The Administrative Law Judge dismissed the petition because the Petitioner failed to prove the alleged CC&R violation, and the claim was barred by the four-year statute of limitations.
Why this result: Petitioner failed to establish a violation of CC&R section 2.5, and the petition was filed after the four-year statute of limitations (A.R.S. § 12-550) expired.
Key Issues & Findings
Alleged violation of Community Governing Document regarding pipe installation
Petitioner alleged the HOA violated CC&R section 2.5 by installing pipes for a well. Respondent argued that CC&R section 2.5 was inapplicable as it governs additional easements conveyed to a third party, and that the claim was barred by the four-year statute of limitations (A.R.S. § 12-550).
Orders: Petitioner's petition is dismissed. Respondent deemed the prevailing party.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 12-550
CC&R section 2.5
ARIZ. REV. STAT. § 32-2199.02
Analytics Highlights
Topics: Statute of Limitations, Easement, CC&R Violation, Well Installation
Additional Citations:
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 12-550
CC&R section 2.5
Video Overview
Audio Overview
Decision Documents
18F-H1818023-REL Decision – 629162.pdf
Uploaded 2026-01-23T17:23:08 (77.0 KB)
Briefing Doc – 18F-H1818023-REL
Administrative Law Judge Decision Briefing: Stoltenberg vs. Rancho Del Oro HOA
Executive Summary
This briefing analyzes the Administrative Law Judge (ALJ) Decision in case number 18F-H1818023-REL, concerning a dispute between homeowner Michael J. Stoltenberg and the Rancho Del Oro Homeowners Association (HOA). Mr. Stoltenberg alleged that the HOA violated community governing documents (CC&Rs) by installing pipes related to a well through his lot.
The ALJ, Velva Moses-Thompson, dismissed the petitioner’s case in its entirety. The decision was based on two independent and definitive grounds. First, Mr. Stoltenberg failed to meet his burden of proof on the merits of the case; the evidence demonstrated that the pipes were installed within a pre-existing easement and not improperly on his lot, and the specific CC&R section cited was inapplicable. Second, the petition was procedurally barred by Arizona’s four-year statute of limitations, as the installation occurred in the summer of 2013, and the action was filed after this period had expired. Consequently, the Rancho Del Oro HOA was deemed the prevailing party.
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I. Case Overview
This matter was brought before the Arizona Office of Administrative Hearings following a petition filed by Michael J. Stoltenberg against his HOA.
Case Detail
Information
Case Name
Michael J. Stoltenberg, Petitioner, vs. Rancho Del Oro Homeowners Association, Respondent
Case Number
18F-H1818023-REL
Hearing Body
Arizona Office of Administrative Hearings
Administrative Law Judge
Velva Moses-Thompson
Hearing Date
March 28, 2018
Decision Date
April 17, 2018
II. Core Dispute and Allegations
A. Petitioner’s Claim
The central allegation from the petitioner, Mr. Stoltenberg, was that the Rancho Del Oro HOA violated the Community Governing Document CC&Rs.
• Specific Allegation: The HOA improperly installed pipes through his lot as part of a well installation project.
• Cited CC&R Violations: The petition focused on violations of CC&R sections 1.13, 1.19, and 2.5. The decision notes that sections 1.13 and 1.19 are definition sections, making section 2.5 the substantive focus of the dispute.
B. Respondent’s Defense Strategy
The Rancho Del Oro HOA presented a multi-faceted defense against the petitioner’s claims, combining a procedural dismissal argument with a substantive rebuttal.
1. Statute of Limitations: The HOA contended the claim was barred by the four-year statute of limitations established in ARIZ. REV. STAT. § 12-550. They asserted that since the well and pipes were installed in the summer of 2013, the time frame for filing a petition had expired.
2. Inapplicability of CC&R Section 2.5: The HOA argued that this section was not relevant to the situation. They maintained that CC&R section 2.5 pertains specifically to instances where the HOA grants or conveys an additional easement to a third party, which had not occurred.
3. Factual Rebuttal: The HOA asserted that the pipes were installed within an easement that already existed at the time of installation, not on Mr. Stoltenberg’s lot outside of an easement.
III. Adjudicated Findings and Conclusions
The Administrative Law Judge made several key findings of fact and conclusions of law that formed the basis of the final order. The petitioner, Mr. Stoltenberg, bore the burden of proving the alleged violations by a “preponderance of the evidence.”
A. Findings of Fact
The ALJ’s decision was based on the testimony and evidence presented at the hearing. The key findings were:
• Witnesses: The court heard testimony from petitioner Michael J. Stoltenberg, HOA community manager Diana Crites, and HOA Board Chairman James Van Sickle.
• Location of Installation: Evidence showed the pipes were installed in an easement that was already in existence at the time of the 2013 installation.
• Failure of Evidentiary Support: The judge explicitly noted, “There was no evidence presented at hearing that the well or the well pipe were installed on Mr. Stoltenberg’s lot.”
B. Conclusions of Law
Based on the evidence and statutes, the ALJ reached the following legal conclusions:
• Statute of Limitations is Applicable: The judge affirmed that ARIZ. REV. STAT. § 12-550 establishes a four-year statute of limitations for such actions. The installation occurred in 2013, and Mr. Stoltenberg filed his petition after this four-year period had expired, rendering the claim time-barred.
• Interpretation of CC&R 2.5: The judge agreed with the HOA’s interpretation, concluding that CC&R section 2.5 applies to easements granted to a third party by the HOA.
• No Violation Occurred: The “weight of the evidence” demonstrated that the pipes were in an existing easement and the HOA did not grant or convey a new easement to a third party. Therefore, Mr. Stoltenberg failed to establish a violation of CC&R section 2.5.
• Failure to Meet Burden of Proof: Due to the lack of evidence and the inapplicability of the cited CC&R section, the petitioner failed to prove the alleged violation by a preponderance of the evidence.
IV. Final Order and Implications
Based on the dual findings that the claim was both time-barred and without merit, the Administrative Law Judge issued a decisive order.
• Order: “IT IS ORDERED that Mr. Stoltenberg’s petition is dismissed.”
• Prevailing Party: The Respondent, Rancho Del Oro Homeowners Association, was deemed the prevailing party in the matter.
• Next Steps: The decision is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the order’s service, pursuant to A.R.S. § 32-2199.04 and § 41-1092.09.
Study Guide – 18F-H1818023-REL
Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association (Case No. 18F-H1818023-REL)
This study guide provides a comprehensive review of the Administrative Law Judge Decision in the matter of Michael J. Stoltenberg versus the Rancho Del Oro Homeowners Association, heard by the Office of Administrative Hearings in Arizona.
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Short-Answer Quiz
Instructions: Answer the following ten questions in two to three complete sentences each, based on the information provided in the case document.
1. Who were the primary parties in case number 18F-H1818023-REL, and what were their respective roles?
2. What was the core allegation made by the Petitioner, Michael J. Stoltenberg, against the Respondent?
3. What two primary legal arguments did the Rancho Del Oro Homeowners Association present in its defense?
4. According to the judge’s findings, what crucial piece of evidence was not presented at the hearing regarding the location of the well and pipes?
5. What is the statute of limitations cited in this case, and why was it a critical factor in the judge’s decision?
6. How did the Administrative Law Judge interpret Community Governing Document CC&R section 2.5 in relation to the Respondent’s actions?
7. Who has the burden of proof in this type of hearing, and what is the specific standard of proof required to win the case?
8. What was the ultimate Order issued by the Administrative Law Judge, and who was named the prevailing party?
9. Aside from the statute of limitations, what was the other fundamental reason the Petitioner failed to prove his case?
10. After the judge’s Order was issued on April 17, 2018, what recourse was available to the parties involved?
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Answer Key
1. The primary parties were Petitioner Michael J. Stoltenberg, who brought the complaint, and Respondent Rancho Del Oro Homeowners Association, who was defending against the complaint. Mr. Stoltenberg represented himself, while the Homeowners Association was represented by its attorney, Lydia Linsmeier, Esq.
2. Mr. Stoltenberg alleged that the Homeowners Association violated sections 1.13, 1.19, and 2.5 of the Community Governing Document (CC&Rs). The basis of his petition was that the HOA had improperly installed pipes through his lot in connection with a new well.
3. The HOA argued that the claim was barred by the statute of limitations under ARIZ. REV. STAT. section 12-550, as the installation occurred in 2013, more than four years prior. The HOA also contended that CC&R section 2.5 did not apply because it refers to granting additional easements to a third party, which the HOA did not do.
4. The judge’s “Findings of Fact” state that “There was no evidence presented at hearing that the well or the well pipe were installed on Mr. Stoltenberg’s lot.” This lack of evidence was a key failure in the Petitioner’s case.
5. The statute of limitations cited is ARIZ. REV. STAT. section 12-550, which requires actions to be brought within four years. This was critical because the well and pipes were installed in the summer of 2013, and Mr. Stoltenberg filed his petition after this four-year period had expired, making his claim untimely.
6. The judge concluded that CC&R section 2.5 specifically applies to easements that are granted or conveyed to a third party by the Respondent. Since the evidence showed the pipes were installed in an existing easement and the HOA did not grant a new one to a third party, the judge found that this section was not violated.
7. The Petitioner, Mr. Stoltenberg, bears the burden of proof. The standard of proof required is a “preponderance of the evidence,” which means the evidence must have the most convincing force and be sufficient to incline a fair and impartial mind to one side of the issue over the other.
8. The Administrative Law Judge ordered that Mr. Stoltenberg’s petition be dismissed. As a result of the dismissal, the Respondent (Rancho Del Oro Homeowners Association) was deemed the prevailing party in the matter.
9. The Petitioner failed to prove his case because the weight of the evidence showed the HOA did not violate CC&R section 2.5. The evidence indicated the pipes were installed in a pre-existing easement, and the HOA did not grant or convey a new easement to a third party as described in that section.
10. Pursuant to A.R.S. §32-2199.02(B) and A.R.S. § 41-1092.09, the parties had the right to request a rehearing. This request had to be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
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Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive essay-style response for each.
1. Analyze the concept of “burden of proof” as it applied in this case. How did the Petitioner’s failure to meet the “preponderance of the evidence” standard, particularly regarding the location of the pipes, contribute to the dismissal of his petition?
2. Discuss the significance of the statute of limitations (ARIZ. REV. STAT. section 12-550) in the judge’s decision. Why are such statutes important in legal proceedings, and how did it provide a separate and independent basis for dismissing the case?
3. Explain the legal reasoning behind the judge’s interpretation of CC&R section 2.5. Why was the distinction between an “existing easement” and granting a “new easement to a third party” a critical factor in the outcome?
4. Imagine you were legal counsel for the Petitioner. Based on the information in the decision, what kind of evidence would have been necessary to successfully prove a violation of the Community Governing Documents and overcome the Respondent’s defenses?
5. Examine the roles of the different entities involved in this dispute: the Petitioner, the Homeowners Association, the Office of Administrative Hearings, and the Arizona Department of Real Estate. How does the structure of this administrative hearing process provide a mechanism for resolving disputes between homeowners and HOAs?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official (in this case, Velva Moses-Thompson) who presides over administrative hearings, weighs evidence, and makes legal rulings and decisions.
ARIZ. ADMIN. CODE
The Arizona Administrative Code, a set of state regulations. Section R2-19-119 is cited as establishing the standard of proof for the hearing.
ARIZ. REV. STAT.
Arizona Revised Statutes, the collection of laws passed by the Arizona state legislature. Several statutes are cited, including those governing real estate, HOA disputes, and the statute of limitations.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this matter, the burden of proof was on the Petitioner, Mr. Stoltenberg.
An abbreviation for Covenants, Conditions, and Restrictions, which are rules set forth in a Community Governing Document that property owners in a planned community or condominium must follow.
Easement
A legal right to use another person’s land for a specific, limited purpose. In this case, it refers to the area where pipes were installed, which the judge found was an “existing easement.”
Findings of Fact
The section of a legal decision that details the factual determinations made by the judge based on the evidence and testimony presented at a hearing.
Homeowners Association (HOA)
An organization in a planned community (like Rancho Del Oro) that creates and enforces rules for the properties and residents within its jurisdiction.
Notice of Hearing
A formal document issued to inform the parties of the date, time, location, and subject matter of a scheduled legal hearing.
Petitioner
The party who initiates a lawsuit or petition, seeking a legal remedy. In this case, Michael J. Stoltenberg.
Preponderance of the Evidence
The standard of proof in this case. Defined in the document as “The greater weight of the evidence…sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Respondent
The party against whom a petition is filed; the party who must respond to the allegations. In this case, the Rancho Del Oro Homeowners Association.
Statute of Limitations
A law that sets the maximum amount of time that parties involved in a dispute have to initiate legal proceedings. In this case, ARIZ. REV. STAT. section 12-550 established a four-year limit.
The Administrative Law Judge dismissed the petition because the Petitioner failed to prove the alleged CC&R violation, and the claim was barred by the four-year statute of limitations.
Why this result: Petitioner failed to establish a violation of CC&R section 2.5, and the petition was filed after the four-year statute of limitations (A.R.S. § 12-550) expired.
Key Issues & Findings
Alleged violation of Community Governing Document regarding pipe installation
Petitioner alleged the HOA violated CC&R section 2.5 by installing pipes for a well. Respondent argued that CC&R section 2.5 was inapplicable as it governs additional easements conveyed to a third party, and that the claim was barred by the four-year statute of limitations (A.R.S. § 12-550).
Orders: Petitioner's petition is dismissed. Respondent deemed the prevailing party.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 12-550
CC&R section 2.5
ARIZ. REV. STAT. § 32-2199.02
Analytics Highlights
Topics: Statute of Limitations, Easement, CC&R Violation, Well Installation
Additional Citations:
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 12-550
CC&R section 2.5
Video Overview
Audio Overview
Decision Documents
18F-H1818023-REL Decision – 629162.pdf
Uploaded 2025-10-09T03:32:26 (77.0 KB)
Briefing Doc – 18F-H1818023-REL
Administrative Law Judge Decision Briefing: Stoltenberg vs. Rancho Del Oro HOA
Executive Summary
This briefing analyzes the Administrative Law Judge (ALJ) Decision in case number 18F-H1818023-REL, concerning a dispute between homeowner Michael J. Stoltenberg and the Rancho Del Oro Homeowners Association (HOA). Mr. Stoltenberg alleged that the HOA violated community governing documents (CC&Rs) by installing pipes related to a well through his lot.
The ALJ, Velva Moses-Thompson, dismissed the petitioner’s case in its entirety. The decision was based on two independent and definitive grounds. First, Mr. Stoltenberg failed to meet his burden of proof on the merits of the case; the evidence demonstrated that the pipes were installed within a pre-existing easement and not improperly on his lot, and the specific CC&R section cited was inapplicable. Second, the petition was procedurally barred by Arizona’s four-year statute of limitations, as the installation occurred in the summer of 2013, and the action was filed after this period had expired. Consequently, the Rancho Del Oro HOA was deemed the prevailing party.
——————————————————————————–
I. Case Overview
This matter was brought before the Arizona Office of Administrative Hearings following a petition filed by Michael J. Stoltenberg against his HOA.
Case Detail
Information
Case Name
Michael J. Stoltenberg, Petitioner, vs. Rancho Del Oro Homeowners Association, Respondent
Case Number
18F-H1818023-REL
Hearing Body
Arizona Office of Administrative Hearings
Administrative Law Judge
Velva Moses-Thompson
Hearing Date
March 28, 2018
Decision Date
April 17, 2018
II. Core Dispute and Allegations
A. Petitioner’s Claim
The central allegation from the petitioner, Mr. Stoltenberg, was that the Rancho Del Oro HOA violated the Community Governing Document CC&Rs.
• Specific Allegation: The HOA improperly installed pipes through his lot as part of a well installation project.
• Cited CC&R Violations: The petition focused on violations of CC&R sections 1.13, 1.19, and 2.5. The decision notes that sections 1.13 and 1.19 are definition sections, making section 2.5 the substantive focus of the dispute.
B. Respondent’s Defense Strategy
The Rancho Del Oro HOA presented a multi-faceted defense against the petitioner’s claims, combining a procedural dismissal argument with a substantive rebuttal.
1. Statute of Limitations: The HOA contended the claim was barred by the four-year statute of limitations established in ARIZ. REV. STAT. § 12-550. They asserted that since the well and pipes were installed in the summer of 2013, the time frame for filing a petition had expired.
2. Inapplicability of CC&R Section 2.5: The HOA argued that this section was not relevant to the situation. They maintained that CC&R section 2.5 pertains specifically to instances where the HOA grants or conveys an additional easement to a third party, which had not occurred.
3. Factual Rebuttal: The HOA asserted that the pipes were installed within an easement that already existed at the time of installation, not on Mr. Stoltenberg’s lot outside of an easement.
III. Adjudicated Findings and Conclusions
The Administrative Law Judge made several key findings of fact and conclusions of law that formed the basis of the final order. The petitioner, Mr. Stoltenberg, bore the burden of proving the alleged violations by a “preponderance of the evidence.”
A. Findings of Fact
The ALJ’s decision was based on the testimony and evidence presented at the hearing. The key findings were:
• Witnesses: The court heard testimony from petitioner Michael J. Stoltenberg, HOA community manager Diana Crites, and HOA Board Chairman James Van Sickle.
• Location of Installation: Evidence showed the pipes were installed in an easement that was already in existence at the time of the 2013 installation.
• Failure of Evidentiary Support: The judge explicitly noted, “There was no evidence presented at hearing that the well or the well pipe were installed on Mr. Stoltenberg’s lot.”
B. Conclusions of Law
Based on the evidence and statutes, the ALJ reached the following legal conclusions:
• Statute of Limitations is Applicable: The judge affirmed that ARIZ. REV. STAT. § 12-550 establishes a four-year statute of limitations for such actions. The installation occurred in 2013, and Mr. Stoltenberg filed his petition after this four-year period had expired, rendering the claim time-barred.
• Interpretation of CC&R 2.5: The judge agreed with the HOA’s interpretation, concluding that CC&R section 2.5 applies to easements granted to a third party by the HOA.
• No Violation Occurred: The “weight of the evidence” demonstrated that the pipes were in an existing easement and the HOA did not grant or convey a new easement to a third party. Therefore, Mr. Stoltenberg failed to establish a violation of CC&R section 2.5.
• Failure to Meet Burden of Proof: Due to the lack of evidence and the inapplicability of the cited CC&R section, the petitioner failed to prove the alleged violation by a preponderance of the evidence.
IV. Final Order and Implications
Based on the dual findings that the claim was both time-barred and without merit, the Administrative Law Judge issued a decisive order.
• Order: “IT IS ORDERED that Mr. Stoltenberg’s petition is dismissed.”
• Prevailing Party: The Respondent, Rancho Del Oro Homeowners Association, was deemed the prevailing party in the matter.
• Next Steps: The decision is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the order’s service, pursuant to A.R.S. § 32-2199.04 and § 41-1092.09.
Study Guide – 18F-H1818023-REL
Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association (Case No. 18F-H1818023-REL)
This study guide provides a comprehensive review of the Administrative Law Judge Decision in the matter of Michael J. Stoltenberg versus the Rancho Del Oro Homeowners Association, heard by the Office of Administrative Hearings in Arizona.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following ten questions in two to three complete sentences each, based on the information provided in the case document.
1. Who were the primary parties in case number 18F-H1818023-REL, and what were their respective roles?
2. What was the core allegation made by the Petitioner, Michael J. Stoltenberg, against the Respondent?
3. What two primary legal arguments did the Rancho Del Oro Homeowners Association present in its defense?
4. According to the judge’s findings, what crucial piece of evidence was not presented at the hearing regarding the location of the well and pipes?
5. What is the statute of limitations cited in this case, and why was it a critical factor in the judge’s decision?
6. How did the Administrative Law Judge interpret Community Governing Document CC&R section 2.5 in relation to the Respondent’s actions?
7. Who has the burden of proof in this type of hearing, and what is the specific standard of proof required to win the case?
8. What was the ultimate Order issued by the Administrative Law Judge, and who was named the prevailing party?
9. Aside from the statute of limitations, what was the other fundamental reason the Petitioner failed to prove his case?
10. After the judge’s Order was issued on April 17, 2018, what recourse was available to the parties involved?
——————————————————————————–
Answer Key
1. The primary parties were Petitioner Michael J. Stoltenberg, who brought the complaint, and Respondent Rancho Del Oro Homeowners Association, who was defending against the complaint. Mr. Stoltenberg represented himself, while the Homeowners Association was represented by its attorney, Lydia Linsmeier, Esq.
2. Mr. Stoltenberg alleged that the Homeowners Association violated sections 1.13, 1.19, and 2.5 of the Community Governing Document (CC&Rs). The basis of his petition was that the HOA had improperly installed pipes through his lot in connection with a new well.
3. The HOA argued that the claim was barred by the statute of limitations under ARIZ. REV. STAT. section 12-550, as the installation occurred in 2013, more than four years prior. The HOA also contended that CC&R section 2.5 did not apply because it refers to granting additional easements to a third party, which the HOA did not do.
4. The judge’s “Findings of Fact” state that “There was no evidence presented at hearing that the well or the well pipe were installed on Mr. Stoltenberg’s lot.” This lack of evidence was a key failure in the Petitioner’s case.
5. The statute of limitations cited is ARIZ. REV. STAT. section 12-550, which requires actions to be brought within four years. This was critical because the well and pipes were installed in the summer of 2013, and Mr. Stoltenberg filed his petition after this four-year period had expired, making his claim untimely.
6. The judge concluded that CC&R section 2.5 specifically applies to easements that are granted or conveyed to a third party by the Respondent. Since the evidence showed the pipes were installed in an existing easement and the HOA did not grant a new one to a third party, the judge found that this section was not violated.
7. The Petitioner, Mr. Stoltenberg, bears the burden of proof. The standard of proof required is a “preponderance of the evidence,” which means the evidence must have the most convincing force and be sufficient to incline a fair and impartial mind to one side of the issue over the other.
8. The Administrative Law Judge ordered that Mr. Stoltenberg’s petition be dismissed. As a result of the dismissal, the Respondent (Rancho Del Oro Homeowners Association) was deemed the prevailing party in the matter.
9. The Petitioner failed to prove his case because the weight of the evidence showed the HOA did not violate CC&R section 2.5. The evidence indicated the pipes were installed in a pre-existing easement, and the HOA did not grant or convey a new easement to a third party as described in that section.
10. Pursuant to A.R.S. §32-2199.02(B) and A.R.S. § 41-1092.09, the parties had the right to request a rehearing. This request had to be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive essay-style response for each.
1. Analyze the concept of “burden of proof” as it applied in this case. How did the Petitioner’s failure to meet the “preponderance of the evidence” standard, particularly regarding the location of the pipes, contribute to the dismissal of his petition?
2. Discuss the significance of the statute of limitations (ARIZ. REV. STAT. section 12-550) in the judge’s decision. Why are such statutes important in legal proceedings, and how did it provide a separate and independent basis for dismissing the case?
3. Explain the legal reasoning behind the judge’s interpretation of CC&R section 2.5. Why was the distinction between an “existing easement” and granting a “new easement to a third party” a critical factor in the outcome?
4. Imagine you were legal counsel for the Petitioner. Based on the information in the decision, what kind of evidence would have been necessary to successfully prove a violation of the Community Governing Documents and overcome the Respondent’s defenses?
5. Examine the roles of the different entities involved in this dispute: the Petitioner, the Homeowners Association, the Office of Administrative Hearings, and the Arizona Department of Real Estate. How does the structure of this administrative hearing process provide a mechanism for resolving disputes between homeowners and HOAs?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official (in this case, Velva Moses-Thompson) who presides over administrative hearings, weighs evidence, and makes legal rulings and decisions.
ARIZ. ADMIN. CODE
The Arizona Administrative Code, a set of state regulations. Section R2-19-119 is cited as establishing the standard of proof for the hearing.
ARIZ. REV. STAT.
Arizona Revised Statutes, the collection of laws passed by the Arizona state legislature. Several statutes are cited, including those governing real estate, HOA disputes, and the statute of limitations.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this matter, the burden of proof was on the Petitioner, Mr. Stoltenberg.
An abbreviation for Covenants, Conditions, and Restrictions, which are rules set forth in a Community Governing Document that property owners in a planned community or condominium must follow.
Easement
A legal right to use another person’s land for a specific, limited purpose. In this case, it refers to the area where pipes were installed, which the judge found was an “existing easement.”
Findings of Fact
The section of a legal decision that details the factual determinations made by the judge based on the evidence and testimony presented at a hearing.
Homeowners Association (HOA)
An organization in a planned community (like Rancho Del Oro) that creates and enforces rules for the properties and residents within its jurisdiction.
Notice of Hearing
A formal document issued to inform the parties of the date, time, location, and subject matter of a scheduled legal hearing.
Petitioner
The party who initiates a lawsuit or petition, seeking a legal remedy. In this case, Michael J. Stoltenberg.
Preponderance of the Evidence
The standard of proof in this case. Defined in the document as “The greater weight of the evidence…sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Respondent
The party against whom a petition is filed; the party who must respond to the allegations. In this case, the Rancho Del Oro Homeowners Association.
Statute of Limitations
A law that sets the maximum amount of time that parties involved in a dispute have to initiate legal proceedings. In this case, ARIZ. REV. STAT. section 12-550 established a four-year limit.
Blog Post – 18F-H1818023-REL
4 Harsh Lessons from a Homeowner’s Failed Lawsuit Against Their HOA
For many homeowners, a dispute with their Homeowners Association (HOA) can feel like a classic David vs. Goliath story. We’re drawn to tales of the little guy winning against a powerful board, but the reality is that these battles are governed by unforgiving rules, and victory is never guaranteed. While stories of homeowner triumphs are inspiring, it is just as crucial—if not more so—to understand the anatomy of a failure.
This article serves as a cautionary tale, exploring the surprising and impactful lessons from a legal case where a homeowner’s petition against their HOA was decisively dismissed. By understanding the series of avoidable missteps that led to this loss, every homeowner can be better prepared to protect their rights and their property.
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1. Time is Not on Your Side: The Statute of Limitations
In the legal world, a “statute of limitations” is a strict deadline for filing a lawsuit. Think of it as a countdown clock that starts the moment a potential legal issue occurs. If you let that clock run out, you forfeit your right to take legal action, no matter how valid your complaint might be.
The first domino to fall in this case was the calendar. The homeowner’s complaint centered on pipes installed in the summer of 2013. The petition, however, wasn’t filed until early 2018, just a few months after the four-year deadline had expired. This wasn’t a case of extreme neglect; it was a critical error of a few months that proved instantly fatal. The lesson here is harsh and urgent: if you believe your HOA has wronged you, you must act promptly. Waiting too long can render your claim legally void before it ever gets a fair hearing.
The specific rule that was applied is a stark reminder of this unforgiving principle:
Actions other than for recovery of real property for which no limitation is otherwise prescribed shall be brought within four years after the cause of action accrues, and not afterward.
2. You Have to Prove It: The Burden of Proof
In any legal dispute, the person bringing the complaint—the petitioner—has the “burden of proof.” This means it is entirely your responsibility to present convincing evidence to support your claims. Simply believing something to be true is not enough; you must prove it with cold, hard facts. Here’s where every homeowner should pay close attention.
The case’s foundation crumbled under the simple question: “Where is the proof?” The core of the homeowner’s case was the allegation that the HOA had installed pipes through his lot. This was the central pillar of the entire petition. But when the time came to present evidence, the pillar collapsed. The judge’s decision contained this stunning finding:
There was no evidence presented at hearing that the well or the well pipe were installed on […] lot.
An entire lawsuit can be dismissed if a fundamental claim, no matter how strongly you believe it, cannot be factually proven. Your conviction that you are right means nothing in a hearing without evidence to back it up.
3. Read the Fine Print: The Rules Might Not Mean What You Think They Mean
The homeowner built his argument on a specific part of the Community Governing Documents (CC&Rs), section 2.5, believing it proved the HOA had acted improperly. But the devil is always in the details, and a misinterpretation of those details can be fatal to a case.
The HOA successfully argued that the rule the homeowner cited only applied to situations where the HOA granted a new easement to a third party. In reality, the HOA had simply used an existing easement and had not granted anything to an outside entity. This is a critical distinction. Think of it this way: the homeowner argued the HOA violated the rules for building a new road, but the HOA proved they were simply driving a car on a road that already existed. The homeowner’s argument, while possibly correct about new roads, was irrelevant to the actual situation.
Compounding the error, the homeowner’s initial petition also cited sections of the CC&Rs that were simply definitions, not enforceable rules—a fundamental misunderstanding of the legal documents at the heart of the case.
4. A Double Dismissal: Why the Case Failed on Two Fronts
This case didn’t just lose once; the court effectively ruled the homeowner would have lost twice, on two completely different grounds. This reveals a devastating legal reality: winning requires clearing multiple hurdles, while losing only requires failing at one.
The petition was dismissed for two independent and powerful reasons:
1. The Procedural Knockout: The case was filed too late, violating the four-year statute of limitations. This is a procedural bar, meaning the court couldn’t even consider the facts of the case. It was dead on arrival.
2. The Substantive Failure: The judge made it clear that even if the case had been filed on time, it would have failed on its merits. The homeowner failed to prove his central claim (the pipe location) and fundamentally misinterpreted the CC&Rs.
This “double loss” demonstrates that a successful case against an HOA must be both timely and legally sound. One without the other is a recipe for failure.
——————————————————————————–
Conclusion: Are You Ready for a Fight?
Being frustrated with your HOA is understandable, but that feeling is not enough to win a legal battle. As this case demonstrates, a successful challenge demands timely action, solid evidence, and a precise interpretation of your community’s governing documents. And a loss isn’t just a disappointment; it means your filing fees are lost, and you’ve spent significant time and energy for nothing, with the HOA’s position only becoming more entrenched. This is a financial and emotional trap you must avoid.
Before you decide to take on your HOA, ask yourself: Have you checked the calendar, your property survey, and the fine print?
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
17F-H1716018-REL-RHG | 17F-H1716022-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2018-03-15
Administrative Law Judge
Tammy L. Eigenheer
Outcome
no
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Thomas Satterlee
Counsel
—
Respondent
Green Valley Country Club Vistas II Property Owners Association
Counsel
James A. Robles
Alleged Violations
A.R.S. § 33-1802(4)
Outcome Summary
The consolidated petitions were dismissed with prejudice. The Tribunal determined it lacked subject matter jurisdiction because the Respondent Association does not own or operate real estate and does not hold a covenant to maintain roadways, meaning it does not meet the statutory definition of a 'planned community' under A.R.S. § 33-1802(4).
Why this result: The Association is not a 'planned community' under Arizona law because it does not own common area real estate or have an easement/covenant to maintain roadways.
Key Issues & Findings
Subject Matter Jurisdiction / Definition of Planned Community
Respondent moved to dismiss arguing OAH lacked jurisdiction because the Association is not a "planned community" as defined by statute. Petitioner argued landscaping and signage constituted a "covenant to maintain roadways," conferring jurisdiction.
Orders: The Administrative Law Judge concluded Respondent is not a planned community; petitions dismissed with prejudice.
**Case Summary: Satterlee v. Green Valley Country Club Vistas II Property Owners Association**
**Case No. 17F-H1716018-REL-RHG**
**Overview**
This summary covers the administrative proceedings involving Petitioner Thomas Satterlee and Respondent Green Valley Country Club Vistas II Property Owners Association. The proceedings culminated in a **rehearing** decision issued on March 15, 2018. The central legal issue throughout both the original hearing and the rehearing was whether the Respondent qualifies as a "planned community" under Arizona law, which determines the subject matter jurisdiction of the Office of Administrative Hearings (OAH).
**Original Proceedings (June–July 2017)**
* **Procedural History:** The original consolidated matters were heard regarding the Respondent's motion to vacate based on a lack of jurisdiction.
* **Key Facts:** Both parties agreed that the Respondent association did not own or operate real estate, nor did it possess a roadway easement or covenant.
* **Arguments:** The Petitioner argued the OAH should exercise jurisdiction because a former Administrative Law Judge (ALJ) had done so in a 2015 case involving the same parties, and because the community documents contemplated being bound by planned community laws.
* **Decision:** The ALJ dismissed the case. The ruling established that subject matter jurisdiction is defined by statute and cannot be conferred by estoppel or the parties' errors in prior cases. Under A.R.S. § 33-1802(4), an association must own real estate or hold specific easements/covenants to be a "planned community." Since the Respondent did not meet these criteria, the OAH lacked jurisdiction.
**Rehearing Proceedings (February–March 2018)**
Following the original dismissal, the Petitioner filed a request for rehearing, which the Commissioner granted in September 2017. The rehearing convened for oral arguments on February 20, 2018.
* **Main Issue:** The Respondent filed a Renewal of its Motion to Dismiss, again asserting that the Department of Real Estate and OAH lacked jurisdiction because the Association is not a "planned community".
* **Petitioner’s Argument (Rehearing):** The Petitioner advanced a new interpretation of the statute. He argued that because the developer built walls and a sign at the entrance, and the Respondent maintained the landscaping around them, the Respondent held a "covenant to maintain roadways". The Petitioner contended that the statutory term "roadway" should include "roadway systems," encompassing the land at the community entrance.
* **Respondent’s Argument:** The Respondent countered that landscaping around a sign does not constitute a roadway. Therefore, the requirement of a "covenant to maintain roadways" was not met.
* **Legal Analysis:** The ALJ cited A.R.S. § 33-1802(4), noting that the definition of a planned community requires real estate owned and operated by the association, or an easement/covenant to maintain roadways. The ALJ explicitly declined the Petitioner's invitation to interpret "roadways" to mean "areas adjacent to roadways" or to count the maintenance of entrance walls and signs as maintaining a roadway.
**Final Outcome**
The ALJ affirmed that the Respondent is not a "planned community" as defined by statute. Consequently, the OAH and the Arizona Department of Real Estate lack subject matter jurisdiction over the dispute. The petitions were **dismissed with prejudice**.
Case Participants
Petitioner Side
Thomas Satterlee(Petitioner) Appeared on his own behalf
Respondent Side
James A. Robles(Attorney) Green Valley Country Club Vistas II Property Owners Association Represented Respondent
Neutral Parties
Suzanne Marwil(ALJ) OAH Presided over original hearing (July 2017)
Tammy L. Eigenheer(ALJ) OAH Presided over rehearing (March 2018)
Judy Lowe(Commissioner) ADRE Signed Final Order
Abby Hansen(HOA Coordinator) ADRE Addressee for rehearing requests
Douglas(Former ALJ) OAH Referenced as having heard a prior case (15F-H1515008-BFS)
Felicia Del Sol(Clerk) OAH Transmitted the 2018 decision
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
17F-H1716018-REL-RHG, 17F-H1716022-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2018-03-15
Administrative Law Judge
Tammy L. Eigenheer
Outcome
no
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Thomas Satterlee
Counsel
—
Respondent
Green Valley Country Club Vistas II Property Owners’ Association
Counsel
James A. Robles
Alleged Violations
A.R.S. § 33-1802(4)
Outcome Summary
The ALJ granted the Respondent's Motion to Dismiss. The tribunal found it lacked subject matter jurisdiction because the Respondent did not meet the statutory definition of a 'planned community' under A.R.S. § 33-1802(4), as it did not own real estate or hold a covenant to maintain roadways.
Why this result: Respondent is not a planned community as defined by statute.
Key Issues & Findings
Subject Matter Jurisdiction
Petitioner alleged Respondent was subject to ADRE jurisdiction as a planned community due to maintenance of entrance walls and signs. Respondent moved to dismiss based on not meeting the statutory definition of a planned community.
Orders: The consolidated petitions were dismissed with prejudice due to lack of subject matter jurisdiction.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_lost
Cited:
A.R.S. § 33-1802(4)
Decision Documents
17F-H1716022-REL-RHG Decision – 622756.pdf
Uploaded 2026-01-27T21:13:37 (85.6 KB)
**Case Summary: *Satterlee v. Green Valley Country Club Vistas II Property Owners’ Association***
**Case Numbers:** 17F-H1716018-REL-RHG / 17F-H1716022-REL-RHG
**Forum:** Arizona Office of Administrative Hearings (OAH)
**Date of Decision:** March 15, 2018
**Procedural Context: Rehearing**
This administrative decision is explicitly a **rehearing** of consolidated matters previously decided in 2017. The Administrative Law Judge (ALJ) addressed a renewed challenge regarding whether the Arizona Department of Real Estate (ADRE) and OAH possessed subject matter jurisdiction over the dispute,.
**I. Original Proceedings (2017)**
* **Procedural History:** In the original proceeding, the Respondent (Green Valley Country Club Vistas II) filed a Motion to Dismiss, arguing it did not meet the statutory definition of a "planned community" under A.R.S. § 33-1802(4) because it did not own real estate or possess roadway easements,.
* **Original Outcome:** On July 7, 2017, the Commissioner accepted the ALJ’s recommendation to dismiss the case. The ALJ found that the Respondent was not a "planned community," and therefore, the administrative bodies lacked jurisdiction to hear the petitions,.
* **Transition to Rehearing:** The Petitioner (Thomas Satterlee) filed a notice of rehearing in September 2017, which the Commissioner granted,.
**II. Rehearing Proceedings (2018)**
* **Main Issue:** The central legal issue remained whether the Respondent qualified as a "planned community," which determines whether the OAH has subject matter jurisdiction. The specific dispute focused on statutory interpretation regarding the maintenance of community entrances,.
* **Key Arguments:**
* **Petitioner’s Argument:** The Petitioner argued that because the developer built walls and a sign at the community entrance, and the Respondent maintained the landscaping around them, the Association held a "covenant to maintain roadways." The Petitioner urged the ALJ to interpret "roadway" broadly to include "roadway systems," encompassing the land and improvements at the entrance.
* **Respondent’s Argument:** The Respondent renewed its Motion to Dismiss, asserting that landscaping around a sign does not constitute a "roadway." Consequently, the Association still lacked the necessary covenant to maintain roadways required by A.R.S. § 33-1802(4) to qualify as a planned community,.
**III. Legal Analysis and Final Decision**
The ALJ ruled in favor of the Respondent, dismissing the petitions with prejudice. The decision rested on the following legal points:
1. **Subject Matter Jurisdiction:** The ALJ emphasized that administrative jurisdiction is strictly defined by statute. Jurisdiction cannot be waived, nor can it be conferred by the agreement or estoppel of the parties, [
Case Participants
Petitioner Side
Thomas Satterlee(Petitioner) Appeared on his own behalf
Respondent Side
James A. Robles(Respondent Attorney) Green Valley Country Club Vistas II Property Owners’ Association
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Douglas(Former ALJ) Office of Administrative Hearings Referenced as handling previous docket number 15F-H1515008-BFS
Judy Lowe(Commissioner) Arizona Department of Real Estate
Felicia Del Sol(Administrative Staff) Office of Administrative Hearings Transmitted the order
The Petitioner's claim that the HOA violated CC&Rs Article 10.8 (Notice of Violation) was dismissed because the Article governs only recorded notices, and the Petitioner did not prove the notices in question were recorded.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Mountain Rose violated its CC&Rs Article 10.8, because that provision applies only to recorded notices, and the notices issued to the Petitioner were not recorded.
Key Issues & Findings
Alleged violation of CC&R notice requirements regarding clarity and completeness of violation notices.
The Petitioner alleged the HOA violated CC&Rs Article 10.8 because the violation notices sent to him failed to include five mandatory pieces of information required by that section of the CC&Rs. The Petitioner also sought the refund of $175 in fines.
Orders: Petitioners' petition in this matter is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 41-2198.01
A.A.C. R2-19-119
Analytics Highlights
Topics: HOA, CC&R, Notice of Violation, Recording
Additional Citations:
A.R.S. § 41-2198.01
A.A.C. R2-19-119
Video Overview
Audio Overview
Decision Documents
18F-H1817019-REL Decision – 620124.pdf
Uploaded 2025-10-09T03:32:17 (78.5 KB)
Briefing Doc – 18F-H1817019-REL
Case Briefing: Webster v. Mountain Rose Homeowners Association
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 18F-H1817019-REL, wherein Petitioner Jerry L. Webster’s complaint against the Mountain Rose Homeowners Association was dismissed. The central issue revolved around Mr. Webster’s claim that the HOA engaged in a pattern of harassment by issuing vague and improper violation notices that failed to comply with Article 10.8 of the community’s Covenants, Conditions, and Restrictions (CC&Rs).
The case was decided on a critical legal interpretation of the CC&Rs. The presiding judge determined that the specific requirements of Article 10.8, which Mr. Webster cited as being violated, apply exclusively to violation notices that are formally “Recorded” with the Maricopa County Recorder’s office. The petitioner failed to provide any evidence, or even make the claim, that the notices he received had been recorded. Consequently, Mr. Webster did not meet his burden of proof to demonstrate that the HOA had violated the cited article. The dismissal of the petition was based entirely on this procedural and definitional distinction, without a ruling on the petitioner’s underlying allegations of harassment or selective enforcement.
Case Background
• Parties:
◦ Petitioner: Jerry L. Webster, a homeowner and member of the Mountain Rose Homeowners Association.
◦ Respondent: Mountain Rose Homeowners Association (“Mountain Rose”), located in Scottsdale, Arizona.
• Adjudicating Body:
◦ The Office of Administrative Hearings in Phoenix, Arizona.
◦ Administrative Law Judge: Velva Moses-Thompson.
• Key Dates:
◦ 2016–2017: Mountain Rose issues a series of violation notices to Mr. Webster regarding tree trimming and debris cleanup.
◦ December 6, 2017: Mr. Webster files a petition with the Arizona Department of Real Estate.
◦ February 9, 2018: A hearing is held.
◦ February 9, 2018: The Administrative Law Judge issues the decision dismissing the petition.
Petitioner’s Allegations and Arguments
Mr. Webster’s petition centered on the claim that the HOA’s actions constituted harassment and violated specific provisions of the governing documents.
Core Claim: Violation of CC&Rs Article 10.8
Mr. Webster contended that the violation notices he received from Mountain Rose were invalid because they failed to contain information mandated by Article 10.8 (“Notice of Violation”) of the CC&Rs. Specifically, he alleged the notices omitted the following required elements:
• (ii) The legal description of the lot against which the notice is being Recorded.
• (iii) A brief description of the nature of the violation.
• (iv) A statement that the notice is being Recorded by the Association pursuant to the Declaration.
• (v) A statement of the specific steps which must be taken by the Owner or occupant to cure the violation.
Allegations of Harassment and Prejudicial Treatment
In his petition, Mr. Webster framed the HOA’s actions as a targeted and unfair campaign against him.
• Stated Intent: “The intent of this action is to stop the HOA from violating our civil rights by prejudicially harassing us with unclear and unwarranted violation notices.”
• History of Conflict: He alleged that “The HOA has harassed us for over 10 years with vague violation notices.”
• Lack of Communication: He claimed that his “Numerous requests were made for clarification…which were ignored.”
• Financial Penalties: Mr. Webster stated he was recently fined three times for a total of $175, which he sought to have refunded.
• Alleged Bias: To demonstrate selective enforcement, Mr. Webster noted that a review of the neighborhood revealed “22 trees touching dwellings, including ours,” and stated, “It is very doubtful any other member received notices or fines for identical circumstances.”
• Supporting Evidence: Mr. Webster submitted an aerial photo from 2012 showing the tree in a similar condition, a 2017 photo of another home with a tree touching the dwelling, and a 2017 photo of HOA-maintained trees.
Respondent’s Position
The Mountain Rose HOA, represented by Nathan Tennyson, Esq., presented a focused defense based on the specific language of the CC&Rs.
• Central Argument: The HOA contended that the violation notices issued to Mr. Webster were not recorded with the Maricopa County Recorder.
• Legal Position: Because the notices were not recorded, the stringent requirements outlined in Article 10.8 did not apply to them.
• Additional Detail: The HOA also argued that it had previously communicated the necessary corrective action to Mr. Webster, stating that “his tree needed to be trimmed 8 feet above the ground.”
The Decisive Legal Interpretation and Ruling
The Administrative Law Judge’s decision hinged on the precise definition and application of “Recording” as established within the Mountain Rose CC&Rs.
The Definition of “Recording”
Article 1.33 of the CC&Rs provides the controlling definition:
“Recording” means placing an instrument of public record in the office of County Recorder of Maricopa County, Arizona, and “Recorded” means having been so placed of public record.
Application of Law to Facts
The Judge concluded that Mr. Webster’s entire case rested on a misapplication of Article 10.8.
• Limited Scope of Article 10.8: The ruling states, “Mountain Rose CC&Rs Article 10.8. applies to the recording of notices and recorded notices.”
• Burden of Proof: Under Arizona law (A.A.C. R2-19-119), the burden of proof fell to the petitioner, Mr. Webster, to demonstrate his claim by a preponderance of the evidence.
• Crucial Factual Finding: The decision explicitly states, “There was no evidence presented at hearing that the notices issued to Mr. Webster were recorded.“
• Petitioner’s Failure to Allege: The Judge further noted, “Mr. Webster did not even contend that Mountain Rose recorded the notices issued to him.”
Conclusion of Law
Based on the evidence and the plain language of the CC&Rs, the Judge found that Mr. Webster failed to make his case.
“Mr. Webster failed to establish by a preponderance of the evidence that Mountain Rose violated its CC&Rs as described above.”
Final Order and Disposition
The petition was summarily dismissed based on the failure to prove that the relevant CC&R article was applicable to the facts presented.
Order:
“IT IS ORDERED that Petitioners’ petition in this matter is dismissed.”
The order was dated February 9, 2018, and transmitted to the parties on February 28, 2018.
Study Guide – 18F-H1817019-REL
Study Guide: Case No. 18F-H1817019-REL
This study guide provides a detailed review of the Administrative Law Judge Decision in the case of Jerry L. Webster v. Mountain Rose Homeowners Association, heard on February 9, 2018. It includes a quiz to test comprehension, suggested essay topics for deeper analysis, and a glossary of key terms as defined within the source document.
Answer the following questions in 2-3 complete sentences based on the provided source text.
1. Identify the primary parties involved in this case and describe their respective roles.
2. What was the central accusation that Petitioner Jerry L. Webster made against the Mountain Rose Homeowners Association?
3. Which specific article of the Covenants, Conditions, and Restrictions (CC&Rs) did Mr. Webster claim the HOA violated, and what key information did he allege was missing from the notices he received?
4. Beyond the content of the violation notices, what other complaints did Mr. Webster include in his petition regarding the HOA’s conduct?
5. According to the Mountain Rose CC&Rs, what is the specific definition of “Recording”?
6. What was the key piece of evidence that was absent from the hearing, which proved critical to the final decision?
7. What was the Mountain Rose HOA’s primary defense against Mr. Webster’s allegation that it had violated Article 10.8 of the CC&Rs?
8. In this type of administrative hearing, who holds the burden of proof, and what is the standard of proof required to win the case?
9. What was the final Order issued by Administrative Law Judge Velva Moses-Thompson in this matter?
10. What recourse did the parties have after the judge issued the Order on February 9, 2018?
——————————————————————————–
Answer Key
1. The primary parties were Petitioner Jerry L. Webster, a homeowner and member of the association, and Respondent Mountain Rose Homeowners Association, a planned community in Scottsdale, Arizona. Mr. Webster filed a petition alleging violations by the HOA, making him the accuser, while the HOA was the party responding to the allegations.
2. Mr. Webster’s central accusation was that the HOA violated Article 10.8 of its own CC&Rs. He contended that the HOA engaged in prejudicial harassment by sending him a series of vague, unclear, and unwarranted violation notices over a period of more than 10 years.
3. Mr. Webster claimed the HOA violated Article 10.8, titled “Notice of Violation.” He alleged the notices he received failed to include several required subsections, including the legal description of the lot (ii), a brief description of the violation (iii), a statement that the notice was being Recorded (iv), and a statement of the specific steps needed to cure the violation (v).
4. Mr. Webster also complained that his numerous requests for clarification were ignored and that the HOA’s intent was harassment. He claimed he was fined $175 based on invalid notices and that the HOA was engaging in selective enforcement, noting 22 other homes had trees touching dwellings without receiving similar notices or fines.
5. According to Article 1.33 of the CC&Rs, “Recording” is defined as placing an instrument of public record in the office of the County Recorder of Maricopa County, Arizona. “Recorded” means that the instrument has been placed on public record in that office.
6. The key piece of evidence absent from the hearing was any proof that the violation notices sent to Mr. Webster were ever recorded with the County Recorder of Maricopa County. The judge’s decision explicitly states, “There was no evidence presented at hearing that the notices issued to Mr. Webster were recorded.”
7. The HOA’s primary defense was that the requirements of Article 10.8 only apply to recorded notices. Since the notices issued to Mr. Webster were never recorded, the HOA argued that the article’s specific formatting requirements were not applicable to their correspondence with him.
8. The burden of proof falls to the party asserting the claim, which in this case was the Petitioner, Mr. Webster. The standard of proof required is a “preponderance of the evidence,” which means the evidence must have the most convincing force and be sufficient to incline a fair and impartial mind to one side of the issue.
9. The final Order issued by the judge was that the Petitioner’s petition in the matter be dismissed. This means Mr. Webster’s case was unsuccessful.
10. After the Order was issued, the parties had the right to request a rehearing. Pursuant to A.R.S. § 41-1092.09, this request had to be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
——————————————————————————–
Essay Questions
The following questions are designed for longer-form, analytical answers. Answers are not provided.
1. Analyze the petitioner’s argument as presented in the petition. What was the critical legal misinterpretation regarding Article 10.8 that ultimately led to the dismissal of his case?
2. Explain the direct relationship between Article 1.33 (“Recording”) and Article 10.8 (“Notice of Violation”). How did the specific definition in the former article completely undermine the petitioner’s entire claim, which was based on the latter?
3. Discuss the concepts of “burden of proof” and “preponderance of the evidence” as applied in this case. Citing specific findings from the decision, explain exactly how the petitioner failed to meet this standard.
4. Mr. Webster raised several secondary issues in his petition, including allegations of long-term harassment, selective enforcement (“22 trees touch dwellings”), and ignored requests for clarification. Why were these claims ultimately not addressed or validated in the Administrative Law Judge’s final decision?
5. Based on the text of Article 10.8, what is the specific function and legal purpose of a recorded Notice of Violation? Why might an HOA choose to go through the formal process of recording a notice rather than just sending an unrecorded letter to a homeowner?
——————————————————————————–
Glossary
Definition from Source Context
Administrative Law Judge (ALJ)
The official who presides over hearings at the Office of Administrative Hearings. In this case, the ALJ was Velva Moses-Thompson.
A.R.S. § 41-2198.01
An Arizona Revised Statute that permits a homeowner or a planned community organization to file a petition with the Department of Real Estate for a hearing concerning violations of community documents or statutes.
Burden of Proof
The responsibility of the party asserting a claim or right to prove their case. In this matter, the burden of proof fell to the Petitioner.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions for Mountain Rose, which are the governing documents for the homeowners association.
Department
The Arizona Department of Real Estate, the agency with which Mr. Webster filed his petition.
Notice of Violation (Article 10.8)
A written notice that the Association has the right to record. This article specifies that such a recorded notice must contain five key pieces of information, including the legal description of the lot and the specific steps to cure the violation. Its provisions apply specifically to notices that are formally recorded.
Petitioner
The party who filed the petition. In this case, it was Jerry L. Webster, a homeowner and member of the Mountain Rose HOA.
Preponderance of the Evidence
The standard of proof required in this hearing. It is defined as “the greater weight of the 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.”
Recording (Article 1.33)
The act of “placing an instrument of public record in the office of County Recorder of Maricopa County, Arizona.” “Recorded” means having been so placed on public record.
Respondent
The party against whom the petition was filed. In this case, it was the Mountain Rose Homeowners Association.
Blog Post – 18F-H1817019-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings in Arizona, addressing a dispute between Petitioner Jerry L. Webster and the Respondent Mountain Rose Homeowners Association (HOA). Mr. Webster alleged that the HOA violated Article 10.8 of its CC&Rs by issuing unclear and unwarranted violation notices, specifically regarding the trimming of his tree and cleaning debris, and he sought the refund of recent fines. The HOA contended that the notices were not recorded, making the specific requirements of Article 10.8—which applies to recorded notices—inapplicable to the general violation notices Mr. Webster received. Ultimately, the Administrative Law Judge found that Mr. Webster failed to establish by a preponderance of the evidence that the HOA violated the CC&Rs because the notices in question were never officially recorded, leading to the dismissal of the Petitioner’s petition.
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Video Overview Video Overview
Mind Map Mind Map
Reports Reports
Flashcards Flashcards
Quiz Quiz
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Case Participants
Petitioner Side
Jerry L. Webster(petitioner)
Pamela Webster(witness)
Respondent Side
Nathan Tennyson(HOA attorney)
Frank Puma(manager) Mountain Rose
Neutral Parties
Velva Moses-Thompson(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Petitioner's claim that the HOA violated CC&Rs Article 10.8 (Notice of Violation) was dismissed because the Article governs only recorded notices, and the Petitioner did not prove the notices in question were recorded.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Mountain Rose violated its CC&Rs Article 10.8, because that provision applies only to recorded notices, and the notices issued to the Petitioner were not recorded.
Key Issues & Findings
Alleged violation of CC&R notice requirements regarding clarity and completeness of violation notices.
The Petitioner alleged the HOA violated CC&Rs Article 10.8 because the violation notices sent to him failed to include five mandatory pieces of information required by that section of the CC&Rs. The Petitioner also sought the refund of $175 in fines.
Orders: Petitioners' petition in this matter is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 41-2198.01
A.A.C. R2-19-119
Analytics Highlights
Topics: HOA, CC&R, Notice of Violation, Recording
Additional Citations:
A.R.S. § 41-2198.01
A.A.C. R2-19-119
Video Overview
Audio Overview
Decision Documents
18F-H1817019-REL Decision – 620124.pdf
Uploaded 2026-01-23T17:22:41 (78.5 KB)
Briefing Doc – 18F-H1817019-REL
Case Briefing: Webster v. Mountain Rose Homeowners Association
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 18F-H1817019-REL, wherein Petitioner Jerry L. Webster’s complaint against the Mountain Rose Homeowners Association was dismissed. The central issue revolved around Mr. Webster’s claim that the HOA engaged in a pattern of harassment by issuing vague and improper violation notices that failed to comply with Article 10.8 of the community’s Covenants, Conditions, and Restrictions (CC&Rs).
The case was decided on a critical legal interpretation of the CC&Rs. The presiding judge determined that the specific requirements of Article 10.8, which Mr. Webster cited as being violated, apply exclusively to violation notices that are formally “Recorded” with the Maricopa County Recorder’s office. The petitioner failed to provide any evidence, or even make the claim, that the notices he received had been recorded. Consequently, Mr. Webster did not meet his burden of proof to demonstrate that the HOA had violated the cited article. The dismissal of the petition was based entirely on this procedural and definitional distinction, without a ruling on the petitioner’s underlying allegations of harassment or selective enforcement.
Case Background
• Parties:
◦ Petitioner: Jerry L. Webster, a homeowner and member of the Mountain Rose Homeowners Association.
◦ Respondent: Mountain Rose Homeowners Association (“Mountain Rose”), located in Scottsdale, Arizona.
• Adjudicating Body:
◦ The Office of Administrative Hearings in Phoenix, Arizona.
◦ Administrative Law Judge: Velva Moses-Thompson.
• Key Dates:
◦ 2016–2017: Mountain Rose issues a series of violation notices to Mr. Webster regarding tree trimming and debris cleanup.
◦ December 6, 2017: Mr. Webster files a petition with the Arizona Department of Real Estate.
◦ February 9, 2018: A hearing is held.
◦ February 9, 2018: The Administrative Law Judge issues the decision dismissing the petition.
Petitioner’s Allegations and Arguments
Mr. Webster’s petition centered on the claim that the HOA’s actions constituted harassment and violated specific provisions of the governing documents.
Core Claim: Violation of CC&Rs Article 10.8
Mr. Webster contended that the violation notices he received from Mountain Rose were invalid because they failed to contain information mandated by Article 10.8 (“Notice of Violation”) of the CC&Rs. Specifically, he alleged the notices omitted the following required elements:
• (ii) The legal description of the lot against which the notice is being Recorded.
• (iii) A brief description of the nature of the violation.
• (iv) A statement that the notice is being Recorded by the Association pursuant to the Declaration.
• (v) A statement of the specific steps which must be taken by the Owner or occupant to cure the violation.
Allegations of Harassment and Prejudicial Treatment
In his petition, Mr. Webster framed the HOA’s actions as a targeted and unfair campaign against him.
• Stated Intent: “The intent of this action is to stop the HOA from violating our civil rights by prejudicially harassing us with unclear and unwarranted violation notices.”
• History of Conflict: He alleged that “The HOA has harassed us for over 10 years with vague violation notices.”
• Lack of Communication: He claimed that his “Numerous requests were made for clarification…which were ignored.”
• Financial Penalties: Mr. Webster stated he was recently fined three times for a total of $175, which he sought to have refunded.
• Alleged Bias: To demonstrate selective enforcement, Mr. Webster noted that a review of the neighborhood revealed “22 trees touching dwellings, including ours,” and stated, “It is very doubtful any other member received notices or fines for identical circumstances.”
• Supporting Evidence: Mr. Webster submitted an aerial photo from 2012 showing the tree in a similar condition, a 2017 photo of another home with a tree touching the dwelling, and a 2017 photo of HOA-maintained trees.
Respondent’s Position
The Mountain Rose HOA, represented by Nathan Tennyson, Esq., presented a focused defense based on the specific language of the CC&Rs.
• Central Argument: The HOA contended that the violation notices issued to Mr. Webster were not recorded with the Maricopa County Recorder.
• Legal Position: Because the notices were not recorded, the stringent requirements outlined in Article 10.8 did not apply to them.
• Additional Detail: The HOA also argued that it had previously communicated the necessary corrective action to Mr. Webster, stating that “his tree needed to be trimmed 8 feet above the ground.”
The Decisive Legal Interpretation and Ruling
The Administrative Law Judge’s decision hinged on the precise definition and application of “Recording” as established within the Mountain Rose CC&Rs.
The Definition of “Recording”
Article 1.33 of the CC&Rs provides the controlling definition:
“Recording” means placing an instrument of public record in the office of County Recorder of Maricopa County, Arizona, and “Recorded” means having been so placed of public record.
Application of Law to Facts
The Judge concluded that Mr. Webster’s entire case rested on a misapplication of Article 10.8.
• Limited Scope of Article 10.8: The ruling states, “Mountain Rose CC&Rs Article 10.8. applies to the recording of notices and recorded notices.”
• Burden of Proof: Under Arizona law (A.A.C. R2-19-119), the burden of proof fell to the petitioner, Mr. Webster, to demonstrate his claim by a preponderance of the evidence.
• Crucial Factual Finding: The decision explicitly states, “There was no evidence presented at hearing that the notices issued to Mr. Webster were recorded.“
• Petitioner’s Failure to Allege: The Judge further noted, “Mr. Webster did not even contend that Mountain Rose recorded the notices issued to him.”
Conclusion of Law
Based on the evidence and the plain language of the CC&Rs, the Judge found that Mr. Webster failed to make his case.
“Mr. Webster failed to establish by a preponderance of the evidence that Mountain Rose violated its CC&Rs as described above.”
Final Order and Disposition
The petition was summarily dismissed based on the failure to prove that the relevant CC&R article was applicable to the facts presented.
Order:
“IT IS ORDERED that Petitioners’ petition in this matter is dismissed.”
The order was dated February 9, 2018, and transmitted to the parties on February 28, 2018.
Study Guide – 18F-H1817019-REL
Study Guide: Case No. 18F-H1817019-REL
This study guide provides a detailed review of the Administrative Law Judge Decision in the case of Jerry L. Webster v. Mountain Rose Homeowners Association, heard on February 9, 2018. It includes a quiz to test comprehension, suggested essay topics for deeper analysis, and a glossary of key terms as defined within the source document.
Answer the following questions in 2-3 complete sentences based on the provided source text.
1. Identify the primary parties involved in this case and describe their respective roles.
2. What was the central accusation that Petitioner Jerry L. Webster made against the Mountain Rose Homeowners Association?
3. Which specific article of the Covenants, Conditions, and Restrictions (CC&Rs) did Mr. Webster claim the HOA violated, and what key information did he allege was missing from the notices he received?
4. Beyond the content of the violation notices, what other complaints did Mr. Webster include in his petition regarding the HOA’s conduct?
5. According to the Mountain Rose CC&Rs, what is the specific definition of “Recording”?
6. What was the key piece of evidence that was absent from the hearing, which proved critical to the final decision?
7. What was the Mountain Rose HOA’s primary defense against Mr. Webster’s allegation that it had violated Article 10.8 of the CC&Rs?
8. In this type of administrative hearing, who holds the burden of proof, and what is the standard of proof required to win the case?
9. What was the final Order issued by Administrative Law Judge Velva Moses-Thompson in this matter?
10. What recourse did the parties have after the judge issued the Order on February 9, 2018?
——————————————————————————–
Answer Key
1. The primary parties were Petitioner Jerry L. Webster, a homeowner and member of the association, and Respondent Mountain Rose Homeowners Association, a planned community in Scottsdale, Arizona. Mr. Webster filed a petition alleging violations by the HOA, making him the accuser, while the HOA was the party responding to the allegations.
2. Mr. Webster’s central accusation was that the HOA violated Article 10.8 of its own CC&Rs. He contended that the HOA engaged in prejudicial harassment by sending him a series of vague, unclear, and unwarranted violation notices over a period of more than 10 years.
3. Mr. Webster claimed the HOA violated Article 10.8, titled “Notice of Violation.” He alleged the notices he received failed to include several required subsections, including the legal description of the lot (ii), a brief description of the violation (iii), a statement that the notice was being Recorded (iv), and a statement of the specific steps needed to cure the violation (v).
4. Mr. Webster also complained that his numerous requests for clarification were ignored and that the HOA’s intent was harassment. He claimed he was fined $175 based on invalid notices and that the HOA was engaging in selective enforcement, noting 22 other homes had trees touching dwellings without receiving similar notices or fines.
5. According to Article 1.33 of the CC&Rs, “Recording” is defined as placing an instrument of public record in the office of the County Recorder of Maricopa County, Arizona. “Recorded” means that the instrument has been placed on public record in that office.
6. The key piece of evidence absent from the hearing was any proof that the violation notices sent to Mr. Webster were ever recorded with the County Recorder of Maricopa County. The judge’s decision explicitly states, “There was no evidence presented at hearing that the notices issued to Mr. Webster were recorded.”
7. The HOA’s primary defense was that the requirements of Article 10.8 only apply to recorded notices. Since the notices issued to Mr. Webster were never recorded, the HOA argued that the article’s specific formatting requirements were not applicable to their correspondence with him.
8. The burden of proof falls to the party asserting the claim, which in this case was the Petitioner, Mr. Webster. The standard of proof required is a “preponderance of the evidence,” which means the evidence must have the most convincing force and be sufficient to incline a fair and impartial mind to one side of the issue.
9. The final Order issued by the judge was that the Petitioner’s petition in the matter be dismissed. This means Mr. Webster’s case was unsuccessful.
10. After the Order was issued, the parties had the right to request a rehearing. Pursuant to A.R.S. § 41-1092.09, this request had to be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
——————————————————————————–
Essay Questions
The following questions are designed for longer-form, analytical answers. Answers are not provided.
1. Analyze the petitioner’s argument as presented in the petition. What was the critical legal misinterpretation regarding Article 10.8 that ultimately led to the dismissal of his case?
2. Explain the direct relationship between Article 1.33 (“Recording”) and Article 10.8 (“Notice of Violation”). How did the specific definition in the former article completely undermine the petitioner’s entire claim, which was based on the latter?
3. Discuss the concepts of “burden of proof” and “preponderance of the evidence” as applied in this case. Citing specific findings from the decision, explain exactly how the petitioner failed to meet this standard.
4. Mr. Webster raised several secondary issues in his petition, including allegations of long-term harassment, selective enforcement (“22 trees touch dwellings”), and ignored requests for clarification. Why were these claims ultimately not addressed or validated in the Administrative Law Judge’s final decision?
5. Based on the text of Article 10.8, what is the specific function and legal purpose of a recorded Notice of Violation? Why might an HOA choose to go through the formal process of recording a notice rather than just sending an unrecorded letter to a homeowner?
——————————————————————————–
Glossary
Definition from Source Context
Administrative Law Judge (ALJ)
The official who presides over hearings at the Office of Administrative Hearings. In this case, the ALJ was Velva Moses-Thompson.
A.R.S. § 41-2198.01
An Arizona Revised Statute that permits a homeowner or a planned community organization to file a petition with the Department of Real Estate for a hearing concerning violations of community documents or statutes.
Burden of Proof
The responsibility of the party asserting a claim or right to prove their case. In this matter, the burden of proof fell to the Petitioner.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions for Mountain Rose, which are the governing documents for the homeowners association.
Department
The Arizona Department of Real Estate, the agency with which Mr. Webster filed his petition.
Notice of Violation (Article 10.8)
A written notice that the Association has the right to record. This article specifies that such a recorded notice must contain five key pieces of information, including the legal description of the lot and the specific steps to cure the violation. Its provisions apply specifically to notices that are formally recorded.
Petitioner
The party who filed the petition. In this case, it was Jerry L. Webster, a homeowner and member of the Mountain Rose HOA.
Preponderance of the Evidence
The standard of proof required in this hearing. It is defined as “the greater weight of the 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.”
Recording (Article 1.33)
The act of “placing an instrument of public record in the office of County Recorder of Maricopa County, Arizona.” “Recorded” means having been so placed on public record.
Respondent
The party against whom the petition was filed. In this case, it was the Mountain Rose Homeowners Association.
Blog Post – 18F-H1817019-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings in Arizona, addressing a dispute between Petitioner Jerry L. Webster and the Respondent Mountain Rose Homeowners Association (HOA). Mr. Webster alleged that the HOA violated Article 10.8 of its CC&Rs by issuing unclear and unwarranted violation notices, specifically regarding the trimming of his tree and cleaning debris, and he sought the refund of recent fines. The HOA contended that the notices were not recorded, making the specific requirements of Article 10.8—which applies to recorded notices—inapplicable to the general violation notices Mr. Webster received. Ultimately, the Administrative Law Judge found that Mr. Webster failed to establish by a preponderance of the evidence that the HOA violated the CC&Rs because the notices in question were never officially recorded, leading to the dismissal of the Petitioner’s petition.
Audio Overview
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Case Participants
Petitioner Side
Jerry L. Webster(petitioner)
Pamela Webster(witness)
Respondent Side
Nathan Tennyson(HOA attorney)
Frank Puma(manager) Mountain Rose
Neutral Parties
Velva Moses-Thompson(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove the HOA violated its CC&Rs by approving the wall extension, as the HOA’s approval duties were limited to aesthetic considerations under CC&R § 7.2 and did not extend to enforcing or ensuring adjoining owner approval required by CC&R § 6.2(A).
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent erroneously approved the proposal, as Respondent's duties under CC&R § 7.2 did not require considering adjoining neighbor approval specified in CC&R § 6.2(A).
Key Issues & Findings
Alleged violation of CC&Rs by HOA improperly approving a neighbor's block wall extension without adjoining owner's approval.
Petitioner alleged that the Respondent HOA violated CC&R § 6.2(A) by approving a neighbor's block wall extension that served as a party wall because Petitioner, the adjoining owner, had not approved the wall. Respondent argued their approval duties under CC&R § 7.2 only concerned aesthetics, not ensuring neighbor approval.
Orders: The petition is dismissed and no action is required of Respondent.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199.01
CC&R § 6.2(A)
CC&R § 7.2
Analytics Highlights
Topics: HOA, CC&R, Architectural Control Committee, Fence, Party Wall, Rehearing, Burden of Proof
Additional Citations:
A.R.S. § 32-2199.01
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, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
A.R.S. § 32-2199.02(B)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
Audio Overview
Decision Documents
17F-H1717034-REL-RHG Decision – 619560.pdf
Uploaded 2025-10-08T06:58:07 (90.8 KB)
Briefing Doc – 17F-H1717034-REL-RHG
Briefing Document: Analysis of Administrative Law Judge Decision in Shields v. Will Rogers Equestrian Ranch
Executive Summary
This document synthesizes the findings from the Administrative Law Judge Decision in Case No. 17F-H1717034-REL-RHG, dated February 26, 2018. The central issue was a petition filed by homeowner John L. Shields against the Will Rogers Equestrian Ranch Homeowners’ Association (HOA), alleging the HOA improperly approved a wall extension built by his neighbor, Joe Johnson, without Mr. Shields’ required consent.
The petition was ultimately dismissed. The Administrative Law Judge (ALJ) concluded that the petitioner, Mr. Shields, failed to establish by a preponderance of the evidence that the HOA had violated its Covenants, Conditions, and Restrictions (CC&Rs). The decision rests on a critical distinction between the responsibilities of a homeowner and the responsibilities of the HOA under separate articles of the CC&Rs. The ALJ determined that the obligation to secure an adjoining neighbor’s approval for a wall alteration (under CC&R § 6.2) falls exclusively on the homeowner undertaking the project. In contrast, the HOA’s duty (under CC&R § 7.2) is limited to an aesthetic review of the proposed alteration, which it conducted appropriately. The HOA had no legal obligation to enforce or verify neighbor-to-neighbor approval.
I. Case Overview
Case Name
John L. Shields (Petitioner) vs. Will Rogers Equestrian Ranch (Respondent)
Case Number
17F-H1717034-REL-RHG
Jurisdiction
Office of Administrative Hearings, Phoenix, Arizona
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
Date of Decision
February 26, 2018
Core Dispute
The petitioner alleged the HOA violated CC&R § 6.2(A) by approving a neighbor’s approximately 5’ x 6’ block wall extension without the petitioner’s consent.
Final Outcome
The petition was dismissed, with no action required of the respondent HOA.
II. Petitioner’s Claim and Arguments
John L. Shields, a homeowner at 20431 E. Bronco Drive within the Will Rogers Equestrian Ranch development, filed a petition against the HOA concerning a wall extension built by his next-door neighbor, Joe Johnson.
• Core Allegation: After vacillating on the specifics of his complaint during the hearing, Mr. Shields firmly asserted that his single issue was that the HOA improperly approved Mr. Johnson’s proposal to build a block wall extension and move his gate forward.
• Basis of Claim: The petitioner argued that under CC&R § 6.2, the HOA should have withheld its approval because Mr. Johnson had not demonstrated that he had first obtained Mr. Shields’ approval for the wall extension between their properties.
• Evidence and Testimony: Mr. Shields denied ever having approved the wall. He submitted a photograph he had taken from his front porch and testified that the block wall extension “was an eyesore.”
III. Respondent’s Position and Evidence
The Will Rogers Equestrian Ranch HOA, represented by board president Kristi Hancock, denied all complaint items and argued its actions were consistent with the governing CC&Rs.
• Basis of Approval: The HOA contended that its approval was based solely on the criteria outlined in CC&R § 7.2. The board, acting as the Architectural Control Committee, reviewed Mr. Johnson’s proposal for its aesthetic qualities and consistency with other properties in the development.
• Aesthetic Review: Ms. Hancock testified that the board inspected other wall extensions and gates and found Mr. Johnson’s proposal to be “aesthetically pleasing and consistent with the other properties.”
• Neighbor Consent Issue: The HOA acknowledged its awareness of Mr. Shields’ objection to the wall after it was built. However, Ms. Hancock testified that the board’s understanding of whether Mr. Shields had approved the wall before construction was unclear. She stated that “at least four witnesses had stated that they heard Petitioner either actually approve of or fail to state an objection to the block wall extension while, in Petitioner’s presence, Mr. Johnson discussed having the block wall extension built.”
• Separation of Duties: The HOA’s position was that its duty under § 7.2 was distinct from the homeowner’s duty under § 6.2. The HOA was not responsible for obtaining or verifying neighbor approval.
IV. Chronology of Key Events
1. October 13, 2016 (approx.): Mr. Johnson has the block wall extension built without first obtaining approval from the HOA’s board or committee.
2. October 16, 2016 (approx.): Mr. Shields expresses his disapproval of the newly built wall to Mr. and Mrs. Johnson.
3. November 2, 2016 (approx.): Mr. Johnson retroactively submits his proposal for the wall extension and a plan to move his gate forward to the Architectural Control Committee for approval.
4. November 2016: The HOA’s newly elected board meets as the Committee and verbally approves Mr. Johnson’s wall but advises him that “he will need to seek neighboring property owner’s approval.”
5. January 2017: The board formally approves Mr. Johnson’s proposal for the wall extension and gate move.
6. May 3, 2017 (approx.): Mr. Shields files a single-issue petition with the Arizona Department of Real Estate.
7. September 27, 2017: An initial hearing is held, and Administrative Law Judge Diane Mihalsky dismisses the petition.
8. December 5, 2017: The Real Estate Commissioner grants Mr. Shields’ request for a rehearing based on his claims of legal errors and judicial misconduct.
9. February 5, 2018: A rehearing is held before Administrative Law Judge Tammy L. Eigenheer.
V. Analysis of Covenants, Conditions, and Restrictions (CC&Rs)
The judge’s decision hinged on the distinct and separate functions of two key CC&R sections.
This section governs alterations to shared fences and walls.
Such Party Walls and Fences shall not be altered, or changed in design, color, material or construction from the original installation made by the Developer without [the] approval of the adjoining Owner(s), if any, and the [Architectural Control] Committee.
• Interpretation: The ALJ interpreted this section as creating two separate approval requirements for the homeowner making the alteration: one from the adjoining owner and one from the Committee. It does not obligate the Committee to enforce the adjoining owner’s approval.
This section defines the scope and limits of the Architectural Control Committee’s power.
No . . . fences . . . shall be commenced [or] erected . . . until the plans and specifications showing the same shall have been submitted to and approved by the Committee. Approval shall not be unreasonably withheld. However, the Committee shall have the right to refuse to approve any Alteration which is not suitable or desirable in their opinion for aesthetic or other reasons…
• Interpretation: The ALJ found that this section limits the Committee’s review to specific criteria, including aesthetics, harmony with surroundings, and effect on neighboring property. It explicitly states that approval “shall not be unreasonably withheld” and does not require the Committee to verify compliance with other CC&Rs or city ordinances.
VI. Judge’s Conclusions of Law and Rationale for Dismissal
The ALJ’s decision to dismiss the petition was based on a clear legal interpretation of the CC&Rs and the petitioner’s failure to meet the burden of proof.
• Distinct and Separate Obligations: The core of the ruling is that the CC&Rs create parallel but separate responsibilities.
1. Homeowner’s Responsibility: The duty to obtain an adjoining neighbor’s approval for a shared wall alteration under § 6.2(A) rests solely with the homeowner performing the work (Mr. Johnson).
2. HOA’s Responsibility: The HOA’s duty under § 7.2 is limited to reviewing the project on its aesthetic merits and consistency within the community.
• Key Legal Finding: The decision explicitly states the separation of these duties:
• Scope of HOA Review: The ALJ affirmed that the HOA’s scope of review was properly limited.
• Failure to Meet Burden of Proof: Because the HOA acted within the authority and limitations defined by CC&R § 7.2, the petitioner failed to prove by a preponderance of the evidence that the HOA had violated its governing documents.
• Other Responsibilities: The decision also noted that the responsibility for ensuring compliance with City of Queen Creek ordinances (related to the gate move) ultimately rested with Mr. Johnson, not the HOA.
VII. Final Order
Based on the findings of fact and conclusions of law, the Administrative Law Judge ordered that the petition be dismissed.
• No action is required of the Respondent, Will Rogers Equestrian Ranch HOA.
• The decision, issued as a result of a rehearing, is binding on the parties.
• Any appeal must be filed with the superior court within thirty-five days from the date the order was served.
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
17F-H1717034-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2018-02-26
Administrative Law Judge
Tammy L. Eigenheer
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
John L. Shields
Counsel
—
Respondent
Will Rogers Equestrian Ranch
Counsel
Maria R. Kupillas
Alleged Violations
CC&R § 6.2(A)
Outcome Summary
The Administrative Law Judge dismissed the petition. It was determined that the Respondent (HOA) did not err in approving the neighbor's wall extension proposal, as the responsibility for obtaining adjoining owner approval under CC&R § 6.2(A) lay solely with the neighboring owner, not the HOA. The HOA's approval under CC&R § 7.2 only required considering aesthetic compliance.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent erroneously approved the neighbor's proposal. The HOA was only required by CC&R § 7.2 to consider aesthetics when approving alterations, and neighbor approval (required by CC&R § 6.2(A)) was the sole responsibility of the building owner, not the HOA.
Key Issues & Findings
Respondent improperly approved a block wall extension built by a neighbor without securing Petitioner's required adjoining owner approval.
Petitioner alleged the HOA violated its CC&Rs by formally approving a neighbor's block wall extension (approximately 5' long x 6' high) because Petitioner, the adjoining property owner, had not approved the wall as required by CC&R § 6.2(A).
Orders: The petition was dismissed, and no action was required of Respondent.
Briefing Document: Shields v. Will Rogers Equestrian Ranch HOA
Executive Summary
This document synthesizes the findings from two administrative law hearings concerning a dispute between homeowner John Shields (Petitioner) and the Will Rogers Equestrian Ranch Homeowners’ Association (Respondent). The core of the dispute is a 5-foot by 6-foot common block wall extension constructed by the Petitioner’s neighbor, Joe Johnson. The Petitioner alleged the Respondent violated its own Covenants, Conditions, and Restrictions (CC&Rs) by approving the wall alteration without the Petitioner’s required consent as the adjoining property owner.
Following an initial hearing and a subsequent rehearing, the Office of Administrative Hearings dismissed the Petitioner’s claims. The decisions established several critical legal and procedural points:
• Distinct HOA Obligations: The HOA’s architectural approval role, governed by CC&R § 7.2, is distinct from the neighbor-approval requirement in CC&R § 6.2(A). The HOA’s approval is based solely on aesthetic and community consistency standards and does not obligate it to verify or enforce separate homeowner-to-homeowner agreements or approvals.
• Homeowner Responsibility: The responsibility to obtain an adjoining owner’s approval for a shared wall alteration rests entirely with the homeowner undertaking the construction (in this case, Mr. Johnson), not with the HOA.
• Discretionary Enforcement: The HOA’s power to enforce CC&R violations is discretionary, not mandatory. CC&R § 8.1 uses the permissive term “may,” granting the board latitude in deciding whether to pursue enforcement actions, particularly in cases with conflicting evidence.
• Alternative Remedy: The Petitioner is not without a remedy. The same CC&R section that grants the HOA enforcement power also explicitly authorizes individual owners to bring a private action against another owner to enforce the CC&Rs.
Ultimately, the HOA was found to have acted within its authority as defined by the governing documents, and both petitions against it were dismissed.
I. Case Overview
This matter concerns a petition filed on May 3, 2017, by John Shields with the Arizona Department of Real Estate against his HOA, Will Rogers Equestrian Ranch. The case was referred to the Office of Administrative Hearings for adjudication.
Entity
Details
John Shields
Petitioner
Homeowner at 20431 E. Bronco Drive, Queen Creek, Arizona.
Will Rogers Equestrian Ranch
Respondent
The Homeowners’ Association (HOA) for the development.
Joe and Sandy Johnson
Adjoining Neighbor
Constructed the disputed wall extension between their property and the Petitioner’s.
The Disputed Structure
Wall Extension
An approximately 5-foot long by 6-foot high common block wall extension.
The dispute was adjudicated in two separate hearings:
1. Initial Hearing: Held on September 27, 2017, before Administrative Law Judge (ALJ) Diane Mihalsky. A decision dismissing the petition was issued on October 11, 2017.
2. Rehearing: Granted on December 5, 2017, and held on February 5, 2018, before ALJ Tammy L. Eigenheer. A final decision, again dismissing the petition, was issued on February 26, 2018.
II. Petitioner’s Claim and Central Issue
The Petitioner’s central claim was that the Respondent HOA violated CC&R § 6.2(A) by approving the wall extension built by his neighbor, Joe Johnson, without first securing or verifying the Petitioner’s approval.
• Core Allegation: Any alteration to a shared “Party Wall” requires the approval of both the HOA’s Architectural Control Committee (“the Committee”) and the adjoining owner. The Petitioner asserted he never gave his approval.
• Petitioner’s Testimony: He steadfastly denied ever approving the wall, stating that he expressed his disapproval to the Johnsons on October 16, 2016, three days after its construction. He submitted a photograph and testified the wall “looked like crap” and was an “eyesore.”
• Evolving Argument:
◦ In the first hearing, the Petitioner argued that the HOA was responsible for enforcing the CC&Rs by compelling Mr. Johnson to remove the unapproved wall.
◦ In the rehearing, the Petitioner “vacillated” before firmly asserting his issue was that the HOA had improperly approved Mr. Johnson’s proposal in the first place.
III. Relevant Covenants, Conditions, and Restrictions (CC&Rs)
The decisions in this case hinged on the interpretation and interplay of three specific sections of the Will Rogers Equestrian Ranch CC&Rs.
Section
Key Provision
§ 6.2(A)
Fences as Party Walls
“Such Party Walls and Fences shall not be altered, or changed… without [the] approval of the adjoining Owner(s), if any, and the [Architectural Control] Committee.”
Review by the Committee
“No … fences … shall be commenced [or] erected … until the plans and specifications … have been submitted to and approved by the Committee. … the Committee shall have the right to refuse to approve any Alteration which is not suitable or desirable in their opinion for aesthetic or other reasons…” It also states the Committee’s approval is not an endorsement of compliance with laws or ordinances.
Effect of Declaration and Remedies
“In the event of any violation… they may be enforced by an action brought by [Respondent], the Committee or by the Owner or Owners… at law or in equity…”
IV. Chronology of Events and Factual Evidence
1. Prior to Oct 13, 2016: Mr. Johnson discussed his plans to build the wall extension to hide his RV on multiple occasions with the Petitioner present.
◦ Conflicting Testimony: A.J. Denardo testified he was present for at least three such conversations and that the Petitioner voiced no objection, even stating the wall “looked good” immediately after it was built. Sandy Johnson testified the Petitioner was present for at least ten discussions and never disapproved, sometimes nodding in apparent approval. The Petitioner denied ever giving approval.
2. On/About Oct 13, 2016: Mr. Johnson constructed the wall extension without prior approval from the Committee.
3. On/About Oct 16, 2016: The Petitioner expressed his disapproval of the wall to Mr. and Mrs. Johnson.
4. On/About Nov 2, 2016: Mr. Johnson retroactively submitted plans for the wall extension and a proposal to move his gate forward to the Committee for approval.
5. Nov 16, 2016: The newly elected HOA board, acting as the Committee, met and verbally approved Mr. Johnson’s wall. They specifically advised him that “he will need to seek neighboring property owner’s approval.”
6. December 2016: The board held an executive session to obtain legal advice on enforcement issues.
7. Jan 18, 2017: At a regular board meeting, the board formally approved Mr. Johnson’s proposal, resolving “to ratify the unanimous written consent received outside this regular meeting.”
8. Post-Approval: The City of Queen Creek notified Mr. Johnson that he could not move his gate forward as proposed, as it violated city codes.
V. Legal Analysis and Rulings
Both administrative law judges ultimately concluded that the HOA had not violated its CC&Rs and dismissed the petition. The reasoning in each decision focused on different facets of the HOA’s duties.
A. First Hearing Decision (ALJ Diane Mihalsky)
The initial ruling focused on the HOA’s role in enforcement.
• Discretionary Power: The decision centered on the word “may” in CC&R § 8.1. Citing case law (Walker v. Wilkinson), the judge found that “may” indicates a permissive intent, while “shall” indicates a mandatory one. Therefore, the CC&Rs gave the Respondent board the option to bring an enforcement action, but did not require it to do so.
• No Abuse of Discretion: The board was aware of the dispute and the conflicting testimony from multiple witnesses regarding the Petitioner’s prior approval (or lack of objection). The board determined it was not its “job to decide who was telling the truth.” Given this conflicting evidence, the judge found that the board’s decision not to pursue enforcement against Mr. Johnson was not an abuse of its discretion.
• Petitioner’s Remedy: The decision explicitly noted that the Petitioner was not without a remedy, as CC&R § 8.1 also authorizes him to file his own action directly against the Johnsons for their alleged violation of CC&R § 6.2(A).
B. Rehearing Decision (ALJ Tammy L. Eigenheer)
The rehearing focused on the Petitioner’s clarified claim that the HOA’s approval of the plans was improper.
• Separate and Distinct Obligations: The judge ruled that CC&R § 6.2(A) and CC&R § 7.2 create separate obligations for separate parties.
◦ § 6.2(A) requires the homeowner (Mr. Johnson) to obtain the adjoining neighbor’s approval.
◦ § 7.2 requires the HOA Committee to review the proposal based only on aesthetic criteria and consistency with the development.
• Limited Scope of Committee Review: The decision states, “Nothing in CC&R § 7.2 requires Respondent to consider whether the adjoining neighbor had approved the block wall extension.” The board’s role was to evaluate if the wall was “aesthetically pleasing and consistent” with other structures, which it did.
• No Erroneous Approval: Because the HOA’s approval process is defined and limited by § 7.2, its decision to approve the wall based on those criteria was not erroneous. The HOA had “no obligation under CC&R § 6.2(A) to obtain or ensure Petitioner approved the block wall extension.”
VI. Final Outcome
The Petitioner’s petition against the Will Rogers Equestrian Ranch HOA was dismissed. The final order from the February 26, 2018, rehearing, which is binding on the parties, concluded that no action was required of the Respondent. The Petitioner failed to establish by a preponderance of the evidence that the HOA had violated its governing documents in either its approval of the wall extension or its decision not to pursue enforcement.
Study Guide – 17F-H1717034-REL-RHG
Study Guide: Shields v. Will Rogers Equestrian Ranch
This guide provides a comprehensive review of the administrative legal dispute between John Shields and the Will Rogers Equestrian Ranch homeowners’ association. It is based on the findings of fact, conclusions of law, and evidence presented in two separate hearings before the Office of Administrative Hearings.
Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, drawing exclusively from the information provided in the case documents.
1. Who are the primary parties involved in this legal dispute, and what is their relationship?
2. What specific structure is at the center of the dispute, when was it built, and by whom?
3. According to CC&R § 6.2(A), what two distinct approvals are required before a party wall can be altered?
4. Why did the Respondent’s board state it was unsure whether the Petitioner had approved the wall extension before it was constructed?
5. What criteria did the Architectural Control Committee use when it formally approved the wall extension, as outlined in CC&R § 7.2?
6. Explain the legal significance of the word “may” in CC&R § 8.1 regarding the homeowners’ association’s enforcement duties.
7. On what grounds was the Petitioner, John Shields, granted a rehearing after the initial decision was issued?
8. During the rehearing, what did the Petitioner clarify was his single, primary complaint against the Respondent?
9. What was the final recommended order in both the initial hearing and the subsequent rehearing?
10. According to the first judge’s decision, what other legal remedy is available to the Petitioner to address his grievance against his neighbor?
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Answer Key
1. The primary parties are John Shields (the Petitioner) and the Will Rogers Equestrian Ranch homeowners’ association (the Respondent). Mr. Shields is a homeowner and member of the association, and his dispute concerns the association’s handling of a wall built by his next-door neighbor, Joe Johnson.
2. The structure is an approximately 5-foot long by 6-foot high common block wall extension. It was built on or about October 13, 2016, by the Petitioner’s neighbor, Joe Johnson, between their two properties.
3. CC&R § 6.2(A) requires that any alteration to a party wall must have the approval of the adjoining owner(s), if any, as well as the approval of the Architectural Control Committee. Both approvals are necessary.
4. The board was unsure about the Petitioner’s prior approval because at least four witnesses stated they heard the Petitioner either actually approve of the wall or fail to object while Mr. Johnson was discussing plans to build it in his presence. This created a conflict between the Petitioner’s claims and the testimony of others.
5. According to testimony from board member Kristi Hancock, the Committee’s approval was based solely on whether the wall was aesthetically pleasing and consistent with other wall extensions in the development. The Committee’s review under CC&R § 7.2 did not require it to confirm whether the adjoining neighbor had given approval.
6. The first decision concluded that the word “may” in CC&R § 8.1 indicates permissive intent, not a mandatory requirement. This means the association had the discretion, but not the obligation, to bring an enforcement action against Mr. Johnson.
7. A rehearing was granted by Commissioner Judy Lowe because the Petitioner claimed there were errors in the admission or rejection of evidence, other errors of law during the proceeding, and misconduct by the Administrative Law Judge that deprived him of a fair hearing.
8. After some vacillation, the Petitioner firmly asserted during the rehearing that his single issue was that the Respondent had improperly approved Mr. Johnson’s proposal to build the block wall extension and move his gate forward.
9. In both hearings, the recommended order was that no action was required of the Respondent and that the petition should be dismissed.
10. The first decision points out that under CC&R § 8.1, the Petitioner is not without a remedy. This section authorizes an owner, not just the association, to file an action against another owner for an alleged violation of the CC&Rs.
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Essay Questions
Instructions: The following questions are designed to test a deeper understanding of the case. Formulate a comprehensive response to each, citing specific facts, testimony, and CC&R provisions from the source documents.
1. Analyze the differing responsibilities of the homeowner (Mr. Johnson), the adjoining neighbor (Mr. Shields), and the homeowners’ association (the Respondent) as outlined in CC&Rs § 6.2(A), § 7.2, and § 8.1. How do these distinct roles and responsibilities intersect and conflict in this case?
2. Compare and contrast the evidence and testimony presented in the first hearing (before ALJ Diane Mihalsky) with the focus of the second hearing (before ALJ Tammy L. Eigenheer). How did the Petitioner’s framing of his central argument change between the two proceedings?
3. Discuss the legal standard “preponderance of the evidence” as it is defined and applied in this case. Explain how the conflicting testimony regarding the Petitioner’s “tacit approval” influenced the Respondent’s decision-making and, ultimately, the Administrative Law Judges’ conclusions.
4. Evaluate the Respondent’s decision-making process regarding the approval of the wall extension. Consider the timeline of events from the wall’s unapproved construction in October 2016 to the formal ratification in January 2017, the conditional verbal approval, and the rationale provided by board members for their actions.
5. The first decision explicitly states that CC&R § 8.1 gives the Petitioner a separate remedy against his neighbor. Based on the information in both documents, construct the legal argument the Petitioner could make in a direct action against Mr. and Mrs. Johnson for their alleged violation of CC&R § 6.2(A).
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, takes evidence, and makes decisions or recommendations on legal and factual issues. In this case, Diane Mihalsky and Tammy L. Eigenheer served as ALJs.
Architectural Control Committee (The Committee)
A body within the homeowners’ association responsible for reviewing and approving or disapproving proposed alterations to properties, such as fences, based on aesthetic and other considerations as outlined in the CC&Rs. In this case, the board itself acted as the Committee.
Arizona Department of Real Estate (The Department)
The state agency with which the Petitioner initially filed his petition concerning violations of planned community documents. The Department then referred the matter to the Office of Administrative Hearings.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this matter, the Petitioner bore the burden of proof to establish that the Respondent violated the CC&Rs.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing legal documents that set out the rights and obligations of the homeowners’ association and its members. The key sections referenced are 6.2(A), 7.2, and 8.1.
Office of Administrative Hearings
The independent state agency responsible for conducting evidentiary hearings for disputes referred by other state agencies, such as the one between Shields and the Will Rogers Equestrian Ranch.
Party Wall
A wall built on the boundary line between two adjoining properties, for the common benefit of both owners. CC&R § 6.2(A) governs the alteration of such walls.
Permissive Intent
A legal interpretation of language, such as the word “may,” which indicates that an action is allowed or discretionary but not required. This was central to the interpretation of CC&R § 8.1.
Petitioner
The party who initiates a legal action or petition. In this case, John Shields is the Petitioner.
Preponderance of the Evidence
The standard of proof in this civil administrative case, defined as evidence that is more convincing and has superior weight, making it more probable that a contention is true than not.
Rehearing
A second hearing of a case, granted in this instance because the Petitioner alleged errors of law and misconduct by the judge in the first proceeding.
Respondent
The party against whom a petition is filed. In this case, the Will Rogers Equestrian Ranch homeowners’ association is the Respondent.
Tacit Approval
Approval that is implied or inferred from actions or from a failure to state an objection, rather than being explicitly stated. Witnesses claimed the Petitioner gave tacit approval to the wall before it was built.
Blog Post – 17F-H1717034-REL-RHG
4 Surprising Lessons From a Neighbor’s Ugly Wall and the HOA That Did Nothing
Introduction: The Homeowner’s Dilemma
In the world of community governance, the gap between homeowner expectation and contractual reality is a fertile ground for conflict. Most people assume their Homeowners’ Association (HOA) exists to be their first line of defense in a neighbor dispute; when a rule is broken, the HOA is expected to step in. But what happens when the HOA decides to do nothing?
This was the exact situation faced by homeowner John Shields, who was appalled when his neighbor, Joe Johnson, built a block wall extension he considered an eyesore. Mr. Shields turned to his HOA, Will Rogers Equestrian Ranch, expecting them to force its removal. The legal battle that followed provides a fascinating case study, revealing surprising realities about the power and obligations of an HOA. For any homeowner in a planned community, the takeaways are as counter-intuitive as they are crucial.
1. Your HOA Isn’t Obligated to Be Your Enforcer
Mr. Shields’s primary argument rested on a common but often mistaken assumption: that an HOA has a strict mandate to enforce every rule. His logic was straightforward: the community’s Covenants, Conditions, and Restrictions (CC&Rs) required his approval for the wall extension. Since he never gave it, he believed the HOA was responsible for forcing his neighbor to tear the wall down.
The court, however, pointed to a different section of the CC&Rs (§ 8.1) which stated that the rules may be enforced by the HOA. This single word was the linchpin of the case. The Administrative Law Judge highlighted the critical legal distinction between a permissive option and a mandatory duty.
“[The] use of the word ‘may’ generally indicates permissive intent . . . while ‘shall’ generally indicates a mandatory provision.”
This gave the HOA discretion on whether to act. Because there was conflicting testimony about whether Mr. Shields had given tacit approval beforehand, the court found that the HOA “did not abuse its discretion by declining to bring an enforcement action.” The lesson is clear: your HOA’s governing documents might grant it the right to enforce rules without creating an obligation to do so in every single case.
2. The HOA’s “Approval” Might Not Mean What You Think
Adding another layer to the conflict, Mr. Johnson submitted plans for the wall and a related gate relocation to the HOA’s Architectural Control Committee after the wall was already built. The Committee ultimately approved it. To Mr. Shields, this seemed like the HOA was siding with his neighbor and ignoring his rights.
But the Committee’s review was far narrower than he assumed. According to CC&R § 7.2, their analysis was limited to whether the wall was “esthetically pleasing and consistent with other wall extensions that had been built in the Will Rogers Equestrian Ranch development.” The Committee wasn’t tasked with policing neighbor-to-neighbor agreements.
A formal rehearing—granted after the petitioner alleged “errors of law”—clarified this crucial point. The judge found that under CC&R § 6.2(A), it was Mr. Johnson’s responsibility to get his neighbor’s approval, not the HOA’s. As the decision stated, “Respondent had no obligation under CC&R § 6.2(A) to obtain or ensure Petitioner approved the block wall extension.” This separation of duties is common in governing documents, as it strategically shields the HOA from liability in member disputes while allowing it to maintain aesthetic control over the community.
3. Your Silence Can Be Used Against You
The case devolved into a classic “he said, she said” scenario that ultimately weakened Mr. Shields’s position. He testified that he never approved the wall and, on October 16, 2016—three days after it was built—told his neighbors he disapproved, calling it an “eyesore” that “looked like crap.”
However, other witnesses told a different story. One, Mr. Denardo, testified that Mr. Shields “did not voice any objection” before the wall was constructed and even said it “looked good” immediately after. The neighbor’s wife, Mrs. Johnson, testified that Mr. Shields was present for at least ten discussions about the wall, “had never voiced any disapproval,” and had “sometimes nodded, apparently indicating his approval.”
This conflicting testimony was the direct basis for the board invoking its discretionary power. A board member testified that because of the conflicting accounts, the board “was less sure about whether Petitioner had actually or tacitly approved the block wall extension before it was built.” This uncertainty was the key factor that led them not to intervene. When it comes to property matters, clear, timely, and preferably documented communication is your strongest asset; ambiguity and silence can be interpreted as consent.
4. When the HOA Steps Aside, the Fight Might Be Yours Alone
While the court dismissed the petition against the HOA, it did not leave Mr. Shields without a path forward. The judge pointed to the very same rule that gave the HOA its discretion—CC&R § 8.1—as a source of the homeowner’s power. This rule proved to be a double-edged sword.
The judge’s first decision stated that CC&R § 8.1 “authorizes Petitioner to file an action against Mr. and Mrs. Johnson for their alleged violation of CC&R § 6.2(A).” The same clause that gave the HOA the discretion to step aside also explicitly empowered individual homeowners to act in the HOA’s stead.
When an association chooses to stay out of a member-to-member dispute, the responsibility—and the power—to enforce the community’s rules can fall directly to the affected homeowner. The HOA’s inaction does not mean a rule can’t be enforced; it just means you may have to be the one to do it by bringing a private legal action against your neighbor.
Conclusion: Read Your Fine Print
The story of the ugly wall serves as a powerful reminder that a homeowner’s assumptions about their HOA’s power can be miles apart from the legal reality written into the CC&Rs. This case perfectly illustrates the interplay between an HOA’s discretionary enforcement powers (Lesson 1), its carefully separated procedural duties (Lesson 2), the critical importance of homeowner communication and proof (Lesson 3), and the ultimate empowerment of members to enforce rules themselves (Lesson 4). These documents are not just a list of rules; they are a legal framework that dictates who has the power to act, when they are obligated to do so, and what recourse you have when a conflict arises.
You might know your community’s rules on trash cans and lawn care, but do you know who is truly responsible for enforcing them when a real dispute arises?
Case Participants
Petitioner Side
John Shields(petitioner)
Respondent Side
Maria R. Kupillas(HOA attorney) Law Offices of Farley Choate & Bergin Represented Respondent Will Rogers Equestrian Ranch
Dean Kabanuk(board president) Will Rogers Equestrian Ranch Board Testified for Petitioner via subpoena; elected President Nov 2016
Kristi Hancock(board member/witness) Will Rogers Equestrian Ranch Board Served as Vice President (Nov 2016-Nov 2017) and President (since Nov 2017)
Brenda Campbell(community manager) Will Rogers Equestrian Ranch Witness for Respondent
A.J. Denardo(witness) Not a member of Respondent; lives near Petitioner
Sandy Johnson(witness/neighbor) Wife of Joe Johnson; Petitioner's next-door neighbor
Joe Johnson(neighbor/homeowner) Will Rogers Equestrian Ranch Built the block wall extension in question
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings Issued initial ALJ Decision
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings Issued ALJ Decision following rehearing
Judy Lowe(Commissioner) Arizona Department of Real Estate Granted Petitioner's request for rehearing
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
17F-H1717034-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2018-02-26
Administrative Law Judge
Tammy L. Eigenheer
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
John L. Shields
Counsel
—
Respondent
Will Rogers Equestrian Ranch
Counsel
Maria R. Kupillas
Alleged Violations
CC&R § 6.2(A)
Outcome Summary
The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove the HOA violated its CC&Rs by approving the wall extension, as the HOA’s approval duties were limited to aesthetic considerations under CC&R § 7.2 and did not extend to enforcing or ensuring adjoining owner approval required by CC&R § 6.2(A).
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent erroneously approved the proposal, as Respondent's duties under CC&R § 7.2 did not require considering adjoining neighbor approval specified in CC&R § 6.2(A).
Key Issues & Findings
Alleged violation of CC&Rs by HOA improperly approving a neighbor's block wall extension without adjoining owner's approval.
Petitioner alleged that the Respondent HOA violated CC&R § 6.2(A) by approving a neighbor's block wall extension that served as a party wall because Petitioner, the adjoining owner, had not approved the wall. Respondent argued their approval duties under CC&R § 7.2 only concerned aesthetics, not ensuring neighbor approval.
Orders: The petition is dismissed and no action is required of Respondent.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199.01
CC&R § 6.2(A)
CC&R § 7.2
Analytics Highlights
Topics: HOA, CC&R, Architectural Control Committee, Fence, Party Wall, Rehearing, Burden of Proof
Additional Citations:
A.R.S. § 32-2199.01
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, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Briefing Document: Shields v. Will Rogers Equestrian Ranch HOA
Executive Summary
This document synthesizes the findings from two administrative law hearings concerning a dispute between homeowner John Shields (Petitioner) and the Will Rogers Equestrian Ranch Homeowners’ Association (Respondent). The core of the dispute is a 5-foot by 6-foot common block wall extension constructed by the Petitioner’s neighbor, Joe Johnson. The Petitioner alleged the Respondent violated its own Covenants, Conditions, and Restrictions (CC&Rs) by approving the wall alteration without the Petitioner’s required consent as the adjoining property owner.
Following an initial hearing and a subsequent rehearing, the Office of Administrative Hearings dismissed the Petitioner’s claims. The decisions established several critical legal and procedural points:
• Distinct HOA Obligations: The HOA’s architectural approval role, governed by CC&R § 7.2, is distinct from the neighbor-approval requirement in CC&R § 6.2(A). The HOA’s approval is based solely on aesthetic and community consistency standards and does not obligate it to verify or enforce separate homeowner-to-homeowner agreements or approvals.
• Homeowner Responsibility: The responsibility to obtain an adjoining owner’s approval for a shared wall alteration rests entirely with the homeowner undertaking the construction (in this case, Mr. Johnson), not with the HOA.
• Discretionary Enforcement: The HOA’s power to enforce CC&R violations is discretionary, not mandatory. CC&R § 8.1 uses the permissive term “may,” granting the board latitude in deciding whether to pursue enforcement actions, particularly in cases with conflicting evidence.
• Alternative Remedy: The Petitioner is not without a remedy. The same CC&R section that grants the HOA enforcement power also explicitly authorizes individual owners to bring a private action against another owner to enforce the CC&Rs.
Ultimately, the HOA was found to have acted within its authority as defined by the governing documents, and both petitions against it were dismissed.
I. Case Overview
This matter concerns a petition filed on May 3, 2017, by John Shields with the Arizona Department of Real Estate against his HOA, Will Rogers Equestrian Ranch. The case was referred to the Office of Administrative Hearings for adjudication.
Entity
Details
John Shields
Petitioner
Homeowner at 20431 E. Bronco Drive, Queen Creek, Arizona.
Will Rogers Equestrian Ranch
Respondent
The Homeowners’ Association (HOA) for the development.
Joe and Sandy Johnson
Adjoining Neighbor
Constructed the disputed wall extension between their property and the Petitioner’s.
The Disputed Structure
Wall Extension
An approximately 5-foot long by 6-foot high common block wall extension.
The dispute was adjudicated in two separate hearings:
1. Initial Hearing: Held on September 27, 2017, before Administrative Law Judge (ALJ) Diane Mihalsky. A decision dismissing the petition was issued on October 11, 2017.
2. Rehearing: Granted on December 5, 2017, and held on February 5, 2018, before ALJ Tammy L. Eigenheer. A final decision, again dismissing the petition, was issued on February 26, 2018.
II. Petitioner’s Claim and Central Issue
The Petitioner’s central claim was that the Respondent HOA violated CC&R § 6.2(A) by approving the wall extension built by his neighbor, Joe Johnson, without first securing or verifying the Petitioner’s approval.
• Core Allegation: Any alteration to a shared “Party Wall” requires the approval of both the HOA’s Architectural Control Committee (“the Committee”) and the adjoining owner. The Petitioner asserted he never gave his approval.
• Petitioner’s Testimony: He steadfastly denied ever approving the wall, stating that he expressed his disapproval to the Johnsons on October 16, 2016, three days after its construction. He submitted a photograph and testified the wall “looked like crap” and was an “eyesore.”
• Evolving Argument:
◦ In the first hearing, the Petitioner argued that the HOA was responsible for enforcing the CC&Rs by compelling Mr. Johnson to remove the unapproved wall.
◦ In the rehearing, the Petitioner “vacillated” before firmly asserting his issue was that the HOA had improperly approved Mr. Johnson’s proposal in the first place.
III. Relevant Covenants, Conditions, and Restrictions (CC&Rs)
The decisions in this case hinged on the interpretation and interplay of three specific sections of the Will Rogers Equestrian Ranch CC&Rs.
Section
Key Provision
§ 6.2(A)
Fences as Party Walls
“Such Party Walls and Fences shall not be altered, or changed… without [the] approval of the adjoining Owner(s), if any, and the [Architectural Control] Committee.”
Review by the Committee
“No … fences … shall be commenced [or] erected … until the plans and specifications … have been submitted to and approved by the Committee. … the Committee shall have the right to refuse to approve any Alteration which is not suitable or desirable in their opinion for aesthetic or other reasons…” It also states the Committee’s approval is not an endorsement of compliance with laws or ordinances.
Effect of Declaration and Remedies
“In the event of any violation… they may be enforced by an action brought by [Respondent], the Committee or by the Owner or Owners… at law or in equity…”
IV. Chronology of Events and Factual Evidence
1. Prior to Oct 13, 2016: Mr. Johnson discussed his plans to build the wall extension to hide his RV on multiple occasions with the Petitioner present.
◦ Conflicting Testimony: A.J. Denardo testified he was present for at least three such conversations and that the Petitioner voiced no objection, even stating the wall “looked good” immediately after it was built. Sandy Johnson testified the Petitioner was present for at least ten discussions and never disapproved, sometimes nodding in apparent approval. The Petitioner denied ever giving approval.
2. On/About Oct 13, 2016: Mr. Johnson constructed the wall extension without prior approval from the Committee.
3. On/About Oct 16, 2016: The Petitioner expressed his disapproval of the wall to Mr. and Mrs. Johnson.
4. On/About Nov 2, 2016: Mr. Johnson retroactively submitted plans for the wall extension and a proposal to move his gate forward to the Committee for approval.
5. Nov 16, 2016: The newly elected HOA board, acting as the Committee, met and verbally approved Mr. Johnson’s wall. They specifically advised him that “he will need to seek neighboring property owner’s approval.”
6. December 2016: The board held an executive session to obtain legal advice on enforcement issues.
7. Jan 18, 2017: At a regular board meeting, the board formally approved Mr. Johnson’s proposal, resolving “to ratify the unanimous written consent received outside this regular meeting.”
8. Post-Approval: The City of Queen Creek notified Mr. Johnson that he could not move his gate forward as proposed, as it violated city codes.
V. Legal Analysis and Rulings
Both administrative law judges ultimately concluded that the HOA had not violated its CC&Rs and dismissed the petition. The reasoning in each decision focused on different facets of the HOA’s duties.
A. First Hearing Decision (ALJ Diane Mihalsky)
The initial ruling focused on the HOA’s role in enforcement.
• Discretionary Power: The decision centered on the word “may” in CC&R § 8.1. Citing case law (Walker v. Wilkinson), the judge found that “may” indicates a permissive intent, while “shall” indicates a mandatory one. Therefore, the CC&Rs gave the Respondent board the option to bring an enforcement action, but did not require it to do so.
• No Abuse of Discretion: The board was aware of the dispute and the conflicting testimony from multiple witnesses regarding the Petitioner’s prior approval (or lack of objection). The board determined it was not its “job to decide who was telling the truth.” Given this conflicting evidence, the judge found that the board’s decision not to pursue enforcement against Mr. Johnson was not an abuse of its discretion.
• Petitioner’s Remedy: The decision explicitly noted that the Petitioner was not without a remedy, as CC&R § 8.1 also authorizes him to file his own action directly against the Johnsons for their alleged violation of CC&R § 6.2(A).
B. Rehearing Decision (ALJ Tammy L. Eigenheer)
The rehearing focused on the Petitioner’s clarified claim that the HOA’s approval of the plans was improper.
• Separate and Distinct Obligations: The judge ruled that CC&R § 6.2(A) and CC&R § 7.2 create separate obligations for separate parties.
◦ § 6.2(A) requires the homeowner (Mr. Johnson) to obtain the adjoining neighbor’s approval.
◦ § 7.2 requires the HOA Committee to review the proposal based only on aesthetic criteria and consistency with the development.
• Limited Scope of Committee Review: The decision states, “Nothing in CC&R § 7.2 requires Respondent to consider whether the adjoining neighbor had approved the block wall extension.” The board’s role was to evaluate if the wall was “aesthetically pleasing and consistent” with other structures, which it did.
• No Erroneous Approval: Because the HOA’s approval process is defined and limited by § 7.2, its decision to approve the wall based on those criteria was not erroneous. The HOA had “no obligation under CC&R § 6.2(A) to obtain or ensure Petitioner approved the block wall extension.”
VI. Final Outcome
The Petitioner’s petition against the Will Rogers Equestrian Ranch HOA was dismissed. The final order from the February 26, 2018, rehearing, which is binding on the parties, concluded that no action was required of the Respondent. The Petitioner failed to establish by a preponderance of the evidence that the HOA had violated its governing documents in either its approval of the wall extension or its decision not to pursue enforcement.
Study Guide – 17F-H1717034-REL-RHG
Study Guide: Shields v. Will Rogers Equestrian Ranch
This guide provides a comprehensive review of the administrative legal dispute between John Shields and the Will Rogers Equestrian Ranch homeowners’ association. It is based on the findings of fact, conclusions of law, and evidence presented in two separate hearings before the Office of Administrative Hearings.
Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, drawing exclusively from the information provided in the case documents.
1. Who are the primary parties involved in this legal dispute, and what is their relationship?
2. What specific structure is at the center of the dispute, when was it built, and by whom?
3. According to CC&R § 6.2(A), what two distinct approvals are required before a party wall can be altered?
4. Why did the Respondent’s board state it was unsure whether the Petitioner had approved the wall extension before it was constructed?
5. What criteria did the Architectural Control Committee use when it formally approved the wall extension, as outlined in CC&R § 7.2?
6. Explain the legal significance of the word “may” in CC&R § 8.1 regarding the homeowners’ association’s enforcement duties.
7. On what grounds was the Petitioner, John Shields, granted a rehearing after the initial decision was issued?
8. During the rehearing, what did the Petitioner clarify was his single, primary complaint against the Respondent?
9. What was the final recommended order in both the initial hearing and the subsequent rehearing?
10. According to the first judge’s decision, what other legal remedy is available to the Petitioner to address his grievance against his neighbor?
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Answer Key
1. The primary parties are John Shields (the Petitioner) and the Will Rogers Equestrian Ranch homeowners’ association (the Respondent). Mr. Shields is a homeowner and member of the association, and his dispute concerns the association’s handling of a wall built by his next-door neighbor, Joe Johnson.
2. The structure is an approximately 5-foot long by 6-foot high common block wall extension. It was built on or about October 13, 2016, by the Petitioner’s neighbor, Joe Johnson, between their two properties.
3. CC&R § 6.2(A) requires that any alteration to a party wall must have the approval of the adjoining owner(s), if any, as well as the approval of the Architectural Control Committee. Both approvals are necessary.
4. The board was unsure about the Petitioner’s prior approval because at least four witnesses stated they heard the Petitioner either actually approve of the wall or fail to object while Mr. Johnson was discussing plans to build it in his presence. This created a conflict between the Petitioner’s claims and the testimony of others.
5. According to testimony from board member Kristi Hancock, the Committee’s approval was based solely on whether the wall was aesthetically pleasing and consistent with other wall extensions in the development. The Committee’s review under CC&R § 7.2 did not require it to confirm whether the adjoining neighbor had given approval.
6. The first decision concluded that the word “may” in CC&R § 8.1 indicates permissive intent, not a mandatory requirement. This means the association had the discretion, but not the obligation, to bring an enforcement action against Mr. Johnson.
7. A rehearing was granted by Commissioner Judy Lowe because the Petitioner claimed there were errors in the admission or rejection of evidence, other errors of law during the proceeding, and misconduct by the Administrative Law Judge that deprived him of a fair hearing.
8. After some vacillation, the Petitioner firmly asserted during the rehearing that his single issue was that the Respondent had improperly approved Mr. Johnson’s proposal to build the block wall extension and move his gate forward.
9. In both hearings, the recommended order was that no action was required of the Respondent and that the petition should be dismissed.
10. The first decision points out that under CC&R § 8.1, the Petitioner is not without a remedy. This section authorizes an owner, not just the association, to file an action against another owner for an alleged violation of the CC&Rs.
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Essay Questions
Instructions: The following questions are designed to test a deeper understanding of the case. Formulate a comprehensive response to each, citing specific facts, testimony, and CC&R provisions from the source documents.
1. Analyze the differing responsibilities of the homeowner (Mr. Johnson), the adjoining neighbor (Mr. Shields), and the homeowners’ association (the Respondent) as outlined in CC&Rs § 6.2(A), § 7.2, and § 8.1. How do these distinct roles and responsibilities intersect and conflict in this case?
2. Compare and contrast the evidence and testimony presented in the first hearing (before ALJ Diane Mihalsky) with the focus of the second hearing (before ALJ Tammy L. Eigenheer). How did the Petitioner’s framing of his central argument change between the two proceedings?
3. Discuss the legal standard “preponderance of the evidence” as it is defined and applied in this case. Explain how the conflicting testimony regarding the Petitioner’s “tacit approval” influenced the Respondent’s decision-making and, ultimately, the Administrative Law Judges’ conclusions.
4. Evaluate the Respondent’s decision-making process regarding the approval of the wall extension. Consider the timeline of events from the wall’s unapproved construction in October 2016 to the formal ratification in January 2017, the conditional verbal approval, and the rationale provided by board members for their actions.
5. The first decision explicitly states that CC&R § 8.1 gives the Petitioner a separate remedy against his neighbor. Based on the information in both documents, construct the legal argument the Petitioner could make in a direct action against Mr. and Mrs. Johnson for their alleged violation of CC&R § 6.2(A).
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, takes evidence, and makes decisions or recommendations on legal and factual issues. In this case, Diane Mihalsky and Tammy L. Eigenheer served as ALJs.
Architectural Control Committee (The Committee)
A body within the homeowners’ association responsible for reviewing and approving or disapproving proposed alterations to properties, such as fences, based on aesthetic and other considerations as outlined in the CC&Rs. In this case, the board itself acted as the Committee.
Arizona Department of Real Estate (The Department)
The state agency with which the Petitioner initially filed his petition concerning violations of planned community documents. The Department then referred the matter to the Office of Administrative Hearings.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this matter, the Petitioner bore the burden of proof to establish that the Respondent violated the CC&Rs.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing legal documents that set out the rights and obligations of the homeowners’ association and its members. The key sections referenced are 6.2(A), 7.2, and 8.1.
Office of Administrative Hearings
The independent state agency responsible for conducting evidentiary hearings for disputes referred by other state agencies, such as the one between Shields and the Will Rogers Equestrian Ranch.
Party Wall
A wall built on the boundary line between two adjoining properties, for the common benefit of both owners. CC&R § 6.2(A) governs the alteration of such walls.
Permissive Intent
A legal interpretation of language, such as the word “may,” which indicates that an action is allowed or discretionary but not required. This was central to the interpretation of CC&R § 8.1.
Petitioner
The party who initiates a legal action or petition. In this case, John Shields is the Petitioner.
Preponderance of the Evidence
The standard of proof in this civil administrative case, defined as evidence that is more convincing and has superior weight, making it more probable that a contention is true than not.
Rehearing
A second hearing of a case, granted in this instance because the Petitioner alleged errors of law and misconduct by the judge in the first proceeding.
Respondent
The party against whom a petition is filed. In this case, the Will Rogers Equestrian Ranch homeowners’ association is the Respondent.
Tacit Approval
Approval that is implied or inferred from actions or from a failure to state an objection, rather than being explicitly stated. Witnesses claimed the Petitioner gave tacit approval to the wall before it was built.
Blog Post – 17F-H1717034-REL-RHG
4 Surprising Lessons From a Neighbor’s Ugly Wall and the HOA That Did Nothing
Introduction: The Homeowner’s Dilemma
In the world of community governance, the gap between homeowner expectation and contractual reality is a fertile ground for conflict. Most people assume their Homeowners’ Association (HOA) exists to be their first line of defense in a neighbor dispute; when a rule is broken, the HOA is expected to step in. But what happens when the HOA decides to do nothing?
This was the exact situation faced by homeowner John Shields, who was appalled when his neighbor, Joe Johnson, built a block wall extension he considered an eyesore. Mr. Shields turned to his HOA, Will Rogers Equestrian Ranch, expecting them to force its removal. The legal battle that followed provides a fascinating case study, revealing surprising realities about the power and obligations of an HOA. For any homeowner in a planned community, the takeaways are as counter-intuitive as they are crucial.
1. Your HOA Isn’t Obligated to Be Your Enforcer
Mr. Shields’s primary argument rested on a common but often mistaken assumption: that an HOA has a strict mandate to enforce every rule. His logic was straightforward: the community’s Covenants, Conditions, and Restrictions (CC&Rs) required his approval for the wall extension. Since he never gave it, he believed the HOA was responsible for forcing his neighbor to tear the wall down.
The court, however, pointed to a different section of the CC&Rs (§ 8.1) which stated that the rules may be enforced by the HOA. This single word was the linchpin of the case. The Administrative Law Judge highlighted the critical legal distinction between a permissive option and a mandatory duty.
“[The] use of the word ‘may’ generally indicates permissive intent . . . while ‘shall’ generally indicates a mandatory provision.”
This gave the HOA discretion on whether to act. Because there was conflicting testimony about whether Mr. Shields had given tacit approval beforehand, the court found that the HOA “did not abuse its discretion by declining to bring an enforcement action.” The lesson is clear: your HOA’s governing documents might grant it the right to enforce rules without creating an obligation to do so in every single case.
2. The HOA’s “Approval” Might Not Mean What You Think
Adding another layer to the conflict, Mr. Johnson submitted plans for the wall and a related gate relocation to the HOA’s Architectural Control Committee after the wall was already built. The Committee ultimately approved it. To Mr. Shields, this seemed like the HOA was siding with his neighbor and ignoring his rights.
But the Committee’s review was far narrower than he assumed. According to CC&R § 7.2, their analysis was limited to whether the wall was “esthetically pleasing and consistent with other wall extensions that had been built in the Will Rogers Equestrian Ranch development.” The Committee wasn’t tasked with policing neighbor-to-neighbor agreements.
A formal rehearing—granted after the petitioner alleged “errors of law”—clarified this crucial point. The judge found that under CC&R § 6.2(A), it was Mr. Johnson’s responsibility to get his neighbor’s approval, not the HOA’s. As the decision stated, “Respondent had no obligation under CC&R § 6.2(A) to obtain or ensure Petitioner approved the block wall extension.” This separation of duties is common in governing documents, as it strategically shields the HOA from liability in member disputes while allowing it to maintain aesthetic control over the community.
3. Your Silence Can Be Used Against You
The case devolved into a classic “he said, she said” scenario that ultimately weakened Mr. Shields’s position. He testified that he never approved the wall and, on October 16, 2016—three days after it was built—told his neighbors he disapproved, calling it an “eyesore” that “looked like crap.”
However, other witnesses told a different story. One, Mr. Denardo, testified that Mr. Shields “did not voice any objection” before the wall was constructed and even said it “looked good” immediately after. The neighbor’s wife, Mrs. Johnson, testified that Mr. Shields was present for at least ten discussions about the wall, “had never voiced any disapproval,” and had “sometimes nodded, apparently indicating his approval.”
This conflicting testimony was the direct basis for the board invoking its discretionary power. A board member testified that because of the conflicting accounts, the board “was less sure about whether Petitioner had actually or tacitly approved the block wall extension before it was built.” This uncertainty was the key factor that led them not to intervene. When it comes to property matters, clear, timely, and preferably documented communication is your strongest asset; ambiguity and silence can be interpreted as consent.
4. When the HOA Steps Aside, the Fight Might Be Yours Alone
While the court dismissed the petition against the HOA, it did not leave Mr. Shields without a path forward. The judge pointed to the very same rule that gave the HOA its discretion—CC&R § 8.1—as a source of the homeowner’s power. This rule proved to be a double-edged sword.
The judge’s first decision stated that CC&R § 8.1 “authorizes Petitioner to file an action against Mr. and Mrs. Johnson for their alleged violation of CC&R § 6.2(A).” The same clause that gave the HOA the discretion to step aside also explicitly empowered individual homeowners to act in the HOA’s stead.
When an association chooses to stay out of a member-to-member dispute, the responsibility—and the power—to enforce the community’s rules can fall directly to the affected homeowner. The HOA’s inaction does not mean a rule can’t be enforced; it just means you may have to be the one to do it by bringing a private legal action against your neighbor.
Conclusion: Read Your Fine Print
The story of the ugly wall serves as a powerful reminder that a homeowner’s assumptions about their HOA’s power can be miles apart from the legal reality written into the CC&Rs. This case perfectly illustrates the interplay between an HOA’s discretionary enforcement powers (Lesson 1), its carefully separated procedural duties (Lesson 2), the critical importance of homeowner communication and proof (Lesson 3), and the ultimate empowerment of members to enforce rules themselves (Lesson 4). These documents are not just a list of rules; they are a legal framework that dictates who has the power to act, when they are obligated to do so, and what recourse you have when a conflict arises.
You might know your community’s rules on trash cans and lawn care, but do you know who is truly responsible for enforcing them when a real dispute arises?
Case Participants
Petitioner Side
John Shields(petitioner)
Respondent Side
Maria R. Kupillas(HOA attorney) Law Offices of Farley Choate & Bergin Represented Respondent Will Rogers Equestrian Ranch
Dean Kabanuk(board president) Will Rogers Equestrian Ranch Board Testified for Petitioner via subpoena; elected President Nov 2016
Kristi Hancock(board member/witness) Will Rogers Equestrian Ranch Board Served as Vice President (Nov 2016-Nov 2017) and President (since Nov 2017)
Brenda Campbell(community manager) Will Rogers Equestrian Ranch Witness for Respondent
A.J. Denardo(witness) Not a member of Respondent; lives near Petitioner
Sandy Johnson(witness/neighbor) Wife of Joe Johnson; Petitioner's next-door neighbor
Joe Johnson(neighbor/homeowner) Will Rogers Equestrian Ranch Built the block wall extension in question
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings Issued initial ALJ Decision
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings Issued ALJ Decision following rehearing
Judy Lowe(Commissioner) Arizona Department of Real Estate Granted Petitioner's request for rehearing
The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove the HOA violated its CC&Rs by approving the wall extension, as the HOA’s approval duties were limited to aesthetic considerations under CC&R § 7.2 and did not extend to enforcing or ensuring adjoining owner approval required by CC&R § 6.2(A).
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent erroneously approved the proposal, as Respondent's duties under CC&R § 7.2 did not require considering adjoining neighbor approval specified in CC&R § 6.2(A).
Key Issues & Findings
Alleged violation of CC&Rs by HOA improperly approving a neighbor's block wall extension without adjoining owner's approval.
Petitioner alleged that the Respondent HOA violated CC&R § 6.2(A) by approving a neighbor's block wall extension that served as a party wall because Petitioner, the adjoining owner, had not approved the wall. Respondent argued their approval duties under CC&R § 7.2 only concerned aesthetics, not ensuring neighbor approval.
Orders: The petition is dismissed and no action is required of Respondent.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199.01
CC&R § 6.2(A)
CC&R § 7.2
Analytics Highlights
Topics: HOA, CC&R, Architectural Control Committee, Fence, Party Wall, Rehearing, Burden of Proof
Additional Citations:
A.R.S. § 32-2199.01
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, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
A.R.S. § 32-2199.02(B)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
Audio Overview
Decision Documents
17F-H1717034-REL-RHG Decision – 619560.pdf
Uploaded 2025-10-08T07:02:21 (90.8 KB)
Briefing Doc – 17F-H1717034-REL-RHG
Briefing Document: Analysis of Administrative Law Judge Decision in Shields v. Will Rogers Equestrian Ranch
Executive Summary
This document synthesizes the findings from the Administrative Law Judge Decision in Case No. 17F-H1717034-REL-RHG, dated February 26, 2018. The central issue was a petition filed by homeowner John L. Shields against the Will Rogers Equestrian Ranch Homeowners’ Association (HOA), alleging the HOA improperly approved a wall extension built by his neighbor, Joe Johnson, without Mr. Shields’ required consent.
The petition was ultimately dismissed. The Administrative Law Judge (ALJ) concluded that the petitioner, Mr. Shields, failed to establish by a preponderance of the evidence that the HOA had violated its Covenants, Conditions, and Restrictions (CC&Rs). The decision rests on a critical distinction between the responsibilities of a homeowner and the responsibilities of the HOA under separate articles of the CC&Rs. The ALJ determined that the obligation to secure an adjoining neighbor’s approval for a wall alteration (under CC&R § 6.2) falls exclusively on the homeowner undertaking the project. In contrast, the HOA’s duty (under CC&R § 7.2) is limited to an aesthetic review of the proposed alteration, which it conducted appropriately. The HOA had no legal obligation to enforce or verify neighbor-to-neighbor approval.
I. Case Overview
Case Name
John L. Shields (Petitioner) vs. Will Rogers Equestrian Ranch (Respondent)
Case Number
17F-H1717034-REL-RHG
Jurisdiction
Office of Administrative Hearings, Phoenix, Arizona
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
Date of Decision
February 26, 2018
Core Dispute
The petitioner alleged the HOA violated CC&R § 6.2(A) by approving a neighbor’s approximately 5’ x 6’ block wall extension without the petitioner’s consent.
Final Outcome
The petition was dismissed, with no action required of the respondent HOA.
II. Petitioner’s Claim and Arguments
John L. Shields, a homeowner at 20431 E. Bronco Drive within the Will Rogers Equestrian Ranch development, filed a petition against the HOA concerning a wall extension built by his next-door neighbor, Joe Johnson.
• Core Allegation: After vacillating on the specifics of his complaint during the hearing, Mr. Shields firmly asserted that his single issue was that the HOA improperly approved Mr. Johnson’s proposal to build a block wall extension and move his gate forward.
• Basis of Claim: The petitioner argued that under CC&R § 6.2, the HOA should have withheld its approval because Mr. Johnson had not demonstrated that he had first obtained Mr. Shields’ approval for the wall extension between their properties.
• Evidence and Testimony: Mr. Shields denied ever having approved the wall. He submitted a photograph he had taken from his front porch and testified that the block wall extension “was an eyesore.”
III. Respondent’s Position and Evidence
The Will Rogers Equestrian Ranch HOA, represented by board president Kristi Hancock, denied all complaint items and argued its actions were consistent with the governing CC&Rs.
• Basis of Approval: The HOA contended that its approval was based solely on the criteria outlined in CC&R § 7.2. The board, acting as the Architectural Control Committee, reviewed Mr. Johnson’s proposal for its aesthetic qualities and consistency with other properties in the development.
• Aesthetic Review: Ms. Hancock testified that the board inspected other wall extensions and gates and found Mr. Johnson’s proposal to be “aesthetically pleasing and consistent with the other properties.”
• Neighbor Consent Issue: The HOA acknowledged its awareness of Mr. Shields’ objection to the wall after it was built. However, Ms. Hancock testified that the board’s understanding of whether Mr. Shields had approved the wall before construction was unclear. She stated that “at least four witnesses had stated that they heard Petitioner either actually approve of or fail to state an objection to the block wall extension while, in Petitioner’s presence, Mr. Johnson discussed having the block wall extension built.”
• Separation of Duties: The HOA’s position was that its duty under § 7.2 was distinct from the homeowner’s duty under § 6.2. The HOA was not responsible for obtaining or verifying neighbor approval.
IV. Chronology of Key Events
1. October 13, 2016 (approx.): Mr. Johnson has the block wall extension built without first obtaining approval from the HOA’s board or committee.
2. October 16, 2016 (approx.): Mr. Shields expresses his disapproval of the newly built wall to Mr. and Mrs. Johnson.
3. November 2, 2016 (approx.): Mr. Johnson retroactively submits his proposal for the wall extension and a plan to move his gate forward to the Architectural Control Committee for approval.
4. November 2016: The HOA’s newly elected board meets as the Committee and verbally approves Mr. Johnson’s wall but advises him that “he will need to seek neighboring property owner’s approval.”
5. January 2017: The board formally approves Mr. Johnson’s proposal for the wall extension and gate move.
6. May 3, 2017 (approx.): Mr. Shields files a single-issue petition with the Arizona Department of Real Estate.
7. September 27, 2017: An initial hearing is held, and Administrative Law Judge Diane Mihalsky dismisses the petition.
8. December 5, 2017: The Real Estate Commissioner grants Mr. Shields’ request for a rehearing based on his claims of legal errors and judicial misconduct.
9. February 5, 2018: A rehearing is held before Administrative Law Judge Tammy L. Eigenheer.
V. Analysis of Covenants, Conditions, and Restrictions (CC&Rs)
The judge’s decision hinged on the distinct and separate functions of two key CC&R sections.
This section governs alterations to shared fences and walls.
Such Party Walls and Fences shall not be altered, or changed in design, color, material or construction from the original installation made by the Developer without [the] approval of the adjoining Owner(s), if any, and the [Architectural Control] Committee.
• Interpretation: The ALJ interpreted this section as creating two separate approval requirements for the homeowner making the alteration: one from the adjoining owner and one from the Committee. It does not obligate the Committee to enforce the adjoining owner’s approval.
This section defines the scope and limits of the Architectural Control Committee’s power.
No . . . fences . . . shall be commenced [or] erected . . . until the plans and specifications showing the same shall have been submitted to and approved by the Committee. Approval shall not be unreasonably withheld. However, the Committee shall have the right to refuse to approve any Alteration which is not suitable or desirable in their opinion for aesthetic or other reasons…
• Interpretation: The ALJ found that this section limits the Committee’s review to specific criteria, including aesthetics, harmony with surroundings, and effect on neighboring property. It explicitly states that approval “shall not be unreasonably withheld” and does not require the Committee to verify compliance with other CC&Rs or city ordinances.
VI. Judge’s Conclusions of Law and Rationale for Dismissal
The ALJ’s decision to dismiss the petition was based on a clear legal interpretation of the CC&Rs and the petitioner’s failure to meet the burden of proof.
• Distinct and Separate Obligations: The core of the ruling is that the CC&Rs create parallel but separate responsibilities.
1. Homeowner’s Responsibility: The duty to obtain an adjoining neighbor’s approval for a shared wall alteration under § 6.2(A) rests solely with the homeowner performing the work (Mr. Johnson).
2. HOA’s Responsibility: The HOA’s duty under § 7.2 is limited to reviewing the project on its aesthetic merits and consistency within the community.
• Key Legal Finding: The decision explicitly states the separation of these duties:
• Scope of HOA Review: The ALJ affirmed that the HOA’s scope of review was properly limited.
• Failure to Meet Burden of Proof: Because the HOA acted within the authority and limitations defined by CC&R § 7.2, the petitioner failed to prove by a preponderance of the evidence that the HOA had violated its governing documents.
• Other Responsibilities: The decision also noted that the responsibility for ensuring compliance with City of Queen Creek ordinances (related to the gate move) ultimately rested with Mr. Johnson, not the HOA.
VII. Final Order
Based on the findings of fact and conclusions of law, the Administrative Law Judge ordered that the petition be dismissed.
• No action is required of the Respondent, Will Rogers Equestrian Ranch HOA.
• The decision, issued as a result of a rehearing, is binding on the parties.
• Any appeal must be filed with the superior court within thirty-five days from the date the order was served.
