee for help with an application for a different design. According to the case file, Mr. Jones “did not hear back from her and he had the driveway extension installed” on May 11, 2020.

While his frustration is relatable, this impatient miscalculation was his crucial error. Section 4.1.1 of the community’s CC&Rs requires prior approval from the Architectural Review Committee (ARC). By proceeding without securing this written approval, Mr. Jones was in immediate violation. His subsequent application, submitted only after the work was done, was predictably denied on December 2, 2020. The lesson is stark: a breakdown in communication does not absolve a homeowner of their responsibility to follow procedure. The moment unapproved work begins, you are in breach of the community’s governing documents, and the merits of the project become secondary to the procedural failure.

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2. You Have to Prove the HOA is Wrong—Not the Other Way Around.

Many homeowners assume that in a dispute, the burden is on the HOA to prove the homeowner is wrong. The legal reality is the exact opposite. The Administrative Law Judge’s decision formally stated in Conclusion of Law #2 that Mr. Jones, as the petitioner who brought the case, bore the “burden of proof.”

To win, he had to demonstrate that the Association committed a violation by a “preponderance of the evidence.” The judge’s decision cites the formal definition from Black’s Law Dictionary, which essentially means the evidence presented must be convincing enough to incline a fair and impartial mind to one side of the issue rather than the other. The reality for homeowners is surprising and crucial: in a formal dispute, the legal scales are not neutral. You must actively build a case and convincingly prove the HOA has violated its own rules. Mr. Jones failed to meet this standard.

——————————————————————————–

3. A Small Loophole Isn’t Enough to Win.

Mr. Jones’s central argument rested on a perceived loophole in the governing documents. He claimed the Design Guidelines required a 12-inch setback from the “common wall” but were silent about the “property line” as a whole, and therefore the rule didn’t apply to the entirety of his project. This highlights a key aspect of HOA governance: the purpose behind a rule matters. The property manager testified that the setback requirement exists to “ensure that water does not drain to the neighbor’s property,” transforming the rule from an arbitrary measurement into a practical and defensible standard.

Ultimately, the judge was unpersuaded by the loophole argument, and the reason is a masterclass in how these cases are decided. The judge’s decision, articulated in Conclusion of Law #7, pointed out that the common wall is fundamentally part of the property line. More importantly, the decision explicitly connected this conclusion to Mr. Jones’s prior actions: “…considering that Mr. Jones did not obtain prior approval from ARC before constructing his driveway extension, the Association’s interpretation…is not unreasonable.” This is the crucial insight: his procedural failure (Lesson #1) directly weakened his ability to argue about ambiguous wording. An HOA’s reasonable interpretation of its own rules is far more likely to be upheld when the homeowner has already disregarded clear procedural mandates. Tellingly, the Association later modified the guidelines to explicitly close this perceived loophole.

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4. Proving “Selective Enforcement” is Harder Than You Think.

A common defense from homeowners is that the HOA is engaging in “selective enforcement”—singling them out while letting others get away with similar violations. Mr. Jones made this exact claim, but the Association came prepared with meticulous documentation to defeat it.

As detailed in Finding of Fact #21, the HOA presented an “Architectural Status Report” covering August 27, 2020 through April 21, 2021. This document provided time-stamped evidence that other homeowners’ requests for similar driveway extensions had also been consistently denied for failing to meet the same 12-inch setback requirement. This report systematically dismantled the selective enforcement argument. For homeowners, this underscores a critical point: the feeling of being singled out is not evidence. To win a selective enforcement claim, you must provide clear proof that other members in the exact same situation were treated differently, a high bar that an HOA with good records can easily overcome.

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Conclusion: A Contract is a Contract

The overarching theme from this case is that HOA governing documents are not merely suggestions; they are legally binding. As stated in Conclusion of Law #5, the Design Guidelines are part of a contract between the homeowner and the association. While HOA rules can often feel arbitrary or frustrating, they carry the weight of a contract. The path to successfully challenging them is narrow and requires a clear, well-documented case that proves the HOA, not the homeowner, has breached its duties.

This case serves as a powerful reminder for all community members. How well do you really know the contract you’re living under?

Case Participants

Petitioner Side

  • Richard J Jones (petitioner)
    Appeared and testified on his own behalf

Respondent Side

  • Troy Stratman (attorney)
    Stratman Law Firm, PLC
    Counsel for Respondent
  • Paul Favale (property manager)
    Desert Oasis of Surprise Master Association
    Testified for Respondent
  • Angela Pate (property manager employee)
    AAM, LLC
    Contacted by Petitioner regarding installation inquiry

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
    Recipient of decision
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of decision (email alias listed)
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of decision (email alias listed)
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of decision (email alias listed)
  • Miranda Alvarez (Staff)
    Transmitted decision

Vance Gribble v. Legend Trail Community Association

Posted on by

Case Summary

Case ID 22F-H2221004-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-11-04
Administrative Law Judge Velva Moses-Thompson
Outcome The petition was dismissed because the Petitioner failed to meet the burden of proof necessary to establish by a preponderance of the evidence that the Association violated A.R.S. § 33-1808(E), A.R.S. § 33-1808(F), or the cited Declaration Articles.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Vance Gribble Counsel —
Respondent Legend Trail Community Association Counsel Josh Bolen, Esq.

Alleged Violations

A.R.S. § 33-1808(E); Article 1 § 18 of the Declaration; Article 3 § 5 of the Declaration

Outcome Summary

The petition was dismissed because the Petitioner failed to meet the burden of proof necessary to establish by a preponderance of the evidence that the Association violated A.R.S. § 33-1808(E), A.R.S. § 33-1808(F), or the cited Declaration Articles.

Why this result: Petitioner failed to establish by a preponderance of the evidence that the Association violated A.R.S. § 33-1808(E), A.R.S. § 33-1808(F), or Article 3 § 5/Article 1 § 18 of the Declaration.

Key Issues & Findings

HOA rule adoption/enforcement regarding motorized vehicle use (ATVs/scooters)

Petitioner alleged the Association improperly prohibited the use of ATVs and motorized scooters on Association streets via e-mails (March 31, 2021, and June 21, 2021). The Association contended these were not rules and no formal enforcement action was taken.

Orders: Petitioner Vance Gribble’s petition against Respondent Legend Trail Community Association is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1808(E)
  • A.R.S. § 33-1808(F)
  • Article 1 § 18 of the Declaration
  • Article 3 § 5 of the Declaration

Analytics Highlights

Topics: Recreational Activity, Motorized Vehicles, ATVs, Scooters, Rule Adoption, Declaration, Common Area
Additional Citations:

  • A.R.S. § 33-1808(E)
  • A.R.S. § 33-1808(F)
  • Article 1 § 18 of the Declaration
  • Article 3 § 5 of the Declaration
  • A.R.S. § 32-2199(B)
  • Title 33, Chapter 16
  • A.R.S. §§ 33-3101 to 33-11702
  • A.R.S. § 10-3140
  • 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
  • Vazanno v. Superior Court
  • Powell v. Washburn
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Video Overview

Audio Overview

Decision Documents

22F-H2221004-REL Decision – 922828.pdf

Uploaded 2026-01-23T17:39:42 (100.5 KB)

This summary pertains to the Administrative Law Judge Decision in the case of Vance Gribble v. Legend Trail Community Association. The hearing was held on October 15, 2021, before the Office of Administrative Hearings, concerning a petition filed under the authority of the Arizona Department of Real Estate.

Key Facts and Issues

Vance Gribble, a homeowner in Parcel A of the Legend Trail development, filed a petition alleging the Legend Trail Community Association (HOA) violated Arizona Revised Statutes (A.R.S.) § 33-1808(E) and specific provisions of the Declaration of Covenants, Conditions, and Restrictions (CC&Rs).

The core issue stemmed from two emails the Association sent concerning the use of ATVs and motorized scooters on community streets. The initial March 31, 2021, email broadly stated these vehicles were "not allowed" on Legend Trail streets. Gribble argued this communication prohibited the use of these vehicles, causing children to cease driving scooters on Association streets.

The Association responded, arguing the initial email was erroneously sent to the entire community and was intended only for Parcel A. A subsequent June 21, 2021, email was sent for clarification, specifying that restrictions regarding motorized vehicles applied only to private streets (Common Areas like Parcels A and E), where the respective Parcel Associations have a legal duty to maintain safety. The Association maintained it had not adopted a formal rule prohibiting the use of ATVs or scooters on the streets of Legend Trail and thus A.R.S. § 33-1808(E) (related to signs) was inapplicable.

Legal Points and Decision

The Petitioner bore the burden of proof to establish the Association violated the governing statutes or CC&Rs by a preponderance of the evidence.

The Administrative Law Judge focused on whether the Association took formal action to establish a rule or prohibition. A.R.S. § 10-3140 defines an "Act of the board of directors" or "Act of the members" as requiring a majority vote or written consent.

The conclusion of law found that there was no evidence presented showing the Association adopted a rule or took formal enforcement action regarding ATVs and scooters pursuant to A.R.S. § 10-3140. Furthermore, the preponderance of the evidence did not show that the Association prohibited children from engaging in recreational activity within Legend Trail (as potentially implied by A.R.S. § 33-1808(F)).

Outcome

Because the Petitioner failed to establish by a preponderance of the evidence that the Association violated A.R.S. § 33-1808(E), A.R.S. § 33-1808(F), or the cited articles of the Declaration, the Administrative Law Judge ordered that Vance Gribble’s petition be dismissed.

{ “case”: { “docket_no”: “22F-H2221004-REL”, “case_title”: “Vance Gribble vs. Legend Trail Community Association”, “decision_date”: “2021-11-04”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “What is the burden of proof required to win a hearing against an HOA?”, “short_answer”: “The petitioner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “Homeowners filing a petition bear the responsibility of proving that the HOA violated the law or the CC&Rs. The standard is ‘preponderance of the evidence,’ meaning the claim must be shown to be more probably true than not.”, “alj_quote”: “Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)”, “topic_tags”: [ “legal standards”, “burden of proof”, “procedure” ] }, { “question”: “Can an HOA prohibit children from playing or riding scooters on residential streets?”, “short_answer”: “No, state law prevents HOAs from banning children’s recreational activities on residential roadways with speed limits of 25 mph or less.”, “detailed_answer”: “The decision notes that notwithstanding community documents, an association cannot prohibit resident children from engaging in recreational activity on residential roadways under the association’s jurisdiction where the speed limit is 25 mph or less.”, “alj_quote”: “Notwithstanding any provision in the community documents, an association shall not prohibit children who reside in the planned community from engaging in recreational activity on residential roadways that are under the jurisdiction of the association and on which the posted speed limit is twenty-five miles per hour or less.”, “legal_basis”: “A.R.S. § 33-1808(F) (cited as § 1803(F) in decision footnote)”, “topic_tags”: [ “homeowner rights”, “children”, “recreation” ] }, { “question”: “Does an email sent by the HOA automatically count as an official rule?”, “short_answer”: “No, an email does not constitute a formal rule if it was not adopted through an official act of the board.”, “detailed_answer”: “To be an official act, the board must usually vote at a meeting or provide written consent in accordance with statutes. In this case, emails sent in error or for clarification were not considered adopted rules or formal enforcement actions.”, “alj_quote”: “There was no evidence that the Association adopted a rule or took enforcement action against the residents… There was no evidence presented that the Association took formal action pursuant to A.R.S. §10-3140.”, “legal_basis”: “A.R.S. § 10-3140”, “topic_tags”: [ “procedural requirements”, “HOA communications”, “rulemaking” ] }, { “question”: “Can the HOA enforce traffic or safety violations on public streets?”, “short_answer”: “Generally no, unless the restriction is specifically in the CC&Rs (like parking).”, “detailed_answer”: “On public streets, the HOA’s authority is limited to enforcing restrictions explicitly contained in the CC&Rs. They do not have general authority to police moving violations or safety concerns; those are matters for local law enforcement.”, “alj_quote”: “Legend Trail Community Association may only enforce public street restrictions that are contained in the CC&R Declaration… the Association does not have the authority to address any moving violations or safety concerns on the public streets.”, “legal_basis”: “CC&R Declaration”, “topic_tags”: [ “public streets”, “enforcement”, “jurisdiction” ] }, { “question”: “What defines a ‘preponderance of the evidence’?”, “short_answer”: “It is proof that convinces the judge that a claim is ‘more probably true than not.'”, “detailed_answer”: “This legal standard does not require removing all doubt. It requires evidence that has superior weight and is sufficient to incline a fair mind to one side of the issue rather than the other.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “Morris K. Udall, Arizona Law of Evidence § 5”, “topic_tags”: [ “legal definitions”, “evidence” ] }, { “question”: “How are CC&Rs and restrictive covenants interpreted by the judge?”, “short_answer”: “They are interpreted as a whole to give effect to the underlying purpose and the intent of the parties.”, “detailed_answer”: “If a covenant is unambiguous, it is enforced based on the intent. The document is viewed in its entirety rather than isolating specific clauses.”, “alj_quote”: “Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.”, “legal_basis”: “Powell v. Washburn, 211 Ariz. 553”, “topic_tags”: [ “CC&Rs”, “legal interpretation” ] } ] }

{ “case”: { “docket_no”: “22F-H2221004-REL”, “case_title”: “Vance Gribble vs. Legend Trail Community Association”, “decision_date”: “2021-11-04”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “What is the burden of proof required to win a hearing against an HOA?”, “short_answer”: “The petitioner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “Homeowners filing a petition bear the responsibility of proving that the HOA violated the law or the CC&Rs. The standard is ‘preponderance of the evidence,’ meaning the claim must be shown to be more probably true than not.”, “alj_quote”: “Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)”, “topic_tags”: [ “legal standards”, “burden of proof”, “procedure” ] }, { “question”: “Can an HOA prohibit children from playing or riding scooters on residential streets?”, “short_answer”: “No, state law prevents HOAs from banning children’s recreational activities on residential roadways with speed limits of 25 mph or less.”, “detailed_answer”: “The decision notes that notwithstanding community documents, an association cannot prohibit resident children from engaging in recreational activity on residential roadways under the association’s jurisdiction where the speed limit is 25 mph or less.”, “alj_quote”: “Notwithstanding any provision in the community documents, an association shall not prohibit children who reside in the planned community from engaging in recreational activity on residential roadways that are under the jurisdiction of the association and on which the posted speed limit is twenty-five miles per hour or less.”, “legal_basis”: “A.R.S. § 33-1808(F) (cited as § 1803(F) in decision footnote)”, “topic_tags”: [ “homeowner rights”, “children”, “recreation” ] }, { “question”: “Does an email sent by the HOA automatically count as an official rule?”, “short_answer”: “No, an email does not constitute a formal rule if it was not adopted through an official act of the board.”, “detailed_answer”: “To be an official act, the board must usually vote at a meeting or provide written consent in accordance with statutes. In this case, emails sent in error or for clarification were not considered adopted rules or formal enforcement actions.”, “alj_quote”: “There was no evidence that the Association adopted a rule or took enforcement action against the residents… There was no evidence presented that the Association took formal action pursuant to A.R.S. §10-3140.”, “legal_basis”: “A.R.S. § 10-3140”, “topic_tags”: [ “procedural requirements”, “HOA communications”, “rulemaking” ] }, { “question”: “Can the HOA enforce traffic or safety violations on public streets?”, “short_answer”: “Generally no, unless the restriction is specifically in the CC&Rs (like parking).”, “detailed_answer”: “On public streets, the HOA’s authority is limited to enforcing restrictions explicitly contained in the CC&Rs. They do not have general authority to police moving violations or safety concerns; those are matters for local law enforcement.”, “alj_quote”: “Legend Trail Community Association may only enforce public street restrictions that are contained in the CC&R Declaration… the Association does not have the authority to address any moving violations or safety concerns on the public streets.”, “legal_basis”: “CC&R Declaration”, “topic_tags”: [ “public streets”, “enforcement”, “jurisdiction” ] }, { “question”: “What defines a ‘preponderance of the evidence’?”, “short_answer”: “It is proof that convinces the judge that a claim is ‘more probably true than not.'”, “detailed_answer”: “This legal standard does not require removing all doubt. It requires evidence that has superior weight and is sufficient to incline a fair mind to one side of the issue rather than the other.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “Morris K. Udall, Arizona Law of Evidence § 5”, “topic_tags”: [ “legal definitions”, “evidence” ] }, { “question”: “How are CC&Rs and restrictive covenants interpreted by the judge?”, “short_answer”: “They are interpreted as a whole to give effect to the underlying purpose and the intent of the parties.”, “detailed_answer”: “If a covenant is unambiguous, it is enforced based on the intent. The document is viewed in its entirety rather than isolating specific clauses.”, “alj_quote”: “Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.”, “legal_basis”: “Powell v. Washburn, 211 Ariz. 553”, “topic_tags”: [ “CC&Rs”, “legal interpretation” ] } ] }

Case Participants

Petitioner Side

  • Vance Gribble (petitioner)
    Appeared on behalf of himself

Respondent Side

  • Josh Bolen (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
  • Terri Klein (witness)
    Association's Board of Directors
    President of the Association's Board of Directors

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate

Aaron J Gragg v. Anthem Parkside at Merrill Ranch Community

Posted on by

Case Summary

Case ID 21F-H2121042-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-11-01
Administrative Law Judge Sondra J. Vanella
Outcome The Petitioner's Petition, alleging four separate violations of Arizona statutes and CC&Rs (regarding ADR procedures, fraudulent violation assessment, failure to produce documents, and selective enforcement), was denied as the Petitioner failed to prove any of the alleged violations by a preponderance of the evidence.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Aaron J. Gragg Counsel —
Respondent Anthem Parkside at Merrill Ranch Community Association, Inc. Counsel Curtis Ekmark, Esq.

Alleged Violations

CC&R Article 12.4(a)
A.R.S. § 33-1803
A.R.S. § 33-1805
CC&R 2.4(a)

Outcome Summary

The Petitioner's Petition, alleging four separate violations of Arizona statutes and CC&Rs (regarding ADR procedures, fraudulent violation assessment, failure to produce documents, and selective enforcement), was denied as the Petitioner failed to prove any of the alleged violations by a preponderance of the evidence.

Why this result: Petitioner failed to meet the burden of proving by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1803, A.R.S. § 33-1805, or CC&R sections 2.4(a) and 12.4(a).

Key Issues & Findings

Refusal to participate in Alternate Dispute Resolution (ADR)

Petitioner alleged Respondent failed to comply with CC&R Article 12.4(a) regarding ADR. The ALJ found that CC&R Article 12.4(a) excluded proceedings initiated by the Association to enforce architectural, design, and landscape controls from mandatory arbitration.

Orders: Petitioner’s Petition is denied

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • CC&Rs Section 12.4(a)

Fraudulent assessment of violations

Petitioner alleged Respondent assessed violations without observation. Evidence showed Petitioner’s landscape violations were observed during routine inspections by the Community Standards Administrator.

Orders: Petitioner’s Petition is denied

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1803

Failure to produce documents

Petitioner requested documents establishing design review requirements and enforcement authority. The ALJ found Petitioner’s requests were actually legal questions posed to Respondent regarding the CC&Rs, not requests for specific documents or records.

Orders: Petitioner’s Petition is denied

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1805

Selective Enforcement / Similar Treatment

Petitioner alleged selective enforcement because he was required to provide a photograph to prove compliance. The ALJ found Respondent has required photographic verification from other similarly situated non-compliant homeowners since 2010.

Orders: Petitioner’s Petition is denied

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • CC&R Section 2.4(a)

Analytics Highlights

Topics: HOA enforcement, Landscaping violation, Alternative Dispute Resolution, Selective Enforcement, Document Request
Additional Citations:

  • A.R.S. § 33-1803
  • A.R.S. § 33-1805
  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • CC&Rs Section 12.4(a)
  • CC&R Section 2.4(a)

Video Overview

Audio Overview

Decision Documents

21F-H2121042-REL Decision – 921903.pdf

Uploaded 2026-04-24T11:34:48 (123.1 KB)

Administrative Law Judge Decision Summary: Aaron J. Gragg v. Anthem Parkside at Merrill Ranch Community Association, Inc. (No. 21F-H2121042-REL)

This matter came before the Office of Administrative Hearings on June 29, 2021, and October 19, 2021, concerning a Petition filed by Aaron J. Gragg ("Petitioner") alleging four violations by the Anthem Parkside at Merrill Ranch Community Association, Inc. ("Respondent").

Key Facts and Background

The core facts revolve around the Petitioner’s failure to complete rear yard landscaping as required by the Covenants, Conditions & Restrictions (CC&Rs) within 120 days of closing escrow in December 2017. Despite multiple plan submissions and approvals between 2018 and 2019, Petitioner did not complete the landscaping. Respondent issued approximately 14 noncompliance notices. In December 2019, and again following Petitioner’s appeal to the Board in March 2021, Respondent requested photographic evidence to verify compliance and close the violation file. Evidence showed that Petitioner’s rear yard was still incomplete in April 2021, and after the initial hearing setting.

Main Issues and Legal Arguments

Petitioner alleged four violations:

  1. CC&R 12.4(a) (Alternate Dispute Resolution – ADR): Petitioner alleged Respondent refused to participate in ADR.
  2. A.R.S. § 33-1803 (Fraudulent Assessment): Petitioner alleged Respondent assessed violations that were not actually observed.
  3. A.R.S. § 33-1805 (Document Production): Petitioner alleged Respondent failed to comply with standards for producing documents.
  4. CC&R 2.4(a) (Similar Treatment/Selective Enforcement): Petitioner alleged Respondent selectively enforced rules by requiring photographic proof of compliance.

Legal Conclusions and Outcome

The Administrative Law Judge (ALJ) found that Petitioner failed to meet the burden of proof by a preponderance of the evidence on all four issues.

  • A.R.S. § 33-1803 (Observed Violations): The credible evidence established that the landscape violations were observed during routine inspections by the Community Standards Administrator; thus, Petitioner failed to establish a violation of A.R.S. § 33-1803.
  • A.R.S. § 33-1805 (Document Production): Petitioner’s requests were determined not to be requests for specific records, but rather questions posed to Respondent regarding the CC&Rs, which Petitioner already possessed. Therefore, Petitioner failed to establish a violation of A.R.S. § 33-1805.
  • CC&R 12.4(a) (ADR): The CC&Rs explicitly exclude proceedings initiated by the Association to enforce architectural, design, and landscape controls from the mandatory arbitration requirements of Section 12.4. Furthermore, Respondent had not filed suit or requested arbitration against Petitioner. Petitioner failed to establish a violation of CC&R Section 12.4(a).
  • CC&R 2.4(a) (Similar Treatment): Evidence showed that Respondent had requested photographic verification of compliance from other homeowners who were similarly non-compliant with landscape guidelines since at least 2010. The request made to Petitioner was consistent with past actions for similarly situated homeowners. Petitioner failed to establish a violation of CC&R Section 2.4(a).

Final Decision

The ALJ issued an Order denying Petitioner’s Petition on November 1, 2021.

Questions

Question

Can I use a records request to force the HOA to explain their legal authority or justification for fines?

Short Answer

No. A records request must be for existing documents, not a method to pose legal questions to the HOA.

Detailed Answer

The ALJ ruled that requests asking for 'evidence… supporting justification' or the 'location of explicit CC&Rs' are actually interrogatories (questions) rather than requests for existing records. The HOA is not required to create new documents to answer legal questions under the guise of a records request.

Alj Quote

Petitioner’s request was not for documents or records, but rather for answers to legal questions.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • legal authority
  • HOA obligations

Question

Can the HOA require me to submit photos proving I fixed a violation?

Short Answer

Yes, particularly if there is a history of non-compliance.

Detailed Answer

The decision found it reasonable for an HOA to require a homeowner to submit photographic evidence to close a violation file, especially when the homeowner had failed to comply for an extended period. This requirement does not necessarily constitute unequal treatment.

Alj Quote

Respondent has requested of homeowners that have not been in compliance with the Landscape Design Guidelines, to submit photographic evidence when in compliance, in order prove such compliance.

Legal Basis

CC&R Section 2.4(a)

Topic Tags

  • violations
  • compliance
  • evidence

Question

Is it discrimination if the HOA asks me for proof of compliance but doesn't ask my neighbors?

Short Answer

Not if you are in a different situation (e.g., non-compliant) than your neighbors.

Detailed Answer

The ALJ determined that homeowners who are not in compliance are not 'similarly situated' to those who completed their obligations on time. Therefore, the HOA can impose different requirements (like submitting photos) on non-compliant owners without violating equal treatment clauses.

Alj Quote

This request is no different than those requests made by Respondent in the past of similarly situated homeowners, i.e., those not in compliance.

Legal Basis

CC&R Section 2.4(a)

Topic Tags

  • discrimination
  • selective enforcement
  • equal treatment

Question

Who has the burden of proof in a hearing against the HOA?

Short Answer

The homeowner (Petitioner) must prove the HOA violated the law or CC&Rs.

Detailed Answer

The homeowner bears the burden of proving their allegations by a 'preponderance of the evidence,' which means showing that the fact sought to be proved is more probable than not.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1803, A.R.S. § 33-1805, and CC&Rs sections 2.4(a) and 12.4(a).

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • hearing process
  • burden of proof
  • legal standards

Question

Does the HOA have to prove they physically saw a violation?

Short Answer

Yes, but testimony regarding routine inspections is sufficient proof.

Detailed Answer

The homeowner alleged the HOA assessed violations that were not observed. However, the ALJ accepted credible testimony from the Community Standards Administrator that the violations were observed during routine inspections as sufficient proof.

Alj Quote

The credible evidence of record established that Petitioner’s landscape violations were observed during routine inspections by the Community Standards Administrator.

Legal Basis

A.R.S. § 33-1803

Topic Tags

  • violations
  • inspections
  • evidence

Question

Can I sue the HOA for refusing Alternative Dispute Resolution (ADR) if I didn't try to arbitrate?

Short Answer

No. If you skip the arbitration process required by the CC&Rs, you cannot claim the HOA refused ADR.

Detailed Answer

The homeowner claimed the HOA refused ADR procedures. However, the ALJ found that because the homeowner filed a petition with the Department instead of submitting the dispute to binding arbitration as required by the CC&Rs, the claim was invalid.

Alj Quote

Petitioner did not submit the dispute to final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, choosing instead to file a Petition with the Department.

Legal Basis

CC&R Section 12.4(a)

Topic Tags

  • ADR
  • arbitration
  • dispute resolution

Case

Docket No
21F-H2121042-REL
Case Title
Aaron J. Gragg v. Anthem Parkside at Merrill Ranch Community Association, Inc.
Decision Date
2021-11-01
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I use a records request to force the HOA to explain their legal authority or justification for fines?

Short Answer

No. A records request must be for existing documents, not a method to pose legal questions to the HOA.

Detailed Answer

The ALJ ruled that requests asking for 'evidence… supporting justification' or the 'location of explicit CC&Rs' are actually interrogatories (questions) rather than requests for existing records. The HOA is not required to create new documents to answer legal questions under the guise of a records request.

Alj Quote

Petitioner’s request was not for documents or records, but rather for answers to legal questions.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • legal authority
  • HOA obligations

Question

Can the HOA require me to submit photos proving I fixed a violation?

Short Answer

Yes, particularly if there is a history of non-compliance.

Detailed Answer

The decision found it reasonable for an HOA to require a homeowner to submit photographic evidence to close a violation file, especially when the homeowner had failed to comply for an extended period. This requirement does not necessarily constitute unequal treatment.

Alj Quote

Respondent has requested of homeowners that have not been in compliance with the Landscape Design Guidelines, to submit photographic evidence when in compliance, in order prove such compliance.

Legal Basis

CC&R Section 2.4(a)

Topic Tags

  • violations
  • compliance
  • evidence

Question

Is it discrimination if the HOA asks me for proof of compliance but doesn't ask my neighbors?

Short Answer

Not if you are in a different situation (e.g., non-compliant) than your neighbors.

Detailed Answer

The ALJ determined that homeowners who are not in compliance are not 'similarly situated' to those who completed their obligations on time. Therefore, the HOA can impose different requirements (like submitting photos) on non-compliant owners without violating equal treatment clauses.

Alj Quote

This request is no different than those requests made by Respondent in the past of similarly situated homeowners, i.e., those not in compliance.

Legal Basis

CC&R Section 2.4(a)

Topic Tags

  • discrimination
  • selective enforcement
  • equal treatment

Question

Who has the burden of proof in a hearing against the HOA?

Short Answer

The homeowner (Petitioner) must prove the HOA violated the law or CC&Rs.

Detailed Answer

The homeowner bears the burden of proving their allegations by a 'preponderance of the evidence,' which means showing that the fact sought to be proved is more probable than not.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1803, A.R.S. § 33-1805, and CC&Rs sections 2.4(a) and 12.4(a).

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • hearing process
  • burden of proof
  • legal standards

Question

Does the HOA have to prove they physically saw a violation?

Short Answer

Yes, but testimony regarding routine inspections is sufficient proof.

Detailed Answer

The homeowner alleged the HOA assessed violations that were not observed. However, the ALJ accepted credible testimony from the Community Standards Administrator that the violations were observed during routine inspections as sufficient proof.

Alj Quote

The credible evidence of record established that Petitioner’s landscape violations were observed during routine inspections by the Community Standards Administrator.

Legal Basis

A.R.S. § 33-1803

Topic Tags

  • violations
  • inspections
  • evidence

Question

Can I sue the HOA for refusing Alternative Dispute Resolution (ADR) if I didn't try to arbitrate?

Short Answer

No. If you skip the arbitration process required by the CC&Rs, you cannot claim the HOA refused ADR.

Detailed Answer

The homeowner claimed the HOA refused ADR procedures. However, the ALJ found that because the homeowner filed a petition with the Department instead of submitting the dispute to binding arbitration as required by the CC&Rs, the claim was invalid.

Alj Quote

Petitioner did not submit the dispute to final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, choosing instead to file a Petition with the Department.

Legal Basis

CC&R Section 12.4(a)

Topic Tags

  • ADR
  • arbitration
  • dispute resolution

Case

Docket No
21F-H2121042-REL
Case Title
Aaron J. Gragg v. Anthem Parkside at Merrill Ranch Community Association, Inc.
Decision Date
2021-11-01
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Aaron J. Gragg (petitioner)
    Appeared on his own behalf

Respondent Side

  • Curtis Ekmark (HOA attorney)
    CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
    Represented Respondent
  • Michelle Haney (community manager)
    Appeared as witness for Respondent

Neutral Parties

  • Sondra J. Vanella (ALJ)
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal

Brian D Sopatyk v. Xanadu Lake Resort Condominium, Inc.

Posted on by

Case Summary

Case ID 21F-H2121065-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-11-01
Administrative Law Judge Velva Moses-Thompson
Outcome Petitioner was deemed the prevailing party regarding Issues 1 and 3, while Respondent was deemed the prevailing party regarding Issue 2. Respondent was ordered to pay Petitioner his filing fee of $1,000.00. No civil penalty was found appropriate.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Brian D. Sopatyk Counsel Jacob A. Kubert, Esq.
Respondent Xanadu Lake Resort Condominium, Inc. Counsel Penny L. Koepke, Esq.

Alleged Violations

CC&R Article 2 § 3(a)(2)
CC&R Article 3 § 3(d)(1)
CC&R Article 6 § 2(a)

Outcome Summary

Petitioner was deemed the prevailing party regarding Issues 1 and 3, while Respondent was deemed the prevailing party regarding Issue 2. Respondent was ordered to pay Petitioner his filing fee of $1,000.00. No civil penalty was found appropriate.

Why this result: Petitioner lost Issue 2 because he failed to prove the Respondent's no-pet policy was arbitrarily or unreasonably applied.

Key Issues & Findings

Alleged violation of CC&R Article 2 § 3(a)(2)

The Administrative Law Judge (ALJ) concluded that screen doors are not permitted in Xanadu under CC&R Article 2 § 3(a)(2), and CC&R Article 7 (Architectural Committee authority) does not override this explicit prohibition.

Orders: Respondent is directed to comply with the requirements of CC&R Article 2 § 3(a)(2) going forward.

Filing fee: $0.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&R Article 2 § 3(a)(2)
  • CC&R Article 7

Alleged violation of CC&R Article 3 § 3(d)(1)

Petitioner alleged violation concerning the 'no-pet' policy. The ALJ concluded that Respondent is not required to allow pets, but may allow them with Board approval, and the Petitioner did not establish that the policy was arbitrarily or unreasonably applied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&R Article 3 § 3(d)(1)
  • A.R.S. § 12-548

Alleged violation of CC&R Article 6 § 2(a)

The ALJ concluded that the marquee is common area, and the Association was not authorized under CC&R Article 6 § 2(a) to charge a separate assessment or rental fee for its use. Furthermore, there was no evidence the $50 assessment complied with CC&R Article 6 § 5 (special assessment requirements).

Orders: Respondent is directed to comply with the requirements of CC&R Article 6 § 2(a) going forward.

Filing fee: $0.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&R Article 6 § 2(a)
  • CC&R Article 6 § 5
  • A.R.S. § 12-548

Analytics Highlights

Topics: HOA Governance, Condominium, CC&R Violation, Assessment Dispute, Architectural Control, Pet Policy, Statute of Limitations Defense
Additional Citations:

  • A.R.S. § 32-2199(1)
  • A.R.S. § 12-548
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • CC&R Article 2 § 3(a)(2)
  • CC&R Article 3 § 3(d)(1)
  • CC&R Article 6 § 2(a)
  • CC&R Article 6 § 5
  • CC&R Article 7

Video Overview

Audio Overview

Decision Documents

21F-H2121065-REL Decision – 913797.pdf

Uploaded 2026-04-24T11:37:41 (41.8 KB)

21F-H2121065-REL Decision – 913859.pdf

Uploaded 2026-04-24T11:37:47 (5.9 KB)

21F-H2121065-REL Decision – 921820.pdf

Uploaded 2026-04-24T11:37:55 (100.1 KB)

21F-H2121065-REL Decision – 921823.pdf

Uploaded 2026-04-24T11:38:00 (112.8 KB)

This summary outlines the proceedings, arguments, and final decision in the matter of *Brian D. Sopatyk vs. Xanadu Lake Resort Condominium, Inc.*, heard before the Office of Administrative Hearings (OAH).

Key Facts and Proceedings

The Petitioner, Brian D. Sopatyk, a unit owner and member of the Respondent condominium association (Xanadu Lake Resort Condominium, Inc.), filed a triple-issue petition on or about June 29, 2021, alleging violations of the Covenants, Conditions, and Restrictions (CC&Rs). The matter was referred to the OAH for an evidentiary hearing. The hearing took place on September 21, 2021, with Administrative Law Judge (ALJ) Velva Moses-Thompson presiding. The record was held open until October 12, 2021, solely for receiving post-hearing briefs concerning the application of the affirmative defense of the Statute of Limitations. The Arizona Department of Real Estate has jurisdiction over these types of petitions regarding alleged condominium association violations.

Main Issues and Arguments

Petitioner Sopatyk brought three claims, asserting the Respondent violated specific CC&R articles:

  1. Issue 1 (Screen Doors): Whether Respondent violated CC&R Article 2 § 3(a)(2) by directing and authorizing the installation of security screen doors, which are external items generally prohibited. Respondent argued the Architectural Committee had the authority to allow the installations under CC&R Article 7.
  2. Issue 2 (Pets): Whether Respondent violated CC&R Article 3 § 3(d)(1) by barring pets without guidelines. Respondent contended that this CC&R article does not require them to allow pets.
  3. Issue 3 (Marquee Assessment): Whether Respondent violated CC&R Article 6 § 2(a) by levying a $50 monthly fee on commercial units for marquee repair costs. Petitioner argued repairs must be paid out of the reserve fund derived from regular common expenses. Respondent countered that the $50 charge was a rental fee for unit owners advertising on the marquee, not an unauthorized assessment.

The Respondent also raised the affirmative defense that A.R.S. § 12-548 (Statute of Limitations) barred Issues 2 and 3.

Key Legal Points and Final Decision

The ALJ issued a decision on November 1, 2021, relying on the principle that unambiguous restrictive covenants must be enforced to give effect to the intent of the parties.

  1. Statute of Limitations: The ALJ rejected the defense, concluding that A.R.S. § 12-548 is inapplicable because that statute pertains to actions for debt evidenced by a written contract, which the petition was not.
  2. Issue 1 (Screen Doors): Petitioner prevailed. The ALJ concluded that screen doors are absolutely not permitted under CC&R Article 2 § 3(a)(2). CC&R Article 7 granting authority to the Architectural Committee cannot override the clear bar established by Article 2 § 3(a)(2), as doing so would render the prohibition meaningless.
  3. Issue 2 (Pets): Respondent prevailed. The CC&R permits, but does not require, the Board to allow pets. The Petitioner failed to prove by a preponderance of the evidence that the consistent prohibition of pets was arbitrarily or unreasonably applied.
  4. Issue 3 (Marquee Assessment): Petitioner prevailed. The ALJ concluded the marquee is part of the common area. The Association was not authorized under CC&R Article 6 § 2(a) to charge a separate assessment or rental fee for its use. Furthermore, there was no evidence that the $50 charge complied with the requirements for imposing a special assessment under CC&R Article 6 § 5.

Outcome: The Petitioner was deemed the prevailing party regarding Issues 1 and 3, and the Respondent prevailed regarding Issue 2. The Respondent was ordered to comply with CC&R Article 2 § 3(a)(2) and Article 6 § 2(a) going forward. Respondent was further ordered to pay Petitioner his filing fee of $1,000.00 within thirty days. No civil penalty was imposed.

Questions

Question

Can the HOA Board or Architectural Committee authorize an improvement (like a screen door) if the CC&Rs explicitly ban it?

Short Answer

No. The Board cannot use its general approval powers to override specific prohibitions in the CC&Rs.

Detailed Answer

Even if an Architectural Committee has the authority to approve improvements, they cannot authorize items that are specifically prohibited by other sections of the CC&Rs. Doing so would render the specific prohibition meaningless.

Alj Quote

If Respondent were permitted to authorize the installation of screen doors through the approval of the Architectural Committee, the bar in CC&R Article 2 § 3(a)(2) would have no meaning.

Legal Basis

Contract Interpretation

Topic Tags

  • Architectural Control
  • Board Authority
  • CC&R Interpretation

Question

If the CC&Rs say pets are allowed 'with Board permission,' does the Board have to let me have a pet?

Short Answer

No. The Board has discretion to deny permission.

Detailed Answer

If the CC&Rs state that animals are not allowed without express permission, the Board is not required to grant that permission. As long as the Board has consistently prohibited pets and not acted arbitrarily, they can enforce a no-pet policy.

Alj Quote

The Administrative Law Judge concludes that Respondent is not required, but may allow pets with the Board’s approval… Petitioner did not establish by a preponderance of the evidence that Respondent has arbitrarily or unreasonably applied CC&R Article 3 § 3(d)(1).

Legal Basis

Board Discretion

Topic Tags

  • Pets
  • Rules Enforcement

Question

Can the HOA charge a 'rental fee' or separate assessment to specific owners for the use or repair of a common area structure?

Short Answer

Not usually. Common area maintenance should be paid from general reserve funds or regular assessments.

Detailed Answer

The HOA cannot arbitrarily charge a 'rental fee' or specific assessment for a common area amenity (like a marquee sign) if the CC&Rs require common area improvements to be funded by the reserve fund or regular assessments.

Alj Quote

The Administrative Law Judge concludes that the marquee is a part of the common area of Xanadu and therefore, the Association was not authorized under CC&R Article 6 § 2(a), to charge a separate assessment or rental fee for the use of the marquee.

Legal Basis

CC&R Article 6 § 2(a)

Topic Tags

  • Assessments
  • Common Areas
  • Financials

Question

Is there a statute of limitations for filing a petition against my HOA with the Arizona Department of Real Estate?

Short Answer

No.

Detailed Answer

The statute of limitations that applies to debts (A.R.S. § 12-548) does not apply to ADRE petitions because they are not actions for debt. The Department itself does not have statute of limitations provisions.

Alj Quote

A.R.S. § 12-548 is inapplicable to the petition filed in this matter because the statute applies to actions for debt evidenced by a contract in writing. The petition does not relate to a debt and furthermore, the Department does not have any statute of limitations provisions.

Legal Basis

A.R.S. § 12-548 (distinguished)

Topic Tags

  • Procedure
  • Statute of Limitations

Question

Can the HOA levy a special assessment for repairs without a vote of the members?

Short Answer

No, not if the CC&Rs require a member vote.

Detailed Answer

If the CC&Rs stipulate that special assessments for capital improvements require the assent of a certain percentage of voters (e.g., 2/3), the HOA cannot impose the cost without holding that vote.

Alj Quote

Furthermore, there was no evidence presented at hearing that the $50 assessment was imposed that complied with CC&R Article 6 § 5.

Legal Basis

CC&R Article 6 § 5

Topic Tags

  • Special Assessments
  • Voting

Question

If I win my hearing against the HOA, can I get my filing fee back?

Short Answer

Yes.

Detailed Answer

The Administrative Law Judge has the authority to order the HOA to reimburse the prevailing party for the filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • Remedies
  • Fees

Question

How are conflicts or ambiguities in the CC&Rs interpreted by the judge?

Short Answer

They are construed as a whole to determine the underlying purpose.

Detailed Answer

Restrictive covenants are interpreted by looking at the document as a whole to understand the intent of the parties and the purpose of the restrictions.

Alj Quote

Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.

Legal Basis

Common Law Interpretation

Topic Tags

  • Legal Standards
  • CC&R Interpretation

Case

Docket No
21F-H2121065-REL
Case Title
Brian D. Sopatyk vs. Xanadu Lake Resort Condominium, Inc.
Decision Date
2021-11-01
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can the HOA Board or Architectural Committee authorize an improvement (like a screen door) if the CC&Rs explicitly ban it?

Short Answer

No. The Board cannot use its general approval powers to override specific prohibitions in the CC&Rs.

Detailed Answer

Even if an Architectural Committee has the authority to approve improvements, they cannot authorize items that are specifically prohibited by other sections of the CC&Rs. Doing so would render the specific prohibition meaningless.

Alj Quote

If Respondent were permitted to authorize the installation of screen doors through the approval of the Architectural Committee, the bar in CC&R Article 2 § 3(a)(2) would have no meaning.

Legal Basis

Contract Interpretation

Topic Tags

  • Architectural Control
  • Board Authority
  • CC&R Interpretation

Question

If the CC&Rs say pets are allowed 'with Board permission,' does the Board have to let me have a pet?

Short Answer

No. The Board has discretion to deny permission.

Detailed Answer

If the CC&Rs state that animals are not allowed without express permission, the Board is not required to grant that permission. As long as the Board has consistently prohibited pets and not acted arbitrarily, they can enforce a no-pet policy.

Alj Quote

The Administrative Law Judge concludes that Respondent is not required, but may allow pets with the Board’s approval… Petitioner did not establish by a preponderance of the evidence that Respondent has arbitrarily or unreasonably applied CC&R Article 3 § 3(d)(1).

Legal Basis

Board Discretion

Topic Tags

  • Pets
  • Rules Enforcement

Question

Can the HOA charge a 'rental fee' or separate assessment to specific owners for the use or repair of a common area structure?

Short Answer

Not usually. Common area maintenance should be paid from general reserve funds or regular assessments.

Detailed Answer

The HOA cannot arbitrarily charge a 'rental fee' or specific assessment for a common area amenity (like a marquee sign) if the CC&Rs require common area improvements to be funded by the reserve fund or regular assessments.

Alj Quote

The Administrative Law Judge concludes that the marquee is a part of the common area of Xanadu and therefore, the Association was not authorized under CC&R Article 6 § 2(a), to charge a separate assessment or rental fee for the use of the marquee.

Legal Basis

CC&R Article 6 § 2(a)

Topic Tags

  • Assessments
  • Common Areas
  • Financials

Question

Is there a statute of limitations for filing a petition against my HOA with the Arizona Department of Real Estate?

Short Answer

No.

Detailed Answer

The statute of limitations that applies to debts (A.R.S. § 12-548) does not apply to ADRE petitions because they are not actions for debt. The Department itself does not have statute of limitations provisions.

Alj Quote

A.R.S. § 12-548 is inapplicable to the petition filed in this matter because the statute applies to actions for debt evidenced by a contract in writing. The petition does not relate to a debt and furthermore, the Department does not have any statute of limitations provisions.

Legal Basis

A.R.S. § 12-548 (distinguished)

Topic Tags

  • Procedure
  • Statute of Limitations

Question

Can the HOA levy a special assessment for repairs without a vote of the members?

Short Answer

No, not if the CC&Rs require a member vote.

Detailed Answer

If the CC&Rs stipulate that special assessments for capital improvements require the assent of a certain percentage of voters (e.g., 2/3), the HOA cannot impose the cost without holding that vote.

Alj Quote

Furthermore, there was no evidence presented at hearing that the $50 assessment was imposed that complied with CC&R Article 6 § 5.

Legal Basis

CC&R Article 6 § 5

Topic Tags

  • Special Assessments
  • Voting

Question

If I win my hearing against the HOA, can I get my filing fee back?

Short Answer

Yes.

Detailed Answer

The Administrative Law Judge has the authority to order the HOA to reimburse the prevailing party for the filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • Remedies
  • Fees

Question

How are conflicts or ambiguities in the CC&Rs interpreted by the judge?

Short Answer

They are construed as a whole to determine the underlying purpose.

Detailed Answer

Restrictive covenants are interpreted by looking at the document as a whole to understand the intent of the parties and the purpose of the restrictions.

Alj Quote

Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.

Legal Basis

Common Law Interpretation

Topic Tags

  • Legal Standards
  • CC&R Interpretation

Case

Docket No
21F-H2121065-REL
Case Title
Brian D. Sopatyk vs. Xanadu Lake Resort Condominium, Inc.
Decision Date
2021-11-01
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Brian D. Sopatyk (petitioner)
    Unit Owner
  • Jacob A. Kubert (petitioner attorney)
    Dessaules Law Group

Respondent Side

  • Penny L. Koepke (respondent attorney)
    Maxwell Morgan PC

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate

Other Participants

  • c. serrano (clerk/staff)
    Transmitting agent mentioned in distribution list

Richard E Jewell v. Casa Fiesta Townhouses Corp.

Posted on by

Case Summary

Case ID 22F-H2221005-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-10-25
Administrative Law Judge Tammy L. Eigenheer
Outcome The Petitioner's petition alleging the HOA violated conflict of interest statutes (A.R.S. § 33-1811) was dismissed because the Petitioner failed to sustain the burden of proof, as the conflict was deemed sufficiently disclosed prior to the board action.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Richard E Jewell Counsel —
Respondent Casa Fiesta Townhouses Corp. Counsel Nicole Payne and Carlotta L. Turman

Alleged Violations

A.R.S. § 33-1811

Outcome Summary

The Petitioner's petition alleging the HOA violated conflict of interest statutes (A.R.S. § 33-1811) was dismissed because the Petitioner failed to sustain the burden of proof, as the conflict was deemed sufficiently disclosed prior to the board action.

Why this result: Petitioner failed to sustain the burden of proof on the alleged violation.

Key Issues & Findings

Board Member Conflict of Interest Disclosure

Petitioner alleged the HOA violated the statute regarding conflict of interest when the board hired the board president as a paid office assistant and the conflict was not disclosed by the president. The ALJ found that while the president did not disclose the conflict, the conflict was made known by another attendee prior to discussion and action, fulfilling the statutory purpose.

Orders: Petitioner’s petition be dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1811
  • A.R.S. § 33-1243(c)
  • A.R.S. Title 32, Ch. 20, Art. 11
  • Arizona Administrative Code R2-19-119
  • A.R.S. § 1-211(B)
  • Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)

Analytics Highlights

Topics: HOA governance, Conflict of interest, Statutory interpretation, Board voting
Additional Citations:

  • A.R.S. § 33-1811
  • A.R.S. § 33-1243(c)
  • A.R.S. Title 32, Ch. 20, Art. 11
  • Arizona Administrative Code R2-19-119
  • A.R.S. § 1-211(B)
  • Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)

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Video Overview

Audio Overview

Decision Documents

22F-H2221005-REL Decision – 920344.pdf

Uploaded 2026-04-24T11:38:33 (89.3 KB)

This summary pertains to the Administrative Law Judge Decision in the case of *Richard E Jewell, Petitioner, vs. Casa Fiesta Townhouses Corp., Respondent* (No. 22F-H2221005-REL), heard on October 7, 2021.

Concise Legal Summary

Key Facts and Issues

Petitioner Richard E. Jewell, a homeowner and member of the Respondent, Casa Fiesta Townhouses Corp. (an Arizona homeowners association or HOA), alleged that the HOA board violated Arizona Revised Statutes (A.R.S.) § 33-1811. The central issue was whether the Board of Directors improperly handled a conflict of interest when voting to hire the sitting Board President, George Pavia, as a salaried office assistant.

The Board voted on July 15, 2021, to employ Mr. Pavia for 40 hours a week at a wage of $15.00 per hour. Petitioner asserted that his only issue was that the Board President failed to personally disclose the conflict of interest prior to the action being taken.

Key Legal Points and Arguments

The relevant statute, A.R.S. § 33-1811, stipulates that if a contract or action for compensation benefits a board member, that member "shall declare a conflict of interest" in an open meeting before discussion or action. A contract entered in violation of this section is void and unenforceable.

During the hearing, the Administrative Law Judge reviewed evidence, including a recording of the July meeting. The evidence showed:

  1. At the outset of the virtual meeting, Mr. Pavia indicated he would recuse himself from the discussion.
  2. An individual attending the meeting raised the possibility of a conflict of interest.
  3. The conflict was discussed at length during the board meeting prior to any vote.
  4. Mr. Pavia refrained from participating in the vote.

The Administrative Law Judge concluded that the purpose of A.R.S. § 33-1811 is to ensure HOA members are aware of conflicts prior to discussion. Interpreting the statute to achieve a "fair and sensible result", the Judge determined that the conflict was, in fact, made known and discussed prior to action. The statute's requirement was satisfied, as the fact that Mr. Pavia was not the individual who disclosed the conflict did not negate that the conflict was discussed at length and known to those voting.

Outcome

At the conclusion of the Petitioner’s presentation of evidence, Respondent moved for a directed verdict, arguing the Petitioner failed to sustain his burden of proof. The motion was granted.

The Administrative Law Judge ruled that the Petitioner failed to establish, by a preponderance of the evidence, that Respondent acted in violation of A.R.S. § 33-1811. The Petitioner’s petition was dismissed.

Questions

Question

Can an HOA board member also be a paid employee of the association?

Short Answer

Yes, provided the conflict of interest is properly declared.

Detailed Answer

A board member can be hired for compensation, but they must declare the conflict of interest in an open meeting before the board discusses or acts on the issue. In this case, the Board President was hired as an office assistant.

Alj Quote

If any contract, decision or other action for compensation taken by or on behalf of the board of directors would benefit any member of the board of directors . . . , that member of the board of directors shall declare a conflict of interest for that issue.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflict of interest
  • board compensation
  • hiring

Question

Does a conflicted board member have to personally announce their own conflict of interest?

Short Answer

Not necessarily, as long as the members are made aware of the conflict.

Detailed Answer

The ALJ ruled that the purpose of the law is to ensure members are aware of conflicts. If the conflict is discussed and known to attendees, it does not matter if the specific board member was not the one to voice the disclosure.

Alj Quote

The purpose of A.R.S. § 33-1811 is to ensure that the members of a homeowners association are aware of all conflicts of interest prior to any discussion… not to require that a specific board member announce to those members that such a conflict of interest exists.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflict of interest
  • procedural requirements
  • meetings

Question

Can a board member vote on a contract that benefits them financially?

Short Answer

Yes, after declaring the conflict.

Detailed Answer

State law allows a board member to vote on an issue benefiting them, provided they have declared the conflict in an open meeting before discussion or action is taken.

Alj Quote

The member shall declare the conflict in an open meeting of the board before the board discusses or takes action on that issue and that member may then vote on that issue.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • voting rights
  • conflict of interest
  • board powers

Question

What is the burden of proof for a homeowner filing a complaint against their HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (petitioner) is responsible for proving their claim. They must show that their version of events is more likely true than not (the greater weight of the evidence).

Alj Quote

At an administrative hearing, the party asserting a claim, right, entitlement, or affirmative defense has the burden of proof, and the standard of proof on all issues in this matter is that of a preponderance of the evidence.

Legal Basis

Arizona Administrative Code R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • administrative hearing

Question

Which specific law covers conflict of interest for HOAs (Planned Communities) versus Condominiums?

Short Answer

A.R.S. § 33-1811 for HOAs; A.R.S. § 33-1243 for Condominiums.

Detailed Answer

It is important to cite the correct statute based on the type of community. The petitioner initially cited the condo statute (§ 33-1243) but had to correct it to the planned community statute (§ 33-1811).

Alj Quote

Petitioner indicated that he erroneously cited to A.R.S. § 33-1243(C) in his petition as that statute relates to condominium associations rather than homeowner associations. Rather, Petitioner should have referenced A.R.S. § 33-1811…

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • statutes
  • jurisdiction
  • legal definitions

Question

Is a contract void if the technical requirements of declaring a conflict weren't perfectly followed?

Short Answer

Likely not, if the conflict was known and discussed.

Detailed Answer

Statutes are interpreted to produce sensible results. If the conflict was discussed at length and everyone was aware, a technical failure (like the wrong person announcing it) may not constitute a violation.

Alj Quote

The fact that Mr. Pavia was not the board member to disclose the conflict does not negate that the conflict was made known prior to any discussion and that the conflict was discussed at length during the board meeting prior to any vote.

Legal Basis

Case Law (Gutierrez v. Industrial Commission)

Topic Tags

  • contract validity
  • statutory interpretation
  • enforcement

Case

Docket No
22F-H2221005-REL
Case Title
Richard E Jewell vs. Casa Fiesta Townhouses Corp.
Decision Date
2021-10-25
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Can an HOA board member also be a paid employee of the association?

Short Answer

Yes, provided the conflict of interest is properly declared.

Detailed Answer

A board member can be hired for compensation, but they must declare the conflict of interest in an open meeting before the board discusses or acts on the issue. In this case, the Board President was hired as an office assistant.

Alj Quote

If any contract, decision or other action for compensation taken by or on behalf of the board of directors would benefit any member of the board of directors . . . , that member of the board of directors shall declare a conflict of interest for that issue.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflict of interest
  • board compensation
  • hiring

Question

Does a conflicted board member have to personally announce their own conflict of interest?

Short Answer

Not necessarily, as long as the members are made aware of the conflict.

Detailed Answer

The ALJ ruled that the purpose of the law is to ensure members are aware of conflicts. If the conflict is discussed and known to attendees, it does not matter if the specific board member was not the one to voice the disclosure.

Alj Quote

The purpose of A.R.S. § 33-1811 is to ensure that the members of a homeowners association are aware of all conflicts of interest prior to any discussion… not to require that a specific board member announce to those members that such a conflict of interest exists.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflict of interest
  • procedural requirements
  • meetings

Question

Can a board member vote on a contract that benefits them financially?

Short Answer

Yes, after declaring the conflict.

Detailed Answer

State law allows a board member to vote on an issue benefiting them, provided they have declared the conflict in an open meeting before discussion or action is taken.

Alj Quote

The member shall declare the conflict in an open meeting of the board before the board discusses or takes action on that issue and that member may then vote on that issue.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • voting rights
  • conflict of interest
  • board powers

Question

What is the burden of proof for a homeowner filing a complaint against their HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (petitioner) is responsible for proving their claim. They must show that their version of events is more likely true than not (the greater weight of the evidence).

Alj Quote

At an administrative hearing, the party asserting a claim, right, entitlement, or affirmative defense has the burden of proof, and the standard of proof on all issues in this matter is that of a preponderance of the evidence.

Legal Basis

Arizona Administrative Code R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • administrative hearing

Question

Which specific law covers conflict of interest for HOAs (Planned Communities) versus Condominiums?

Short Answer

A.R.S. § 33-1811 for HOAs; A.R.S. § 33-1243 for Condominiums.

Detailed Answer

It is important to cite the correct statute based on the type of community. The petitioner initially cited the condo statute (§ 33-1243) but had to correct it to the planned community statute (§ 33-1811).

Alj Quote

Petitioner indicated that he erroneously cited to A.R.S. § 33-1243(C) in his petition as that statute relates to condominium associations rather than homeowner associations. Rather, Petitioner should have referenced A.R.S. § 33-1811…

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • statutes
  • jurisdiction
  • legal definitions

Question

Is a contract void if the technical requirements of declaring a conflict weren't perfectly followed?

Short Answer

Likely not, if the conflict was known and discussed.

Detailed Answer

Statutes are interpreted to produce sensible results. If the conflict was discussed at length and everyone was aware, a technical failure (like the wrong person announcing it) may not constitute a violation.

Alj Quote

The fact that Mr. Pavia was not the board member to disclose the conflict does not negate that the conflict was made known prior to any discussion and that the conflict was discussed at length during the board meeting prior to any vote.

Legal Basis

Case Law (Gutierrez v. Industrial Commission)

Topic Tags

  • contract validity
  • statutory interpretation
  • enforcement

Case

Docket No
22F-H2221005-REL
Case Title
Richard E Jewell vs. Casa Fiesta Townhouses Corp.
Decision Date
2021-10-25
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Richard E Jewell (petitioner)
    Jewell Company Inc.

Respondent Side

  • Nicole Payne (respondent attorney)
    Carpenter Hazlewood Delgado & Bolen LLP
  • Carlotta L. Turman (respondent attorney)
    Carpenter Hazlewood Delgado & Bolen LLP
  • George Pavia (HOA board president/employee)
    Casa Fiesta Townhouses Corp.
    Subject of conflict of interest allegation

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission

Rodney F Kirby v. Dove Cove Estates Homeowners Association

Posted on by

Case Summary

Case ID 21F-H2121049-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-10-12
Administrative Law Judge Jenna Clark
Outcome total
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rodney & Patricia Kirby Counsel —
Respondent Dove Cove Estates Homeowners Association Counsel Lydia Peirce Linsmeier and Kaylee Ivy

Alleged Violations

CC&Rs Article IV, Section 4.1.1

Outcome Summary

The ALJ granted the Petitioners' petition, finding that the HOA violated CC&Rs Article IV section 4.1.1 by failing its duty to maintain common area landscaping (sissoo trees) in a state that did not cause damage or undue financial/health burden to the Petitioners' property. The HOA was ordered to refund the Petitioners' $500.00 filing fee.

Key Issues & Findings

Whether Dove Cove Estates Homeowners Association (Respondent) are in violation of CC&Rs Article IV, Sections 4.1, 4.1.1, 4.1.2, and 4.1.3 for failing to remove two (2) trees on community property, at the rear of Petitioners’ retaining wall, which have caused damage to Petitioners’ pool and patio slab.

Petitioners filed a single-issue petition alleging the Association violated CC&Rs Article IV sections 4.1, 4.1.1, 4.1.2, and 4.1.3 by refusing to remove two sissoo trees located on community property behind Petitioners’ residence, which caused debris, clogged pool pump, and caused complications with their retaining wall and back patio. The ALJ concluded the Association violated Article IV section 4.1.1 because the trees' condition caused damage and financial/health burden to Petitioners.

Orders: Petitioners' petition is granted. Respondent is ordered to pay Petitioners their filing fee of $500.00 within thirty (30) days. The Respondent is ordered to abide by the specified section of the planned community (Article IV section 4.1.1). No civil penalty shall be imposed.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

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

Analytics Highlights

Topics: HOA maintenance duty, CC&R violation, sissoo trees, filing fee refund, common area landscaping, pool damage
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

21F-H2121049-REL Decision – 940829.pdf

Uploaded 2026-04-24T11:35:22 (47.0 KB)

21F-H2121049-REL Decision – 950132.pdf

Uploaded 2026-04-24T11:35:29 (41.0 KB)

21F-H2121049-REL Decision – 916848.pdf

Uploaded 2026-04-24T11:35:33 (118.5 KB)

21F-H2121049-REL Decision – 917026.pdf

Uploaded 2026-04-24T11:35:36 (124.9 KB)

21F-H2121049-REL Decision – 916848.pdf

Uploaded 2026-01-23T17:37:48 (118.5 KB)

21F-H2121049-REL Decision – 917026.pdf

Uploaded 2026-01-23T17:37:51 (124.9 KB)

This summary details the hearing before Administrative Law Judge Jenna Clark at the Office of Administrative Hearings (OAH) on September 22, 2021, concerning a dispute between homeowners and their association.

Key Facts and Parties

The Petitioners, Rodney and Patricia Kirby, are property owners and members of the Dove Cove Estates Homeowners Association (HOA/Respondent). The Petitioners, who are retired and use their pool daily for exercise, filed a petition alleging the Association violated its Covenants, Conditions, and Restrictions (CC&Rs). The dispute centered on the Association's refusal to remove two sissoo trees, approximately 35 feet high, located on Common Area property just behind the Petitioners’ residence.

The Petitioners testified that since around 2017, the trees caused substantial problems: debris, including leaves and small dead animals, fell into their pool, clogging the pump, which had to be replaced multiple times. Furthermore, roots from the trees caused damage to their retaining wall and back patio slab.

Main Issue and Arguments

The core issue was whether the Association was in violation of CC&Rs Article IV, Sections 4.1 and 4.1.1 for failing to remove the two sissoo trees. CC&R Article IV required the Association to maintain and keep in good condition and repair the Common Area, including the maintenance, repair, and replacement of all landscaping and structures situated upon it.

The Respondent (HOA) denied the complaint, arguing that its duty of maintenance was fulfilled through its landscaping contractor, ProQual Landscaping. The HOA contended that it reasonably relied on ProQual's expert advice; ProQual had inspected the trees in April 2021 and advised that removal was unnecessary, instead leaving them on a regular trimming schedule.

The Petitioners argued that the Association’s inadequate maintenance endangered their health and welfare due to the debris and financial burdens incurred from pool and pump repairs and increased cleaning costs. They asserted that the Association had not given their request proper consideration.

Legal Points and Outcome

The OAH determined it had jurisdiction to hear the dispute and interpret the CC&Rs, which form an enforceable contract between the Association and property owners. Petitioners bore the burden of proof by a preponderance of the evidence.

The ALJ concluded that Petitioners sustained their burden of proof. The decision emphasized that the Association's duty to maintain the Common Area does not end at the boundary line. The evidence established that *but for* the sissoo trees being situated and maintained in their current state, the degree of debris causing damage or harm to Petitioners’ property would not exist.

Final Decision

The ALJ concluded that the Association had violated Article IV section 4.1.1 of the CC&Rs.

IT IS ORDERED that Petitioners’ petition is granted. The Respondent was FURTHER ORDERED to pay Petitioners their filing fee of $500.00 within thirty days. The OAH clarified that while it lacked statutory authority to grant declaratory or injunctive relief, the decision acts to "Order Respondent to abide by the section of the planned community specified".

Questions

Question

Does the HOA's duty to maintain common areas end strictly at the property line?

Short Answer

No. The HOA is responsible if common area elements (like trees) cause damage to adjacent private property.

Detailed Answer

The ALJ determined that the Association's responsibility for maintenance extends beyond the physical boundary if conditions on the common area negatively impact a homeowner's property. In this case, debris from common area trees caused damage to a private pool and patio.

Alj Quote

The Association’s duty to maintain the Common Area does not end at the boundary line of the Common Area.

Legal Basis

CC&Rs Article IV

Topic Tags

  • maintenance
  • common_area
  • liability

Question

Can the HOA avoid liability for damage by claiming they relied on a professional landscaping company's advice?

Short Answer

Not necessarily. Even if the HOA pays for regular maintenance and follows vendor advice, they may still be in violation if damage persists.

Detailed Answer

The HOA argued it was not in violation because it relied on its landscaper's (arborist's) recommendation not to remove the trees. The ALJ rejected this, ruling that despite the payments and advice, the damage caused to the homeowner proved a failure to maintain the common area properly under the CC&Rs.

Alj Quote

Despite the Association’s payment to ProQual for regular arbor maintenance, the sissoo trees still caused debris of all kinds to fill Petitioners’ pool and backyard… Petitioners established a violation of Article IV section 4.1.1 of the CC&Rs

Legal Basis

Contract Law / CC&Rs

Topic Tags

  • vendor_reliance
  • negligence
  • defenses

Question

What is the 'burden of proof' for a homeowner in an administrative hearing?

Short Answer

The homeowner must prove their case by a 'preponderance of the evidence'.

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to show that their claim is more likely true than not. It is not based on the number of witnesses, but the convincing force of the evidence.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden_of_proof
  • evidence
  • procedure

Question

Can the Administrative Law Judge order the HOA to perform a specific act, like cutting down a tree?

Short Answer

Generally, no. The Tribunal lacks statutory authority to grant injunctive relief.

Detailed Answer

The ALJ cannot issue an injunction or declaratory relief (specific orders to do or not do a specific act). Instead, the order generally directs the HOA to 'abide by' the specific section of the community documents, leaving the specific method of compliance somewhat open.

Alj Quote

Because this Tribunal has no statutory authority to grant Petitioners’ declaratory or injunctive relief, this decision is expressly issued to 'Order Respondent to abide by the section of the planned community specified.'

Legal Basis

Statutory Authority

Topic Tags

  • remedies
  • injunctive_relief
  • alj_powers

Question

If I win my hearing against the HOA, can I get my filing fee back?

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this decision, the ALJ ordered the Association to pay the $500.00 filing fee directly to the Petitioners within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00, to be paid directly to Petitioners within thirty (30) days of this ORDER.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • reimbursement
  • costs

Question

What kind of damage is required to prove the HOA failed to maintain the common area?

Short Answer

The homeowner must show actual damage, harm, or financial burden caused by the condition.

Detailed Answer

The decision noted that the debris caused a financial burden (cleaning costs, pump replacement) and potential health risks. The mere presence of trees wasn't the issue; it was the specific damage and harm resulting from them.

Alj Quote

The record does reflect that, but for the sissoo trees being situated where they are and in the state they are in, there would not be debris to a degree on Petitioners’ property that caused any amount of damage or harm.

Legal Basis

Evidence of Damages

Topic Tags

  • damages
  • nuisance
  • evidence

Question

Who has the authority to hear disputes between a homeowner and an HOA?

Short Answer

The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).

Detailed Answer

Statutes authorize the Department to receive petitions regarding violations of community documents or statutes regulating planned communities.

Alj Quote

The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

Legal Basis

ARIZ. REV. STAT. §§ 32-2102

Topic Tags

  • jurisdiction
  • adre
  • oah

Case

Docket No
21F-H2121049-REL
Case Title
Rodney & Patricia Kirby vs. Dove Cove Estates Homeowners Association
Decision Date
2021-10-12
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Does the HOA's duty to maintain common areas end strictly at the property line?

Short Answer

No. The HOA is responsible if common area elements (like trees) cause damage to adjacent private property.

Detailed Answer

The ALJ determined that the Association's responsibility for maintenance extends beyond the physical boundary if conditions on the common area negatively impact a homeowner's property. In this case, debris from common area trees caused damage to a private pool and patio.

Alj Quote

The Association’s duty to maintain the Common Area does not end at the boundary line of the Common Area.

Legal Basis

CC&Rs Article IV

Topic Tags

  • maintenance
  • common_area
  • liability

Question

Can the HOA avoid liability for damage by claiming they relied on a professional landscaping company's advice?

Short Answer

Not necessarily. Even if the HOA pays for regular maintenance and follows vendor advice, they may still be in violation if damage persists.

Detailed Answer

The HOA argued it was not in violation because it relied on its landscaper's (arborist's) recommendation not to remove the trees. The ALJ rejected this, ruling that despite the payments and advice, the damage caused to the homeowner proved a failure to maintain the common area properly under the CC&Rs.

Alj Quote

Despite the Association’s payment to ProQual for regular arbor maintenance, the sissoo trees still caused debris of all kinds to fill Petitioners’ pool and backyard… Petitioners established a violation of Article IV section 4.1.1 of the CC&Rs

Legal Basis

Contract Law / CC&Rs

Topic Tags

  • vendor_reliance
  • negligence
  • defenses

Question

What is the 'burden of proof' for a homeowner in an administrative hearing?

Short Answer

The homeowner must prove their case by a 'preponderance of the evidence'.

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to show that their claim is more likely true than not. It is not based on the number of witnesses, but the convincing force of the evidence.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden_of_proof
  • evidence
  • procedure

Question

Can the Administrative Law Judge order the HOA to perform a specific act, like cutting down a tree?

Short Answer

Generally, no. The Tribunal lacks statutory authority to grant injunctive relief.

Detailed Answer

The ALJ cannot issue an injunction or declaratory relief (specific orders to do or not do a specific act). Instead, the order generally directs the HOA to 'abide by' the specific section of the community documents, leaving the specific method of compliance somewhat open.

Alj Quote

Because this Tribunal has no statutory authority to grant Petitioners’ declaratory or injunctive relief, this decision is expressly issued to 'Order Respondent to abide by the section of the planned community specified.'

Legal Basis

Statutory Authority

Topic Tags

  • remedies
  • injunctive_relief
  • alj_powers

Question

If I win my hearing against the HOA, can I get my filing fee back?

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this decision, the ALJ ordered the Association to pay the $500.00 filing fee directly to the Petitioners within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00, to be paid directly to Petitioners within thirty (30) days of this ORDER.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • reimbursement
  • costs

Question

What kind of damage is required to prove the HOA failed to maintain the common area?

Short Answer

The homeowner must show actual damage, harm, or financial burden caused by the condition.

Detailed Answer

The decision noted that the debris caused a financial burden (cleaning costs, pump replacement) and potential health risks. The mere presence of trees wasn't the issue; it was the specific damage and harm resulting from them.

Alj Quote

The record does reflect that, but for the sissoo trees being situated where they are and in the state they are in, there would not be debris to a degree on Petitioners’ property that caused any amount of damage or harm.

Legal Basis

Evidence of Damages

Topic Tags

  • damages
  • nuisance
  • evidence

Question

Who has the authority to hear disputes between a homeowner and an HOA?

Short Answer

The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).

Detailed Answer

Statutes authorize the Department to receive petitions regarding violations of community documents or statutes regulating planned communities.

Alj Quote

The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

Legal Basis

ARIZ. REV. STAT. §§ 32-2102

Topic Tags

  • jurisdiction
  • adre
  • oah

Case

Docket No
21F-H2121049-REL
Case Title
Rodney & Patricia Kirby vs. Dove Cove Estates Homeowners Association
Decision Date
2021-10-12
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Rodney Kirby (petitioner)
  • Patricia Kirby (petitioner)

Respondent Side

  • Lydia Peirce Linsmeier (HOA attorney)
    Carpenter, Hazelwood, Delgado & Bolen LLP
  • Kaylee Ivy (HOA attorney)
    Carpenter, Hazelwood, Delgado & Bolen LLP
  • Regis Salazar (witness)

Neutral Parties

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

Daniel B Belt v. Beaver Valley Improvement Association

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Case Summary

Case ID 21F-H2121058-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2022-03-11
Administrative Law Judge Sondra J. Vanella
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Daniel B Belt Counsel —
Respondent Beaver Valley Improvement Association Counsel Ellen B. Davis, Esq.

Alleged Violations

No violations listed

Outcome Summary

The Administrative Law Judge issued an Order dismissing the Petitioner’s Petition because the Petitioner failed to appear at the hearing on March 10, 2022, and thus failed to meet the burden of proof.

Why this result: Petitioner failed to appear for the hearing. Petitioner had previously indicated he would unequivocally not participate in the hearing.

Key Issues & Findings

Petition alleging violation

Petitioner failed to appear for the hearing and thus failed to sustain the burden of proof required to establish the alleged violation.

Orders: Petitioner’s Petition is dismissed because Petitioner failed to appear for the hearing and failed to sustain the burden of proof.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. section 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: HOA, failure_to_appear, dismissal, rehearing, OAH
Additional Citations:

  • 41-1092.07(G)(2)
  • R2-19-119(A)
  • R2-19-119(B)(1)
  • 32-2199.02(B)
  • 12-904(A)
  • 41-1092.01
  • 41-1092.07(A)

Video Overview

Audio Overview

Decision Documents

21F-H2121058-REL Decision – 936420.pdf

Uploaded 2026-04-24T11:36:34 (52.8 KB)

21F-H2121058-REL Decision – 936523.pdf

Uploaded 2026-04-24T11:36:37 (6.7 KB)

21F-H2121058-REL Decision – 942810.pdf

Uploaded 2026-04-24T11:36:41 (53.5 KB)

21F-H2121058-REL Decision – 954077.pdf

Uploaded 2026-04-24T11:36:46 (66.4 KB)

21F-H2121058-REL Decision – 915454.pdf

Uploaded 2026-04-24T11:36:49 (133.6 KB)

Briefing Document: Daniel B. Belt v. Beaver Valley Improvement Association

Executive Summary

This document synthesizes the proceedings and outcomes of the administrative case Daniel B. Belt v. Beaver Valley Improvement Association (No. 21F-H2121058-REL), a dispute adjudicated by the Arizona Office of Administrative Hearings. The petitioner, Daniel B. Belt, alleged that the Beaver Valley Improvement Association (BVIA) violated Arizona statute A.R.S. § 33-1812(6) by refusing to provide him with unredacted copies of election ballots, a matter he characterized as “voter fraud” and of “life and death” importance.

The case was ultimately dismissed twice. The initial decision on October 5, 2021, dismissed the petition on its merits. The Administrative Law Judge (ALJ) found that the petitioner failed to prove a violation, concluding that the HOA’s community documents permitted secret ballots and that state law (A.R.S. § 33-1805(B)(4)) prohibited the disclosure of the personal voting information requested. Following the petitioner’s request for a rehearing, the case was dismissed a second time on March 11, 2022, after the petitioner failed to appear at the scheduled hearing, thereby failing to meet his burden of proof.

A significant theme throughout the proceedings was the petitioner’s conduct. Testimony from the HOA’s accounting services provider, Planned Development Services (PDS), described the petitioner’s behavior as “irrational, mean, and bullying.” This conduct included a 45-day picket of the PDS office, verbal threats, and behavior that led PDS to obtain an Injunction Against Workplace Harassment against the petitioner and ultimately resign its contract with the HOA. After the initial dismissal, the petitioner filed pleadings demanding that the Director of the Office of Administrative Hearings act in an “appellate capacity” to “dispense justice,” a request the Director found he had no legal authority to grant. The petitioner also indicated his intent to not participate in the rehearing and to pursue the matter in federal court.

I. Case Overview and Procedural History

The Core Dispute: Access to Election Ballots

On June 8, 2021, Daniel B. Belt filed a Homeowners Association (HOA) Dispute Petition with the Arizona Department of Real Estate. The petition alleged a single violation by the Beaver Valley Improvement Association of A.R.S. § 33-1812(6), a statute governing election materials.

The specific allegation, as articulated in the petition narrative, was that “…PDS refused to give petitioner the ballots containing the names, addresses and signatures, in compliance with ARS 33-1812(6)…”. The petitioner asserted that his petition, which he characterized as addressing “voter fraud,” was a “life and death matter.”

Key Parties

Name/Entity

Representation/Affiliation

Petitioner

Daniel B. Belt

Appeared on his own behalf

Respondent

Beaver Valley Improvement Association

Represented by Ellen B. Davis, Esq.

Witness (Initial Hearing)

Petra Paul

Managing Agent, Planned Development Services (PDS)

Witness (Initial & Final Hearing)

William Campbell

Member, BVIA Board of Directors

Administrative Law Judge

Sondra J. Vanella

Office of Administrative Hearings

Director

Greg Hanchett

Office of Administrative Hearings

Procedural Timeline

• June 8, 2021: Petitioner Daniel B. Belt files a petition with the Arizona Department of Real Estate.

• September 10, 2021: An initial hearing is held before ALJ Sondra J. Vanella.

• October 5, 2021: ALJ Vanella issues a decision dismissing the petition.

• January 4, 2022: A minute entry is issued continuing a scheduled rehearing to March 10, 2022.

• January 14, 2022: Petitioner files a pleading perceived by the Director as a motion for a change of judge.

• January 28, 2022: Petitioner files a subsequent pleading clarifying he is not seeking a change of judge but is demanding the Director review the prior proceeding.

• January 31, 2022: Director Greg Hanchett issues an order stating he lacks the statutory authority to review the case in an “appellate capacity” as requested.

• March 10, 2022: The rehearing convenes. The petitioner fails to appear. Respondent’s counsel moves for dismissal.

• March 11, 2022: ALJ Vanella issues a final decision dismissing the petition due to the petitioner’s failure to appear and sustain his burden of proof.

II. Analysis of the Initial Hearing and Decision

Respondent’s Defense and Evidence

The BVIA’s defense centered on the established practice and legal basis for maintaining voter privacy through secret ballots. Key points included:

• Policy on Secret Ballots: The BVIA Board of Directors approved a “Ballot/Proxy Handling Procedure” on July 10, 2004, which explicitly states that ballots will be folded “TO MAINTAIN THE SECRECY OF THE BALLOT.”

• Reaffirmation of Policy: In a meeting on May 8, 2021, the Board unanimously passed two motions: one to allow members to review ballots without personally identifying information, and a second to “reaffirm that all Board of Directors elections be conducted with a secret ballot.”

• Bylaws Protecting Privacy: The BVIA’s Bylaws (Article VII) explicitly state that “Personal . . . information about an individual Member of the Association” is not subject to inspection by parties other than the Board or its agent.

• Statutory Protection: Respondent argued that A.R.S. § 33-1805(B)(4) prohibits the disclosure of personal records of an individual member, which includes how they voted.

• Constitutional Basis: Board member William Campbell cited Article VII, Section 1 of the Arizona Constitution, which provides that “secrecy in voting shall be preserved,” opining that non-secret ballots would have a “chilling effect” on member participation.

• Accommodations Offered: The petitioner was offered the opportunity to review the un-redacted ballots in person (but not take copies) and was provided with redacted copies of the ballots. He refused both offers.

Key Witness Testimony

Petra Paul, Managing Agent for PDS, testified that her company’s contract with BVIA was for accounting services only, not HOA management. PDS’s involvement in the election was limited to mailing ballots, collecting returns, and verifying a quorum.

Ms. Paul’s testimony detailed the petitioner’s conduct:

• Escalating Demands: The petitioner demanded ballots before the election (which was denied) and demanded un-redacted copies the Monday after the election.

• Harassment and Intimidation: Ms. Paul described the petitioner’s behavior as “irrational, mean, and bullying.” She testified that his actions grew increasingly agitated, that he refused to leave PDS’s premises, and that PDS staff was intimidated and concerned for their personal safety.

• Workplace Injunction: The petitioner’s behavior, which impacted PDS’s business operations, culminated in PDS obtaining an Injunction Against Workplace Harassment against him. This came after he spent 45 days picketing outside the PDS office with a large sign that stated, “PDS Embezzlers, Frauds, Liars.”

• Threats: The injunction noted threats made by the petitioner against PDS employees, including, “You’ll be sorry,” “You’ll regret this,” and “You haven’t seen the end of me.”

• Contract Resignation: Due to the petitioner’s “abusive and erratic” interactions, PDS resigned its contract with the BVIA and demanded its legal fees be paid by the association.

William Campbell testified about the association’s long-standing policy of secret ballots. He acknowledged a procedural deviation—the ballots were folded for secrecy rather than being placed in manila envelopes as stipulated by the 2004 policy—but maintained that secrecy was preserved. Mr. Campbell also testified that multiple opportunities were provided in May, June, and July 2021 for members to view the ballots and confirm their votes were counted, but no one took advantage of the offers in June or July.

ALJ’s Conclusions of Law and Order (October 5, 2021)

ALJ Vanella concluded that the petitioner failed to prove by a preponderance of the evidence that the BVIA violated A.R.S. § 33-1812(A)(6). The decision found that:

1. The credible evidence established that the ballots were intended to be secret pursuant to community documents.

2. The Respondent was precluded by A.R.S. § 33-1805(B)(4) from disclosing the personal voting information demanded by the petitioner.

3. The petitioner was offered the chance to review the ballots and was provided redacted copies, both of which he declined. Based on these findings, the petition was ordered dismissed.

III. Rehearing Proceedings and Final Disposition

Petitioner’s Post-Decision Filings

Following the initial dismissal, the petitioner requested a rehearing. In subsequent filings, he created confusion regarding his intentions. A January 14, 2022 filing was perceived as a motion for a change of judge. However, in a January 28, 2022 pleading, the petitioner clarified this was not his intent. Instead, he demanded the Director of the Office of Administrative Hearings intervene directly:

“if Director Hanchett declines to make the case, with rationale, that the actions of Petra Paul and ALJ Vanella did not constitute the felony crimes as cited by the Petitioner, and if Director Hanchett declines to dispense justice in this case . . . as outlined by Petitioner, those issues will be decided in federal court.“

He further stated that the Director did not have the right to “pervert Petitioner’s request… for Impartial Justice and Equal Protection of the Laws, into a motion for a Change of Judge.”

Director’s Response

On January 31, 2022, Director Greg Hanchett issued an order rescinding a prior order that required the respondent to reply to the petitioner’s motion. The Director stated that the petitioner was not seeking a change of judge, but rather “seeks to have the Director review the earlier proceeding in some appellate capacity and pass judgment on the propriety of that proceeding.” Director Hanchett concluded that “There is no authority contained in either statute or rule that would permit the Director to undertake such action,” as an administrative agency has only those powers prescribed by law.

The Final Hearing and Dismissal (March 10-11, 2022)

The rehearing was held on March 10, 2022. The petitioner, Daniel Belt, failed to appear, despite having received proper notice at his address of record and email addresses. The hearing transcript notes that the petitioner had previously stated in a January 14 filing that he “would unequivocally not participate in the hearing.”

As the petitioner bears the burden of proof, and having failed to appear to present his case, the respondent’s counsel made a motion to dismiss. ALJ Vanella granted the motion. The final order, issued March 11, 2022, dismissed the petition, stating: “Because Petitioner failed to appear, Petitioner failed to sustain his burden to establish a violation by Respondent.” This decision was binding on the parties.

Study Guide for the Case of Belt v. Beaver Valley Improvement Association

Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences, drawing exclusively from the information presented in the case documents.

1. Identify the petitioner and respondent in this case and state the petitioner’s central allegation.

2. What specific Arizona Revised Statute did the petitioner claim the respondent violated, and what does this statute generally require?

3. What was the role of Planned Development Services (PDS) in the respondent’s election process, according to the testimony of Petra Paul?

4. Describe the petitioner’s behavior that prompted PDS to obtain an Injunction Against Workplace Harassment.

5. According to William Campbell, what was the respondent’s long-standing policy regarding elections, and what documents supported this policy?

6. Explain the two offers the respondent and its agent made to the petitioner to allow him to review the election ballots.

7. What was the Administrative Law Judge’s final order in the initial decision on October 5, 2021, and what were the two key statutes cited to support this conclusion?

8. After filing for a rehearing, what was the petitioner’s stated intention regarding his participation, and what was the ultimate outcome of the March 10, 2022, hearing?

9. What did the petitioner demand from the Director of the Office of Administrative Hearings in January 2022, and how did the Director respond?

10. What evidentiary standard was the petitioner required to meet, and did the judge find that he met this standard in either the initial hearing or the rehearing?

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Answer Key

1. The petitioner was Daniel B. Belt, and the respondent was the Beaver Valley Improvement Association (HOA). Belt alleged the HOA violated state law by refusing to provide him with election ballots containing the names, addresses, and signatures of the voters, an act he characterized as “voter fraud.”

2. The petitioner claimed a violation of A.R.S. § 33-1812(6). This statute requires completed ballots to contain the voter’s name, address, and signature, but it provides an exception for secret ballots, where this identifying information need only appear on the envelope.

3. Petra Paul testified that PDS was contracted for accounting services only, not HOA management. PDS’s involvement in the election was limited to mailing the annual meeting documents, collecting the returned ballots, and reviewing the number of returns to ensure a quorum was met. PDS did not conduct the election or tabulate the ballots.

4. The petitioner’s behavior was described as “irrational, mean, and bullying.” He picketed the PDS office for 45 days with a sign calling employees “Embezzlers, Frauds, Liars,” made threats such as “You’ll be sorry,” and refused to leave the premises, causing employees to fear for their personal safety.

5. William Campbell testified that the respondent had a long-standing practice of using a secret ballot. This was supported by a Ballot/Proxy Handling Procedure approved in 2004 and a unanimous Board vote on May 8, 2021, to reaffirm that all Board of Directors elections would be conducted with a secret ballot.

6. First, Petra Paul of PDS offered the petitioner copies of the ballots with personal information such as names and signatures redacted, which he refused. Paul also offered him the opportunity to review the non-redacted ballots in the office but advised him he could not take them with him.

7. The judge ordered that the petitioner’s Petition be dismissed. The judge cited A.R.S. § 33-1812(A)(6), noting that the community’s documents permitted secret ballots, and A.R.S. § 33-1805(B)(4), which precludes an HOA from disclosing personal records of its members.

8. In a January 14, 2022, filing, the petitioner stated he would “unequivocally not participate in the hearing.” Consequently, the petitioner failed to appear at the March 10, 2022, hearing, and the judge dismissed his petition for failure to sustain his burden of proof.

9. The petitioner demanded that the Director, Greg Hanchett, review the previous hearing in an appellate capacity, determine if felony crimes were committed, and “dispense justice.” The Director responded that he had no statutory authority to perform such an appellate review and rescinded his order related to what he had mistakenly perceived as a motion for a change of judge.

10. The petitioner was required to prove his case by a “preponderance of the evidence.” In the initial hearing, the judge found he failed to meet this burden because the evidence showed the respondent had not violated the law. In the rehearing, he failed to meet the burden because he did not appear to present any evidence at all.

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Essay Questions

Instructions: The following questions are designed to promote a deeper analysis of the case. Formulate a comprehensive response to each prompt, incorporating specific details and legal principles from the provided source documents.

1. Analyze the conflict between a member’s right to inspect association records under A.R.S. § 33-1805 and the protection of individual members’ personal information and voting privacy as outlined in the same statute and the association’s bylaws.

2. Discuss the legal concept of “burden of proof” as it applied to the petitioner in both the initial hearing and the subsequent rehearing. How did the petitioner’s actions (and inaction) directly lead to the dismissal of his case on two separate occasions?

3. Evaluate the actions of the Beaver Valley Improvement Association and its agent, PDS, in response to the petitioner’s demands for election materials. Did their responses align with their own bylaws, state law, and established procedures as presented in the hearings?

4. Trace the petitioner’s escalating behavior as described in the testimony of Petra Paul. How did this behavior impact PDS and ultimately factor into the context of the hearing, even if it was not the direct legal violation being adjudicated?

5. Examine the petitioner’s apparent misunderstanding of the administrative legal process, as evidenced by his filings with Director Greg Hanchett. Contrast what the petitioner demanded of the Director with the actual legal authority vested in the Director’s office according to the case documents.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent, impartial judge who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, Sondra J. Vanella served as the ALJ.

A.R.S. § 33-1805

An Arizona Revised Statute concerning the examination of a homeowners association’s financial and other records. It grants members the right to inspect records but also allows the association to withhold certain information, including personal records of individual members.

A.R.S. § 33-1812(6)

An Arizona Revised Statute detailing requirements for ballots used in HOA meetings. It mandates that ballots contain the voter’s name, address, and signature, but creates an exception for secret ballots permitted by community documents.

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the petitioner had the burden to prove the respondent committed the alleged violation.

Bylaws

The official rules and regulations that govern a corporation or association. The respondent’s Bylaws, specifically Article VII, were cited to justify withholding personal member information.

Homeowners Association (HOA)

An organization in a subdivision, planned community, or condominium building that makes and enforces rules for the properties and its residents. The Beaver Valley Improvement Association is the HOA in this case.

Injunction Against Workplace Harassment

A court order obtained by an employer to prohibit a person from committing acts of harassment against the business and its employees. PDS obtained one against Daniel B. Belt.

Petitioner

The party who files a petition or initiates a legal action. In this case, Daniel B. Belt is the petitioner.

Planned Development Services (PDS)

An HOA management and accounting company. PDS provided accounting-only services to the respondent and was the entity that interacted directly with the petitioner regarding his ballot requests.

Preponderance of the Evidence

The standard of proof required in this administrative case. It means that the trier of fact must be convinced that it is more probably true than not that the contention is correct.

Quorum

The minimum number of members of an association that must be present at any of its meetings to make the proceedings of that meeting valid. PDS reviewed ballot returns to ensure a quorum was established for the respondent’s election.

Redacted

Edited to remove or obscure confidential or private information. The respondent offered the petitioner redacted copies of the ballots with names, email addresses, and signatures removed.

Rehearing

A second hearing of a case to reconsider the issues and evidence, which may be granted upon request after an initial decision. The petitioner was granted a rehearing but failed to appear.

Respondent

The party against whom a petition is filed or an appeal is brought. In this case, the Beaver Valley Improvement Association is the respondent.

Secret Ballot

A voting method in which a voter’s choices are anonymous, preventing intimidation and protecting privacy. The respondent’s bylaws and policies permitted the use of secret ballots for its elections.

An HOA Ballot Dispute, a 45-Day Picket, and 4 Shocking Lessons in Community Conflict

Introduction: When Neighborly Disagreements Go Nuclear

Disputes within Homeowners Associations (HOAs) are common, often revolving around landscaping, dues, or parking violations. But rarely do they escalate into a nearly year-long legal battle involving workplace harassment injunctions and vendor resignations. The story of one homeowner’s quest for election transparency in Arizona serves as a startling case study in how quickly a simple request can spiral out of control, offering crucial lessons for any community association. What began as a demand to see election ballots ended in a dismissed court case, but not before triggering a workplace harassment injunction, forcing its accounting firm to resign, and handing the HOA the bill for its legal fees.

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1.A Request for Ballots Can Escalate into a Harassment Injunction

The dispute began when petitioner Daniel B. Belt filed a petition against his HOA, the Beaver Valley Improvement Association. Alleging “voter fraud,” he demanded copies of unredacted election ballots in a conflict he framed as a “life and death matter.” When the HOA denied his request for unredacted copies, Mr. Belt’s tactics escalated from formal petitioning to direct, public confrontation aimed at the HOA’s accounting firm, Planned Development Services (PDS).

He picketed the PDS office for 45 consecutive days, holding a large sign that read, “PDS Embezzlers, Frauds, Liars.” According to court documents, he also allegedly made threats to PDS employees, stating, “You’ll be sorry,” “You’ll regret this,” and “You haven’t seen the end of me.” These actions crossed a critical legal line, resulting in PDS obtaining an Injunction Against Workplace Harassment against the petitioner.

This escalation provides a crucial lesson in community governance. The line between passionate advocacy and unlawful harassment is critical because volunteer boards and their essential vendors are uniquely vulnerable. Tactics involving defamatory signage and direct threats don’t just amplify a grievance; they can cripple an association’s ability to function, turning a dispute over records into an existential threat to its day-to-day management.

Ms. Paul described Petitioner’s behavior as “irrational, mean, and bullying” and that she and other employees were concerned for their personal safety.

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2.The “Right to Know” vs. The Right to Privacy and a Secret Ballot

The central conflict pitted one homeowner’s demand for total transparency against the community’s right to privacy. The petitioner insisted on receiving unredacted copies of all completed ballots, which contained the names, addresses, and signatures of every voter.

In response, the HOA did not deny access outright but instead offered a compromise. The petitioner was given the choice to either review the unredacted ballots in person under supervision or accept redacted copies with personal information removed. He refused both options. Notably, the HOA went a step further in its attempt to balance transparency with privacy. Board member William Campbell testified that he “devised a way in which he could match a members’ demographic information to the members’ vote if upon Petitioner’s inspection, something appeared irregular.”

The HOA grounded its refusal in multiple sources of authority, citing its own bylaws protecting member information, a long-standing practice of secret ballots, and, most critically, Arizona state law. A.R.S. § 33-1805(B)(4) explicitly permits an association to withhold the personal records of its members. The Administrative Law Judge ultimately agreed, ruling that the HOA acted correctly and that state law sided with protecting member privacy.

Mr. Campbell referenced Article VII, Section 1 of the Arizona Constitution which provides that “all elections by the people shall be by ballot, or by such other method as may be prescribed by law; Provided, that secrecy in voting shall be preserved.”

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3.Third Parties Can Become Expensive Collateral Damage

This dispute demonstrates how community conflicts can ensnare and inflict significant damage on essential third-party vendors. The accounting firm, PDS, had a limited, non-managerial role. Its contract was for accounting services only; it facilitated the mailing of election documents, collected the returned ballots, and confirmed a quorum was met. PDS did not conduct the election or tabulate the votes.

Despite this narrow involvement, PDS bore the brunt of the petitioner’s aggressive campaign. The harassment severely impacted its business operations and, according to testimony, created an “abusive and erratic” environment. This led the firm to take two drastic steps: first, obtaining the legal injunction, and second, resigning its contract with the HOA. Critically, the collateral damage had a direct financial cost for the entire community. Court documents reveal that “PDS demanded its legal fees be paid by Respondent [the HOA]” for the costs of securing the harassment injunction.

This outcome reveals the cascading governance failures that result from such conflicts. When a key vendor like an accounting firm resigns under duress, it creates instability, raises the prospect of missed payments or financial errors, and makes it harder to secure a new vendor, who may now view the HOA as a high-risk client—with any increased costs ultimately passed on to all homeowners.

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4.You Can’t Win a Legal Battle You Refuse to Fight

In a final, counter-intuitive act, the petitioner successfully filed for a rehearing after losing his initial case, earning a second chance to argue his claims. His actions leading up to the new hearing, however, signaled a preference for performative conflict over substantive legal engagement. He attempted to have the Director of the Office of Administrative Hearings review the case in an “appellate capacity,” a power the Director confirmed he did not possess, and threatened to escalate the matter to federal court.

Then came the final twist. After securing the rehearing, the petitioner submitted a filing stating he would “unequivocally not participate in the hearing.”

True to his word, on the day of the hearing—March 10, 2022—the petitioner failed to appear. As the party bringing the complaint, he carried the burden of proof. His absence meant the judge had no evidence to consider and was compelled to dismiss the case. This chapter serves as a stark lesson in strategic failure. After doing the difficult work of securing a second hearing, the petitioner abandoned the field. The legal system, for all its complexities, responds to procedure and participation, not to external threats or pronouncements. Passionate conviction is powerless if you refuse to show up and fight the battle you initiated.

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Conclusion: Drawing the Line Between Advocacy and Anarchy

The arc of this conflict—from a simple request for ballots to a multi-stage legal dispute that ended not with a bang, but a whimper—is a cautionary tale. It illustrates how a homeowner’s campaign for transparency, when pursued without regard for legal boundaries or civil discourse, can backfire completely. It left a vendor harassed, forced the community to pay its agent’s legal fees, and ultimately left the original issue unresolved. This case leaves all community leaders and members with a critical question: How can we foster a culture that balances the legitimate need for transparency with the equally important need for member privacy and basic civility?

Case Participants

Petitioner Side

  • Daniel B. Belt (petitioner)

Respondent Side

  • Ellen B. Davis (HOA attorney)
    HENZE COOK MURPHY, PLLC
  • William Campbell (board member/witness)
    Beaver Valley Improvement Association
    Vice President of the Board
  • Mexal (board member)
    Beaver Valley Improvement Association
    Identified as President in May 8, 2021 Meeting Minutes
  • Sarah Linkey (board member)
    Beaver Valley Improvement Association
    Identified as Treasurer in May 8, 2021 Meeting Minutes
  • Hallett (board member)
    Beaver Valley Improvement Association
    Identified as Director in May 8, 2021 Meeting Minutes

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    ADRE
    Listed on initial decision transmission
  • Louis Dettorre (Commissioner)
    ADRE
    Listed on subsequent transmissions
  • Greg Hanchett (Director)
    OAH/ADRE
    Issued order regarding Petitioner's filing
  • c. serrano (administrative staff)
    OAH/ADRE
    Transmitted documents
  • Miranda A. (administrative staff)
    OAH/ADRE
    Transmitted documents

Other Participants

  • Petra Paul (managing agent/witness)
    Planned Development Services (PDS)
    Testified regarding PDS's role with Respondent's election
  • Lori Rutledge (unknown)
    Listed on transmission list
  • Brandee Abraham (unknown)
    Listed on transmission list