Jennie Bennett v. Catalina Del Rey Homeowners Association

Posted on February 26, 2020 by [email protected]

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

Case Summary

Case ID	20F-H2019002-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2020-02-26
Administrative Law Judge	Antara Nath Rivera
Outcome	The ALJ ordered the Petition dismissed because the Petitioner failed to prove by a preponderance of the evidence that the HOA violated the cited CC&R sections, as the malfunctioning backflow flap was located on the Petitioner's private property and was her responsibility.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Jennie Bennett	Counsel	Maxwell Riddiough
Respondent	Catalina Del Rey Homeowners Association	Counsel	Nathan Tennyson

Alleged Violations

CC&Rs Sections 12(c) and 12(h)(1)

Outcome Summary

The ALJ ordered the Petition dismissed because the Petitioner failed to prove by a preponderance of the evidence that the HOA violated the cited CC&R sections, as the malfunctioning backflow flap was located on the Petitioner's private property and was her responsibility.

Why this result: Petitioner failed to meet the burden of proof that the backflow flap was a common element maintenance responsibility under CC&Rs Sections 12(c) or 12(h)(1).

Key Issues & Findings

Violation of community documents regarding maintenance responsibility for sewage backflow flap.

Petitioner alleged the HOA violated CC&Rs by refusing to pay for repairs related to a malfunctioning backflow flap that caused a sewage overflow, arguing the item was a common element maintenance responsibility.

Orders: Petitioner Jennie Bennett’s Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

CC&Rs Section 12(c)
CC&Rs Section 12(h)(1)
CC&Rs Section 15

Analytics Highlights

Topics: HOA, CC&Rs, Maintenance Responsibility, Plumbing, Sewage Overflow, Burden of Proof

Additional Citations:

A.R.S. § 32-2199 et seq.
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A) and (B)(1)

Video Overview

Audio Overview

Decision Documents

20F-H2019002-REL-RHG Decision – 771959.pdf

Uploaded 2026-01-23T17:30:01 (103.3 KB)

Briefing Document: Jennie Bennett vs. Catalina Del Rey Homeowners Association

Executive Summary

This document synthesizes the findings, arguments, and conclusions from the Administrative Law Judge (ALJ) Decision in case number 20F-H2019002-REL-RHG, concerning a dispute between homeowner Jennie Bennett (Petitioner) and the Catalina Del Rey Homeowners Association (Respondent).

The core of the dispute was the financial responsibility for repairing a malfunctioning sewage backflow valve that caused an overflow at the petitioner’s residence. The petitioner argued that the HOA violated its Covenants, Conditions, Restrictions and Easements (CC&Rs), specifically Sections 12(c) and 12(h)(1), by refusing to cover the repair costs. The petitioner’s claim was complicated by the fact that the HOA had, just two weeks prior to the incident, rescinded a “Sewer Maintenance Policy” that had previously addressed such issues. The petitioner stated she was not notified of this rescission.

The respondent contended that the backflow valve was located on the petitioner’s private property, not in a common area, making its maintenance the petitioner’s responsibility under Section 15 of the CC&Rs. The HOA asserted that the 2017 policy was rescinded precisely because legal guidance confirmed this distinction. The HOA also maintained that notice of the rescission was sent to all homeowners.

The ALJ ultimately ruled in favor of the respondent, dismissing the petitioner’s petition. The decision concluded that the petitioner failed to meet the burden of proof—a preponderance of the evidence—to establish that the backflow valve was a common element covered by the cited CC&R sections. The evidence, including a plat map and photos, demonstrated the valve was on the petitioner’s private property. While the timing of the policy rescission was deemed “extremely unfortunate,” the ALJ found that once rescinded, the HOA was no longer obligated to share repair costs.

I. Case Overview

• Case Name: Jennie Bennett, Petitioner, vs. Catalina Del Rey Homeowners Association, Respondent.

• Case Number: 20F-H2019002-REL-RHG

• Forum: Arizona Office of Administrative Hearings

• Administrative Law Judge: Antara Nath Rivera

• Hearing Date: February 7, 2020

• Decision Date: February 26, 2020

• Core Allegation: The petitioner alleged that the HOA violated community documents, specifically Sections 12(c) and 12(h)(1) of the CC&Rs.

II. Central Dispute and Timeline of Events

The central issue was whether the HOA was responsible for the cost of repairing a malfunctioning sewage backflow flap on the petitioner’s property.

• March 2017: The HOA adopts a “Sewer Maintenance Policy” to outline processes for sewage maintenance.

• February 13, 2019: The HOA Board rescinds the Sewer Maintenance Policy.

• March 3, 2019: Petitioner Jennie Bennett experiences a sewage overflow at her residence due to a malfunctioning backflow valve.

• March – May 2019: The petitioner brings her concerns to the HOA board at multiple meetings but receives no response.

• May 22, 2019: The HOA responds to the petitioner after receiving a letter from her attorney.

• July 10, 2019: The petitioner files a Dispute Process Petition with the Arizona Department of Real Estate.

III. Petitioner’s Position and Arguments (Jennie Bennett)

The petitioner, a resident for 20 years, argued that the HOA was liable for the repair costs based on the following points:

• CC&R Violation: The refusal to pay for the repair constituted a violation of Sections 12(c) and 12(h)(1) of the CC&Rs, which pertain to the HOA’s duty to maintain sewer lines and common elements.

• Lack of Notice: The petitioner testified she was not notified of the policy rescission on February 13, 2019. The sewage overflow occurred just two weeks later, and upon reporting it, she was informed by a neighbor that the HOA had historically covered such issues.

• Procedural Failure: The HOA failed to address her concerns at the March, April, or May board meetings, only engaging after her attorney intervened.

• Community Support: The petitioner collected 97 signatures on a grassroots petition asking the HOA to cover the repair due to the short time frame between the policy rescission and the incident, and the lack of notice. The petition stated: “I am asking to be covered because of the 2 week time frame and no notice. I agree with being covered by the HOA for the flap.”

IV. Respondent’s Position and Arguments (Catalina Del Rey HOA)

The HOA, represented by community manager Vanessa Lubinsky of Cadden Community Management, presented a defense centered on the distinction between private and common property.

• Private Property Responsibility: The HOA’s primary argument was that the backflow flap was located on the petitioner’s private property and was therefore her responsibility to maintain under Section 15 of the CC&Rs, which governs utilities like plumbing within a homeowner’s lot.

• Evidence of Location: The respondent submitted a plat map and photographs as evidence. The photos illustrated that the backflow flap was located “next to Petitioner’s walk up to her front door,” well within her property lines and not on common elements.

• Plumbing vs. Sewer Issue: Ms. Lubinsky characterized the problem as a “plumbing issue, not a sewer issue,” because of its location on private property.

• Rationale for Policy Change: The 2017 Sewer Maintenance Policy was rescinded after the HOA received “additional legal guidance” confirming that backflow flaps were within homeowners’ units and thus their responsibility under Section 15.

• Notice and Procedure: Ms. Lubinsky testified that notice of the rescission was issued to homeowners via both email and postal mail (postcards). She clarified that the rescission was a board decision that did not require a homeowner vote, as it was not an amendment to the CC&Rs.

V. Relevant Sections of the CC&Rs

The dispute hinged on the interpretation of the following sections of the Declaration of Covenants, Conditions, Restrictions and Easements.

Section

Quoted Text from the Decision

Section 12(c)

“The Association shall maintain and landscape all front and side years open to the street, and shall maintain sewer lines, sidewalks, walkways, brick trim, streets and common recreation areas. …The words “repair or maintain” shall not be construed that the Association shall repair or maintain any individual lot owner’s roof or similar structure.”

Section 12(h)(1)

“Each such lot will be subject to assessments and the owner thereof shall pay to the Associations assessments as follows: Such lots pro rata share of the actual cost to the Association of all repair, maintenance, safety and control of common elements, including but not limited to maintenance of walkways, sidewalks, streets and sewers, care of lawns and landscaping in common areas and front and side yards of residences… .”

Section 15

(Described, not quoted) This section provides that the homeowner is responsible for the maintenance of utilities such as electricity and plumbing on their private property, similar to a single-family residence.

VI. Administrative Law Judge’s Findings and Ruling

The ALJ’s decision was based on the petitioner’s failure to meet the required burden of proof.

• Burden of Proof: The petitioner was required to establish the HOA’s violation by a “preponderance of the evidence,” meaning proof that convinces the trier of fact the contention is more probably true than not.

• Factual Determination: The judge found that the evidence, specifically the photos and plat map, demonstrated conclusively that the backflow flap was on the petitioner’s private property near her front door.

• Conclusion on CC&Rs: Because the flap was determined not to be located within a common area, the petitioner failed to establish that it fell under the purview of Sections 12(c) or 12(h)(1). Therefore, she failed to prove the HOA had a responsibility to repair it under those sections.

• Effect of Policy Rescission: The judge acknowledged, “It was extremely unfortunate that Petitioner experienced such a sewage overflow just after Respondent rescinded the Policy.” However, the ruling stated that once the policy was rescinded, the HOA “was not obligated to share the cost of repairs.”

• Final Order: “IT IS ORDERED that Petitioner Jennie Bennett’s Petition be dismissed.” The order is binding on the parties, with any appeal required to be filed with the superior court within thirty-five days of service.

Study Guide: Bennett v. Catalina Del Rey Homeowners Association

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the case text.

1. Who were the Petitioner and the Respondent in this case, and what was the legal case number?

2. What specific sections of the community documents did Petitioner Jennie Bennett allege the Respondent had violated?

3. Describe the incident that prompted the dispute and the date on which it occurred.

4. What was the “Sewer Maintenance Policy,” when was it adopted, and when was it rescinded?

5. According to the Respondent’s manager, Vanessa Lubinsky, why was the repair Jennie Bennett’s financial responsibility?

6. What evidence did the Respondent present to prove the location of the malfunctioning backflow flap?

7. What steps did Jennie Bennett take to rally support from her neighbors after the Respondent did not address her concerns?

8. What is the legal standard for the burden of proof in this case, and which party does it fall on?

9. According to Section 12(c) of the CC&Rs, what specific areas is the Homeowners Association responsible for maintaining?

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

——————————————————————————–

Answer Key

1. The Petitioner was Jennie Bennett, represented by attorney Maxwell Riddiough. The Respondent was the Catalina Del Rey Homeowners Association, represented by attorney Nathan Tennyson. The case number was 20F-H2019002-REL-RHG.

2. The Petitioner alleged that the Respondent violated Sections 12(c) and 12(h)(1) of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs). This was noted as a single-issue petition.

3. On or about March 3, 2019, the Petitioner experienced a sewage overflow into her house. The overflow was caused by malfunctioning backflow valves.

4. The Sewer Maintenance Policy was a policy adopted in March 2017 to outline the process for sewage maintenance issues. It was rescinded by the HOA Board on February 13, 2019, shortly before the Petitioner’s incident.

5. Vanessa Lubinsky testified that the issue was the Petitioner’s responsibility because the malfunctioning backflow flap was located on her private property. Under Section 15 of the CC&Rs, homeowners are responsible for the maintenance of their own plumbing, electricity, and other utilities.

6. The Respondent presented a plat map, which specified all property lines, and photos. This evidence illustrated that the backflow flap was located inside the lines of the Petitioner’s private property, next to the walk-up to her front door, and not on common elements.

7. The Petitioner obtained 97 signatures on a “Grassroots petition.” The petition explained her situation and argued that she should be covered by the HOA for the repair due to the short time between the policy rescission and her incident, and because she had not received written notice.

8. The legal standard is “preponderance of the evidence,” which means the proof must convince the trier of fact that the contention is more probably true than not. The burden of proof fell on the Petitioner, Jennie Bennett, to establish that the Respondent committed the alleged violations.

9. Section 12(c) states the Association is responsible for maintaining and landscaping front and side yards open to the street. It also specifies the Association’s duty to maintain sewer lines, sidewalks, walkways, brick trim, streets, and common recreation areas.

10. The Administrative Law Judge ordered that Petitioner Jennie Bennett’s Petition be dismissed. The judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent had violated the CC&Rs.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to test a deeper, analytical understanding of the case. Formulate a detailed essay response for each prompt, using specific evidence and arguments from the provided text to support your conclusions.

1. Analyze and contrast the core arguments presented by the Petitioner, Jennie Bennett, and the Respondent, Catalina Del Rey Homeowners Association. How did each party use the CC&Rs and the Sewer Maintenance Policy to support their position?

2. Discuss the significance of the Sewer Maintenance Policy’s rescission. Evaluate the timing of the rescission relative to the Petitioner’s incident and the arguments made regarding notification to homeowners.

3. Explain the legal concept of “preponderance of the evidence” as defined in the case document. How did Administrative Law Judge Antara Nath Rivera apply this standard to the evidence presented by both parties to reach a final decision?

4. Evaluate the role of physical evidence, specifically the plat map and photographs, in the outcome of this hearing. Why was determining the precise location of the backflow flap the central issue of the case?

5. From an ethical and community governance perspective, discuss the actions of the Catalina Del Rey Homeowners Association. Consider their decision to rescind the policy, the method of notification, and their initial responses (or lack thereof) to Ms. Bennett’s requests at the board meetings.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Antara Nath Rivera, who presides over hearings at the Office of Administrative Hearings and makes legal decisions and orders.

Burden of Proof

The obligation of a party in a legal case to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof.

Common Elements

Areas within the HOA community that are not part of an individual homeowner’s private property and are maintained by the Association. Examples from the text include walkways, sidewalks, streets, sewers, and recreation areas.

Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs)

The governing legal documents that outline the rules, obligations, and restrictions for a planned community. The Petitioner alleged a violation of Sections 12(c) and 12(h)(1) of these documents.

Homeowners Association (HOA)

The community organization, Catalina Del Rey Homeowners Association, responsible for managing and maintaining the common elements of a planned community as defined by the CC&Rs.

Petitioner

The party who initiates a legal action by filing a petition. In this case, the Petitioner was homeowner Jennie Bennett.

Plat Map

A map, drawn to scale, showing the divisions of a piece of land. In this case, it was used as evidence to specify all property lines, including the Petitioner’s.

Preponderance of the Evidence

The evidentiary standard required to win the case, defined as proof that convinces the trier of fact that a contention is “more probably true than not.” It is described as the “greater weight of the evidence.”

Rescission

The act of canceling or revoking a policy or decision. The HOA Board rescinded its Sewer Maintenance Policy on February 13, 2019.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the Catalina Del Rey Homeowners Association.

A Homeowner’s Sewage Nightmare: 5 Surprising Lessons from a Losing Battle with an HOA

Introduction: The Dreaded HOA Letter

For many homeowners, the greatest fear isn’t a storm or a failing appliance; it’s a sudden, catastrophic repair bill. This anxiety is often magnified for those living in a planned community, where another layer of complexity—the Homeowners Association (HOA)—governs every aspect of property maintenance. A dispute with the HOA can turn a straightforward repair into a frustrating and expensive legal battle.

The case of Jennie Bennett, a resident in her home for 20 years, and the Catalina Del Rey Homeowners Association is a stark cautionary tale. After a sewage overflow caused by a malfunctioning backflow valve, Ms. Bennett found herself in a dispute with her HOA over who should pay for the repair, claiming the association had violated Sections 12(c) and 12(h)(1) of its governing documents. The resulting legal decision reveals critical, and often surprising, insights into how HOA rules are interpreted and enforced. This article breaks down the five most impactful lessons from her losing battle.

1. Location is Everything: The Critical Line Between Private and Common Property

The single most important factor in the judge’s decision was the physical location of the broken part. The entire case hinged on a simple question: was the malfunctioning backflow flap on Jennie Bennett’s private property or in an HOA-maintained common area?

The HOA argued that the plat map and photos proved the flap was located “next to Petitioner’s walk up to her front door,” placing it squarely inside her private property line. While the homeowner claimed the HOA was responsible for “sewer lines” under Sections 12(c) and 12(h)(1) of the Covenants, Conditions, and Restrictions (CC&Rs), this argument failed. The HOA’s manager, Vanessa Lubinsky, perfectly synthesized the association’s legal position when she “opined that the backflow flap was a plumbing issue, not a sewer issue, because it was located on Petitioner’s private property.”

Because the backflow flap was deemed to be on private property, it fell under Section 15 of the CC&Rs. This clause stipulated that the homeowner was responsible for the maintenance of their own plumbing, electricity, and other utilities—much like the owner of a single-family residence. The specific location of the failure, not the general nature of the system it belonged to, determined financial responsibility.

2. An HOA ‘Policy’ Can Vanish Overnight

For nearly two years, from March 2017 to February 2019, the Catalina Del Rey HOA had a “Sewer Maintenance Policy” in place. This policy, which had been in effect for nearly two years, outlined a process for handling sewage maintenance; however, once rescinded, the HOA was no longer obligated to share in repair costs. The Board of Directors rescinded this policy on February 13, 2019. The petitioner’s sewage overflow occurred on March 3, 2019—less than three weeks later.

Crucially, the HOA’s action was not arbitrary. According to case testimony, the board rescinded the policy because, “After Respondent received additional legal guidance, it was determined that the backflow flaps were located within the homeowners’ units and on private property.” This reveals a critical insight: the HOA made a calculated, legally-informed decision to shift liability back to homeowners to align with the CC&Rs.

This also highlights the significant difference between a formal, recorded CC&R and a simple board policy. As the HOA manager clarified, rescinding the policy did not require a homeowner vote because it was not an amendment to the core CC&Rs. A board can unilaterally change a policy, altering the financial obligations of every resident without a community-wide vote.

3. The High Cost of “Extremely Unfortunate” Timing

The timing of the sewage backup, occurring just after the policy change, was a devastating coincidence for the homeowner. The administrative law judge acknowledged this directly in the final decision, stating:

It was extremely unfortunate that Petitioner experienced such a sewage overflow just after Respondent rescinded the Policy.

Compounding the issue was a dispute over communication. The petitioner claimed she “was not notified of the rescission.” In her efforts to be covered, she even gathered 97 signatures on a “Grassroots petition” from her neighbors. The petitioner claimed she received no substantive response from the board regarding her repair claim until her attorney sent a formal letter on May 22, 2019. The HOA countered this, stating that notice of the policy change had been sent to homeowners via both email and postcards.

This takeaway is impactful because it demonstrates how quickly a homeowner’s rights and financial obligations can change. A simple board decision, potentially missed in a stack of mail or an overlooked email, can result in thousands of dollars in unexpected costs.

4. The Burden of Proof Is on the Homeowner, Not the HOA

In any legal dispute, one side has the “burden of proof”—the responsibility to convince the judge that their claim is true. In this HOA case, that burden fell entirely on the petitioner, Jennie Bennett.

The legal standard required her to prove her case by a “preponderance of the evidence.” This standard is defined as evidence that is sufficient to persuade a judge that a claim is more likely true than not. The legal decision provides a clear definition:

“[t]he greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Ultimately, the judge concluded that the homeowner did not meet this standard. The final order states, “Petitioner failed to establish by a preponderance of the evidence that Respondent violated Sections 12(c) and 12(h)(1) of the CC&Rs.” This underscores a critical point: when a homeowner challenges an HOA, it is their responsibility to build the winning case with convincing evidence.

Conclusion: Know Your Documents, Know Your Property Lines

The overarching lesson from Jennie Bennett’s experience is that in an HOA, the fine print matters immensely. The precise wording of the governing documents and, as this case proves, the exact location of property lines are paramount. A board policy you rely on today could be gone tomorrow, and a repair you assume is a community responsibility could be deemed yours based on a measurement of inches.

This case serves as a powerful reminder for all homeowners to be proactive. Read your CC&Rs, pay attention to all communications from your board, and understand the difference between binding covenants and changeable policies. It all comes down to one final, critical question: Do you know exactly where your maintenance responsibilities end and your HOA’s begin?

Case Participants

Petitioner Side

Jennie Bennett (petitioner)
Testified at hearing
Maxwell Riddiough (petitioner attorney)

Respondent Side

Nathan Tennyson (respondent attorney)
Brown|Olcott, PLLC
Vanessa Lubinsky (property manager)
Cadden Community Management
Testified on behalf of Respondent
Daniel (staff)
Cadden
Informed Petitioner about policy rescission

Neutral Parties

Antara Nath Rivera (ALJ)
Judy Lowe (Commissioner)
Arizona Department of Real Estate

Other Participants

JC Niles (witness)
Mentioned in Petitioner's Grassroots petition

Rick & Lisa Holly v. La Barranca II Homeowners Association

Posted on February 14, 2020 by [email protected]

Case Summary

Case ID	20F-H2019020-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-02-14
Administrative Law Judge	Diane Mihalsky
Outcome	The Administrative Law Judge dismissed the petition, finding that the Petitioners failed to establish by a preponderance of the evidence that the Respondent Homeowners Association violated A.R.S. §§ 33-1803, 33-1811, or 33-1817, or any of the cited CC&R provisions concerning intentional construction delay, conflict of interest, or retaliatory fines.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Rick and Lisa Holly	Counsel	Kevin P. Nelson, Esq.
Respondent	La Barranca II Homeowners Association	Counsel	Edward D. O’Brien, Esq.

Alleged Violations

A.R.S. § 33-1817(B); CC&R Article 11.2.5
A.R.S. § 33-1811; CC&R Article 4.7
A.R.S. § 33-1803; CC&Rs Articles 11.3 and 12

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioners failed to establish by a preponderance of the evidence that the Respondent Homeowners Association violated A.R.S. §§ 33-1803, 33-1811, or 33-1817, or any of the cited CC&R provisions concerning intentional construction delay, conflict of interest, or retaliatory fines.

Why this result: Petitioners failed to meet the burden of proof (preponderance of the evidence) on all three issues alleged in the petition.

Key Issues & Findings

Intentional delay of construction

Petitioners alleged that Respondent intentionally delayed the approval and construction of their new home for over eleven months.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

A.R.S. § 33-1817(B)
CC&R Article 11.2.5

Conflict of interest

Petitioners alleged that a Board Vice President and Secretary (who owned lots adjacent to Petitioners') were blocking approval of the home due to a conflict of interest.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

A.R.S. § 33-1811
CC&R Article 4.7

Retaliatory fines

Petitioners alleged fear of prospective retaliatory imposition of fines.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

A.R.S. § 33-1803(B)
CC&R Article 11.3
CC&R Article 12

Analytics Highlights

Topics: HOA, Planned Communities Act, Architectural Review Committee (ARC), Construction Delay, Conflict of Interest, Retaliatory Fines

Additional Citations:

A.R.S. § 33-1803
A.R.S. § 33-1803(B)
A.R.S. § 33-1811
A.R.S. § 33-1817
A.R.S. § 33-1817(B)
A.R.S. § 32-2199(B)
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
CC&R Article 4.7
CC&R Article 11.2.5
CC&R Article 11.3
CC&R Article 12

Video Overview

Audio Overview

Decision Documents

20F-H2019020-REL Decision – 769746.pdf

Uploaded 2026-01-23T17:30:42 (191.2 KB)

This decision by the Office of Administrative Hearings (OAH) addresses a three-issue petition filed by Rick and Lisa Holly (Petitioners), who are members and lot owners in the La Barranca II development, against the La Barranca II Homeowners Association (Respondent). The hearing proceedings took place on February 5 and February 7, 2020.

Key Facts and Background

The dispute centered on the Petitioners' attempt to gain Architectural Review Committee (ARC) approval for the construction of a new home on their property (Lot 50). The approval process had spanned over eleven months. Petitioners alleged that the Respondent violated Arizona statutes (A.R.S. §§ 33-1803, 33-1811, and 33-1817) and certain Covenants, Conditions, and Restrictions (CC&Rs).

Main Issues and Legal Arguments

Petitioners presented three specific claims:

Intentional Delay of Construction: Petitioners asserted that Respondent unreasonably delayed the construction of their home. The Petitioners' timeline expectations were based on their contractor's (Brilar) estimates, not statutes or association documents. The OAH found that Petitioners did not establish any undue delay attributable to the Respondent. Evidence showed that the contractor's initial plans failed to meet the Architectural Guidelines and that delays were more likely due to the contractor's "imperfect understanding of the Guidelines’ requirements". The ARC and its consultant provided guidance and conditional preliminary approval, requiring revisions based on valid considerations. Furthermore, final construction approval in September 2019 was withheld because the required $20,000 refundable construction deposit had not been paid and the site markers (surveyor pins) were missing.
Conflict of Interest: Petitioners alleged a conflict of interest because the Board's vice president, William Bohan, and secretary, Nancy Williams, jointly owned a vacant lot (Lot 49) bordering Lot 50. Petitioners offered only suppositions that Mr. Bohan and Ms. Williams were "blocking approval" due to personal negative opinions. The OAH ruled that Petitioners did not establish that Mr. Bohan had an undeclared conflict of interest under A.R.S. § 33-1811, acknowledging that in a small development, volunteers on the board and ARC will naturally be regulating their neighbors.
Retaliatory Fines: Petitioners feared retaliatory imposition of fines based on the Respondent previously fining other owners for "petty offenses". The OAH concluded that this claim, which implicated A.R.S. § 33-1803(B) concerning monetary penalties, failed because the Respondent had not assessed any fines or penalties against the Petitioners. The claim was based entirely on speculation.

Outcome and Final Decision

Petitioners bore the burden of proving violations by a preponderance of the evidence. Since Petitioners failed to establish by a preponderance of the evidence that Respondent violated any statute or CC&R, the Administrative Law Judge (ALJ) Diane Mihalsky issued a Recommended Order that the petition be dismissed. The Order became binding unless a rehearing was granted.

Fees
Architectural Review
CC&Rs

Case

Docket No: 20F-H2019020-REL
Case Title: Rick and Lisa Holly vs. La Barranca II Homeowners Association
Decision Date: 2020-02-14
Alj Name: Diane Mihalsky
Tribunal: OAH
Agency: ADRE

Questions

Question

Does a board member have a conflict of interest just because they own a lot next to mine?

Short Answer

No. Owning a neighboring lot does not automatically create a conflict of interest or imply bias.

Detailed Answer

Alj Quote

Legal Basis

A.R.S. § 33-1811

Topic Tags

Conflict of Interest
Board of Directors
Neighbors

Question

Is the Architectural Review Committee (ARC) required to help me design my home to meet the guidelines?

Short Answer

No. The ARC's role is to review submitted plans for compliance, not to assist in the design process.

Detailed Answer

Alj Quote

It is not ARC’s job to help an owner design a home that complies with Respondent’s Guidelines, only to review plans that are submitted for compliance.

Legal Basis

CC&Rs Article 11

Topic Tags

Architectural Review
Design Guidelines
HOA Obligations

Question

Can I file a complaint against my HOA because I am afraid they might fine me in the future?

Short Answer

No. You cannot base a legal complaint on the speculation of future retaliatory fines.

Detailed Answer

Alj Quote

Legal Basis

A.R.S. § 33-1803(B)

Topic Tags

Fines
Retaliation
Dispute Resolution

Question

Who has to prove that the HOA violated the rules in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

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)

Topic Tags

Legal Standards
Burden of Proof
Hearings

Question

Is the HOA responsible for delays if my builder doesn't understand the design guidelines?

Short Answer

No. The HOA is not liable for delays caused by a builder's failure to submit compliant plans.

Detailed Answer

Alj Quote

Legal Basis

A.R.S. § 33-1817(B)

Topic Tags

Architectural Review
Construction Delays
Vendor Issues

Question

Can I rely on my contractor's timeline estimates for when the HOA will approve my plans?

Short Answer

No. You should rely on the timelines specified in the CC&Rs and statutes, not third-party estimates.

Detailed Answer

Alj Quote

Legal Basis

N/A

Topic Tags

Timelines
Construction
Expectations

Question

Can the HOA charge a fee for reviewing architectural plans?

Short Answer

Yes, if the CC&Rs allow for it.

Detailed Answer

The decision affirms that CC&Rs can grant the Architectural Review Committee the power to assess reasonable fees in connection with the review of plans.

Alj Quote

Article 11.3 of Respondent’s CC&Rs concerns general provisions for the ARC, including that it may assess reasonable fees in connection with its review of plans . . .

Legal Basis

CC&Rs Article 11.3

Topic Tags

Fees
Architectural Review
CC&Rs

Case

Docket No: 20F-H2019020-REL
Case Title: Rick and Lisa Holly vs. La Barranca II Homeowners Association
Decision Date: 2020-02-14
Alj Name: Diane Mihalsky
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Rick Holly (petitioner)
La Barranca II Homeowners Association Member
Lisa Holly (petitioner)
La Barranca II Homeowners Association Member
Also referred to as Mrs. Holly
Kevin P. Nelson (petitioner attorney)
Tiffany & Bosco
Brian Bracken (witness/contractor's principal)
Brilar Homes, LLC
Petitioners' general contractor
Larry E. Smith (witness/contractor's principal)
Brilar Homes, LLC
Petitioners' general contractor

Respondent Side

La Barranca II Homeowners Association (respondent)
HOA party
Edward D. O’Brien (HOA attorney)
Carpenter, Hazlewood, Delgado & Bolen, LLP
Alexia Firehawk (HOA attorney)
Carpenter, Hazlewood, Delgado & Bolen, LLP
William Bohan (HOA board member/ARC member/witness)
La Barranca II Homeowners Association
Board Vice President
Nancy Williams (HOA board member/ARC member)
La Barranca II Homeowners Association
Board Secretary
Luke Hyde (property manager staff)
Hoamco
Architectural Department Manager
Josh Hall (property manager staff)
Hoamco
Architectural Department Staff
Neil True (architect consultant)
Hoamco/ARC Consultant
Consultant architect reviewing plans

Neutral Parties

Diane Mihalsky (ALJ)
OAH
John Davis (fire marshall)
Sedona District Fire Marshall
Consulted by HOA regarding dumpster placement
Judy Lowe (ADRE Commissioner)
Arizona Department of Real Estate

John B. Clark Jr. v. Foothills Community Association

Posted on February 4, 2020 by [email protected]

Case Summary

Case ID	20F-H2019007-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-02-04
Administrative Law Judge	Velva Moses-Thompson
Outcome	The Administrative Law Judge dismissed the petition, ruling that the Petitioner failed to prove the HOA violated its Articles of Incorporation or Bylaws when removing him from the Design Review Committee. The judge found the HOA replaced the Petitioner to ensure quorum could be met, not for pretextual or political reasons.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	John B. Clark Jr.	Counsel	Mitchell Vasin
Respondent	Foothills Community Association	Counsel	B. Austin Baillio

Alleged Violations

Articles of Incorporation 1, 5, 6, 11, 12, 15; Bylaws Art II 2.3, Art III 3.5, Art IV 4.8(c)

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the Petitioner failed to prove the HOA violated its Articles of Incorporation or Bylaws when removing him from the Design Review Committee. The judge found the HOA replaced the Petitioner to ensure quorum could be met, not for pretextual or political reasons.

Why this result: The HOA provided evidence that the removal was based on the need to ensure quorum for meetings, given Petitioner's frequent absences. Petitioner did not meet the burden of proof to show bad faith or specific bylaw violations.

Key Issues & Findings

Removal from Design Review Committee

Petitioner alleged the HOA removed him from the Design Review Committee (DRC) for pretextual reasons and in bad faith, violating various Articles and Bylaws.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_lose

Video Overview

Audio Overview

Decision Documents

20F-H2019007-REL Decision – 767866.pdf

Uploaded 2026-04-24T11:22:49 (103.9 KB)

Administrative Law Judge Decision: Clark v. Foothills Community Association (No. 20F-H2019007-REL)

Executive Summary

In February 2020, Administrative Law Judge (ALJ) Velva Moses-Thompson issued a decision in the matter of John B. Clark Jr. v. Foothills Community Association. The case centered on a petition filed by Mr. Clark, a long-term member of the Association’s Design Review Committee (DRC), who was removed from his position in July 2019.

The Petitioner alleged that his removal was based on "pretextual" reasons and "bad faith," asserting violations of the Association's Articles of Incorporation and Bylaws. The Respondent, Foothills Community Association, maintained that the removal was necessitated by the Petitioner's chronic absenteeism and the DRC's requirement to meet a quorum to conduct business.

The ALJ ruled in favor of the Association, dismissing the petition. The decision concluded that the Petitioner failed to meet the burden of proof required to establish any violations of governing documents or statutes. The ruling affirmed that the Association's need for operational efficiency and quorum maintenance constituted a valid, non-pretextual reason for removing a committee member.

Analysis of Key Themes

1. Operational Necessity and Quorum Requirements

The central justification for the Petitioner's removal was the Association's inability to ensure a quorum for DRC meetings. The DRC meetings were held on the second Wednesday of every month. Evidence presented by the Respondent indicated that the Petitioner’s attendance had been significantly inconsistent:

Long-term attendance: Since April 2015, the Petitioner attended 19 out of 54 meetings.
Recent attendance: In the 18 meetings prior to his removal, the Petitioner attended only four.

The Association argued that while alternates could be called when a quorum was not met, those alternates were often unavailable. Consequently, the Board determined that replacing the Petitioner with a more consistently available member was necessary for the Committee to conduct business efficiently.

2. Allegations of Pretext and "Politics"

The Petitioner contended that his removal "wreaked of politics" and was done in bad faith. He argued that:

His professional commitments as an Air Force Reservist, realtor, and American Airlines pilot were known to the Board since 2011.
A change in meeting time from 3:00 PM to 2:00 PM made attendance more difficult.
No one had previously expressed concerns regarding his absences.

Despite these assertions, the ALJ found that the Petitioner provided no substantive evidence to prove that the Association’s stated reason—the need for a quorum—was a pretext for a different, underlying motive.

3. Procedural Compliance and Governance

The Association demonstrated adherence to procedural requirements regarding the removal and appointment of committee members:

Notice and Agendas: Meeting notices and agendas for the May and June 2019 Board meetings (where DRC appointments were discussed) were uploaded to the Association's website.
Public Deliberation: The minutes of the May 22, 2019, meeting noted that new members would be appointed. The June 26, 2019, minutes recorded the unanimous approval of two new DRC members and two alternates.
Documentation: The Respondent’s Bylaws (Article IV, Section 4.8(c)) require the secretary to keep minutes of all proceedings, a duty the ALJ found the Association had fulfilled.

4. Legal Standards and Jurisdiction

The case highlighted several critical legal boundaries:

Burden of Proof: The Petitioner bore the burden of proof to establish violations by a "preponderance of the evidence"—meaning the contention is more probably true than not. The ALJ found the Petitioner failed this standard for all alleged violations.
Jurisdictional Limits: The ALJ noted that the Office of Administrative Hearings (OAH) lacks jurisdiction to determine violations of A.R.S. § 10-3830.
Attorney's Fees: The Respondent’s request for attorney’s fees was denied. The ALJ ruled that the Department of Real Estate and OAH are not empowered by statute to award attorney's fees in these specific administrative proceedings, as they do not constitute a "court action."

Important Quotes and Context

Regarding the Removal Notice

"With the need for the Committee to meet quorum on a monthly basis to conduct business in an efficient manner for the homeowners, and recognizing your commitments and schedule often necessitate your absence, the Board has selected a new member for the Committee."

— Foothills Board of Directors, Letter to John B. Clark Jr. (July 10, 2019)

Context: This was the formal notification sent to the Petitioner. It framed the removal as a matter of organizational efficiency rather than personal performance or misconduct.

Regarding Attendance Records

"The truth of the matter is, since April of 2015 you have attended only 19 of the 54 DRC meetings and only 4 of the last 18."

— Michael Owen (Board Member), Email to Petitioner (July 16, 2019)

Context: This email provided the factual basis for the Board's decision, countering the Petitioner's claim that his removal was politically motivated.

Regarding the ALJ's Legal Conclusion

"Petitioner failed to establish by a preponderance of the evidence that Respondent removed him from the DRC for a pretextual reason. The preponderance of the evidence shows that Respondent removed Petitioner and replaced him with a new member due to its desire to meet quorum on a monthly basis."

— Velva Moses-Thompson, Administrative Law Judge

Context: This is the core legal finding that led to the dismissal of the petition, affirming the Association's right to manage committee membership based on attendance.

Actionable Insights

For Homeowners' Associations (HOAs)

Maintain Rigorous Attendance Records: The Association’s ability to provide specific attendance statistics (19 of 54 meetings) was crucial in defending against claims of "pretext."
Utilize Public Agendas and Minutes: Transparency in documenting when committee changes will be discussed and decided protects the Board from allegations of "bad faith" or "secret" dealings.
Link Removals to Operational Needs: When removing a volunteer or committee member, framing the decision around "the need to meet quorum" and "conduct business in an efficient manner" provides a defensible, objective rationale.

For Committee Members and Volunteers

Communication of Absences is Not Immunity: While the Petitioner asserted he always notified the DRC of his absences, the ruling suggests that even "excused" or explained absences can lead to removal if they hinder the committee's ability to reach a quorum.
Monitor Association Digital Platforms: The Petitioner claimed he was unaware of the pending changes, but the ALJ noted that notices and agendas were available on the Association website and sent via standard channels.

Procedural Note on Litigation

Attorney's Fee Limitations: Parties entering administrative hearings through the Arizona Department of Real Estate should be aware that, unlike standard civil litigation, the prevailing party is generally not entitled to recover attorney's fees because the hearing is an administrative claim rather than a court "action."

Comprehensive Study Guide: Clark v. Foothills Community Association (Case No. 20F-H2019007-REL)

This study guide provides a comprehensive overview of the administrative hearing between John B. Clark Jr. (Petitioner) and Foothills Community Association (Respondent). It explores the legal issues, findings of fact, and the ultimate decision rendered by the Administrative Law Judge (ALJ) regarding a dispute over removal from a homeowners’ association committee.

I. Key Concepts

Administrative Jurisdiction and Authority

The Arizona Department of Real Estate is authorized by statute to receive and decide petitions regarding homeowners’ associations (HOAs). While the Department has jurisdiction over certain Title 33 violations, an Administrative Law Judge (ALJ) does not have jurisdiction over all laws; for instance, the ALJ in this case noted a lack of jurisdiction to determine violations of A.R.S. § 10-3830.

Burden of Proof: Preponderance of the Evidence

In administrative hearings of this nature, the Petitioner bears the burden of proof. They must establish that the Respondent violated the governing documents (Articles of Incorporation or Bylaws) by a "preponderance of the evidence." This standard means the contention must be shown to be more probably true than not, possessing superior evidentiary weight that inclines a fair mind to one side.

The Role of the Design Review Committee (DRC)

The DRC is a specialized committee within the HOA. Maintaining a quorum—the minimum number of members required to be present—is essential for the committee to conduct business efficiently for the homeowners.

Procedural Transparency

HOA operations are governed by transparency requirements. This includes:

Notice and Agendas: Meeting notices and agendas must be uploaded to the association’s website.
Open Sessions: Significant actions, such as the appointment or removal of committee members, should be recorded in the minutes of Board of Director’s Open Session Meetings.
Record Keeping: Bylaws typically require the secretary to keep minutes of all proceedings of the Board and the Members.

Attorney’s Fees in Administrative Hearings

In Arizona administrative proceedings involving a member’s petition against an HOA filed with the Department of Real Estate, the Department and the Office of Administrative Hearings (OAH) are not empowered to award attorney’s fees. This is because such hearings are not considered "actions" under the statutes that typically authorize such awards.

II. Short-Answer Practice Questions

1. Who were the primary parties involved in Case No. 20F-H2019007-REL?

Answer: John B. Clark Jr. (Petitioner) and Foothills Community Association (Respondent).

2. How long did the Petitioner serve on the Design Review Committee (DRC) before his removal?

Answer: From 2011 to 2019.

3. What specific reason did the Board of Directors provide in their July 10, 2019, letter for selecting a new DRC member?

Answer: The need for the Committee to meet quorum on a monthly basis and the recognition that the Petitioner's schedule necessitated frequent absences.

4. According to the testimony of Michael Owen, what was the Petitioner’s attendance record for DRC meetings since April 2015?

Answer: He attended only 19 of 54 DRC meetings, and only 4 of the most recent 18.

5. Which specific Articles of Incorporation did the Petitioner allege were violated?

Answer: Articles 1, 5, 6, 11, 12, and 15.

6. What was the Petitioner's professional background, and why did it impact his attendance?

Answer: He was an Air Force Reservist, a realtor, and a pilot for American Airlines. His "on call" schedule as a pilot made it difficult to attend meetings, especially after the meeting time was moved from 3:00 PM to 2:00 PM.

7. On what dates were the Open Session Meetings held where the DRC membership was discussed and finalized?

Answer: May 22, 2019, and June 26, 2019.

8. What was the ALJ’s final ruling regarding the Petitioner’s claim of "pretextual" removal?

Answer: The ALJ concluded the Petitioner failed to prove the removal was pretextual, finding instead that the Respondent removed him due to the desire to meet quorum monthly.

9. Why was the Respondent’s request for attorney’s fees denied?

Answer: The legislature has not authorized the Department or OAH to award attorney’s fees in these specific administrative proceedings.

III. Essay Prompts for Deeper Exploration

1. Analyzing the Preponderance of Evidence Explain the concept of "preponderance of the evidence" as defined in the document. How did this standard influence the ALJ's decision to dismiss the petition despite the Petitioner’s claims of political motivations?

2. Organizational Efficiency vs. Member Commitment The Board acknowledged the Petitioner’s years of service but ultimately replaced him to ensure a quorum. Discuss the balance between an HOA’s duty to its members to "conduct business in an efficient manner" and its relationship with long-serving volunteers who have professional scheduling conflicts.

3. Procedural Due Process in HOAs The Petitioner claimed he was removed in "bad faith" and for "pretextual" reasons. Evaluate the role of the Association’s website, meeting minutes, and agendas in providing a defense against these claims. How does documented transparency (as shown by Ms. Wontor's testimony) serve as a legal safeguard for homeowners’ associations?

IV. Glossary of Important Terms

Term	Definition
Administrative Law Judge (ALJ)	A judge who conducts hearings and makes decisions in disputes involving administrative agencies.
Bylaws	The internal rules and regulations that govern the day-to-day operations of an organization, such as an HOA.
Design Review Committee (DRC)	A committee within an HOA responsible for reviewing and approving changes to properties to ensure they meet community standards.
Homeowners’ Association (HOA)	An organization in a planned community that makes and enforces rules for the properties and its residents.
Jurisdiction	The official power to make legal decisions and judgments over a specific matter or geographic area.
Preorderance of the Evidence	The evidentiary standard in civil cases where a claim is proved if it is shown to be more likely true than not.
Pretextual	A reason given in justification of a course of action that is not the real reason; a false excuse.
Quorum	The minimum number of members of an assembly or committee that must be present at any of its meetings to make the proceedings of that meeting valid.
Respondent	The party against whom a petition is filed; in this case, the Foothills Community Association.
Statute	A written law passed by a legislative body.

Attendance and Authority: Lessons from a Design Review Committee Removal Dispute

1. Introduction: A Conflict in the Foothills

In the administrative case of John B. Clark Jr. vs. Foothills Community Association, we see a classic governance conflict: the tension between a volunteer’s personal professional excellence and the operational needs of a homeowners’ association (HOA). Mr. Clark, a long-serving volunteer on the Design Review Committee (DRC) from 2011 to 2019, challenged his removal after the Board of Directors replaced him to ensure consistent meeting quorums. The resulting legal battle, adjudicated by the Arizona Office of Administrative Hearings (OAH), serves as a masterclass in how boards must navigate "bad faith" allegations and "pretextual" removal claims. This post analyzes the Administrative Law Judge's (ALJ) decision and provides actionable insights for boards facing similar volunteer disputes.

2. The Petitioner’s Case: Claims of Political Pretext

The Petitioner, Mr. Clark, was a highly accomplished community member—an Air Force Reservist, realtor, and pilot for American Airlines. His defense fell into a common "governance trap": the belief that professional stature and a history of service create a permanent right to a committee seat, regardless of current availability. Clark argued that the Board had been aware of his demanding "on call" schedule since 2011 and that he consistently communicated his availability.

When the Board removed him in 2019, Clark alleged the decision "reeked of politics" and was executed in bad faith. He claimed his removal violated several of the Association’s governing documents, specifically:

Articles of Incorporation: Articles 1, 5, 6, 11, 12, and 15.
Bylaws: Article II, Section 2.3; Article III, Section 3.5; and Article IV, Section 4.8(c).

Clark’s frustration stemmed from a lack of prior warnings regarding his absences, particularly after a meeting time change from 3:00 p.m. to 2:00 p.m. made his attendance more difficult. However, as the ruling would show, a volunteer's personal schedule does not override the Association’s duty to maintain a functioning committee.

3. The Association’s Defense: The Reality of Meeting Quorum

The Foothills Community Association (the Respondent) framed the removal not as a personal or political attack, but as an operational necessity. In a formal letter dated July 10, 2019, the Board thanked Mr. Clark for his years of service while explicitly stating that the DRC required a monthly quorum to conduct business efficiently for all homeowners.

To prove this wasn't "pretextual," the Association relied on hard data provided by Board member Michael Owen.

The Attendance Record The Association’s records revealed a significant lack of participation. Since April 2015, the Petitioner attended only 19 out of 54 DRC meetings. More critically, he attended only 4 of the last 18 meetings prior to his removal.

The Association further demonstrated a transparent process. Community Manager Patricia Wontor testified that meeting notices and agendas were posted on the association's website. Crucially, the Board proved that the decision was not made in the dark: the open session minutes from May 22, 2019, and June 26, 2019, documented the discussion and unanimous approval of the new DRC appointments.

4. The ALJ Decision: Burden of Proof and Findings of Fact

In these proceedings, the Petitioner bears the burden of proof under the "Preponderance of the Evidence" standard. This requires proving that a contention is "more probably true than not," or that the evidence has "the most convincing force."

The ALJ found that Clark failed to meet this burden. While Clark felt the removal was political, the Association’s documented evidence of poor attendance provided a legitimate, non-pretextual reason for the Board’s action.

A vital legal takeaway for boards is the "Jurisdiction Gap" identified in this case. The Petitioner attempted to argue that the Association violated A.R.S. § 10-3830. However, the ALJ ruled that the OAH lacked jurisdiction over this statute. This is because the Department of Real Estate and OAH are limited to hearing disputes regarding Title 33 (the HOA and Planned Communities statutes). A.R.S. § 10-3830 falls under Title 10 (the Nonprofit Corporation Act). Homeowners often attempt to use corporate law in these hearings, but a Governance Specialist knows that administrative judges are strictly confined to the "single-issue" jurisdiction of Title 33.

5. Why Attorney's Fees Were Denied

A significant risk for associations in OAH disputes is the "American jurisprudence" principle regarding legal costs. Even though the Foothills Community Association prevailed, their request for attorney’s fees was denied.

In Arizona, A.R.S. § 12-341.01(A) allows a winning party to recover fees in "actions" arising out of a contract. However, the ALJ clarified that an administrative hearing before the Department of Real Estate is not an "action" in the legal sense. Because the legislature has not specifically granted the OAH the power to award fees in these administrative member petitions, each party must bear their own costs. Boards should always weigh this financial reality—that they may win the case but still lose the legal fees—when deciding whether to litigate or settle.

6. Key Takeaways for Homeowners and Boards

This case provides a roadmap for defensible committee management:

Attendance is Essential: Participation logs are the ultimate defense. Boards have a fiduciary duty to ensure committees can meet quorum; if a member cannot participate, removal is a legitimate and defensible operational choice.
Minutes are the "Smoking Gun": The Association’s victory was secured by the May 22 and June 26, 2019 minutes. These proved the Board followed a transparent process in open sessions, neutralizing claims of "secret" political maneuvering.
The Burden of Proof is High: Petitioners must provide more than "feelings" of bad faith. They must provide evidence that outweighs the Association’s documented business reasons.
Know Your Statutes: Administrative hearings are restricted. Arguments based on the Nonprofit Corporation Act (Title 10) will likely be dismissed for lack of jurisdiction in a forum designed for Title 33 disputes.

7. Conclusion

The dispute in the Foothills highlights the need for clear, proactive communication regarding volunteer expectations. While the Association's decision was legally sound, a formal attendance policy might have prevented the dispute entirely.

The Final Order, issued February 4, 2020, dismissed the petition and stands as a binding decision. For any party dissatisfied with such a ruling, the only recourse is a formal request for a rehearing, which must be filed with the Commissioner of the Department of Real Estate within 30 days of the order's service. This case serves as a reminder that in HOA governance, objective data and recorded minutes are a board’s strongest shield.

Case Participants

Petitioner Side

John B. Clark Jr. (petitioner)
Foothills Community Association
Homeowner; former Design Review Committee (DRC) member; Air Force Reservist; realtor; pilot
Mitchell Vasin (petitioner attorney)
Vasin & Rocco, PLLC
Appeared on behalf of Petitioner

Respondent Side

B. Austin Baillio (respondent attorney)
Maxwell & Morgan, P.C.
Appeared on behalf of Respondent
Patricia Wontor (property manager)
Premier Community Management
Community Manager for Foothills Community Association; witness
Michael Owen (board member)
Foothills Community Association
Witness; sent email to Petitioner regarding removal
Jeffrey B. Corben (respondent attorney)
Maxwell & Morgan, P.C.
Listed on service list

Neutral Parties

Velva Moses-Thompson (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Recipient of transmitted order
A. Leverette (clerk)
Office of Administrative Hearings
Signed transmission of order

Mary J Bartle vs. Saguaro West Owner’s Association

Posted on January 30, 2020 by [email protected]

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

Case Summary

Case ID	19F-H1919059-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2020-01-30
Administrative Law Judge	Thomas Shedden
Outcome	The Administrative Law Judge affirmed the original conclusion and dismissed the petition, finding that the Petitioner failed to meet the burden of proof that the Association violated Bylaws Article VIII, section 8(d) regarding the contested $49,000.50 fund transaction.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Mary J Bartle	Counsel	—
Respondent	Saguaro West Owner's Association	Counsel	Nicole Payne, Esq.

Alleged Violations

Bylaws Article VIII, section 8(d)

Outcome Summary

The Administrative Law Judge affirmed the original conclusion and dismissed the petition, finding that the Petitioner failed to meet the burden of proof that the Association violated Bylaws Article VIII, section 8(d) regarding the contested $49,000.50 fund transaction.

Why this result: Petitioner failed to show by a preponderance of the evidence that the transactions violated the specific duties of the treasurer set out in Bylaws Article VIII, section 8(d).

Key Issues & Findings

Alleged violation of Treasurer duties regarding fund transactions

The petitioner alleged the Association violated Bylaws Article VIII, section 8(d) by withdrawing and redepositing $49,000.50 from the operating account. The ALJ concluded that Petitioner failed to show by a preponderance of the evidence that these transactions violated the specific duties of the treasurer set forth in that section.

Orders: Petitioner Mary J. Bartle’s petition is dismissed and Respondent is deemed the prevailing party in this matter.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section and title 12, chapter 7, article 6
ARIZ. REV. STAT. section 12-904(A)

Analytics Highlights

Topics: HOA, Bylaws, Treasurer Duties, Dismissal, Burden of Proof, Rehearing

Additional Citations:

ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section and title 12, chapter 7, article 6
ARIZ. REV. STAT. section 12-904(A)

Video Overview

Audio Overview

Decision Documents

19F-H1919059-REL-RHG Decision – 767041.pdf

Uploaded 2026-01-23T17:29:24 (94.6 KB)

Briefing Document: Bartle vs. Saguaro West Owner’s Association (Case No. 19F-H1919059-REL-RHG)

Executive Summary

This briefing document analyzes the Administrative Law Judge Decision in the matter of Mary J. Bartle vs. Saguaro West Owner’s Association. The final order, issued on January 30, 2020, dismissed the petition brought by Ms. Bartle. The core of the case revolved around a financial transaction where $49,000.50 was withdrawn from the Association’s operating account on October 22, 2018, and redeposited on November 30, 2018.

The petitioner, Ms. Bartle, alleged this transaction violated a specific provision of the Association’s bylaws—Article VIII, section 8(d)—which outlines the duties of the Treasurer. Despite two hearings, the Administrative Law Judge consistently concluded that Ms. Bartle failed to meet her burden of proof. The central finding was that while evidence suggested the transaction “may have been in violation of the law or otherwise improper,” the petitioner did not demonstrate, by a preponderance of the evidence, how this transaction specifically violated any of the enumerated duties of the Treasurer as set forth in the cited bylaw. The decision underscores a critical legal distinction between a potentially improper act and a proven violation of the specific bylaw under which the complaint was filed.

Case Overview

Case Name

Mary J. Bartle, Petitioner, vs. Saguaro West Owner’s Association, Respondent

Case Number

19F-H1919059-REL-RHG

Jurisdiction

Arizona Department of Real Estate, Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Thomas Shedden

Petitioner

Mary J. Bartle (representing herself)

Respondent

Saguaro West Owner’s Association (represented by Nicole Payne, Esq.)

Rehearing Date

January 14, 2020

Final Decision Date

January 30, 2020

Procedural History and Core Allegation

The case proceeded through an initial hearing and a subsequent rehearing, following a specific timeline of events:

• April 22, 2019: Ms. Bartle filed the initial petition with the Arizona Department of Real Estate.

• August 29, 2019: The first hearing was held. At the outset, a discussion was held to narrow the scope of the hearing. Ms. Bartle agreed to limit her petition to a single issue.

• The Single Issue: Whether the Association violated Bylaws Article VIII, section 8(d) through a withdrawal of $49,000.50 on October 22, 2018, and a redeposit of the same amount on November 30, 2018.

• September 18, 2019: The initial Administrative Law Judge Decision was issued, dismissing Ms. Bartle’s petition.

• October 23, 2019: Ms. Bartle filed a request for a rehearing, asserting an error in the admission of evidence.

• November 18, 2019: The Department of Real Estate granted the request for a rehearing.

• January 14, 2020: The rehearing was convened. Ms. Bartle testified, while the Respondent presented no witnesses.

• January 30, 2020: The final Administrative Law Judge Decision was issued, reaffirming the dismissal of the petition.

At the rehearing, Ms. Bartle testified “to the effect that laws must have been violated by the withdrawal and redepositing of the $49,000.50 without the Association’s members being provided any notice of these transactions.”

Analysis of Bylaw and Judicial Findings

Bylaw Article VIII, Section 8(d): The Treasurer’s Duties

The entirety of the petitioner’s case rested on proving a violation of the specific duties outlined for the Treasurer in the Association’s bylaws. The text of the bylaw is as follows:

The Treasurer shall receive and deposit in the Association’s bank accounts all monies received by the Association and shall disburse such funds as directed by resolution [of] the Board of Directors; shall properly prepare and sign all checks before presenting them to be co-signed; keep proper books of account; cause an annual audit of the Association’s books to be made by a public accountant at the completion of each fiscal year; and shall prepare an annual budget to be presented to the membership at the annual meeting; to cause all Federal and State reports to be prepared; and shall prepare all monthly statements of finance for the Board of Directors.

Key Judicial Findings and Conclusions

The Administrative Law Judge’s decision hinged on the petitioner’s failure to connect the disputed financial transaction to a specific violation of the duties listed above. The judge made a clear distinction between the potential impropriety of the transaction and the narrow scope of the legal claim.

• Initial Hearing Conclusion: The decision from the first hearing, which the judge took notice of in the rehearing, established the core finding:

• Rehearing Conclusion: The final decision after the rehearing reinforced this exact point, stating:

Ultimately, the case was dismissed because Ms. Bartle did not meet the legal standard required to prove her specific claim.

Legal Framework and Final Order

Applicable Legal Standards

The decision was grounded in several key legal principles cited by the Administrative Law Judge:

• Jurisdiction: The Arizona Department of Real Estate possesses authority over the matter pursuant to ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.

• Burden of Proof: Ms. Bartle, as the petitioner, bore the burden of proof on all issues.

• Standard of Proof: The standard was a “preponderance of the evidence,” defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

• Contractual Nature of Bylaws: Citing McNally v. Sun Lakes Homeowners Ass’n #1, Inc., the decision notes that “The Bylaws are a contract between the parties and the parties are required to comply with its terms.”

Final Order and Implications

Based on the failure to meet the burden of proof, the Administrative Law Judge issued a binding order with the following key points:

1. Dismissal: Petitioner Mary J. Bartle’s petition is dismissed.

2. Prevailing Party: The Respondent, Saguaro West Owner’s Association, is deemed the prevailing party.

3. Appeal Rights: A party wishing to appeal the order must seek judicial review with the superior court within thirty-five days from the date the order was served, as prescribed by ARIZ. REV. STAT. sections 12-904(A) and Title 12, Chapter 7, Article 6.

Study Guide: Bartle v. Saguaro West Owner’s Association

This guide provides a detailed review of the Administrative Law Judge Decision in case number 19F-H1919059-REL-RHG. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the legal matter.

——————————————————————————–

Quiz: Short-Answer Questions

Instructions: Answer the following questions in two to three complete sentences, drawing all information directly from the case document.

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

2. What specific financial transaction was the central subject of the petitioner’s complaint?

3. Which specific article and section of the Association’s Bylaws did the petitioner claim was violated?

4. What was the legal standard of proof that the petitioner was required to meet, and who had the burden of proof?

5. On what grounds did Ms. Bartle file her request for a rehearing after the initial decision?

6. According to the judge’s decision, what was the key failure in the petitioner’s argument regarding the financial transaction?

7. What was the final order issued by the Administrative Law Judge on January 30, 2020?

8. Although the judge dismissed the petition, what did the decision state about the nature of the financial transactions?

9. Which government department granted the request for a rehearing and has authority over this type of matter?

10. What options does a party have if they wish to appeal the final administrative law judge order?

——————————————————————————–

Answer Key

1. The primary parties were the Petitioner, Mary J. Bartle, and the Respondent, Saguaro West Owner’s Association. Ms. Bartle brought the petition against the Association, alleging a violation of its bylaws.

2. The central subject was the withdrawal of $49,000.50 from the Association’s operating account on October 22, 2018. The same amount was subsequently redeposited into the account on November 30, 2018.

3. The petitioner claimed the Association violated Bylaws Article VIII, section 8(d). This section outlines the specific duties and responsibilities of the Association’s Treasurer.

4. The standard of proof was a “preponderance of the evidence.” The burden of proof was on the petitioner, Ms. Bartle, to demonstrate that the Association had violated the bylaw.

5. Ms. Bartle filed her Rehearing Request on the grounds that there was an error in the admission of evidence. She specifically referenced documents dated July 5, August 6, and September 13, 2019, in her request.

6. The key failure was that Ms. Bartle did not show by a preponderance of the evidence that the withdrawal and redeposit specifically violated any of the treasurer’s duties as explicitly listed in Bylaws Article VIII, section 8(d). Her claim was too narrow for the evidence she presented.

7. The final order was that Petitioner Mary J. Bartle’s petition be dismissed. The Respondent, Saguaro West Owner’s Association, was deemed to be the prevailing party in the matter.

8. The decision stated that there was evidence to suggest that the withdrawal and redeposit of the $49,000.50 “may have been in violation of the law or otherwise improper.” However, this was not sufficient to prove a violation of the specific bylaw in question.

9. The Arizona Department of Real Estate granted the rehearing on November 18, 2019. This department has authority over the matter as established by ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.

10. A party wishing to appeal the order must seek judicial review as prescribed by Arizona Revised Statutes. The appeal must be filed with the superior court within thirty-five days from the date the order was served upon the parties.

——————————————————————————–

Essay Questions

Instructions: Consider the following questions for a deeper analysis of the case. Formulate a comprehensive response based solely on the information provided in the source document.

1. Analyze the concept of “preponderance of the evidence” as defined in the decision. Explain why Mary J. Bartle failed to meet this standard, despite the judge’s acknowledgment that the transaction may have been “improper” or in “violation of the law.”

2. Discuss the procedural significance of limiting the hearing to the single issue of Bylaws Article VIII, section 8(d). How might the case’s outcome have differed if the scope of the hearing had been broader?

3. Trace the complete timeline of the case from the initial petition filing in April 2019 to the final order in January 2020. What do the key events and dates reveal about the process of administrative hearings and rehearings?

4. Based on the full text of Bylaws Article VIII, section 8(d), what specific types of evidence would the petitioner have needed to present to successfully prove that the treasurer’s duties were violated by the $49,000.50 transaction?

5. Evaluate the distinction made by the Administrative Law Judge between a transaction that is potentially illegal or improper and a transaction that specifically violates the duties enumerated in Bylaws Article VIII, section 8(d). Why is this distinction critical to the final order of dismissal?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, weighs evidence, and issues decisions on matters under the jurisdiction of a government agency. In this case, the ALJ was Thomas Shedden.

ARIZ. ADMIN. CODE

The Arizona Administrative Code, a compilation of rules and regulations of Arizona’s state agencies. Section R2-19-119 is cited as establishing the standard of proof.

ARIZ. REV. STAT.

The Arizona Revised Statutes, which are the codified laws of the state of Arizona. Various sections are cited to establish jurisdiction and the appeals process.

Bylaws

A set of rules established by an organization, such as a homeowners’ association, to regulate itself. In this case, the bylaws are treated as a binding contract between the parties.

Conclusion of Law

The section of a legal decision where the judge applies legal principles and statutes to the established facts of the case.

Finding of Fact

The section of a legal decision that lists the factual determinations made by the judge based on the evidence presented during the hearing.

Judicial Review

The process by which a court of law reviews the decision of a lower court or an administrative agency to determine if the decision was legally sound.

Office of Administrative Hearings (OAH)

A state agency that provides a neutral forum for conducting administrative hearings for other state agencies. The hearings in this matter were held at the OAH.

Petitioner

The party who initiates a lawsuit or files a petition seeking a legal remedy. In this case, the petitioner was Mary J. Bartle.

Preponderance of the Evidence

The standard of proof in most civil cases. It is met when the evidence presented has the most convincing force and is sufficient to incline a fair and impartial mind to one side of an issue over the other.

Prevailing Party

The party in a legal dispute who is successful and in whose favor the judgment is rendered. In this case, the Respondent was deemed the prevailing party.

Rehearing

A second hearing of a case to consider new evidence or to argue against the original decision on the basis of an error. Ms. Bartle’s request for a rehearing was granted.

Respondent

The party against whom a petition is filed. In this case, the respondent was the Saguaro West Owner’s Association.

A Homeowner Found a Mysterious $49,000 Transaction in Her HOA’s Books. The Reason She Lost in Court Is a Lesson for Everyone.

Introduction: The David-vs-Goliath Fight That Didn’t Go as Planned

For many homeowners, dealing with a Homeowners’ Association (HOA) can feel like a constant battle for transparency and fairness. It’s a common story: a resident raises concerns about financial decisions made behind closed doors, only to be met with resistance or silence. But what happens when a homeowner pushes back and takes that fight to an administrative hearing?

After an initial hearing and a persistent request for a rehearing, the final decision in Mary J. Bartle’s case against the Saguaro West Owner’s Association seemed, on the surface, like a clear-cut quest for accountability. The dispute centered on a single, alarming event: the withdrawal and subsequent redeposit of $49,000.50 from the association’s operating account without any notice to the members. It appeared to be a straightforward case of a concerned resident demanding answers.

However, the ruling from the administrative hearing offers a surprising and crucial lesson in how the legal system operates. The outcome reveals that suspicion, no matter how justified, is not enough to win. This article breaks down the top counter-intuitive takeaways from the judge’s decision and what they mean for any homeowner considering a legal challenge against their HOA.

Takeaway 1: A “Suspicious” Act Isn’t a Guaranteed Win

Feeling Something Is Wrong Isn’t the Same as Proving It.

The core facts of the case were not in dispute. On October 22, 2018, $49,000.50 was withdrawn from the Saguaro West Owner’s Association’s operating account. On November 30, 2018, the exact same amount was redeposited. Members were not notified of these transactions. To any reasonable observer, this activity raises immediate questions.

Even the Administrative Law Judge presiding over the case acknowledged the questionable nature of the transaction. In his final decision, he validated Ms. Bartle’s initial concerns with a striking statement:

The evidence shows that $49,000.50 was withdrawn from the Association’s account in October 2018 and the same amount was deposited in November 2018, and there is evidence to suggest that the transactions may have been in violation of the law.

This is the most stunning part of the case: the judge agreed that the transaction looked suspicious and might have broken the law, yet Ms. Bartle still lost. This reveals a critical distinction in legal proceedings. A judge is not an arbiter of general fairness but an interpreter of specific laws and rules. The judge’s comment shows he understood the spirit of Ms. Bartle’s complaint, but his hands were tied by the letter of her petition. The legal system requires more than a gut feeling; it demands specific proof that a specific rule was violated, which leads directly to the next critical lesson.

Takeaway 2: You Must Prove theExactRule Was Broken

Specificity Is Your Only Weapon.

Ms. Bartle’s case was ultimately narrowed to a single, highly specific issue: whether the $49,000.50 transaction violated Article VIII, section 8(d) of the association’s bylaws. This is a crucial detail because courts and administrative bodies require this rigid specificity to ensure fairness, prevent “moving goalposts,” and keep proceedings focused on the actual claims filed, not a general feeling of grievance.

Her entire case hinged on proving a violation of that specific section and no other. The rule in question outlines the treasurer’s duties, which include the power to: “receive and deposit…all monies,” “disburse such funds as directed,” “sign all checks,” and “keep proper books of account.”

The judge’s conclusion was brutally precise. He found that Ms. Bartle had “not shown by a preponderance of the evidence” that the transaction violated any of those specific, listed duties. She couldn’t prove the treasurer failed to deposit money or keep proper books; she could only prove a strange transaction occurred that wasn’t explicitly forbidden by the rule she cited. This is a critical lesson: it doesn’t matter if an HOA’s action feels wrong; what matters is whether you can prove it violated the precise rule you cited in your petition.

Takeaway 3: The Burden of Proof Rests Entirely on the Accuser

It’s Your Job to Build the Case, Not Theirs to Disprove It.

In a civil administrative hearing like this, the petitioner—Ms. Bartle—carries the “burden of proof.” The standard she had to meet was the “preponderance of the evidence.” The legal definition for this is:

“superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

In simple terms, she had to present enough convincing evidence to make the judge believe that her version of events was more likely true than not. The judge’s decision explicitly states that Ms. Bartle bore this burden and ultimately failed to meet it.

One of the most powerful details from the case file illustrates this point perfectly: the Saguaro West Owner’s Association, though represented by legal counsel, “presented no witnesses.” They didn’t have to. They didn’t need to explain the transaction or justify their actions because Ms. Bartle failed to build a strong enough case to prove her specific claim. The onus was completely on her to prove her argument, and when it fell short, the case was dismissed.

Conclusion: A Sobering Reminder for Homeowners

The case of Mary Bartle is a sobering reminder that winning a legal fight against a well-resourced entity like an HOA is less about moral rightness and more about meticulous legal strategy and precision.

While the judge acknowledged that Ms. Bartle’s concerns about the $49,000.50 transaction were potentially valid, her petition was dismissed not on a simple technicality, but because of a core principle of law: the failure to prove that the specific rule cited had actually been broken. Her case highlights the immense challenge for individual homeowners seeking transparency. It leaves us asking, if the legal bar is this specific, what practical recourse do residents have when they feel something is fundamentally wrong?

Case Participants

Petitioner Side

Mary J Bartle (petitioner)
Appeared on her own behalf and testified

Respondent Side

Nicole Payne (attorney)
Carpenter, Hazlewood, Delgado & Bolen, PLC
Counsel for Saguaro West Owner's Association
Edith Rudder (attorney)
Carpenter, Hazlewood, Delgado & Bolen, PLC
Counsel for Saguaro West Owner's Association

Neutral Parties

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

Robert L Greco v. Bellasera Community Association, Inc.

Posted on January 30, 2020 by [email protected]

Case Summary

Case ID	20F-H2019018-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-01-29
Administrative Law Judge	Tammy L. Eigenheer
Outcome	The Administrative Law Judge concluded that Bellasera Community Association, Inc. did not violate A.R.S. § 33-1803(B) because the homeowner received constructive notice of the violation and fine structure, satisfying statutory requirements. The petition was dismissed.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Robert L Greco	Counsel	—
Respondent	Bellasera Community Association, Inc.	Counsel	Nathan Tennyson

Alleged Violations

A.R.S. § 33-1803(B)

Outcome Summary

The Administrative Law Judge concluded that Bellasera Community Association, Inc. did not violate A.R.S. § 33-1803(B) because the homeowner received constructive notice of the violation and fine structure, satisfying statutory requirements. The petition was dismissed.

Why this result: Petitioner failed to meet the burden of proving Respondent violated A.R.S. § 33-1803(B), as the evidence showed Petitioner received sufficient constructive notice of the alleged violation and had an opportunity to be heard or appeal.

Key Issues & Findings

Whether the HOA violated statutory requirements regarding notice and imposition of monetary penalties/late fees, resulting in suspension of privileges.

Petitioner alleged the HOA violated A.R.S. § 33-1803(B) by imposing fines and suspending gate/clubhouse access without providing adequate (actual) notice of the violation and hearing opportunity, and by improperly imposing late fees. The ALJ found the HOA provided constructive notice, satisfying the statute, and was entitled to impose cumulative fines for the ongoing violation.

Orders: Petitioner’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1803(B)
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
BLACK'S LAW DICTIONARY 1220
BLACK'S LAW DICTIONARY 1090

Analytics Highlights

Topics: HOA fines, Constructive notice, Statutory violation, Access suspension, Maintenance violation

Additional Citations:

A.R.S. § 33-1803(B)
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

20F-H2019018-REL Decision – 766844.pdf

Uploaded 2026-01-23T17:30:37 (133.7 KB)

Briefing Document: Greco v. Bellasera Community Association, Inc.

Executive Summary

This document synthesizes the findings and decision in the case of Robert L. Greco (Petitioner) versus the Bellasera Community Association, Inc. (Respondent), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge dismissed the petition, ruling in favor of the Homeowners Association (HOA).

The core dispute originated from a 2013 violation notice regarding a faded garage door. The Petitioner claimed he did not receive the initial notices and only became aware of the issue upon receiving a letter from the HOA’s attorney. Despite subsequently painting the door, an outstanding balance of $750 in fines remained on his account. For six years, the Petitioner paid his quarterly dues but ignored the outstanding fine balance. In June 2019, after failed settlement negotiations, the HOA deactivated the Petitioner’s security gate fob and clubhouse access, prompting him to file the formal dispute.

The judge’s decision rested on two key legal conclusions. First, the court rejected the Petitioner’s argument that “actual notice” was required for the fines to be valid. It ruled that the multiple notices mailed to the Petitioner’s residence constituted sufficient “constructive notice” under Arizona law, providing both notification of the violation and an opportunity to be heard. Second, the court determined that the $750 charge was not an improper late fee but rather three separate, legitimate fines of $250 each, levied for an ongoing, uncorrected violation as per the HOA’s enforcement policy.

Case Overview

Case Name

Robert L Greco, Petitioner, vs. Bellasera Community Association, Inc., Respondent

Case Number

20F-H2019018-REL

Jurisdiction

Arizona Office of Administrative Hearings

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Hearing Date

January 9, 2020

Decision Date

January 29, 2020

Petitioner’s Core Allegation

Respondent violated A.R.S. § 33-1803(B) by imposing penalties and revoking privileges without providing proper notice and an opportunity to be heard.

Core Factual Issue

The denial of automatic gate and clubhouse access to the Petitioner on July 1, 2019, due to unpaid fines from 2013.

Chronology of the Dispute

The conflict between Mr. Greco and the Bellasera Community Association unfolded over six years, escalating from a minor maintenance issue to a formal legal dispute and revocation of privileges.

Initial Violation and Fines (2013)

Details

Feb. 5, 2013

Courtesy Notice

Respondent sent a notice to Petitioner’s address stating his garage door was faded and needed to be repainted, in violation of the Design Guidelines.

Mar. 14, 2013

Final Notice & First Fine

A follow-up notice was sent, stating a $250 fine was posted to Petitioner’s account. It warned that an additional $250 fine would be assessed automatically every 14 days if the violation remained uncorrected.

Apr. 2, 2013

Notice of Remedy & Second Fine

A third notice was sent, posting another $250 fine. This letter explicitly warned that the HOA had the “ability to suspend privileges for use of the Recreational Facilities” and informed the Petitioner of his right to appeal within 14 days.

May 7, 2013

Fourth Notice & Third Fine

A fourth notice was sent, posting another $250 fine to the account. It again noted the right to appeal the fine.

Jun. 5, 2013

Letter from HOA Counsel

Attorney Kelly Oetinger sent a letter demanding the garage door be repainted within 15 days. The letter explicitly stated, “If you do not repaint… the Association may disable the transponder you use to enter the community and may disable the fobs you use for the clubhouse.”

Petitioner’s Response and Aftermath (2013)

• July 4, 2013: Petitioner repainted the garage door.

• July 5, 2013: Petitioner sent a letter to the HOA stating the attorney’s letter was his “initial alert of the garage door condition.” He explained his delay by stating, “To effectively manage my workload, I dispose of unsolicited mail… In the future, I will exercise greater caution in disposing of unsolicited mail.”

• July 5, 2013: The HOA sent a letter acknowledging the repainting and offered to settle the $900 in fines for a payment of $500. The letter reiterated the threat to deactivate gate openers and fobs.

• July 17, 2013: The HOA sent a follow-up letter correcting an internal accounting error. The total fines were $750, not $900. A new settlement offer was made: pay $375, and the remaining $375 would be waived.

Period of Inaction (2013 – 2019)

From 2013 to 2019, the Petitioner received quarterly statements from the HOA indicating a $750 balance in addition to current assessments. Each quarter, the Petitioner would physically cross out the $750 balance and pay only the current assessment amount.

Escalation and Revocation of Privileges (2019)

• June 2019: Dennis Carson, a friend of the Petitioner serving on the HOA Board of Directors, informed him that his name was on a penalty list and the Board planned to deactivate his security gate and clubhouse access.

• June 2019: Settlement negotiations failed. The Petitioner offered $100; the Board countered with $250. The Petitioner then offered $251 ($250 for the fine and $1 to rent the clubhouse), which the Board declined.

• July 1, 2019: The Respondent deactivated the Petitioner’s security gate fob and access to the clubhouse.

• October 11, 2019: The Petitioner filed the Homeowners Association Dispute Process Petition, initiating the legal proceedings.

Key Arguments and Legal Findings

The Administrative Law Judge’s decision centered on the interpretation of “notice” as required by state law and the legitimacy of the fines imposed by the HOA.

Petitioner’s Position

1. Lack of Proper Notice: The Petitioner argued that he had not received “actual notice” of the violation or the impending fines until the letter from the HOA’s counsel on June 5, 2013. He asserted that because he acted promptly after receiving that letter, the fines were unjust. His argument implied that warnings in mail he did not personally read could not be held against him.

2. Improper Fines: The Petitioner alleged that the additional $500 in charges on the original $250 fine constituted improper late fees.

Administrative Law Judge’s Conclusions of Law

The Judge systematically refuted the Petitioner’s arguments, concluding that the HOA acted within its rights and in accordance with the law.

1. On the Matter of Notice:

• The governing statute, A.R.S. § 33-1803(B), requires “notice and an opportunity to be heard” before imposing penalties.

• The Judge found no legal authority requiring this to be “actual notice.” To accept this argument would create an unworkable standard where a homeowner could “avoid receiving ‘actual notice’ by simply refusing to sign for a certified mailing.”

• The decision established that the Petitioner received constructive notice through the “multiple mailings that were presumably delivered to his residential address.”

• The notices also informed the Petitioner how to appeal the matter, thereby satisfying the requirement for an “opportunity to be heard.”

• Conclusion: “Accordingly, Petitioner was provided notice and an opportunity to be heard in accordance with A.R.S. § 33-1803(B).”

2. On the Matter of Fines:

• The Judge differentiated between late fees and fines for an ongoing violation.

• The notices sent by the Respondent “clearly stated that an ongoing failure to remedy the violation would result in additional fines every 14 days.”

• The violation persisted from before March 14, 2013 (first fine) until July 5, 2013 (when the door was confirmed painted).

• Conclusion: The Respondent was entitled to impose three separate fines for the “ongoing condition of the garage door,” making the total of $750 legitimate.

Final Order and Implications

Based on the analysis of the evidence and law, the Administrative Law Judge reached a definitive conclusion.

• Final Ruling: “This Tribunal concludes that Respondent did not violate the provisions of A.R.S. § 33-1803(B).”

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

• Binding Nature: The order, dated January 29, 2020, is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

Study Guide: Greco v. Bellasera Community Association, Inc.

This guide provides a comprehensive review of the Administrative Law Judge Decision in the case of Robert L. Greco (Petitioner) versus Bellasera Community Association, Inc. (Respondent), Case No. 20F-H2019018-REL. It includes a short-answer quiz to test your knowledge, an answer key for review, a set of essay questions for deeper analysis, and a glossary of key terms.

Short-Answer Quiz

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

1. Who were the Petitioner and Respondent in this case, and what was the Petitioner’s central complaint that initiated the legal action?

2. What specific violation of the community’s rules was the Petitioner initially accused of, and which governing documents were cited as being violated?

3. Describe the timeline of notices and fines issued by the Respondent between February and May 2013.

4. What was the Petitioner’s explanation for not responding to the initial violation notices from the Respondent before receiving a letter from the association’s attorney?

5. What actions did the Respondent take in or around June 2019 that led the Petitioner to file his petition with the Arizona Department of Real Estate?

6. What was the Petitioner’s primary legal argument regarding the “notice” required by the Arizona statute A.R.S. § 33-1803(B)?

7. How did the Administrative Law Judge differentiate between “actual notice” and “constructive notice” in her decision?

8. Why did the judge ultimately conclude that the Respondent had provided the Petitioner with adequate “notice and an opportunity to be heard”?

9. Explain the Petitioner’s allegation about improper late fees and the reason the judge rejected this argument.

10. What was the final order of the Administrative Law Judge in this case, and what recourse was available to the parties?

——————————————————————————–

Answer Key

1. The Petitioner was homeowner Robert L. Greco, and the Respondent was the Bellasera Community Association, Inc. (the HOA). Greco’s central complaint, filed on October 11, 2019, was that the HOA had denied him automatic gate access and use of clubhouse facilities on July 1, 2019, despite his being a long-term resident with timely payment of all quarterly dues.

2. The Petitioner was accused of having a faded garage door that needed to be repainted. The violation was cited as being contrary to the CC&Rs (Covenants, Conditions and Restrictions), specifically Article V, Section 5.2, and the community’s Design Guidelines, specifically Article III, Section J.

3. The Respondent sent an initial “Courtesy Notice” on February 5, 2013. This was followed by a “Final Notice” with a $250 fine on March 14, a “Notice of Remedy” with another $250 fine on April 2, and a “Fourth Notice of Non-Compliance” with another $250 fine on May 7, 2013.

4. The Petitioner claimed that the attorney’s letter, received around June 5, 2013, was his “initial alert” regarding the garage door condition. He stated that he routinely disposes of unsolicited mail without reading it and had inadvertently discarded the previous notices sent by the Respondent.

5. In June 2019, after failed settlement negotiations over the outstanding $750 in fines from 2013, the Respondent deactivated the Petitioner’s security gate fob and his access to the clubhouse. This action prompted the Petitioner to file his dispute petition.

6. The Petitioner’s primary argument was that he did not receive “actual notice” of the violation until the attorney’s letter. He contended that because he acted promptly to correct the violation after receiving actual notice, he should not have been fined.

7. The judge used definitions from Black’s Law Dictionary. “Actual notice” was defined as notice given directly to, or personally received by, a party. “Constructive notice” was defined as notice arising by presumption of law from facts and circumstances that a party had a duty to take notice of.

8. The judge concluded that the multiple notices mailed to the Petitioner’s residential address constituted “constructive notice” of the violation. Because the relevant statute, A.R.S. § 33-1803(B), does not explicitly require “actual notice,” and the mailings also advised him of his right to appeal, the judge found the Respondent had fulfilled its obligation to provide notice and an opportunity to be heard.

9. The Petitioner alleged that the additional $500 in fines were improper late fees on the original $250 fine. The judge rejected this, clarifying that the Respondent’s notices stated that additional fines would be assessed every 14 days for an ongoing failure to remedy the violation. Therefore, the additional charges were three separate fines for the “ongoing condition of the garage door,” not late fees.

10. The final order was that the Petitioner’s petition be dismissed. The parties were notified that this order was binding unless a request for rehearing was filed with the Commissioner of the Department of Real Estate within 30 days.

——————————————————————————–

Essay Questions

The following questions are designed for deeper analysis and discussion. No answers are provided.

1. Analyze the Administrative Law Judge’s reasoning for favoring “constructive notice” over “actual notice” in the context of A.R.S. § 33-1803(B). Discuss the potential consequences for homeowners and HOAs if the ruling had required “actual notice.”

2. Trace the negotiation attempts between the Petitioner and the Respondent in 2013 and 2019. Evaluate the effectiveness of these attempts and discuss whether the dispute could have been resolved without formal legal proceedings.

3. The Petitioner argued that the fines imposed after the initial $250 were improper late fees. The judge, however, characterized them as new fines for an “ongoing condition.” Based on the evidence presented in the notices, construct an argument supporting both the Petitioner’s and the judge’s interpretation.

4. Discuss the concept of “burden of proof” in this case. Explain what “preponderance of the evidence” means and identify the key pieces of evidence that allowed the judge to conclude the Respondent did not violate the statute.

5. Examine the roles of the various community governing documents cited in this case (CC&Rs, Design Guidelines, Violation Enforcement policy). Explain how these documents worked together to grant the Respondent the authority to take action against the Petitioner.

——————————————————————————–

Glossary of Key Terms

Definition

A.R.S. § 33-1803(B)

The Arizona Revised Statute central to this case, which permits an HOA board to impose reasonable monetary penalties for violations after providing “notice and an opportunity to be heard.”

Actual Notice

As defined in the decision, it is “[n]otice given directly to, or received personally by, a party.”

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues a decision. In this case, it was Tammy L. Eigenheer.

Bellasera Community Association, Inc.

The Respondent in the case; the homeowners association (HOA) for the Bellasera Community in Arizona.

An acronym for Declaration of Covenants, Conditions and Restrictions. These are the governing legal documents for the community, which the Petitioner was found to have violated (specifically Article V, Section 5.2).

Constructive Notice

As defined in the decision, it is “[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of.” The judge ruled that mail sent to a residence constitutes this form of notice.

Design Guidelines

A set of rules established by the HOA governing the aesthetic appearance of properties. The Petitioner was found in violation of Article III, Section J of these guidelines.

Petitioner

The party who initiates a legal action or petition seeking a ruling. In this case, it was the homeowner, Robert L. Greco.

Preponderance of the evidence

The standard of proof required in this hearing. It is defined as “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force.”

Respondent

The party against whom a petition is filed and who must respond to the allegations. In this case, it was the HOA.

He Threw Away His Mail for Years. His HOA’s Response Is a Warning to Every Homeowner.

That official-looking envelope from your Homeowners Association sits on the counter, a silent challenge. It’s easy to dismiss it as a newsletter or a bland reminder, just another piece of paper to be sorted later. But what if it isn’t? What if that envelope is a legal summons in disguise, the first shot in a battle you don’t even know you’re fighting?

For Robert L. Greco, a resident in his community for 17 years, this hypothetical became a harsh reality. He learned that ignoring HOA correspondence can ignite a conflict that smolders for years before erupting into severe consequences. Originating from a maintenance issue as simple as a faded garage door, his case offers a masterclass in the powerful lessons every homeowner should heed.

——————————————————————————–

1. The “I Didn’t Read It” Defense Doesn’t Work

The central pillar of the homeowner’s defense was disarmingly simple: he claimed he never received the first four violation notices because he habitually throws away what he considers “unsolicited mail.” He argued that without having read the warnings, he couldn’t be held responsible for the fines.

The judge’s ruling, however, invoked a foundational legal concept that extends far beyond HOA disputes into areas like property deeds and public records: the difference between “actual notice” and “constructive notice.” While actual notice means you personally saw the information, constructive notice presumes you have knowledge of something because it was delivered properly—in this case, mailed to the correct address. Whether you open the envelope is irrelevant.

In a July 5, 2013 letter, the homeowner unwittingly sealed his own fate by describing his mail-handling routine:

Routinely, Saturdays are my mail-pick-up days, and invariably, I walk straight to the re-cyclable container, and deposit the mail in the receptacle… I was astonished to learn that my garage door failed inspection. This is my initial alert of the garage door condition.

For homeowners, the takeaway is a stark one: in the eyes of the law, your recycling bin is not a valid legal defense. The burden doesn’t fall on an HOA to ensure you read your mail, only to send it. The responsibility to open and review all official correspondence rests squarely on the homeowner.

2. A Tiny Issue Can Snowball into a Years-Long Standoff

The timeline of this dispute reveals a classic case of conflict avoidance, where a minor, fixable problem was allowed to spiral into a major legal battle. The cost of a can of paint and a Saturday afternoon of work was ultimately dwarfed by a six-year, $750 dispute that cost the homeowner his access to his own community.

• February 5, 2013: The HOA sends its first “Courtesy Notice” regarding a faded garage door in need of repainting.

• March – May 2013: After no response, the HOA issues three more notices, levying escalating fines that total $750.

• 2013 to 2019: For six years, the homeowner receives quarterly statements showing the $750 balance. Each time, he would “cross out the $750.00 balance and pay the current assessment.”

• June/July 2019: The HOA finally forces the issue by deactivating his security gate fob and his access to the clubhouse.

This progression shows how a simple lack of communication transformed a weekend chore into a years-long standoff. By ignoring the notices and the subsequent fines, the homeowner allowed a molehill to grow into a mountain of conflict.

3. “Continuing Violation” Fines Are Not Late Fees

The homeowner contended that the HOA was improperly stacking late fees on top of an initial $250 penalty. However, the administrative law judge highlighted a critical distinction embedded in the association’s rules.

The HOA wasn’t charging late fees on a single, past-due penalty. It was levying new fines for a “continuing violation.” The notice sent on March 14, 2013, explicitly warned that “an additional fine of $250 will be assessed automatically every 14 days… if the violation remains uncorrected.”

This is a crucial detail found in many HOA bylaws. An unpainted garage door is not a one-time offense; it is an ongoing breach of community standards. A homeowner who thinks they are simply letting a single fine sit unpaid may actually be incurring entirely new violations over time, dramatically increasing their financial liability.

4. Failed Negotiations Can Cost More Than Money

Twice, this dispute could have been resolved. The breakdown in negotiations, however, reveals how ego and principle can prove more costly than the fines themselves.

The first attempt came in 2013, after the homeowner had finally painted the garage. The HOA initially offered to settle a supposed $900 balance for $500. This, however, was based on an “internal accounting error.” In a subsequent letter, the HOA apologized, corrected the record to show the true balance was $750, and made a formal offer: pay half—just $375—and the matter would be closed. The offer was not accepted. Including this error shows the HOA was not infallible, making the subsequent stalemate more complex.

The second negotiation occurred in 2019, prompted by a friend on the Board who urged a settlement. The homeowner offered $100. The Board countered with $250. The homeowner’s final offer was exquisitely specific: “$251.00, $250.00 to settle the outstanding fines and $1.00 to rent the clubhouse on a specific date.”

This offer was a tactical and psychological blunder. That extra dollar wasn’t about money; it was a message. Whether intended as a sarcastic jab or a principled stand to assert his rights as a member, it transformed a financial negotiation into a battle of wills. For a Board of Directors, accepting such an offer could be seen as capitulating to a petty gesture, setting a precedent that defiance works. They declined. Shortly after, the homeowner’s access to community facilities was cut off, leading to the legal petition he ultimately lost.

——————————————————————————–

Conclusion: A Lesson in Communication

This case serves as a powerful warning. The legal force of “constructive notice” makes you responsible for the mail you receive, not just the mail you read. The six-year standoff over a can of paint shows how inaction can have disproportionate consequences. And the failed $251 offer demonstrates that good-faith negotiation is paramount.

Ultimately, the homeowner was left still owing the money and locked out of his own amenities—a casualty of a battle he prolonged at every turn. It leaves every homeowner with a critical question to consider: in a dispute with your HOA, where is the line between standing on principle and causing yourself unnecessary harm?

Case Participants

Petitioner Side

Robert L Greco (petitioner)

Respondent Side

Nathan Tennyson (attorney)
Brown|Olcott, PLLC
David Reid (board member)
Testified for Respondent
Annette McCarthy (manager)
Acting Manager; Testified for Respondent
Kelly Oetinger (attorney)
Counsel for Respondent in 2013
Dennis Carson (board member)

Neutral Parties

Tammy L. Eigenheer (ALJ)
Judy Lowe (Commissioner)
ADRE

Paul L Moffett v. Vistoso Community Association

Posted on January 28, 2020 by [email protected]

Case Summary

Case ID	20F-H2019014-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-01-27
Administrative Law Judge	Tammy L. Eigenheer
Outcome	The ALJ dismissed the petition because the Petitioner failed to sustain the burden of proof that the Vistoso Community Association committed a violation of Article VII, Section 7.3.1 by allowing certain owners to vote. The ALJ reasoned that the specific restriction on voting for those paying reduced assessments was inapplicable in this case.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Paul L Moffett	Counsel	Richard M. Rollman
Respondent	Vistoso Community Association	Counsel	Jason E. Smith

Alleged Violations

CC&Rs Article VII Membership and Voting section 7.3.1 Voting Classes

Outcome Summary

The ALJ dismissed the petition because the Petitioner failed to sustain the burden of proof that the Vistoso Community Association committed a violation of Article VII, Section 7.3.1 by allowing certain owners to vote. The ALJ reasoned that the specific restriction on voting for those paying reduced assessments was inapplicable in this case.

Why this result: The restriction on voting found in Section 7.3.1 applies only when the owner is paying a reduced assessment 'pursuant to Section 8.3.' Since the reduced assessment period permitted under Section 8.3 had expired for the developer owners, they were not paying reduced assessments 'pursuant to Section 8.3,' and were therefore entitled to vote.

Key Issues & Findings

Alleged violation of community document regarding the voting rights of Developer Owners paying reduced assessments.

Petitioner filed a Homeowners Association (HOA) Dispute Process Petition alleging the Respondent HOA violated the community documents (CC&Rs Article VII, Section 7.3.1) by allowing Developer Owners (Vistoso Highlands and Pulte) to vote in an election while they were paying reduced assessments, which Petitioner argued was prohibited.

Orders: Petitioner’s petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

A.R.S. § 32-2199
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)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY

Analytics Highlights

Topics: HOA Election, Voting Rights, Reduced Assessment, Community Document Violation

Additional Citations:

A.R.S. § 32-2199
CC&Rs Article VII, Section 7.3.1
CC&Rs Article VIII, Section 8.3
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)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

20F-H2019014-REL Decision – 766242.pdf

Uploaded 2026-04-24T11:23:35 (48.3 KB)

20F-H2019014-REL Decision – 766243.pdf

Uploaded 2026-04-24T11:23:39 (109.1 KB)

Administrative Hearing Briefing: Moffett vs. Vistoso Community Association (Case No. 20F-H2019014-REL)

Executive Summary

On January 27, 2020, Administrative Law Judge Tammy L. Eigenheer of the Arizona Office of Administrative Hearings dismissed a petition filed by Paul L. Moffett against the Vistoso Community Association. The core of the dispute was the validity of 207 votes cast by two developer-owners, Vistoso Highlands and Pulte, in a Board of Directors election held on March 29, 2019.

The petitioner argued that because these entities were paying reduced assessments on their lots, they were prohibited from voting under the community’s governing documents (CC&Rs). The respondent association contended that the voting prohibition was narrowly tied to a specific provision allowing reduced assessments for a limited time, a period which had long expired for both entities.

The judge ruled in favor of the Vistoso Community Association, concluding that the votes were valid. The decision hinged on a strict interpretation of the CC&Rs. Although the developers were factually paying reduced assessments, they were not doing so pursuant to the specific section that triggers the voting prohibition. The judge noted that the failure to collect full assessments was a separate “financial concern for the association,” but it did not invalidate the votes cast in the election. The petitioner failed to meet the burden of proof required to establish a violation of the community documents.

Case Overview

This briefing analyzes the Administrative Law Judge Decision in the matter between petitioner Paul L. Moffett and respondent Vistoso Community Association concerning an alleged violation of community CC&Rs.

Detail

Information

Case Name

Paul L Moffett vs. Vistoso Community Association

Case Number

20F-H2019014-REL

Adjudicating Body

Arizona Office of Administrative Hearings

Administrative Law Judge

Tammy L. Eigenheer

Petition Filed

On or about September 25, 2019

Hearing Date

December 16, 2019

Decision & Order Date

January 27, 2020

Petitioner

Paul L. Moffett

Petitioner’s Counsel

Richard M. Rollman, Gabroy, Rollman & Bosse, P.C.

Respondent

Vistoso Community Association

Respondent’s Counsel

Jason E. Smith, CARPENTER HAZLEWOOD DELGADO & WOOD, PLC

The Core Dispute: Voter Eligibility and Reduced Assessments

Petitioner’s Allegation

On September 25, 2019, Paul L. Moffett filed a petition with the Arizona Department of Real Estate, alleging that the Vistoso Community Association violated its own governing documents. The specific violation cited was of Article VII, Section 7.3.1 (Voting Classes) of the community’s Declaration.

The dispute centered on the Board of Directors election held on March 29, 2019. In the days leading up to the election, property management solicited votes from two developer-owners:

• Vistoso Highlands: Owner of 39 lots.

• Pulte: Owner of 168 lots.

Both entities cast their total available votes—207 votes—for three candidates: Sarah Nelson, Patrick Straney, and Dennis Ottley. Mr. Moffett’s petition argued that these 207 votes were invalid because, at the time of the election, both Vistoso Highlands and Pulte were paying reduced assessments on their lots, which he contended made them ineligible to vote under the CC&Rs.

Analysis of Arguments and Key Provisions

The decision in this case rested entirely on the interpretation of two interlinked sections within the Vistoso Community Association’s Declaration.

Key Governing Document Provisions

• Article VII, Section 7.3.1 (Voting Prohibition): This section states, in pertinent part, that “a Class A Member shall not be entitled to vote with respect to any Lots, Parcels or Apartment Units in regard to which the Owner is paying only a reduced Assessment pursuant to Section 8.3.”

• Article VIII, Section 8.3 (Reduced Assessment Eligibility): This section permits a Developer Owner to pay a reduced assessment on lots for a maximum of two years after the initial Developer Owner obtains ownership from the Declarant.

Petitioner’s Position (Paul L. Moffett)

The petitioner’s argument was straightforward:

• Vistoso Highlands and Pulte were paying reduced assessments.

• Section 7.3.1 prohibits voting for members who pay reduced assessments.

• Therefore, their votes should not have been counted.

Respondent’s Position (Vistoso Community Association)

The respondent’s argument focused on the precise qualifying language in the CC&Rs:

• The voting prohibition in Section 7.3.1 is conditional and applies only when members are paying reduced assessments specifically “pursuant to Section 8.3.”

• The eligibility window for paying reduced assessments under Section 8.3 had expired years prior for both entities.

• Therefore, although they were factually paying reduced assessments, this was not being done under the authority or conditions of Section 8.3.

• Consequently, the voting prohibition of Section 7.3.1 was not applicable to them.

Established Findings of Fact

The evidence presented at the hearing established a clear timeline regarding the ownership of the lots and the expiration of the reduced assessment periods.

• March 20, 2007: Vistoso Highlands obtained ownership of 39 lots from the Declarant.

• March 20, 2009: The two-year maximum period for Vistoso Highlands to pay reduced assessments under Section 8.3 officially terminated.

• August 21 & October 14, 2014: Pulte’s predecessor obtained ownership of 168 lots from the Declarant.

• October 14, 2016: The two-year maximum period for these 168 lots to have reduced assessments under Section 8.3 officially terminated.

• January 2, 2019: Pulte obtained ownership of the 168 lots from its predecessor.

• March 29, 2019: The Board of Directors election was held.

• Key Fact: The judge found that “For whatever reason, neither Vistoso Highlands nor Pulte had been paying the full assessment as required by the Declaration as of the date of the election.”

The Administrative Law Judge’s Decision and Rationale

The Administrative Law Judge (ALJ) sided with the respondent’s interpretation of the governing documents, leading to the dismissal of the petition.

Legal Interpretation

The ALJ concluded that the two articles could not be read in isolation. The critical legal finding was that the voting prohibition was explicitly and inextricably linked to the conditions set forth in Section 8.3.

The decision states:

“Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.”

The judge reasoned that since the eligibility period under Section 8.3 had expired in 2009 and 2016, respectively, the developers were no longer paying reduced fees “pursuant to” that section at the time of the 2019 election.

Acknowledgment of Financial Discrepancy

The ALJ acknowledged the underlying issue that the developers were not paying the full assessments they owed. However, this was deemed a separate matter from voter eligibility. The judge noted that the failure to be invoiced for and to pay the full amount “is certainly a financial concern for the association as a whole,” but “that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.”

Final Order

Based on this legal interpretation, the ALJ found that the petitioner, Paul L. Moffett, failed to sustain his burden of proof to establish a violation of the community documents by a preponderance of the evidence.

• Official Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”

• Notice: The decision is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

Study Guide: Moffett v. Vistoso Community Association (Case No. 20F-H2019014-REL)

This guide provides a comprehensive review of the administrative law case between Petitioner Paul L. Moffett and Respondent Vistoso Community Association, based on the Administrative Law Judge Decision issued on January 27, 2020. It is designed to test and deepen understanding of the facts, legal arguments, and final ruling of the case.

——————————————————————————–

Short-Answer Quiz

Instructions: Answer the following questions in two to three complete sentences, using only information provided in the source documents.

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

2. What specific article and section of the community documents did the Petitioner allege was violated?

3. When was the Board of Directors election held, and what was the total number of votes cast by Pulte and Vistoso Highlands?

4. According to the community’s Declaration, under what specific condition is a Class A Member not entitled to vote?

5. What did Article VIII, Section 8.3 of the Declaration allow for, and what was the maximum time limit for this provision?

6. Based on the timeline provided, when should the reduced assessment period have ended for Vistoso Highlands and for Pulte?

7. What was the Petitioner’s core argument for why Pulte and Vistoso Highlands should not have been allowed to vote?

8. How did the Respondent counter the Petitioner’s argument regarding the voting rights of Pulte and Vistoso Highlands?

9. What was the Administrative Law Judge’s final conclusion regarding the voting eligibility of Vistoso Highlands and Pulte, and what was the reasoning?

10. What was the final order in this case, and what recourse was available to the parties after the decision?

——————————————————————————–

Answer Key

1. The primary parties were Paul L. Moffett, who served as the Petitioner, and the Vistoso Community Association, which was the Respondent. Moffett initiated the dispute by filing a petition against the association.

2. The Petitioner alleged a violation of “Article VII Membership and Voting, Section 7.3.1 Voting Classes” of the community documents (CC&Rs). This was the single issue presented for the hearing.

3. The Board of Directors election was held on or about March 29, 2019. In that election, Pulte and Vistoso Highlands collectively cast 207 votes for candidates Sarah Nelson, Patrick Straney, and Dennis Ottley.

4. According to Article VII, Section 7.3.1 of the Declaration, a Class A Member is not entitled to vote with respect to any lots for which the owner is paying only a reduced assessment “pursuant to Section 8.3.”

5. Article VIII, Section 8.3 of the Declaration allowed Developer Owners to pay a reduced assessment on lots purchased from the Declarant. This provision was permitted for a maximum period of two years (24 months) after the initial Developer Owner obtained ownership.

6. The reduced assessment period for Vistoso Highlands should have terminated on March 20, 2009. For the lots owned by Pulte, the reduced assessments should have terminated on October 14, 2016.

7. The Petitioner argued that because Vistoso Highlands and Pulte were, in fact, paying reduced assessments at the time of the election, they were not entitled to vote. The argument was based on the fact that they were paying reduced fees, regardless of whether they were supposed to be.

8. The Respondent argued that the voting prohibition in Section 7.3.1 was not applicable. Their reasoning was that while Pulte and Vistoso Highlands were paying reduced assessments, they were not doing so “pursuant to Section 8.3” because the time limit for that provision had long expired.

9. The Judge concluded that Vistoso Highlands and Pulte were entitled to vote in the election. The reasoning was that the prohibition in Section 7.3.1 only applied to reduced assessments paid as authorized by Section 8.3; since the authorization period had passed, the prohibition no longer applied, even if they were improperly paying a lower rate.

10. The final order was that the Petitioner’s petition was dismissed. After the order was served, the parties had 30 days to file a request for a rehearing with the Commissioner of the Department of Real Estate pursuant to A.R.S. § 41-1092.09.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth, essay-style response. Use the source material to construct a thorough and well-supported argument.

1. Analyze the Administrative Law Judge’s interpretation of the phrase “pursuant to Section 8.3” from Article VII, Section 7.3.1. Explain how this interpretation was central to the case’s outcome and discuss the distinction made between paying a reduced assessment and paying a reduced assessment under the authority of Section 8.3.

2. Describe the timeline of property ownership and assessment obligations for both Vistoso Highlands and Pulte. Explain how the failure to adhere to the timeline for ending reduced assessments created the central conflict in this dispute.

3. Discuss the concept of “burden of proof” as it applied in this case. Who held the burden, what was the standard required (preponderance of the evidence), and why did the Administrative Law Judge ultimately find that the Petitioner failed to meet this burden?

4. The judge noted that the failure to collect full assessments from Vistoso Highlands and Pulte was a “financial concern for the association as a whole.” Elaborate on the potential implications of this financial issue for the Vistoso Community Association, even though it did not affect the outcome of the election dispute.

5. Outline the procedural history of the case, starting from the filing of the petition. Include key dates, the entities involved (Petitioner, Respondent, Department of Real Estate, Office of Administrative Hearings), the legal representatives, and the final step available to the parties after the judge’s order.

——————————————————————————–

Glossary of Key Terms and Entities

Term / Entity

Definition

Administrative Law Judge (ALJ)

An official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and makes decisions on disputes.

Arizona Department of Real Estate (Department)

The state agency with which the Petitioner filed the initial Homeowners Association (HOA) Dispute Process Petition.

Article VII, Section 7.3.1

The section of the Vistoso Community Association Declaration that prohibits a Class A Member from voting on lots for which they are paying a reduced assessment “pursuant to Section 8.3.”

Article VIII, Section 8.3

The section of the Declaration that permits a Developer Owner to pay a reduced assessment for a maximum of two years after purchasing a parcel from the Declarant.

Burden of Proof

The obligation of a party in a legal case to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof.

Declarant

The original entity that owned the land before selling lots to Developer Owners like Vistoso Highlands and Pulte’s predecessor.

Developer Owner

An owner, such as Vistoso Highlands or Pulte, who obtained lots from the Declarant and was eligible for reduced assessments for a limited time under Section 8.3.

Homeowners Association (HOA) Dispute Process Petition

The formal document filed by Paul L. Moffett with the Arizona Department of Real Estate on September 25, 2019, to initiate the legal dispute.

Office of Administrative Hearings (OAH)

The state office where the formal hearing for this case was conducted before an Administrative Law Judge.

Petitioner

The party who initiates a lawsuit or petition. In this case, Paul L. Moffett.

Preponderance of the Evidence

The standard of proof required in this case, defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side over the other.

Respondent

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

The Legal Loophole That Flipped an HOA Election on Its Head

For anyone living in a planned community, the thick binder of Homeowners Association (HOA) rules is a familiar reality. These documents govern everything from mailbox colors to lawn maintenance, and their dense language can be a source of constant confusion. But beyond the day-to-day frustrations lies a deeper legal truth: the precise wording of these documents is absolute. This principle, known in contract law as strict constructionism, holds that a text’s literal meaning must be followed, even if it leads to an outcome that seems unfair.

This is the story of a homeowner who believed he had uncovered a clear-cut violation during a critical HOA election. Developers who were underpaying their dues had cast hundreds of votes, seemingly in direct contravention of the community’s own governing documents. But when the case was adjudicated, the outcome hinged on a single phrase, providing a textbook example of how strict constructionism can create a mind-bending loophole and turn a seemingly open-and-shut case completely upside down.

The Rule Seemed Simple: Pay a Discount, You Don’t Get a Vote

The petitioner, Paul L. Moffett, filed a formal complaint against the Vistoso Community Association, alleging a violation of a specific clause in the governing documents: “Article VII Membership and Voting, Section 7.3.1 Voting Classes.” His case was built on what appeared to be a straightforward set of rules designed to ensure fairness.

The community’s governing documents contained two key sections:

• Article VIII, Section 8.3: This rule allowed “Developer Owners” who purchased property from the original Declarant to pay a reduced assessment. However, this discount was explicitly limited to a maximum of two years.

• Article VII, Section 7.3.1: This rule stated that any member paying a reduced assessment pursuant to Section 8.3 was not entitled to vote with respect to those properties.

On the surface, the logic was simple and equitable: if you aren’t paying your full share as authorized by the rules, you don’t get a say in the community’s governance.

The Smoking Gun: Developers Were Underpaying for Years

The petitioner presented evidence that seemed to prove his case conclusively. Two developers, Vistoso Highlands and Pulte, owned a combined 207 lots. According to the two-year limit, their eligibility for reduced assessments should have ended long ago.

• Vistoso Highlands’ reduced assessment period should have terminated on March 20, 2009.

• Pulte’s predecessor’s reduced assessment period should have terminated on October 14, 2016.

However, at the time of the Board of Directors election on March 29, 2019, both developers were still paying the discounted rate—years after their eligibility had expired. Making matters worse, the evidence showed that in the days preceding the election, the property management staff had actively reached out to both developers to obtain their votes. They cast all 207 of them, which appeared to be a direct violation of the rule prohibiting voting by members paying reduced fees.

The Twist: A Single Phrase Created a Mind-Bending Loophole

This is where the case took a sharp, unexpected turn. The Administrative Law Judge (ALJ) assigned to the case did not focus on the fact that the developers were underpaying, but on the precise legal language connecting the two rules. The dispositive element of the case was the phrase “pursuant to Section 8.3.”

The ALJ noted that, “for whatever reason,” the developers had been underpaying for years. However, she reasoned that because the two-year time limit for reduced payments under Section 8.3 had long since expired, the developers were no longer paying their reduced fees “pursuant to Section 8.3.” They were, in fact, simply underpaying their dues improperly and in violation of the documents.

In essence, the developers’ long-term violation of the payment rule served as their shield against the voting penalty. By breaking the rule governing their assessment amount, they had inadvertently immunized themselves from the rule governing voting rights. The voting prohibition in Section 7.3.1 only applied to members who were correctly paying a reduced assessment as authorized by Section 8.3. Since their discount was no longer authorized, the voting ban no longer applied.

The ALJ summarized this stunning conclusion in the final decision:

Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.

The Verdict: A Financial Problem Doesn’t Invalidate a Vote

Ultimately, the petition was dismissed, and all 207 votes cast by the developers were deemed valid. The ALJ acknowledged that the developers’ failure to pay their full assessments was a serious financial issue for the association but clarified that it was a separate matter from their right to vote.

The ALJ effectively severed the financial issue from the question of voting eligibility. This separation of issues is a fundamental tenet of legal analysis, preventing one breach of contract (underpaying dues) from automatically triggering penalties associated with a completely different clause (voting rights).

While the failure to be invoiced and to pay a full assessment on the 207 parcels at issue is certainly a financial concern for the association as a whole, that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.

This highlights a critical aspect of legal interpretation: issues that seem causally linked in a common-sense way can be treated as entirely distinct under a strict reading of the law.

Conclusion: The Devil is Always in the Details

This case serves as a powerful reminder that in the world of legal documents, every single word matters. It is a perfect demonstration of strict constructionism, where an outcome that seems to defy logic and fairness can be perfectly valid based on the literal, unambiguous phrasing of a rule. What appeared to be a clear prohibition on voting was undone by a loophole created by the developers’ own long-term failure to comply with assessment rules.

The outcome forces us to confront a difficult question at the heart of our legal system: When the literal interpretation of a contract conflicts with our sense of fairness, which should prevail? This case provides a clear, if unsettling, answer.

Case Participants

Petitioner Side

Paul L Moffett (petitioner)
Appeared at hearing and testified on his own behalf
Richard M. Rollman (petitioner attorney)
Gabroy, Rollman & Bosse, P.C.
Alyssa Leverette (legal staff)
Gabroy, Rollman & Bosse, P.C.
Listed below Petitioner's attorney on service list

Respondent Side

Jason E. Smith (respondent attorney)
CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
Kimberly Rubly (witness)
Vice President of Southern Region (testified for Respondent)
Sean K. Moynihan (respondent attorney)
CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
Recipient of Order

Neutral Parties

Tammy L. Eigenheer (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
LDettorre (ADRE staff)
Arizona Department of Real Estate
Recipient of Order
AHansen (ADRE staff)
Arizona Department of Real Estate
Recipient of Order
djones (ADRE staff)
Arizona Department of Real Estate
Recipient of Order
DGardner (ADRE staff)
Arizona Department of Real Estate
Recipient of Order
ncano (ADRE staff)
Arizona Department of Real Estate
Recipient of Order

Other Participants

Sarah Nelson (board member (elected))
Vistoso Community Association
Recipient of votes in disputed election
Patrick Straney (board member (elected))
Vistoso Community Association
Recipient of votes in disputed election
Dennis Ottley (board member (elected))
Vistoso Community Association
Recipient of votes in disputed election

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

Posted on January 16, 2020 by [email protected]

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

Case Summary

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

Parties & Counsel

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

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

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

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

Key Issues & Findings

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

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

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

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

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

Additional Citations:

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

Video Overview

Audio Overview

Decision Documents

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

Uploaded 2026-01-23T17:28:27 (187.4 KB)

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

Uploaded 2026-01-23T17:28:32 (51.7 KB)

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

Uploaded 2026-01-23T17:28:37 (89.7 KB)

Briefing Document: Tober v. Civano 1 Homeowners Association

Executive Summary

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

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

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

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

——————————————————————————–

Case Overview

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

Case Name

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

Case Number

19F-H1918042-REL

Adjudicating Body

Office of Administrative Hearings (OAH)

Administrative Law Judge

Kay A. Abramsohn

Core Issue

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

Initial Hearing Date

June 5, 2019

Initial Decision Date

July 29, 2019

Rehearing Date

December 11, 2019

Final Decision Date

January 15, 2020

——————————————————————————–

Key Parties and Individuals

• Petitioner: Joan A. Tober

◦ A homeowner in the Civano 1 Neighborhood since 2001.

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

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

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

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

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

◦ The governing body for the planned community.

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

• Adjudicator: Kay Abramsohn

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

——————————————————————————–

Chronology of the Dispute

Nov 20, 2018

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

Nov 26, 2018

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

Nov 27, 2018

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

Nov 29, 2018

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

Nov 29, 2018

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

Dec 13, 2018

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

Dec 26, 2018

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

Jan 15-16, 2019

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

June 5, 2019

The initial administrative hearing is held.

July 29, 2019

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

Aug 5, 2019

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

Aug 23, 2019

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

Dec 11, 2019

The rehearing is conducted.

Jan 15, 2020

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

——————————————————————————–

Core Dispute and Arguments

Petitioner’s Position (Joan A. Tober)

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

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

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

Respondent’s Position (Civano 1 HOA)

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

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

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

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

——————————————————————————–

Key Findings of Fact and Evidence

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

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

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

• Petitioner’s Request and Failure to Clarify:

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

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

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

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

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

——————————————————————————–

Legal Rulings and Conclusions of Law

Initial Decision (July 29, 2019)

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

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

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

Final Decision on Rehearing (January 15, 2020)

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

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

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

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

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

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

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

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

——————————————————————————–

Short Answer Quiz

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

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

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

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

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

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

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

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

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

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

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

——————————————————————————–

Answer Key

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

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

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

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

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

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

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

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

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

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

——————————————————————————–

Essay Questions

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

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

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

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

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

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

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

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

Arizona Department of Real Estate (“the Department”)

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

A.R.S. § 33-1805

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

Attorney-Client Privilege

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

Burden of Proof

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

Executive Session

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

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

Office of Administrative Hearings (OAH)

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

Petition

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

Petitioner

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

Preponderance of the Evidence

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

Rehearing

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

Respondent

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

The Letter

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

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

Introduction: The Fight for Information

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion: Strategy Over Sheer Effort

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

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Olga Carnahan v. White Mountain Lake Vistas

Posted on January 13, 2020 by [email protected]

Case Summary

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

Parties & Counsel

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

Alleged Violations

Article 12.3

Outcome Summary

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

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

Key Issues & Findings

Purchase of lots without membership vote

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

Orders: The Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

Article 12.3

Related election workflow tool

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

20F-H2019021-REL Decision – 763430.pdf

Uploaded 2026-04-24T11:24:06 (100.4 KB)

Briefing: Carnahan vs. White Mountain Lake Vistas Administrative Decision

Executive Summary

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

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

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

Case Overview

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

Detailed Analysis of Key Themes

1. Interpretation of CC&Rs vs. Board Authority

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

2. Burden of Proof and Evidentiary Standards

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

3. Procedural Ripeness and Financial Speculation

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

4. Board Transparency and Member Consent

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

Important Quotes and Context

On Article 12.3 (Amendments)

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

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

On Administrative Authority to Amend

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

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

On the Burden of Proof

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

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

On the Final Ruling

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

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

Actionable Insights

For Homeowners Association Boards

Clarify Governing Document Scope: Ensure that the distinction between "Board Actions" (e.g., purchasing property for maintenance/drainage) and "Amendments to Declarations" is clearly communicated to members to prevent litigation.
Documentation of Intent: The Respondent’s ability to point to specific reasons for the purchase (drainage issues) and the lack of any formal Plat changes helped demonstrate that they were not circumventing Article 12.3.
Meeting Minutes as Evidence: The Respondent successfully used meeting minutes (Exhibits #6 and #7) to show that they had consulted with members, even if a formal vote was not legally required.

For Members/Petitioners

Verify Specificity of Allegations: Before filing a petition under A.R.S. § 32-2199, a member should ensure the specific Article cited actually governs the action in question. In this case, citing an "Amendment" clause for a "Purchase" action led to dismissal.
Understand Ripeness: Legal challenges must be based on current violations rather than fears of future financial loss. Arguments regarding "future" adverse effects on finances are likely to be dismissed as not ripe.
Evidentiary Requirements: Petitioners must provide more than testimony; they must provide community documents that explicitly mandate the procedure they claim was bypassed.

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

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

1. Case Overview and Core Themes

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

Key Themes:

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

2. Fact Summary and Timeline

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

3. Analysis of Article 12.3 (Amendments)

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

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

4. Short-Answer Practice Questions

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

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

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

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

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

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

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

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

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

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

5. Essay Prompts for Deeper Exploration

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

6. Glossary of Important Terms

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

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

1. Introduction: The Power Struggle in Planned Communities

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

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

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

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

Carnahan’s petition was built on two primary grievances:

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

3. The Defense: Solving Drainage Issues

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

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

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

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

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

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

5. The Verdict: Why the Petition Failed

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

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

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

6. Compelling Takeaways for Homeowners and Boards

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

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

7. Conclusion: The Importance of Governing Documents

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

Case Participants

Petitioner Side

Olga Carnahan (Petitioner)
Appeared on her own behalf

Respondent Side

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

Neutral Parties

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

Myron H Colvin v. Tierra Del Sol RV Resort Association

Posted on January 9, 2020 by [email protected]

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

Case Summary

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

Parties & Counsel

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

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

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

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

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

Executive Summary

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

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

Procedural History and Case Context

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

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

Key Themes and Analysis

Interpretation of CC&R Section 4.3 (Lot Setbacks)

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

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

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

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

Burden of Proof and Legal Standards

The decision highlights the evidentiary requirements in administrative hearings:

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

Jurisdictional Boundaries

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

Important Quotes and Context

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

Actionable Insights

For Property Owners

Understand Petition Requirements: When filing a petition against a Homeowners Association (HOA), the owner must provide evidence that the Association violated a specific provision of the community documents.
Clarify "Moveable" Standards: Before installing landscaping in setback areas, owners should verify that the materials meet the "one person, unassisted" rule to avoid mechanical device requirements and subsequent violations.
Jurisdictional Awareness: Owners should be aware that the OAH is a venue for addressing association violations, not necessarily a venue for obtaining a declaration that they are in compliance with rules after receiving a violation notice.

For Community Associations

Consistent Enforcement: The Association’s enforcement of Section 4.3 was based on a specific, measurable standard (size/weight of pavers and the need for mechanical assistance). Maintaining such clear standards aids in defending enforcement actions.
Remediation Options: Providing specific methods for compliance (e.g., "cutting the concrete… into small 100 pound sections") can be a useful component of a violation notice.
Jurisdictional Defense: In administrative hearings, associations can successfully argue for dismissal if the petitioner seeks a remedy (like a declaratory judgment) that the tribunal is not authorized to provide.

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

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

Key Concepts and Case Summary

Case Background

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

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

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

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

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

Core Restrictions within Setbacks:

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

The Burden of Proof and Legal Standards

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

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

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

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

Jurisdictional and Interpretive Rulings

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

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

Short-Answer Practice Questions

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

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

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

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

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

Essay Prompts for Deeper Exploration

The Nature of Association Violations: The Association argued that Section 4.3 can only be violated if an entity places an unapproved object in a setback. Analyze the distinction between an Association failing to enforce a rule and an Association "violating" a rule. Based on the Source Context, why was Colvin’s argument fundamentally misaligned with the tribunal's jurisdictional scope?

Interpreting "Unambiguous" Covenants: The decision notes that restrictive covenants must be construed as a whole to give effect to the intent of the parties. Discuss the potential challenges in interpreting the phrase "moved by one person unassisted by mechanical devices." How does such a subjective standard complicate enforcement for both homeowners and Boards of Directors?

The Standard of Evidence in Administrative Law: Compare and contrast "preponderance of the evidence" with other legal standards (such as "beyond a reasonable doubt"). Using the definitions provided in the text, explain why the ALJ found that Colvin failed to meet this standard in his claim against the Association.

Glossary of Important Terms

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

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

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

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

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

2. The Rule: Understanding CC&R Section 4.3

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

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

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

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

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

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

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

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

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

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

4. The Legal Breakdown: Why the Petition Was Dismissed

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

A "Dead on Arrival" Legal Strategy

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

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

The Jurisdictional Trap: No Declaratory Judgments

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

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

5. Conclusion: 3 Essential Takeaways for Homeowners

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

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

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Larry Kline vs. The Foothills Community Association

Posted on January 2, 2020 by [email protected]

Case Summary

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

Parties & Counsel

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

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

20F-H2019012-REL Decision – 761847.pdf

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

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

Executive Summary

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

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

Analysis of Key Themes

1. Definition and Scope of Common Areas

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

The evidence established that:

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

2. Maintenance Liability for Party Walls and Fences

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

3. Successorship and Easement Validity

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

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

4. Technical Failure and Causation

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

Important Quotes with Context

On Common Area Definitions

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

— Bylaws Article I, Section N

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

On Maintenance Responsibility

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

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

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

On the Burden of Proof

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

— Conclusions of Law ¶ 3-4

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

Summary of Findings and Ruling

The Administrative Law Judge made the following determinations:

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

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

Actionable Insights

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

Study Guide: Kline v. The Foothills Community Association

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

Key Concepts and Case Summary

1. Case Overview

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

2. Governing Documents and Definitions

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

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

3. The Central Dispute

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

Petitioner’s Argument: The Association is liable for maintenance based on an Easement Agreement (1988) and a Special Warranty Deed (1995).
Respondent’s Argument: The wall is not in a Common Area; the Association is not a successor to the original "Declarant" of the easement; and the wall sits on private property, making maintenance the owner’s responsibility.

4. Legal Standards

Jurisdiction: The Arizona Department of Real Estate has the authority to decide disputes between homeowners and associations regarding violations of community documents.
Burden of Proof: The Petitioner bears the burden of proving a violation by a preponderance of the evidence (meaning the claim is more probably true than not).

Short-Answer Practice Questions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Essay Prompts for Deeper Exploration

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

Glossary of Important Terms

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

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

Tone: Professional, accessible, consultant-level nuance (strategic, not just reporting).
Fidelity: Prioritize Source Context (Arizona Department of Real Estate case).
Critique Point 1 (Persona): Frame Association strategy as a "defensive masterclass." Highlight Petitioner's lack of geotechnical due diligence regarding the pool.
Critique Point 2 (Successorship): Identify Dell E. Webb. Explain the failure to link the Association via a recorded instrument.
Critique Point 3 (Common Area/Tract A): Include "Tract A" details (13 lots away, only land in the 1995 Deed).
Critique Point 4 (Markdown Table): Add Bylaw Article IV, Section 4.5 (Golf Course Land is NOT Common Area).
Critique Point 5 (Synthesis): Add "Consultant's Notes" to the three missing links.
Critique Point 6 (Conclusion): Reference the Plat Map (no easement on Lot 22) and distinguish Special Warranty Deed vs. Easement Agreement.
Critique Point 7 (Bolding): Bold CC&Rs, Bylaws, Tract Declaration, Special Warranty Deed, Preponderance of the Evidence, Common Area.
Critique Point 8 (Venue): Mention the Arizona Department of Real Estate.
Critique Point 9 (Geography): Wall is on boundary of Lot 22 and Golf Course; HOA does not own the land.

Title: # The $40,000 Wall: Lessons in HOA Liability and Homeowner Responsibility

Section 1: Introduction.
Hook: Financial risks of boundary disputes.
The Case: Larry Kline vs. The Foothills Community Association (20F-H2019012-REL).
Venue: Arizona Department of Real Estate.
Question: Who is responsible for perimeter structures?

Section 2: The Conflict.
Description of Lot 22 and the wall (leaning toward golf course).
Bullet points on physical state: Design flaws, failing anchors, leaning, water damage.
Cost: $30,000-$40,000.
Legal hook: Bylaws Article IV, Section 4.2(p).
Association refusal: Demanded evidence of liability.

Section 3: Decoding the Governing Documents.
Define Common Area (Bylaws Article I, Section N). Mention Tract A (13 lots away).
Section 4.2(p) (Party Fences/Walls).
Section 4.5 (Golf Course Land is NOT Common Area).
Markdown Table: Compare Arguments. Ensure Section 4.5 is the "smoking gun."

Section 4: The Hearing.
Standard: Preponderance of the Evidence.
Association's "defensive masterclass."
Patricia Ann Wontor's testimony: Tract A vs. Lot 22.
Rebuttal/Due Diligence failure: The in-ground pool. Mention Kline's water bill justification as insufficient.

Section 5: The Verdict.
Judge Jenna Clark's decision.
The Three Missing Links with Consultant's Notes.
Link 1: Dell E. Webb / Successorship.
Link 2: Recorded Instrument / Mandate.
Link 3: Land Ownership (Private/Golf course vs. HOA).

Section 6: Conclusion.
Actionable insights.
Know Your Boundaries: Plat Map details (Lot 22 exclusion).
Documentation is King: Special Warranty Deed vs. Easement Agreement.
The Burden of Proof: Preponderance of the Evidence.
Final thought: Legal review and property inspection.

Check bolding: CC&Rs, Bylaws, Tract Declaration, Special Warranty Deed, Common Area, Preponderance of the Evidence.
Verify facts: Tract A is 13 lots away. Original party was Dell E. Webb. Wall is on private/golf course land.
Tone check: Ensure it sounds like a consultant advising a client/reader. Avoid passive language.
Formatting: H1 title, H2/H3 headers, Markdown table, no conversational filler.

Critique: Frame pool leak as failure of due diligence. (Included).
Critique: Mention Tract A is 13 lots away. (Included).
Critique: Mention Section 4.5 in the table. (Included).
Critique: Mention Dell E. Webb and the "recorded instrument" link. (Included).
Critique: "Consultant's Note" for missing links. (Included).
Critique: Bold specific terms. (Done).

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

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

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

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

1. Introduction: The High Stakes of Property Maintenance

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

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

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

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

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

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

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

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

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

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

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

4. The Hearing: A Defensive Masterclass

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

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

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

5. The Verdict: Why the Petition was Denied

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

Failure to Establish Successor Status: The Petitioner could not prove the Association was the legal successor or assign of Dell E. Webb (the original party to the 1988 Easement Agreement).

Consultant’s Note: Without a recorded instrument expressly linking the Association to the original developer’s specific obligations, the "chain of authority" is broken.

Lack of a Recorded Mandate: No Deed or Tract Declaration was presented that explicitly required the Association to maintain that specific wall on Lot 22.

Consultant’s Note: In HOA law, verbal "understandings" or historical assumptions are legally irrelevant compared to what is written in the recorded title.

Private Property Location: It was undisputed that the wall sat on private land and golf course property.

Consultant’s Note: Because the wall was not on a Common Area, the maintenance protections of Bylaws Section 4.2(p) simply did not apply.

6. Conclusion: Key Takeaways for Every Homeowner

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

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

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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