Tag Archives: CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP

John A Sellers vs. Rancho Madera Condominium Association

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Case Summary

Case ID 19F-H1918010-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-10
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John A Sellers Counsel —
Respondent Rancho Madera Condominium Association Counsel Edward D. O'Brien

Alleged Violations

CC&Rs § 3.10

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the HOA (Respondent) did not violate CC&R Section 3.10. The CC&Rs imposed the duty of keeping the drainage area clear primarily on the Unit Owners, and the HOA only retained the right to enforce this requirement, not an explicit obligation.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the CC&Rs because the HOA did not have an obligation to enforce clearance requirements against unit owners under the cited covenant provisions.

Key Issues & Findings

Alleged violation of CC&Rs § 3.10 by failing to require unit owners to remove vegetation and fencing materials from the stormwater channel behind their homes.

Petitioner alleged the HOA violated CC&Rs § 3.10 by failing to compel unit owners to clear vegetation and debris (including chicken wire) from the stormwater drainage channel, asserting this failure created a flood risk to unit 12. The ALJ found that the CC&Rs placed the primary maintenance responsibility on Unit Owners, and the HOA only had the right, but not the obligation, to enforce clearance requirements.

Orders: The petition was denied and dismissed. No action was required of Respondent because Petitioner failed to establish that Respondent violated the CC&Rs regarding maintenance of the drainage easement.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199.01
  • Title 33, Chapter 9
  • A.A.C. R2-19-119(A) and (B)(1)
  • Vazanno v. Superior Court
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY
  • Powell v. Washburn
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Analytics Highlights

Topics: HOA, CC&R, Drainage, Maintenance, Enforcement, Condominium
Additional Citations:

  • A.R.S. § 32-2199.01
  • Title 33, Chapter 9
  • A.A.C. R2-19-119(A) and (B)(1)
  • Vazanno v. Superior Court
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY
  • Powell v. Washburn
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Video Overview

Audio Overview

Decision Documents

19F-H1918010-REL Decision – 706533.pdf

Uploaded 2026-04-24T11:15:56 (42.2 KB)

19F-H1918010-REL Decision – 707530.pdf

Uploaded 2026-04-24T11:16:00 (111.5 KB)

19F-H1918010-REL Decision – 667122.pdf

Uploaded 2026-04-24T11:16:05 (50.0 KB)

19F-H1918010-REL Decision – 678371.pdf

Uploaded 2026-04-24T11:16:09 (129.5 KB)

19F-H1918010-REL Decision – 667122.pdf

Uploaded 2026-01-23T17:26:17 (50.0 KB)

19F-H1918010-REL Decision – 678371.pdf

Uploaded 2026-01-23T17:26:21 (129.5 KB)

Briefing Document: Sellers vs. Rancho Madera Condominium Association

Executive Summary

This document synthesizes the legal proceedings and outcomes of the case John A Sellers, Petitioner, vs. Rancho Madera Condominium Association, Respondent (Case No. 19F-H1918010-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was a claim by Petitioner John Sellers that his homeowner’s association (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to compel other homeowners to remove vegetation and fencing from a common stormwater drainage channel, which he alleged created a flood risk to his property, Unit 12.

The petitioner’s claim was ultimately unsuccessful. It was denied first in an initial evidentiary hearing and again in a subsequent rehearing. The central finding of the Administrative Law Judges (ALJs) in both decisions was a critical distinction between an HOA’s right to enforce rules and an obligation to do so. The ALJs determined that the CC&Rs placed the primary responsibility for maintaining the drainage easement on the individual unit owners. The HOA’s mandatory duty to intervene was found to be triggered only by actual damage resulting from an owner’s negligence, not by the mere potential for future damage. As no flooding or damage had ever occurred, the HOA was found to have acted within its authority and had not violated the CC&Rs. The petitioner’s personal circumstances, including a contentious divorce and court-ordered sale of the property, were noted but deemed legally irrelevant to the determination of a CC&R violation.

Case Chronology and Procedural History

The case progressed through an initial petition, a hearing, a decision, a request for rehearing, and a final decision on rehearing. A notable procedural anomaly occurred when a hearing scheduled for November 5, 2018, was officially vacated due to a withdrawal notice from the petitioner, yet the hearing proceeded on that date as originally planned.

Details

Aug 23, 2018

Petition Filed

John A. Sellers filed a single-issue petition with the Arizona Department of Real Estate alleging the Rancho Madera Condominium Association violated CC&R § 3.10.

Oct 23, 2018

Hearing Vacated

An order was issued by ALJ Diane Mihalsky vacating the November 5 hearing because the petitioner had notified the Department of his wish to withdraw the petition.

Nov 5 & Dec 12, 2018

Initial Hearing

Despite the prior vacating order, an evidentiary hearing was held before ALJ Mihalsky.

Dec 26, 2018

Initial Decision

ALJ Mihalsky issued a decision finding that the petitioner failed to prove his case. The petition was denied.

Feb 1, 2019

Rehearing Requested

The petitioner filed a request for a rehearing, alleging procedural irregularities and errors in the initial decision.

Feb 22, 2019

Rehearing Granted

The Commissioner of the Department of Real Estate granted the request for a rehearing.

Apr 15, 2019

Rehearing Held

A rehearing was held before a new judge, ALJ Tammy L. Eigenheer.

May 7, 2019

Post-Hearing Filing Stricken

The petitioner submitted an unauthorized supplemental argument after the rehearing. ALJ Eigenheer issued an order striking the filing from the record and closing the record.

May 10, 2019

Final Decision on Rehearing

ALJ Eigenheer issued a final decision, again finding for the respondent and dismissing the petition.

Core Dispute Analysis

Petitioner’s Position and Allegations

• Core Allegation: The petitioner alleged that the Rancho Madera Condominium Association (Respondent) violated CC&R § 3.10 by failing to enforce its rules. Specifically, the Association did not require owners of “Drainage Easement Units” to remove obstructions—such as large succulents, cacti, shrubs, and chicken wire fencing—from a 3′ x 3′ stormwater drainage canal located behind their homes.

• Perceived Risk: The petitioner testified that these items could catch storm debris, clog the channel, and cause flooding that would damage his property, Unit 12. He submitted videos of heavy rains to support his concern.

• Evolving Legal Argument: In the rehearing, the petitioner’s argument shifted. He acknowledged that the CC&Rs gave the Association the right to enforce maintenance standards but argued that “at a certain point exercising a right becomes an obligation,” particularly when matters of safety and property values are implicated.

• Claimed Financial Damages: The petitioner testified he was undergoing a contentious divorce and his condominium was being sold by order of the Maricopa County Superior Court. He asserted that due to the unresolved flood risk, which he was obligated to disclose, the sale price of Unit 12 was “$40,000 less than it would have been.”

Respondent’s Position and Actions

• Denial of Violation: The Association denied it had violated any CC&Rs by its handling of the drainage channel.

• Evidence and Testimony: The Association, represented by its President, Jeffrey Kaplan, presented several key points:

◦ No History of Flooding: Mr. Kaplan testified that Unit 12 had never sustained any flood damage since the development was built in 2012, including during a “100-year storm” in 2014. After a significant rainstorm in August 2018, he personally inspected the easement and saw no water in it.

◦ Origin of Plants: Mr. Kaplan stated that the builder had originally planted the vegetation in the drainage easement that the petitioner was concerned about.

◦ No Other Complaints: No other members of the 46-unit Association had expressed any concerns about drainage.

◦ Proactive Communication: To assuage the petitioner’s concerns, the Association’s management company sent letters to the relevant homeowners on April 18, 2018, and July 19, 2018, reminding them of their responsibility to keep the drainage area free of obstructions.

◦ Due Diligence: Mr. Kaplan contacted officials at the Maricopa County Flood Control District and the Town of Cave Creek, who confirmed the drainage area was not on any official floodplain maps and that the Association was solely responsible for its maintenance.

Key CC&R Provisions and Legal Interpretation

The ALJs’ decisions hinged on a close reading of the Rancho Madera CC&Rs. The analysis consistently differentiated between the duties of individual owners and the duties of the Association.

• CC&R § 3.10.2 — Unit Owner Responsibility: This section places the primary maintenance burden directly on the homeowners of the Drainage Easement Units.

◦ Interpretation: The legal conclusion was that this provision unambiguously makes individual owners responsible for keeping their portion of the easement clear.

• CC&R § 3.10.4 — Association Responsibility: This section defines the specific circumstance under which the Association is required to act.

◦ Interpretation: Both ALJs found that this clause creates a reactionary, not a proactive, duty for the Association. Its obligation to repair is triggered by actual damage occurring, not by a perceived risk of future damage.

• CC&R § 13.1.1 — Association Enforcement Power: This section, highlighted in the rehearing, grants the Association authority to act.

◦ Interpretation: The ALJ in the rehearing ruled that this language grants a discretionary right, not a mandatory obligation. The CC&Rs contain no provision that converts this right into a duty under the circumstances presented by the petitioner.

Judicial Findings and Rulings

Initial Decision (ALJ Diane Mihalsky, Dec 26, 2018)

• Burden of Proof: The petitioner failed to establish his claim by a preponderance of the evidence.

• Findings of Fact: The petitioner successfully established that plants and chicken wire existed in the stormwater canal. However, he failed to establish that these items actually impeded the flow of water.

• Conclusion: The respondent proved that the drainage canal had functioned as intended since 2012 and that Unit 12 had never flooded. The petitioner’s divorce was noted to have “cast a long shadow over his administrative complaint” but was irrelevant to the legal issue. The petition was denied.

Rehearing Decision (ALJ Tammy L. Eigenheer, May 10, 2019)

• Central Legal Finding: The CC&Rs clearly intend for unit owners to bear the primary responsibility for keeping the drainage area clear. The Association’s only specified obligation is to repair damage after it has occurred and bill the responsible owner.

• Right vs. Obligation: The decision explicitly states, “While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”

• Final Order: The petitioner failed to establish that the respondent violated Section 3.10 of the CC&Rs. The petition was dismissed.

Notable Evidence

A key piece of evidence submitted by the respondent was a June 22, 2018, email from the petitioner’s wife, Debborah Sellers, which directly refuted the petitioner’s claims. In the email, she stated:

“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”

Study Guide for Case No. 19F-H1918010-REL: Sellers v. Rancho Madera Condominium Association

Short-Answer Quiz

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

1. What was the specific allegation John A. Sellers made against the Rancho Madera Condominium Association in his petition filed on August 23, 2018?

2. Identify the key responsibilities assigned to individual unit owners of Drainage Easement Units according to Section 3.10.2 of the CC&Rs.

3. Who is Jeffrey Kaplan, and what key testimony did he provide on behalf of the Respondent?

4. What specific actions did the Respondent’s management company take in April and July of 2018 to address the Petitioner’s concerns?

5. According to the decision by Administrative Law Judge Diane Mihalsky, what did the Petitioner fail to establish regarding the plants and chicken wire in the drainage canal?

6. On what grounds did John A. Sellers file his Homeowner’s Association (HOA) Dispute Rehearing Request on February 1, 2019?

7. What was the Petitioner’s core argument regarding the Association’s “right to enforce” the CC&Rs versus an “obligation to enforce” them?

8. What was the final conclusion of Administrative Law Judge Tammy L. Eigenheer regarding the Association’s responsibilities under the CC&Rs?

9. What occurred after the April 15, 2019 rehearing when the Petitioner attempted to submit supplemental information to the Office of Administrative Hearings?

10. Describe the evidence presented in an email from Debborah Sellers and its relevance to the case.

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Answer Key

1. John A. Sellers alleged that the Rancho Madera Condominium Association violated Section 3.10 of its Covenants, Conditions, and Restrictions (CC&Rs). He claimed the Association failed to require condominium owners to remove vegetation and fencing materials from the stormwater channel, creating a flood risk for his unit.

2. Section 3.10.2 of the CC&Rs requires each Unit Owner of a Drainage Easement Unit to keep their respective Drainage Easement Area free of weeds and other debris. The purpose is to ensure that stormwater can flow freely and that no improvement, including plant materials, impedes this flow.

3. Jeffrey Kaplan is the President of the Rancho Madera Condominium Association. He testified that the drainage easement had never failed, even during a 100-year storm in 2014, that the original builder had planted the vegetation in question, and that he had consulted with county and town officials about the drainage area.

4. To address the Petitioner’s concerns, the Respondent’s management company sent letters to the owners of the Drainage Easement Units. Letters sent on April 18, 2018, and July 19, 2018, reminded owners of their responsibility to keep the drainage area free of obstructions, weeds, and debris.

5. Judge Mihalsky’s decision on December 26, 2018, concluded that the Petitioner established the presence of plants and chicken wire but failed to establish that these items actually impede the flow of water. The judge found that the drainage system functions as intended and there was no unreasonable risk of flooding.

6. The Petitioner filed for a rehearing based on several alleged issues with the original proceeding. These included an irregularity in the proceedings, the existence of newly discovered evidence, errors in the admission or rejection of evidence, and a belief that the findings of fact or decision were arbitrary, capricious, or not supported by evidence.

7. The Petitioner argued that while the CC&Rs grant the Association the “right to enforce” maintenance requirements, this right becomes an “obligation” when issues of property values and safety are at stake. He maintained that the potential for flooding created such an obligation for the Association to act.

8. Judge Eigenheer concluded that the CC&Rs intend for unit owners to bear the responsibility of keeping the Drainage Easement Area clear. She determined that while the Association has the right to enforce this, nothing in the CC&Rs creates an obligation for it to do so, and its only specified responsibility is to repair damage after it occurs, billing the responsible unit owner.

9. After the rehearing, the Petitioner submitted supplemental authority and argument without having requested leave to do so. The Respondent’s counsel argued this filing was untimely and introduced new arguments, requesting it be struck. On May 7, 2019, Judge Eigenheer ordered the filing struck from the record and closed the record.

10. The Respondent submitted a June 22, 2018 email from Debborah Sellers, the Petitioner’s wife. In the email, she stated there had never been an issue with the storm drain, called his concerns “nonsense,” and noted that the developer had done a good job, undermining the Petitioner’s claim of a significant and obvious flood risk.

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Suggested Essay Questions

1. Analyze the legal reasoning used by Administrative Law Judge Tammy L. Eigenheer to dismiss the petition after the rehearing. Contrast her interpretation of the Association’s duties under the CC&Rs with the findings presented by Judge Diane Mihalsky in the initial decision.

2. Discuss the concept of “preponderance of the evidence” as defined in the legal documents. Evaluate the evidence presented by both the Petitioner and the Respondent, explaining why the Petitioner ultimately failed to meet this burden of proof in both hearings.

3. Trace the complete procedural history of case No. 19F-H1918010-REL. Identify and explain the significance of key events, including the initial petition, the vacated hearing, the first Administrative Law Judge Decision, the request for rehearing, and the final order dismissing the case.

4. Examine the role and responsibilities of the Rancho Madera Condominium Association versus the individual unit owners as defined by Sections 3.10, 3.10.2, 3.10.4, and 13.1.1 of the CC&Rs. How did the interpretation of these sections form the basis of the final legal decision?

5. Evaluate the different types of evidence presented in the hearings, including witness testimony (Sellers, Kaplan), documentary evidence (CC&Rs, letters, emails), and physical evidence (photographs, videos). How did each type of evidence contribute to the final outcome of the case?

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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 legal decisions and orders. In this case, Diane Mihalsky and Tammy L. Eigenheer served as ALJs.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the guidelines for a planned community or condominium association. In this case, the CC&Rs for Rancho Madera were the central document in the dispute.

Drainage Easement

A perpetual, non-exclusive legal right created over a specific portion of property (the eastern five feet of Units 9-18) for constructing and maintaining a stormwater drainage channel.

Drainage Easement Area

The specific portion of land encumbered by the Drainage Easement, defined as the eastern five feet of the designated units.

Drainage Improvements

The physical components of the drainage system, such as the channel, decomposed granite, rip rap (large stones), or concrete, as originally constructed by the developer.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, such as the Department of Real Estate.

Petitioner

The party who initiates a legal action or files a petition seeking a legal remedy. In this case, John A. Sellers.

Preponderance of the Evidence

The standard of proof in this civil administrative case. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of an issue rather than the other, making a contention more probably true than not.

Rehearing

A second hearing of a case, granted by the Commissioner in this instance, to re-examine the issues based on claims such as procedural irregularities, newly discovered evidence, or errors in the original decision.

Respondent

The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, the Rancho Madera Condominium Association.

The Department

Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings from members of condominium unit owners’ associations.

I Read an Entire HOA Lawsuit. Here Are 4 Shocking Lessons About Power, Rules, and Reality.

The Anatomy of a Neighborhood War

Living under a Homeowner’s Association (HOA) often means navigating a complex world of rules, regulations, and neighborhood politics. For most, disagreements are minor annoyances. But sometimes, a seemingly small issue can escalate into a full-blown legal war.

This is the story of one homeowner’s single-minded crusade against his HOA over a stormwater drainage channel he believed was a serious flooding risk. After filing a formal petition, the dispute escalated into a multi-stage legal battle that spanned nearly a year. The official court documents reveal that even after a judge ruled decisively against him, the homeowner doubled down, demanding a rare rehearing.

A deep dive into this protracted case reveals a fascinating and cautionary tale. The legal reasoning that ultimately settled the matter highlights several surprising lessons that apply to anyone living in a planned community.

1. Proving a Rule Was Broken Isn’t the Same as Proving Harm

The initial hearing, held before Administrative Law Judge Diane Mihalsky in late 2018, centered on a seemingly straightforward argument from the petitioner, John Sellers. He pointed out that his neighbors had placed plants—including large succulents, shrubs, and cacti—as well as chicken wire in a stormwater drainage channel. This, he argued, was a clear violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs), which stated that no improvement “shall be constructed, installed or allowed to grow… that may… impede the flow of water.”

But in her December 26, 2018 decision, the judge ruled against him. While Sellers successfully proved the obstructions existed, he failed to meet the legal burden of proof that they actually “impede the flow of water.” His claim was defeated by testimony from the HOA President, Jeffrey Kaplan, who stated that the unit had never sustained any flood damage, not even during a “100-year storm in 2014.”

The lesson from this first round is stark: in this legal context, simply pointing out a technical rule break was not enough. The petitioner had to prove that the violation was causing a tangible, negative impact. Without evidence of actual harm or impeded water flow, the theoretical risk was insufficient to win the case.

2. An HOA’s “Right” to Enforce Is Not an “Obligation”

After losing the first round on a question of evidence, Sellers’ argument evolved. He requested a rehearing, which was granted, and the case landed before a new judge, Tammy L. Eigenheer, in the spring of 2019. This shifted the legal focus from physical proof of impeded water flow to a more fundamental question of the HOA’s duties.

Sellers argued that because safety and property values were at stake, the association had a duty to enforce the CC&Rs and compel his neighbors to clear the drainage channel. He contended that at a certain point, an organization’s “right” to act becomes an “obligation.”

The judge’s final decision on May 10, 2019, was clear, absolute, and is where the most powerful lesson of the entire case lies.

“While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”

This distinction is critical for any homeowner. An HOA can possess the legal power to act but may not be legally compelled to use it. According to the judge’s interpretation, the governing documents placed the responsibility for keeping the channel clear on the individual unit owners. The association’s only stated obligation was to repair damage after it happened, with the cost being billed back to the responsible party.

3. Outside Conflicts Can Cast a Long Shadow

Legal disputes are rarely just about the facts of the case. During the initial hearing, it was revealed that the petitioner was going through a “contentious divorce” and that the condo unit at the center of the dispute was a community asset being sold by the court.

The most dramatic evidence, however, came from an email written by the petitioner’s own wife, Debborah Sellers. The email, submitted as evidence by the HOA, directly undermined his claims about the severity of the drainage issue.

“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”

In her decision, Judge Mihalsky officially stated that the divorce was “not relevant” to the technical question of whether the HOA violated the CC&Rs. However, she immediately added that the situation “cast a long shadow over his administrative complaint,” suggesting that the personal context, and especially the damaging email, severely harmed the petitioner’s credibility.

4. Writing Letters Isn’t the Same as Being Heard

Throughout the dispute, the petitioner made his concerns known by writing “many letters” to the HOA president. He was persistent in his written communications, attempting to force the issue onto the association’s radar.

Yet, this effort was contrasted with a notable lack of direct participation. According to the testimony of HOA President Kaplan during the first hearing, Sellers “never attended any of Respondent’s noticed Board meetings” where his concerns could have been discussed among the board members.

The HOA’s response to his letters was limited; it sent two general reminder letters to all residents in the affected area but did not take direct enforcement action against any specific homeowner. The practical takeaway is that to effect change or be taken seriously in an HOA dispute, visibility and participation are critical. Writing letters is a start, but attending official meetings to present a case in person can be a more effective strategy for ensuring an issue is formally addressed.

A Cautionary Tale for Any Homeowner

What began as a seemingly straightforward complaint about drainage and rule enforcement devolved into a legal battle that consumed nearly a year, involving two multi-day hearings before two different administrative law judges. The petitioner lost his case on the evidence, then lost it again on the law.

It serves as a potent cautionary tale, demonstrating that in the world of HOA disputes, the obvious path is not always the winning one. It leaves every homeowner with a final, thought-provoking question to ponder: When you see a problem in your community, how do you decide if a fight is worth the cost—not just in money, but in time, credibility, and peace?

Case Participants

Petitioner Side

  • John A Sellers (petitioner)

Respondent Side

  • Edward D. O’Brien (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP
    Represented Respondent
  • Edith I. Rudder (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP
    Represented Respondent
  • Jeffrey Kaplan (HOA President/witness)
    Rancho Madera Condominium Association
    Testified on behalf of Respondent

Neutral Parties

  • Diane Mihalsky (ALJ)
    OAH
    ALJ for initial proceedings
  • Tammy L. Eigenheer (ALJ)
    OAH
    ALJ for rehearing
  • Judy Lowe (Commissioner)
    ADRE
  • LDettorre (ADRE staff)
    ADRE
    Recipient of transmission
  • AHansen (ADRE staff)
    ADRE
    Recipient of transmission
  • djones (ADRE staff)
    ADRE
    Recipient of transmission
  • DGardner (ADRE staff)
    ADRE
    Recipient of transmission
  • ncano (ADRE staff)
    ADRE
    Recipient of transmission
  • c. serrano (Clerical staff)
    Transmitted document
  • F. Del Sol (Clerical staff)
    Transmitted document

Other Participants

  • Debborah Sellers (witness)
    Petitioner's wife, email submitted as evidence

Warren R. Brown vs. Mogollon Airpark, Inc

Posted on by

Case Summary

Case ID 18F-H1818029-REL-RHG, 18F-H1818045-REL, 18F-H1818054-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-10-18
Administrative Law Judge Thomas Shedden
Outcome The ALJ dismissed the petitions regarding the assessment increase (Dockets 029 and 054), ruling that A.R.S. § 33-1803(A)'s 20% cap applies only to 'regular assessments' and not special assessments. However, the ALJ ruled in favor of Petitioner Brown regarding late fees (Docket 045), finding that the statutory limit on late charges applies to all assessments, ordering the HOA to rescind the $25 fee and refund the filing fee.
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Warren R. Brown Counsel —
Respondent Mogollon Airpark, Inc. Counsel Gregory A. Stein; Mark K. Sahl

Alleged Violations

A.R.S. § 33-1803(A)
A.R.S. § 33-1803(A)
A.R.S. § 33-1803(A)

Outcome Summary

The ALJ dismissed the petitions regarding the assessment increase (Dockets 029 and 054), ruling that A.R.S. § 33-1803(A)'s 20% cap applies only to 'regular assessments' and not special assessments. However, the ALJ ruled in favor of Petitioner Brown regarding late fees (Docket 045), finding that the statutory limit on late charges applies to all assessments, ordering the HOA to rescind the $25 fee and refund the filing fee.

Why this result: For the assessment issues, the ALJ rejected the petitioners' interpretation that 'regular' refers to the approval process rather than the assessment type, finding that applying the cap to special assessments would violate principles of statutory construction.

Key Issues & Findings

Assessment Increase (Docket 029 – Brown)

Petitioner alleged the HOA violated the statute by increasing assessments by $325 (39.4%), exceeding the 20% limit.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Late Fees (Docket 045 – Brown)

Petitioner alleged the HOA charged a $25 late fee, which exceeds the statutory limit of the greater of $15 or 10%.

Orders: Respondent ordered to rescind the $25 late fee and refund the $500 filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Assessment Increase (Docket 054 – Stevens)

Petitioner alleged the $325 assessment increase violated the statutory 20% cap and that the HOA used deceptive accounting.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Video Overview

Audio Overview

Decision Documents

18F-H1818045-REL Decision – 666285.pdf

Uploaded 2026-04-24T11:12:44 (151.9 KB)

18F-H1818045-REL Decision – 672623.pdf

Uploaded 2026-04-24T11:12:49 (144.6 KB)

18F-H1818045-REL Decision – 666285.pdf

Uploaded 2026-01-27T21:14:50 (151.9 KB)

18F-H1818045-REL Decision – 672623.pdf

Uploaded 2026-01-27T21:14:51 (144.6 KB)

Administrative Law Judge Decision: Brown and Stevens vs. Mogollon Airpark, Inc.

This briefing document provides a comprehensive analysis of the consolidated administrative hearing between Petitioners Warren R. Brown and Brad W. Stevens and Respondent Mogollon Airpark, Inc. (the HOA). The proceedings focused on the legality of assessment increases, late fees, and interest charges under Arizona Revised Statutes (A.R.S.).

Executive Summary

The matter originated from three separate petitions consolidated for a hearing held on September 28, 2018. The primary disputes involved a 39.4% total increase in annual assessments and the imposition of late fees and interest rates that allegedly exceeded statutory limits.

The Administrative Law Judge (ALJ) reached a split decision. Regarding the assessment increase, the ALJ ruled in favor of Mogollon Airpark, Inc., determining that the statutory 20% cap applies only to "regular assessments" and not to "special assessments." Consequently, petitions 18F-H1818029-REL-RHG and 18F-H1818054-REL were dismissed. However, in petition 18F-H1818045-REL, the ALJ ruled in favor of Warren R. Brown, finding that the HOA’s $25 late fee violated A.R.S. § 33-1803(A), which limits such charges. The HOA was ordered to rescind the fee and reimburse the petitioner's $500 filing fee.

Case Overview and Financial Context

The following table outlines the financial changes implemented by Mogollon Airpark, Inc. in 2018 that led to the legal challenge:

Item Previous Year (2017) New Rate (2018) Percentage Increase
Total Assessment $825.00 $1,150.00 39.4%
Regular Portion $825.00 $941.00 ($116 increase) 14.1%
Special Portion $0.00 $209.00 N/A
Late Fee Not Specified $25.00 N/A
Interest Rate Not Specified 18% N/A

Analysis of Key Themes

1. Statutory Interpretation of "Regular Assessment"

The central legal conflict involved A.R.S. § 33-1803(A), which states that an HOA shall not "impose a regular assessment that is more than [20%] greater than the immediately preceding fiscal year's assessment" without member approval.

  • Petitioners' Argument: Brown and Stevens argued that "regular" refers to the process by which an assessment is passed (motion, second, and vote) rather than the type of assessment. They contended that since the total amount rose by 39.4%, it violated the statute.
  • Respondent's Argument: Mogollon argued that "regular assessment" is a specific category of assessment. They claimed the "special assessment" of $209 was a separate category not subject to the 20% cap.
  • Judicial Conclusion: The ALJ agreed with the Respondent, noting that if "regular" only referred to the process, the word would be rendered "trivial or void" in the statute. The ALJ found that the 14.1% increase in the "regular" portion was within the legal 20% limit.
2. Authority to Impose Special Assessments

A recurring theme was whether the HOA had the authority to issue a special assessment at all.

  • The "Trial Run" Concern: Mr. Stevens testified that the $209 assessment was perceived as a "trial run" to see if the HOA could successfully bypass statutory limits to fund projects not authorized by governing documents.
  • Contractual Basis: The Petitioners argued the Bylaws and CC&Rs only allow dues for operating expenses and approved reserve funds.
  • Judicial Conclusion: The ALJ noted that while the Petitioners questioned the HOA's authority to impose special assessments, the "single-issue" nature of the petitions limited the hearing's scope to whether the HOA violated A.R.S. § 33-1803(A).
3. Allegations of Accounting Impropriety

Both petitioners alleged that Mogollon’s treasurer engaged in deceptive accounting to justify the assessment increase.

  • Claims of Fabricated Shortfall: Mr. Brown alleged that accounting procedures were altered to show a loss of funds, despite the 2016 board leaving the treasury $200,000 better off. Mr. Stevens alleged the use of "two sets of books" to create a false need for higher dues, stating his belief that the HOA actually possessed in excess of $1 million.
  • Judicial Conclusion: The ALJ acknowledged these allegations but did not rule on the substance of the accounting practices, suggesting that civil courts might be better suited for such claims.
4. Late Fee and Interest Limits

A.R.S. § 33-1803(A) limits late payment charges to the greater of $15 or 10% of the unpaid assessment.

  • The Conflict: The HOA charged a $25 late fee. They argued that because the limit appeared in a section discussing "regular assessments," it did not apply to late fees on "special assessments."
  • Judicial Conclusion: The ALJ rejected this argument. The statute’s limit on late charges applies to "assessments" generally, not just "regular assessments." Therefore, the $25 fee was found to be a violation of the law.

Important Quotes and Context

"Courts will not place an absurd and unreasonable construction on statutes."

  • Context: Used in Conclusion of Law #4 to explain that the ALJ must interpret the term "regular assessment" in a way that makes logical sense and provides a fair result.

"Under Mogollon’s interpretation, it is necessary to add the word 'regular' where the legislature chose not to use it. This violates principles of statutory construction."

  • Context: The ALJ's reasoning in Conclusion of Law #10 regarding why the HOA could not charge a $25 late fee. The legislature omitted the word "regular" in the late fee clause, meaning it applies to all assessments.

"It is believed that the accounting was deliberately misleading and was intended to present an inaccurate picture of the HOA finances."

  • Context: A statement from Mr. Brown's original petition (Finding of Fact #18) regarding the alleged motive behind the 2018 assessment increase.

Decision Summary by Docket

Docket Number Petitioner Ruling Order
18F-H1818029-REL-RHG Warren R. Brown Dismissed Petition dismissed; Mogollon is the prevailing party.
18F-H1818054-REL Brad W. Stevens Dismissed Petition dismissed; Mogollon is the prevailing party.
18F-H1818045-REL Warren R. Brown Sustained Brown is the prevailing party. HOA must rescind the $25 late fee and pay Brown’s $500 filing fee.

Actionable Insights

  • Statutory Precision: Organizations must distinguish between "regular" and "special" assessments in their financial planning. While regular assessments are capped by a 20% annual increase under A.R.S. § 33-1803(A), special assessments may fall outside this specific cap (provided the HOA has the underlying authority to levy them).
  • Uniform Late Fee Limits: Regardless of the type of assessment (regular or special), late fees must strictly adhere to the statutory limit of $15 or 10% of the unpaid amount. Associations cannot bypass this cap by reclassifying the assessment type.
  • Burden of Proof: In administrative hearings, the petitioner bears the burden of proof by a "preponderance of the evidence." Technical arguments regarding statutory definitions require strong support from principles of statutory construction to succeed.
  • Jurisdictional Limits: The Office of Administrative Hearings may be limited to specific statutory violations. Allegations of complex financial fraud or "deceptive accounting" may require resolution in civil court rather than an administrative tribunal.

Legal Study Guide: Brown and Stevens v. Mogollon Airpark, Inc.

This study guide provides a comprehensive analysis of the consolidated administrative hearing involving Warren R. Brown, Brad W. Stevens, and Mogollon Airpark, Inc. It examines the legal interpretations of Arizona statutes regarding Homeowners Association (HOA) assessments and late fees.

I. Case Overview and Context

Administrative Context
  • Venue: Office of Administrative Hearings, Phoenix, Arizona.
  • Administrative Law Judge: Thomas Shedden.
  • Hearing Date: September 28, 2018.
  • Consolidated Matters: Three petitions (Docket Nos. 18F-H1818029-REL-RHG, 18F-H1818045-REL, and 18F-H1818054-REL) were consolidated into a single hearing because they shared common allegations regarding deceptive accounting practices and statutory violations.
Key Parties
Party Role Legal Representation
Warren R. Brown Petitioner (029 and 045 matters) Self (Pro Se)
Brad W. Stevens Petitioner (054 matter) Self (Pro Se)
Mogollon Airpark, Inc. Respondent (HOA) Gregory A. Stein, Esq. and Mark K. Sahl, Esq.

II. Central Legal Issues and Facts

Financial Assessments in Dispute

In 2018, Mogollon Airpark, Inc. implemented significant changes to its assessment structure. The previous year’s assessment was $825.

2018 Assessment Breakdown:

  • Regular Assessment Increase: $116 (a 14.1% increase).
  • Special Assessment: $209.
  • Total Increase: $325 (a 39.4% total increase).
  • New Fees: A $25 late payment fee and 18% interest on past-due accounts.
Statutory Focus: ARIZ. REV. STAT. § 33-1803(A)

The primary legal conflict centered on the interpretation of A.R.S. § 33-1803(A), which dictates:

  1. Assessment Caps: An association cannot impose a "regular assessment" more than 20% greater than the preceding fiscal year's assessment without majority member approval (unless community documents require a lower limit).
  2. Late Fee Limits: Charges for late payments are limited to the greater of $15.00 or 10% of the unpaid assessment.

III. Arguments and Interpretations

Interpretation of "Regular Assessment"
  • Petitioners' Position: Brown and Stevens argued that "regular assessment" refers to the process by which an assessment is created (regularly scheduled votes via motion and second). Therefore, the total $325 increase (39.4%) violated the 20% statutory cap.
  • Respondent's Position: Mogollon argued that "regular assessment" is a specific type of assessment distinct from a "special assessment." They maintained that since the regular portion only increased by 14.1%, they were in compliance with the law.
  • ALJ Ruling: The judge sided with Mogollon. Under principles of statutory construction, if "regular" referred only to the process, the word would be rendered "trivial or void." The judge determined the 20% cap applies specifically to the category of "regular assessments."
Interpretation of Late Fee Limits
  • Respondent's Position: Mogollon argued the $25 late fee was lawful because A.R.S. § 33-1803(A) should only apply to regular assessments.
  • ALJ Ruling: The judge sided with Petitioner Brown (045 matter). The statute limits late charges for "assessments" generally, not just "regular assessments." By using the broad term "assessments," the legislature intended the cap ($15 or 10%) to apply to all late fees. Mogollon's $25 fee was found to be in violation.
Allegations of Accounting Impropriety

Petitioners alleged that Mogollon's treasurer used "deceptive and nonstandard accounting methods," including "keeping two sets of books," to fabricate a financial shortfall. They argued this was a "plan" to justify the 39.4% increase despite the HOA allegedly having over $1 million in funds. The ALJ noted that civil courts might be better suited for such fraud allegations and did not address the substance of the accounting practices in the final decision.

IV. Short-Answer Practice Questions

  1. What was the previous year's assessment amount for Mogollon Airpark?
  • Answer: $825.
  1. According to A.R.S. § 33-1803(A), what is the maximum percentage a regular assessment can increase without a majority vote?
  • Answer: 20%.
  1. Why did the ALJ dismiss the 029 and 054 matters regarding the $325 increase?
  • Answer: Because the petitioners failed to prove that the increase in the regular assessment (which was only 14.1%) exceeded the 20% limit, and the judge ruled the cap does not apply to special assessments.
  1. In the 045 matter, why was the $25 late fee ruled unlawful?
  • Answer: A.R.S. § 33-1803(A) limits late fees for all "assessments" to the greater of $15 or 10%; Mogollon’s $25 fee exceeded these statutory limits.
  1. What is the "standard of proof" required for petitioners in this administrative hearing?
  • Answer: A preponderance of the evidence.
  1. What was the ALJ’s order regarding Mogollon’s obligation to Warren R. Brown in the 045 matter?
  • Answer: Mogollon was ordered to rescind the $25 late fee and reimburse Mr. Brown his $500 filing fee.

V. Essay Prompts for Deeper Exploration

  1. The Nuances of Statutory Construction: Analyze the ALJ's reasoning in applying different interpretations to the word "regular" versus the word "assessment" within the same statute (A.R.S. § 33-1803(A)). Why did the presence of the word "regular" in the first half of the statute exclude special assessments from the 20% cap, while the absence of that word in the second half meant late fee limits applied to all assessments?
  2. The Burden of Proof and Evidence: Discuss the role of the "preponderance of the evidence" standard in this case. Evaluate why Brad Stevens's 600+ pages of exhibits and testimony regarding the HOA's $1 million surplus were insufficient to win the 054 matter, given the ALJ's focus on matters of law over accounting disputes.
  3. Jurisdictional Limits of Administrative Hearings: The ALJ noted that civil courts might be better suited for allegations of accounting improprieties and deceptive practices. Explore the limitations of an administrative tribunal versus a civil court in resolving complex financial disputes within an HOA.

VI. Glossary of Important Terms

  • A.R.S. § 33-1803(A): The Arizona Revised Statute governing HOA assessments and late fees.
  • CC&Rs (Covenants, Conditions, and Restrictions): The governing documents that serve as a contract between the HOA and its members.
  • Community Documents: The collective term for an association’s Bylaws, CC&Rs, and other governing rules.
  • Preponderance of the Evidence: The legal standard of proof where the evidence is of "greater weight" or has the "most convincing force," inclining a fair mind to one side of the issue.
  • Prevailing Party: The party in a legal proceeding that successfully proves its case or defends against an allegation; in this case, Mogollon prevailed in 029/054, while Brown prevailed in 045.
  • Regular Assessment: An assessment levied on a recurring basis to cover the association's standard operating expenses.
  • Single-Issue Petition: A simplified petition filed with the Department of Real Estate focusing on a single alleged violation of statute or community documents.
  • Special Assessment: A specific, often one-time assessment charged to members for expenses not covered by regular assessments (e.g., paving).
  • Statutory Construction: The process by which courts interpret and apply legislation, ensuring every word is given meaning and results are sensible rather than "absurd."

HOA vs. Homeowners: Decoding the Mogollon Airpark Legal Ruling on Dues and Fees

In the high-altitude enclave of Mogollon Airpark, a legal dogfight over three hundred dollars has redefined the boundaries of HOA power in Arizona. Homeowners Warren R. Brown and Brad W. Stevens took their Association to court, challenging a sudden 39.4% spike in annual costs and aggressive late penalties.

The resulting administrative law ruling serves as a vital case study in Arizona’s planned community statutes. By examining ARIZ. REV. STAT. § 33-1803, the court clarified exactly where a Board’s authority ends and where homeowner protections—specifically the "20% cap"—begin.

The $325 Question: When is an Increase Too High?

The conflict began in 2018 when Mogollon Airpark, Inc. (the HOA) implemented a $325 increase per household. For the petitioners, this felt like a clear-cut violation of state law, which generally requires a majority vote for significant cost hikes.

To evaluate the legality of the Board’s move, the court looked at the breakdown of the $325 increase relative to the previous year’s $825 total:

  • 2017 Total Assessment: $825
  • 2018 "Regular" Portion Increase: $116 (a 14.1% increase)
  • 2018 "Special" Portion (Paving): $209
  • Total 2018 Increase: $325
  • Total Percentage Increase: 39.4%

Brown and Stevens argued that any increase exceeding 20% in a single year is a violation of § 33-1803(A). They contended that "regular" in the statute refers to the process—meaning any assessment passed through a standard board vote should be subject to the cap. Under their interpretation, the label "special" was merely a semantic trick to bypass homeowner voting rights.

The Legal Definition of "Regular": Why the HOA Won the Assessment Battle

Despite the jarring 39.4% jump, Administrative Law Judge (ALJ) Thomas Shedden dismissed the petitions regarding the dues increase. The decision hinged on the principle of "Statutory Construction"—how courts interpret the precise wording of legislation.

The ALJ determined that the term "regular" in § 33-1803(A) defines a specific type of assessment rather than the voting process used to enact it. If "regular" merely meant an assessment passed by a motion and a vote, the judge reasoned, the word would be "trivial" or "redundant" because almost all assessments are passed that way.

The court's interpretation established two critical precedents:

  1. The Cap is Narrow: The 20% limit only protects homeowners from increases in standard annual operating dues.
  2. Special Assessments are Separate: Because the legislature included "regular" in the assessment cap portion of the law but omitted it elsewhere, the court concluded that "special" assessments—such as the $209 paving fee—do not count toward the 20% threshold.

Since the $116 "regular" increase was only 14.1% of the previous year's total, the HOA stayed within the legal boundary.

The Late Fee "Gotcha": Why the Homeowners Won the Penalty Battle

While the homeowners lost the fight over dues, Petitioner Warren R. Brown secured a strategic victory regarding penalties in Docket No. 18F-H1818045-REL. The HOA had been charging a $25 late fee and 18% interest on past-due accounts, even for the contested paving assessment.

Here, the ALJ applied a symmetrical logic that worked against the HOA. The ALJ noted that while the statute specifies "regular assessments" when discussing the 20% cap, the section governing late charges refers broadly to all "assessments."

The statute limits late charges to the greater of:

  1. $15.00
  2. 10% of the unpaid assessment

The HOA argued the $25 fee was valid because it applied to a special assessment. The ALJ rejected this, refusing to "read in" the word regular where the legislature had purposely left it out. Consequently, the HOA was ordered to rescind Mr. Brown's $25 fee and—most significantly—reimburse his $500 filing fee.

Transparency and Accounting: The Allegations Beneath the Surface

The legal battle revealed deep-seated distrust within the community. Petitioner Brad W. Stevens provided 45 pages of testimony and 600 pages of exhibits, painting a picture of a Board manufacturing a financial crisis.

The allegations included:

  • The "Two Sets of Books": Claims that the treasurer used deceptive accounting to hide the fact that the 2016 board actually left the treasury $200,000 better off than when they started.
  • Hidden Reserves: Allegations that the HOA held over $1 million in reserves, making the paving assessment unnecessary.
  • The "Trial Run": Mr. Stevens testified that the paving assessment was a "trial run" to see if the Board could successfully bypass the membership to fund future unauthorized projects.

While the ALJ acknowledged these concerns, he noted that complex accounting disputes and claims of "fabricated shortfalls" are better suited for a civil court rather than an administrative tribunal.

Conclusion & Key Takeaways for Homeowners

The consolidated ruling for Mogollon Airpark highlights the technical nature of HOA law and the high bar for homeowners seeking to overturn Board decisions.

Final Case Outcomes
Case Number Petitioner Primary Issue Outcome
18F-H1818029-REL-RHG Warren R. Brown $325 Assessment Increase Dismissed (HOA Won)
18F-H1818045-REL Warren R. Brown $25 Late Fee / 18% Interest Prevailing Party (Brown Won)
18F-H1818054-REL Brad W. Stevens $325 Assessment Increase Dismissed (HOA Won)
Lessons Learned
  • For Boards: Your late fee structures must strictly adhere to the $15 or 10% limit across all assessment types. There is no statutory loophole for "special" assessment penalties.
  • For Homeowners: The 20% cap is not a total shield. If your Board classifies a portion of a hike as a "special assessment" for a specific project like paving, the statutory cap likely won't protect you.
  • For Both: Procedural accuracy is paramount. A previous version of the 029 petition was dismissed simply because the homeowner failed to cite a specific Bylaw, CC&R, or statute. In the administrative arena, specific citations are the only way to get your day in court.

Homeowners are encouraged to audit their own association's fee and penalty structures against ARIZ. REV. STAT. § 33-1803. If your late fees exceed $15 or 10%, your HOA may be operating outside the law.

Case Participants

Petitioner Side

  • Warren R. Brown (petitioner)
    Petitioner in docket Nos. 18F-H1818029-REL-RHG and 18F-H1818045-REL; appeared on his own behalf
  • Brad W. Stevens (petitioner)
    Petitioner in docket No. 18F-H1818054-REL; appeared on his own behalf

Respondent Side

  • Gregory A. Stein (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Attorney for Respondent Mogollon Airpark, Inc.
  • Mark K. Sahl (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Attorney for Respondent Mogollon Airpark, Inc.

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge presiding over the consolidated hearing
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of the transmitted decision
  • Felicia Del Sol (clerk)
    Office of Administrative Hearings
    Transmitted the decision

Warren R. Brown vs. Mogollon Airpark, Inc(ROOT)

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

Case Summary

Case ID 18F-H1818029-REL-RHG; 18F-H1818045-REL; 18F-H1818054-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-10-18
Administrative Law Judge Thomas Shedden
Outcome The ALJ found Mogollon did not violate ARS § 33-1803(A) concerning the 39.4% assessment increase (Matters 029 and 054), rejecting the Petitioners' interpretation of 'regular assessment.' However, Petitioner Brown prevailed in Matter 045, proving Mogollon violated the late charge limit of ARS § 33-1803(A) by charging a $25 late fee, resulting in a refund of his $500 filing fee and rescission of the fee.
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Warren R. Brown Counsel —
Respondent Mogollon Airpark, Inc. Counsel Gregory A. Stein, Esq.; Mark K. Sahl, Esq.

Alleged Violations

ARIZ. REV. STAT. section 33-1803(A)
ARIZ. REV. STAT. section 33-1803(A)
ARIZ. REV. STAT. section 33-1803(A)

Outcome Summary

The ALJ found Mogollon did not violate ARS § 33-1803(A) concerning the 39.4% assessment increase (Matters 029 and 054), rejecting the Petitioners' interpretation of 'regular assessment.' However, Petitioner Brown prevailed in Matter 045, proving Mogollon violated the late charge limit of ARS § 33-1803(A) by charging a $25 late fee, resulting in a refund of his $500 filing fee and rescission of the fee.

Why this result: The assessment increase claims (029 and 054) were lost because the ALJ determined that interpreting 'regular assessment' as referring to the procedural method (motion, second, vote) would render the word 'regular' trivial or void in the statute.

Key Issues & Findings

Late payment charges limitation (045 Matter)

Petitioner Brown (045 matter) alleged the HOA violated ARS § 33-1803(A) by charging a $25 late fee. The ALJ found that the statutory limitation on late charges applies to all 'assessments,' not just 'regular assessments,' and found the $25 late charge was in violation.

Orders: Mogollon Airpark Inc. must rescind the $25 late fee assessed against Mr. Brown; Mogollon must pay Mr. Brown his filing fee of $500.00 within thirty days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. section 33-1803(A)

Assessment increase greater than 20% limit (029 Matter)

Petitioner Brown (029-RHG matter) argued the 39.4% increase violated the 20% cap because 'regular assessment' refers to the procedure for instituting any assessment. The ALJ rejected this interpretation, finding it rendered the word 'regular' void in the statute.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. section 33-1803(A)

Assessment increase greater than 20% limit (054 Matter)

Petitioner Stevens (054 matter) alleged the HOA's $325 assessment increase was unlawful under the 20% cap. The ALJ dismissed the petition, applying the same statutory interpretation as in the 029 matter, holding that Mogollon's classification of the majority of the increase as a special assessment was valid under the statute.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. section 33-1803(A)

Video Overview

Audio Overview

Decision Documents

18F-H1818029-REL-RHG Decision – 666285.pdf

Uploaded 2026-04-24T11:10:42 (151.9 KB)

18F-H1818029-REL-RHG Decision – 672623.pdf

Uploaded 2026-04-24T11:10:45 (144.6 KB)

Briefing Document: Brown and Stevens v. Mogollon Airpark, Inc.

Executive Summary

This document synthesizes the findings and conclusions of an Administrative Law Judge (ALJ) decision concerning three consolidated petitions filed by residents Warren R. Brown and Brad W. Stevens against their homeowners’ association, Mogollon Airpark, Inc. The core of the dispute revolves around a significant 2018 assessment increase and the legality of associated late fees under Arizona statute.

The central legal question was the interpretation of ARIZ. REV. STAT. section 33-1803(A), which limits an HOA’s ability to “impose a regular assessment that is more than twenty percent greater than the immediately preceding fiscal year’s assessment.” The petitioners argued that the HOA’s total 39.4% increase violated this cap. The HOA contended the increase was comprised of a compliant “regular assessment” and a separate “special assessment” not subject to the cap.

The ALJ’s decision resulted in a split outcome:

• On the Assessment Increase: The judge ruled in favor of Mogollon Airpark, Inc. The petitions challenging the assessment increase were dismissed. The ALJ’s rationale was that statutory construction requires distinguishing between “regular” and “special” assessments, and the 20% cap applies only to the former.

• On the Late Fees: The judge ruled in favor of Petitioner Warren R. Brown. The HOA’s $25 late fee was found to be in violation of the statutory limit, which applies to “assessments” in general, not just “regular assessments.” The HOA was ordered to rescind the fee and reimburse the petitioner’s filing costs.

Underlying these specific legal challenges were broader allegations by the petitioners of deceptive accounting practices and financial mismanagement by the HOA’s treasurer, which they claimed were intended to create a false justification for the assessment increase. These allegations were noted but not adjudicated in this hearing.

I. Case Overview

The matter concerns a consolidated hearing held on September 28, 2018, at the Office of Administrative Hearings in Phoenix, Arizona. Administrative Law Judge Thomas Shedden presided over the case, which combined three separate petitions against the respondent, Mogollon Airpark, Inc.

• Petitioners: Warren R. Brown and Brad W. Stevens.

• Respondent: Mogollon Airpark, Inc.

• Docket Numbers:

◦ 18F-H1818029-REL-RHG (“029 matter”): Warren R. Brown, Petitioner

◦ 18F-H1818045-REL (“045 matter”): Warren R. Brown, Petitioner

◦ 18F-H1818054-REL (“054 matter”): Brad W. Stevens, Petitioner

II. Central Disputes and Allegations

A. The 2018 Assessment Increase (Matters 029 & 054)

The primary dispute centered on Mogollon Airpark’s 2018 assessment changes.

• Previous Assessment (2017): $825

• 2018 Increase: $325, representing a 39.4% total increase.

• HOA’s Breakdown of Increase:

◦ Regular Assessment Increase: $116 (a 14.1% increase over $825)

◦ Special Assessment: $209

• Legal Challenge: The petitioners alleged the total $325 increase violated ARIZ. REV. STAT. section 33-1803(A), which prohibits an HOA from imposing a “regular assessment that is more than [20%] greater than the immediately preceding fiscal year’s assessment” without member approval.

B. Late Fees and Interest Charges (Matter 045)

The second dispute, raised by Mr. Brown, concerned new penalties for late payments.

• New Charges: A $25 late fee and 18% interest on past-due accounts.

• Legal Challenge: Mr. Brown alleged these charges violated the same statute, which limits late fees to “the greater of fifteen dollars or ten percent of the amount of the unpaid assessment.” He presented an invoice showing he was charged a $25 late fee and $1.57 in interest.

C. Underlying Allegations of Financial Impropriety

Although the hearing’s scope was limited, the petitions were rooted in serious allegations of financial misconduct by the HOA. These claims formed the petitioners’ motive for challenging the assessments but were not the direct subject of the ALJ’s ruling.

• Core Claim: The petitioners asserted that Mogollon’s treasurer and others used “deceptive and nonstandard accounting methods,” including keeping two sets of books, to create the appearance of a financial shortfall.

• Alleged Purpose: This “fabricated shortfall” was allegedly used to convince the Board of Directors that a 39.4% dues increase was necessary.

• Petitioners’ Financial View: Mr. Stevens testified that he believed the HOA possessed funds in excess of $1 million and therefore did not require the increased assessment.

• ALJ’s Acknowledgment: The decision noted, “Considering the nature of Messrs. Brown and Stevens’s allegations, the civil courts may be better suited than an administrative tribunal to address the issues they raise. Regardless, the substance of their allegations was not addressed in this hearing.”

III. Arguments of the Parties

The central legal conflict hinged on the interpretation of the term “regular assessment” within the statute.

Petitioners’ Position (Brown & Stevens)

Respondent’s Position (Mogollon Airpark, Inc.)

Assessment Increase

The term “regular assessment” in § 33-1803(A) describes the process by which an assessment is instituted (i.e., by motion, second, and vote). Therefore, the entire $325 increase is a single assessment subject to and in violation of the 20% statutory cap. They further argued the HOA’s governing documents provide no authority to impose “special assessments.”

“Regular assessment” and “special assessment” are distinct types of assessments and industry terms of art. The 20% cap applies only to the regular portion. The $116 regular increase (14.1%) was compliant. The existence of the term “special assessment” in another statute (§ 33-1806) proves the legislature intended this distinction.

Late Fees

The 25latefeeisaclearviolationofthestatutorylimitof”15.00 or 10%.” The statutory text for late fees applies to “assessments” generally, not just “regular assessments.”

The statutory limit on late fees applies only to regular assessments. Since the late fee was charged on a special assessment, it did not violate the statute.

IV. Administrative Law Judge’s Decision and Rationale

The ALJ applied principles of statutory construction to arrive at a split decision, finding for the respondent on the main issue of the assessment increase but for the petitioner on the secondary issue of late fees.

A. Ruling on the Assessment Increase (Matters 029 & 054)

• Conclusion: The petitions filed by Mr. Brown and Mr. Stevens were dismissed. Mogollon Airpark, Inc. was deemed the prevailing party.

• Rationale: The judge concluded that the petitioners had not shown by a preponderance of the evidence that the statute was violated. Their definition of “regular assessment” as a procedural term was found to be inconsistent with principles of statutory construction. The judge reasoned that if “regular” simply meant the standard process of passing an assessment, the word would be redundant (“trivial or void”) because all assessments must follow that process. This interpretation supports the view that the legislature intended to differentiate between types of assessments, and that the 20% cap applies only to the “regular” type.

B. Ruling on Late Fees (Matter 045)

• Conclusion: Petitioner Warren R. Brown was deemed the prevailing party.

• Rationale: The judge rejected Mogollon’s argument that late fee limits apply only to regular assessments. The statutory text states, “Charges for the late payment of assessments are limited to…” without the “regular” qualifier. The ALJ determined that adding the word “regular” where the legislature chose to omit it would violate statutory construction principles. Therefore, the $25 late fee, being greater than the allowed $15 or 10%, was illegal.

V. Final Orders

The ALJ issued the following binding orders on October 18, 2018:

• ORDER FOR DOCKET NO. 18F-H1818029-REL-RHG (Brown vs. Mogollon):

◦ The petition is dismissed.

• ORDER FOR DOCKET NO. 18F-H1818045-REL (Brown vs. Mogollon):

◦ Petitioner Warren R. Brown is deemed the prevailing party.

◦ Mogollon Airpark Inc. must rescind the $25 late fee it assessed against Mr. Brown.

◦ Mogollon Airpark Inc. must pay Mr. Brown his filing fee of $500.00 within thirty days.

• ORDER FOR DOCKET NO. 18F-H1818054-REL (Stevens vs. Mogollon):

◦ The petition is dismissed.

Study Guide: Brown and Stevens v. Mogollon Airpark, Inc.

This study guide provides a review of the consolidated administrative hearing involving petitioners Warren R. Brown and Brad W. Stevens against the respondent, Mogollon Airpark, Inc. The case centers on disputes over Homeowners Association (HOA) assessments and fees under Arizona law.

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Short-Answer Quiz

Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case documents.

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

2. What specific actions did Mogollon Airpark, Inc. take in 2018 that led to the legal petitions?

3. What was the total percentage increase of the 2018 assessment, and how did Mogollon Airpark, Inc. break down this increase?

4. Explain the petitioners’ main legal argument regarding the assessment increase and which statute they claimed was violated.

5. How did Mogollon Airpark, Inc. legally defend its decision to increase the assessment by more than 20%?

6. What was the central issue in the “045 matter” filed by Warren R. Brown?

7. Upon what legal principle did the Administrative Law Judge primarily rely to reach his conclusions on both the assessment increase and the late fee?

8. Why did the judge rule in favor of Mogollon Airpark on the assessment increase but in favor of Warren R. Brown on the late fee?

9. What were the underlying allegations made by the petitioners concerning Mogollon Airpark’s financial management that were not addressed in the hearing?

10. What was the final outcome and order for each of the three consolidated petitions (029, 045, and 054)?

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Answer Key

1. The petitioners were Warren R. Brown (dockets 029 and 045) and Brad W. Stevens (docket 054), who were members of the HOA. The respondent was Mogollon Airpark, Inc., the HOA being challenged. The matter was decided by Administrative Law Judge Thomas Shedden.

2. Mogollon Airpark, Inc. raised its 2018 assessment by a total of $325. It also instituted a new $25 fee for late payments and began charging 18% interest on past-due accounts.

3. The total increase of $325 over the previous year’s assessment of $825 constituted a 39.4% increase. Mogollon classified this increase as two separate parts: a $116 (14.1%) increase to the “regular assessment” and a $209 “special assessment.”

4. The petitioners argued that the total $325 increase violated ARIZ. REV. STAT. section 33-1803(A), which prohibits an HOA from imposing a “regular assessment” that is more than 20% greater than the previous year’s assessment. They contended that the term “regular assessment” refers to the standard process of levying an assessment (motion, second, vote), not a specific type of assessment.

5. Mogollon Airpark, Inc. argued that the 20% limit in section 33-1803(A) applies only to “regular assessments” and not to “special assessments,” which it claimed is a separate term of art in the industry. Since the increase to the regular assessment was only $116 (14.1%), it was below the 20% statutory threshold and therefore legal.

6. The central issue in the “045 matter” was Warren R. Brown’s allegation that Mogollon’s $25 late fee and 18% interest charge violated section 33-1803(A). The statute limits late charges to the greater of fifteen dollars or ten percent of the unpaid assessment.

7. The judge primarily relied on principles of statutory construction. This involved giving meaning to every word in the statute and not reading words into a provision where the legislature omitted them, which led to different interpretations of the statute’s clauses on assessments versus late fees.

8. The judge ruled against the petitioners on the assessment because their interpretation would make the word “regular” in the statute redundant. However, he ruled for Brown on the late fee because the statutory text limits charges on “assessments” in general, not just “regular assessments,” and to rule otherwise would require adding a word the legislature did not include.

9. The petitioners alleged that Mogollon’s treasurer engaged in deceptive and nonstandard accounting practices, including keeping two sets of books, to create a “fabricated shortfall.” They claimed this was done to falsely justify the need for the assessment increase, as the HOA actually had over $1 million in funds.

10. The petitions in the 029 matter (Brown) and 054 matter (Stevens) concerning the assessment increase were both dismissed. The petition in the 045 matter (Brown) concerning the late fee was successful; Mogollon was ordered to rescind the $25 fee and reimburse Brown’s $500 filing fee.

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Essay Questions

Instructions: Consider the following questions for a more in-depth analysis of the case. Formulate a comprehensive response based solely on the information in the provided legal decision.

1. Analyze the role of statutory construction in the Administrative Law Judge’s decision. How did the interpretation of the specific word “regular” and the general term “assessments” shape the final, divergent outcomes for the consolidated petitions?

2. Discuss the petitioners’ underlying allegations of deceptive accounting practices. Although not the central issue of the hearing, how did these claims frame the dispute, and why did the judge note that civil courts might be better suited to address them?

3. Compare and contrast the legal arguments presented by the petitioners and the respondent regarding the interpretation of ARIZ. REV. STAT. section 33-1803(A). Evaluate the strengths and weaknesses of each side’s position as described in the decision.

4. Trace the procedural history of the “029 matter,” from its initial filing and dismissal to the rehearing. What does this progression reveal about the procedural requirements for filing a successful petition with the Office of Administrative Hearings?

5. Evaluate the outcome of the consolidated hearing. Why was one petitioner successful on one claim while both were unsuccessful on another, despite the claims originating from the same set of actions by the HOA?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

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

ARIZ. REV. STAT. section 33-1803(A)

The specific Arizona statute at the center of the dispute. It limits HOA “regular assessment” increases to 20% over the prior year and caps late payment charges at the greater of $15 or 10% of the unpaid assessment.

Assessment

A fee imposed by an HOA on its members. The case distinguishes between a “regular assessment” (a recurring charge) and a “special assessment” (a one-time charge for a specific purpose).

Burden of Proof

The obligation of the petitioners, Messrs. Brown and Stevens, to prove their allegations against the respondent.

Consolidated Matter

The joining of multiple, separate legal petitions (in this case, 029, 045, and 054) into a single hearing because they involved the same parties and related issues.

Petitioner

A party who files a petition initiating a legal action. In this matter, Warren R. Brown and Brad W. Stevens were the petitioners.

Preponderance of the Evidence

The standard of proof required in this administrative hearing. It is defined as evidence with the most convincing force that inclines an impartial mind to one side of an issue over the other.

Respondent

The party against whom a petition is filed. In this matter, Mogollon Airpark, Inc. was the respondent.

Single-Issue Petition

A petition filed with the Department of Real Estate that is limited to a single allegation, which in the case of Mr. Stevens’s 054 matter required a $500 filing fee.

Statutory Construction

The legal process of interpreting and applying legislation. The judge used principles of statutory construction to determine the meaning of “regular assessment” and “assessments” in the relevant statute.

How One Word Created an HOA Loophole for a 40% Fee Hike—And How Another Word Gave a Homeowner a Key Victory

1.0 Introduction: The Dreaded HOA Letter

It’s the letter every homeowner dreads opening. A crisp envelope from the Homeowners Association lands in your mailbox, and inside is a notice that your mandatory fees are about to skyrocket. For a group of homeowners in Arizona’s Mogollon Airpark, this scenario became a reality when their HOA announced a staggering 39.4% increase in their annual assessments.

What followed was a legal battle that provides a fascinating and cautionary tale for every homeowner living under an HOA. The dispute, which pitted homeowners Warren Brown and Brad Stevens against Mogollon Airpark, Inc., didn’t hinge on fairness or financial need, but on the legal interpretation of a single word. This article distills the surprising and counter-intuitive lessons learned from their fight, revealing loopholes and legal technicalities that can make all the difference.

2.0 A 40% Fee Hike Can Be Legal Thanks to the “Special Assessment” Loophole

The core of the dispute was the massive fee hike. Mogollon Airpark, Inc. raised its 2018 assessment by $325 from the previous year’s $825—a 39.4% increase. This seemed to be a clear violation of Arizona law (ARIZ. REV. STAT. section 33-1803(A)), which explicitly prohibits an HOA from increasing a “regular assessment” by more than 20% in one year without a majority vote from members.

The HOA, however, employed a clever strategy. It split the $325 increase into two distinct parts:

• A $116 “regular assessment” increase, which amounted to a legal 14.1% hike.

• A separate $209 “special assessment.”

The HOA argued that the 20% statutory cap only applied to the “regular” portion of the increase, making their move perfectly legal.

The homeowners countered that this was a deceptive maneuver. They argued that the term “regular assessment” in the law refers to the process of creating an assessment (a motion, a second, and a vote), not a specific type of assessment. From their perspective, the entire 39.4% increase was a single action and was therefore illegal.

In a surprising ruling, the Administrative Law Judge sided with the HOA. The judge reasoned that if the homeowners’ interpretation was correct and all assessments followed the same “regular” process, then the word “regular” in the statute would be rendered “trivial or void.” By giving meaning to that single word, the judge affirmed that “regular assessments” and “special assessments” are different categories, and the 20% cap only applies to the former. This interpretation effectively creates a significant loophole for HOAs to bypass statutory limits and implement large fee increases.

3.0 The Devil Is in the Details: “Regular Assessment” vs. “Assessments”

While the HOA won the main argument over the 39.4% increase, they lost on a smaller but crucial point: late fees. Along with the assessment hike, the HOA instituted a new $25 late fee for overdue payments.

Homeowner Warren Brown challenged this fee, pointing to the same state law. He argued that the statute limits late fees to “the greater of fifteen dollars or ten percent of the amount of the unpaid assessment.” Since the new $25 fee exceeded this limit, it was a direct violation.

Emboldened by their victory on the assessment increase, the HOA extended its logic, arguing that since the late fee was applied to a special assessment, the statutory limit—which they claimed was intended for regular assessments—did not apply.

This time, the judge decisively ruled in favor of the homeowner. The judge highlighted a critical distinction in the law’s wording. The part of the statute limiting assessment increases uses the specific term “regular assessment.” However, the part of the law limiting late charges uses the broader, more general term “assessments.” The omission of the word “regular” was the key.

The judge’s reasoning was a masterclass in statutory construction:

This argument fails because the statute’s limit on late charges applies to “assessments,” not “regular assessments.” Under Mogollon’s interpretation, it is necessary to add the word “regular” where the legislature chose not to use it. This violates principles of statutory construction.

This outcome underscores the immense importance of precise legal language. The legislature’s choice to omit a single word in one clause of a law gave the homeowner a clear victory and held the HOA accountable.

4.0 Serious Allegations Don’t Guarantee a Day in Court

Underlying the homeowners’ legal challenge were serious allegations of financial misconduct. Mr. Brown and Mr. Stevens claimed the HOA treasurer used “deceptive and nonstandard accounting methods,” kept “two sets of books,” and created a “fabricated shortfall” to justify the assessment increase and “convince the Board that a 39.4% increase in dues was required.”

Surprisingly, none of these explosive allegations were addressed during the hearing. The reason for this is a crucial lesson in legal strategy. The homeowners had filed “single-issue petitions,” which legally limited the scope of the administrative hearing to one narrow question: did the HOA violate the specific statute governing assessment increases (ARIZ. REV. STAT. section 33-1803(A))? All other matters, including the allegations of accounting improprieties, were outside the hearing’s jurisdiction.

The judge explicitly noted this limitation in a footnote to the decision:

Considering the nature of Messrs. Brown and Stevens’s allegations, the civil courts may be better suited than an administrative tribunal to address the issues they raise. Regardless, the substance of their allegations was not addressed in this hearing.

This case is a powerful reminder that in law, the structure of your argument can be more important than the weight of your accusations. By filing a narrow petition, the homeowners guaranteed a hearing on that one issue but forfeited the chance to have their broader, more serious claims heard in that venue.

5.0 A Partial Victory Is Still a Victory

The final outcome of the consolidated case was decidedly mixed. The homeowners lost their primary challenge, and the court upheld the HOA’s $325 assessment increase.

However, Mr. Brown was officially deemed the “prevailing party” in his case regarding the illegal late fees. This was not just a moral victory; it came with a direct order from the judge. Mogollon Airpark Inc. was ordered to:

• Rescind the $25 late fee it assessed against Mr. Brown.

• Pay Mr. Brown back his $500 filing fee for the case.

While it wasn’t the total win they had hoped for, this outcome demonstrates that a single, well-prepared homeowner can successfully hold their HOA accountable for breaking the law, even on smaller matters. It proves that knowing the rules and persevering can lead to tangible results, forcing an association to correct its illegal actions and compensating the homeowner for the cost of the fight.

6.0 Conclusion: Know the Law, Word by Word

The case of Brown and Stevens vs. Mogollon Airpark is a potent lesson in how legal battles are won and lost in the margins. A single word—”regular”—opened a loophole for the HOA to impose a nearly 40% fee hike, while the deliberate absence of that same word in a later clause empowered a homeowner to strike back and win.

This case serves as a powerful reminder that when it comes to the laws governing your community, every word matters. It poses a vital question for all homeowners: are the protections you count on in state law as ironclad as you think, or could they evaporate based on the interpretation of a single adjective?

Case Participants

Petitioner Side

  • Warren R. Brown (petitioner)
    Appeared on his own behalf
  • Brad W. Stevens (petitioner)
    Appeared on his own behalf; presented testimony

Respondent Side

  • Gregory A. Stein (attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Counsel for Respondent Mogollon Airpark, Inc.
  • Mark K. Sahl (attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Counsel for Respondent Mogollon Airpark, Inc.

Neutral Parties

  • Thomas Shedden (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Felicia Del Sol (clerk)
    Transmitted the decision

Travis Prall v. Villas at Tierra Buena HOA

Posted on by

Case Summary

Case ID 18F-H1818053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-01-31
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Travis Prall Counsel —
Respondent Villas at Tierra Buena Homeowners Association Counsel Lydia Pierce Linsmeier

Alleged Violations

Section 7.1.4 of the CC&Rs

Outcome Summary

The Administrative Law Judge dismissed the Petition following a rehearing, concluding that the Petitioner failed to meet the burden of proof to show the HOA violated Section 7.1.4 of the CC&Rs because there was no credible evidence that the disputed landscaping (tree) had been originally installed by the developer.

Why this result: Petitioner failed to establish by a preponderance of the evidence that the landscaping was originally installed by the Declarant, which was a prerequisite for HOA maintenance responsibility under the relevant CC&R section.

Key Issues & Findings

Neglecting yard maintenance in visible public yards

Petitioner alleged the HOA violated CC&R Section 7.1.4 by failing to maintain a tree in his back yard, arguing the back yard qualified as a 'Public Yard' and the tree was originally installed by the Declarant.

Orders: The Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: HOA maintenance, CC&R interpretation, burden of proof, landscaping
Additional Citations:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.09
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

18F-H1818053-REL Decision – 686236.pdf

Uploaded 2026-04-26T09:46:58 (116.2 KB)

18F-H1818053-REL Decision – 661820.pdf

Uploaded 2026-04-26T09:47:00 (107.3 KB)

18F-H1818053-REL Decision – 686236.pdf

Uploaded 2026-04-24T11:14:18 (116.2 KB)

18F-H1818053-REL Decision – 661820.pdf

Uploaded 2026-04-24T11:14:22 (107.3 KB)

Briefing: Prall v. Villas at Tierra Buena HOA Dispute

Executive Summary

This briefing synthesizes the findings and legal rationale from a homeowners’ association dispute between Petitioner Travis Prall and Respondent Villas at Tierra Buena HOA. The case centered on whether the HOA was responsible for maintaining a tree in the Petitioner’s backyard. The Petitioner alleged the HOA violated Section 7.1.4 of the community’s Covenants, Conditions, and Restrictions (CC&Rs) by neglecting maintenance in what he defined as a “Public Yard.”

The dispute was adjudicated by the Arizona Office of Administrative Hearings, resulting in two decisions, an initial ruling and a subsequent ruling on rehearing, both of which dismissed the Petitioner’s case. The critical takeaway is that the case was decided not on the ambiguous definition of “Public” versus “Private” yards, but on a crucial qualifying clause in the CC&Rs. Section 7.1.4 obligates the HOA to maintain landscaping only “as originally installed by Declarant.”

The Petitioner failed to provide sufficient evidence that the tree in question was part of the original developer’s landscaping. Conversely, the HOA presented credible testimony from an early homeowner and board member stating that all backyards in the community were sold as “just dirt,” with no developer-installed landscaping or irrigation. The Administrative Law Judge ruled that the Petitioner’s arguments were based on “suppositions and inferences” and did not meet the “preponderance of the evidence” standard required to prove his claim.

Case Overview

This dispute was initiated by a petition filed with the Arizona Department of Real Estate and adjudicated by the Office of Administrative Hearings. The core issue was the interpretation of HOA maintenance responsibilities as defined in the community’s governing documents.

Case Detail

Information

Case Number

18F-H1818053-REL

Petitioner

Travis Prall

Respondent

Villas at Tierra Buena HOA

Adjudicator

Administrative Law Judge Tammy L. Eigenheer

Initial Hearing

September 4, 2018

Initial Decision

September 24, 2018 (Petition Dismissed)

Rehearing

January 11, 2019

Final Decision

January 31, 2019 (Petition Dismissed)

Timeline of Key Events

• 2010: Petitioner Travis Prall purchases his home, an “interior” unit, and believes the HOA is responsible for both front and backyard maintenance.

• July 26, 2014: A storm knocks over a large tree in the Petitioner’s backyard. He pays for its removal while asserting it was the HOA’s responsibility.

• Post-2014: The tree regrows from its remaining trunk.

• 2018: The HOA observes that the regrown tree’s roots are causing a “pony wall” to buckle and hires Sun King Fencing & Gates to perform repairs. The repair company recommends removing the tree to prevent recurrence.

• May 3, 2018: The HOA issues a “Courtesy Letter” to the Petitioner, requesting he “trim or remove the tree in the back yard causing damage to the pony wall.”

• June 4, 2018: In response, the Petitioner files a Dispute Process Petition with the Arizona Department of Real Estate, initiating the legal proceedings.

Central Allegation and Dispute

The Petitioner alleged that the Villas at Tierra Buena HOA violated Section 7.1.4 of its CC&Rs by “neglecting yard maintenance in visible public yards.” His central claim was that his backyard, though enclosed, qualifies as a “Public Yard” under the CC&Rs and that the HOA was therefore responsible for the maintenance and removal of the problematic tree. The HOA’s demand that he handle the tree himself constituted, in his view, a violation of their duties.

Analysis of Arguments and Evidence

The case presented conflicting interpretations of the CC&Rs and opposing accounts of historical maintenance practices.

Petitioner’s Position (Travis Prall)

The Petitioner’s case was built on his interpretation of the CC&Rs and inferences drawn from circumstantial evidence.

• CC&R Interpretation: Argued that his backyard is a “Public Yard” because, while enclosed by a four-foot wall (two-foot block plus two-foot aluminum fence), it is “generally visible from Neighboring Property” via a community walkway.

• Claim of Prior Maintenance: Testified that from 2010 to 2013, the HOA did provide landscaping maintenance for his backyard.

• Inferences about Original Landscaping:

◦ Posited that the large size of the tree in 2010 indicated it must have been planted by the original developer around 2000.

◦ Argued that the similar design of irrigation systems across the community suggested they were all installed during original construction, including those in backyards.

◦ Noted that the sprinkler system in his backyard wrapped around the tree, further suggesting they were installed together by the developer.

Respondent’s Position (Villas at Tierra Buena HOA)

The Respondent’s defense relied on its own interpretation of the CC&Rs, consistent historical practice, and direct testimony regarding the community’s development.

• CC&R Interpretation: Argued that an “enclosed” yard is, by definition, a “Private Yard,” making the homeowner responsible for its maintenance.

• Denial of Prior Maintenance: Stated unequivocally that it had never provided landscaping services for any resident’s backyard. Its responsibility is limited to front yards and common areas.

• Practical and Liability Concerns: Argued that it has no access to control backyard irrigation systems and that its workers entering enclosed yards would create liability issues, such as pets escaping.

• Crucial Rehearing Testimony: Presented testimony from Maureen Karpinski, the HOA Board President.

◦ Ms. Karpinski, a real estate agent, purchased her home from the developer in 2002 and was involved with the community during its construction phase.

◦ She testified with certainty that her backyard was “just dirt” with no landscaping or irrigation when she purchased it.

◦ She stated that, to the best of her knowledge, “none of the homes in Respondent’s community were sold with any landscaping or irrigation in the back yards and were just dirt.”

Interpretation of Governing CC&R Sections

The dispute revolved around the specific language in the Declaration of Covenants, Conditions, Restrictions and Easements.

Section

Provision

Significance in the Case

The HOA must “Replace and maintain all landscaping and other Improvements as originally installed by Declarant on the Public Yards of Lots…“

This became the dispositive clause. The Petitioner’s entire claim depended on proving the tree was “originally installed by Declarant.”

“Private Yard” means that portion of a Yard which is enclosed or shielded from view… so that it is not generally Visible from Neighboring Property. “Public Yard” means that portion of a Yard which is generally visible from Neighboring Property…

This created a central point of interpretive conflict. The Petitioner argued the clause meant “enclosed and not visible,” while the HOA argued it meant “enclosed or shielded.” The Judge ultimately did not rule on this ambiguity.

“Visible from Neighboring Property” means… visible to a person six feet tall standing on any part of such neighboring property…

This definition supported the Petitioner’s claim that his backyard was, in fact, “visible” from the common area walkway.

Administrative Law Judge’s Rulings and Rationale

The Administrative Law Judge (ALJ) dismissed the Petitioner’s case in both the initial hearing and the rehearing, focusing on the burden of proof related to a single, critical phrase in the CC&Rs.

Initial Decision (September 24, 2018)

• Avoidance of Ambiguity: The ALJ acknowledged the potential merit of the Petitioner’s interpretation of “Public Yard,” stating “the language of the CC&Rs may lend itself to a reading that Respondent is responsible for the maintenance of the enclosed back yards of the interior homes.” However, the ALJ concluded the tribunal was “not required to reach that issue in this matter.”

• Focus on “Originally Installed by Declarant”: The decision hinged entirely on Section 7.1.4. The ALJ found that the “Petitioner failed to present any evidence that the tree at issue was originally installed by the Declarant.”

• Lack of Proof: The ALJ noted that the tree’s rapid regrowth from 2013 to 2018 made it impossible to conclude that the original tree must have been planted by the developer in 2000.

• Conclusion: The Petitioner failed to meet the “preponderance of the evidence” burden of proof, and the petition was dismissed.

Rehearing Decision (January 31, 2019)

• Rejection of Petitioner’s Inferences: The ALJ characterized the Petitioner’s evidence regarding the tree’s age and the irrigation system as “suppositions and inferences.”

• Credibility of Respondent’s Testimony: In contrast, the ALJ found the testimony of HOA President Maureen Karpinski to be “the only credible evidence offered regarding the landscaping of the homes.”

• Definitive Factual Finding: Based on Ms. Karpinski’s testimony, the ALJ concluded there was “no evidence there was any landscaping or improvements originally installed by Declarant.”

• Final Conclusion: As the precondition of Section 7.1.4 (that landscaping be “originally installed by Declarant”) was not met, the HOA had no maintenance duty for the Petitioner’s backyard. The Petitioner again failed to establish his case by a preponderance of the evidence, and the petition was dismissed with finality.

Study Guide: Prall v. Villas at Tierra Buena HOA

Short Answer Quiz

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

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

2. What specific section of the governing documents did the Petitioner allege was violated, and what was the central claim of his petition?

3. Describe the key physical differences between the “interior homes” and “exterior homes” within the Villas at Tierra Buena community as detailed in the hearing.

4. What incident in 2018 prompted the HOA to issue a “Courtesy Letter” to the Petitioner, and what action did the letter request?

5. Explain the two conflicting interpretations of the term “Private Yard” as argued by the Petitioner and the Respondent.

6. What was the Petitioner’s claim regarding the HOA’s past maintenance practices in his backyard, and how did the Respondent counter this assertion?

7. What is the legal standard of proof the Petitioner was required to meet, and how is this standard defined in the legal decision?

8. According to the Administrative Law Judge’s decisions, what was the single most critical point the Petitioner failed to prove, which ultimately led to the dismissal of his case?

9. During the rehearing, what crucial testimony was provided by the HOA’s witness, Maureen Karpinski, and why was it deemed the “only credible evidence” on the matter?

10. What was the final outcome of both the initial hearing on September 4, 2018, and the subsequent rehearing on January 11, 2019?

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Answer Key

1. Who were the primary parties in this legal dispute, and what were their respective roles? The Petitioner was Travis Prall, the homeowner who filed the dispute. The Respondent was the Villas at Tierra Buena Homeowners Association (HOA), which was defending against the Petitioner’s claims. The case was heard by Administrative Law Judge Tammy L. Eigenheer.

2. What specific section of the governing documents did the Petitioner allege was violated, and what was the central claim of his petition? The Petitioner alleged a violation of Section 7.1.4 of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs). His central claim was that the HOA violated this section by neglecting its duty to perform yard maintenance in his backyard, which he argued was a “visible public yard.”

3. Describe the key physical differences between the “interior homes” and “exterior homes” within the Villas at Tierra Buena community as detailed in the hearing. The exterior homes feature six to seven-foot-tall block wall fences enclosing their backyards. In contrast, the interior homes, including the Petitioner’s, have a shorter back wall consisting of a two-foot block wall topped with a two-foot aluminum fence, making the total height approximately four feet and more visible from a common walkway.

4. What incident in 2018 prompted the HOA to issue a “Courtesy Letter” to the Petitioner, and what action did the letter request? In 2018, the HOA had a “pony wall” in the Petitioner’s backyard repaired and was informed by the repair company, Sun King Fencing & Gates, that the wall had buckled due to tree roots. Consequently, the HOA issued a Courtesy Letter on May 3, 2018, requesting that the Petitioner “trim or remove the tree in the back yard causing damage to the pony wall.”

5. Explain the two conflicting interpretations of the term “Private Yard” as argued by the Petitioner and the Respondent. The Respondent argued that a yard is considered a “Private Yard” if it is enclosed or shielded from view, meaning any enclosed yard qualified. The Petitioner argued that the definition should be read to mean a yard is private only if it is enclosed so that it is not generally visible from neighboring property, implying visibility was the key factor.

6. What was the Petitioner’s claim regarding the HOA’s past maintenance practices in his backyard, and how did the Respondent counter this assertion? The Petitioner testified that from 2010 to 2013, the HOA had provided landscaping maintenance for his backyard. The Respondent denied this claim, stating that it had never provided any landscaping maintenance to any backyards in the community and raised liability concerns about entering residents’ enclosed yards.

7. What is the legal standard of proof the Petitioner was required to meet, and how is this standard defined in the legal decision? The Petitioner bore the burden of proof to establish his case by a “preponderance of the evidence.” This standard is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” representing the greater weight of evidence.

8. According to the Administrative Law Judge’s decisions, what was the single most critical point the Petitioner failed to prove, which ultimately led to the dismissal of his case? The judge ruled that the Petitioner failed to present evidence proving that the tree in his backyard was “originally installed by the Declarant” (the developer). According to Section 7.1.4 of the CC&Rs, the HOA’s maintenance responsibility only applied to landscaping and improvements installed by the original community developer.

9. During the rehearing, what crucial testimony was provided by the HOA’s witness, Maureen Karpinski, and why was it deemed the “only credible evidence” on the matter? Maureen Karpinski testified that none of the homes in the community were sold with any landscaping or irrigation in the backyards and that they were “just dirt” at the time of purchase. Her testimony was considered credible because she was a real estate agent involved in the initial sales, had walked the community with many buyers during construction, and was herself an original buyer.

10. What was the final outcome of both the initial hearing on September 4, 2018, and the subsequent rehearing on January 11, 2019? In both the initial decision issued on September 24, 2018, and the final decision issued after the rehearing on January 31, 2019, the Petitioner’s petition was dismissed. The judge concluded in both instances that the Petitioner had failed to establish by a preponderance of the evidence that the HOA had violated the CC&Rs.

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Essay Questions

Instructions: The following questions are designed for longer, essay-style answers. Do not provide answers.

1. Analyze the competing interpretations of “Public Yard” versus “Private Yard” as defined in Section 1.38 of the CC&Rs. Explain why the Administrative Law Judge ultimately found it unnecessary to rule on this specific issue to reach a decision.

2. Discuss the concept of “burden of proof” as it applied in this case. How did the “preponderance of the evidence” standard shape the proceedings, and what specific types of evidence (or lack thereof) were most influential in the judge’s final decision?

3. Trace the timeline of the dispute over the tree in Travis Prall’s backyard, from the 2014 storm to the final legal decision in 2019. How did each key event contribute to the escalation of the conflict and the arguments presented at the hearings?

4. Compare the evidence presented by Travis Prall with the evidence presented by the Villas at Tierra Buena HOA at the rehearing. Why did the judge characterize Prall’s evidence as “suppositions and inferences” while deeming the HOA’s evidence “credible”?

5. Section 7.1.4 of the CC&Rs contains the phrase “as originally installed by Declarant.” Explain the critical importance of this phrase to the outcome of the case and how it became the dispositive legal issue, overshadowing all other arguments.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, weighs evidence, and makes legal decisions, in this case, Tammy L. Eigenheer.

Arizona Department of Real Estate (Department)

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

Burden of Proof

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

An acronym for Declaration of Covenants, Conditions, Restrictions and Easements, which are the governing legal documents for a planned community.

Common Area

Areas within the community maintained by the HOA for the benefit of all residents. The HOA provides landscaping for these areas.

Courtesy Letter

A formal notice sent by the HOA to a homeowner regarding a potential violation or required action. In this case, it requested the removal of a tree causing damage.

Declarant

The original developer of the planned community who installed the initial infrastructure and landscaping.

HOA Dispute Process Petition

The formal document filed with the Arizona Department of Real Estate by a homeowner to initiate a legal hearing regarding an alleged violation by their HOA.

Improvements

A term used in the CC&Rs referring to any additions to a lot other than the main residential dwelling, including landscaping.

Petitioner

The party who initiates a legal action or files a petition. In this case, the homeowner Travis Prall.

Pony Wall

A term used to describe the short, two-foot-tall block wall in the backyards of the interior homes, which was buckling due to tree roots.

Preponderance of the Evidence

The standard of proof required in this case, defined as evidence that is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other,” making a contention “more probably true than not.”

Private Yard

As defined in the CC&Rs, a portion of a yard “which is enclosed or shielded from view… so that it is not generally Visible from Neighboring Property.” The interpretation of this definition was a point of contention.

Public Yard

As defined in the CC&Rs, the portion of a yard “which is generally visible from Neighboring Property,” regardless of its location on the lot. The HOA is responsible for maintaining landscaping originally installed by the Declarant in Public Yards.

Respondent

The party against whom a petition is filed; the party that must respond to the claims. In this case, the Villas at Tierra Buena HOA.

Visible from Neighboring Property

A term defined in the CC&Rs to mean an object that would be visible to a six-foot-tall person standing on a neighboring property. It includes a specific exception for objects visible only through a wrought iron fence.

As defined in the CC&Rs, “the portion of the Lot devoted to Improvements other than the Residential Dwelling.”

⚖️

18F-H1818053-REL-RHG

2 sources

These documents are two Administrative Law Judge Decisions from the Arizona Office of Administrative Hearings concerning a dispute between Travis Prall, the Petitioner, and the Villas at Tierra Buena HOA, the Respondent. The first document outlines the initial decision, dated September 24, 2018, which dismissed Mr. Prall’s petition arguing the HOA violated their Declaration of Covenants, Conditions, Restrictions, and Easements (CC&Rs) by neglecting yard maintenance. The second document is the decision following a rehearing requested by the Petitioner, dated January 31, 2019, which reaffirmed the initial dismissal, concluding that Mr. Prall failed to prove that the landscaping in question was originally installed by the Declarant, a prerequisite for the HOA’s maintenance responsibility under the CC&Rs. Both decisions rely heavily on interpreting sections of the CC&Rs, particularly the definitions of “Public Yard” versus “Private Yard,” to determine the HOA’s obligation. Ultimately, both rulings found that the Petitioner did not meet his burden of proof by a preponderance of the evidence.

Case Participants

Petitioner Side

  • Travis Prall (petitioner)
    Appeared on his own behalf

Respondent Side

  • Lydia Pierce Linsmeier (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Represented Villas at Tierra Buena HOA
  • Nicole Payne (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Represented Villas at Tierra Buena HOA
  • Maureen Karpinski (board member)
    Villas at Tierra Buena HOA
    President of the Board; testified
  • Frank Peake (property manager)
    Pride Community Management
    Owner of Pride Community Management; testified
  • Rebecca Stowers (community manager)
    Community Manager; testified at initial hearing

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Lawrence M. Stewart v. Canyon Gate Condominium Association, Inc.

Posted on by

Case Summary

Case ID 18F-H1818052-REL
Agency Arizona Department of Real Estate
Tribunal —
Decision Date 9/14/2018
Administrative Law Judge TS
Outcome complete
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Lawrence M. Stewart Counsel Pro Se
Respondent Canyon Gate Condominium Association, Inc. Counsel Mark K. Sahl, Esq., Nicolas C. S. Nogami, Esq.

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

18F-H1818052-REL Decision – 683622.pdf

Uploaded 2026-04-24T11:13:55 (95.5 KB)

18F-H1818052-REL Decision – 694095.pdf

Uploaded 2026-04-24T11:13:58 (90.8 KB)

18F-H1818052-REL Decision – 660026.pdf

Uploaded 2026-04-24T11:14:03 (91.5 KB)

18F-H1818052-REL Decision – 720468.pdf

Uploaded 2026-04-24T11:14:06 (103.5 KB)

Administrative Decision Briefing: Stewart v. Canyon Gate Condominium Association, Inc.

This briefing document provides a comprehensive analysis of the legal proceedings and final administrative decisions regarding the dispute between Lawrence M. Stewart and the Canyon Gate Condominium Association, Inc. (Case No. 18F-H1818052-REL and 18F-H1818052-REL-RHG).

Executive Summary

The matter originated from a petition filed by Lawrence M. Stewart on May 21, 2018, alleging that the Canyon Gate Condominium Association, Inc. violated Association Bylaws, specifically Section 5.4, regarding the denial of a variance for unauthorized changes made to common or limited common areas.

Mr. Stewart, while serving as a Board member, modified areas around his unit without prior authorization. Upon being notified of a violation of Section 5.1 of the Covenants, Conditions, and Restrictions (CC&Rs), he sought a formal variance. The Board, consisting of two other members, denied this request on February 18, 2018, leading to Mr. Stewart's resignation and subsequent legal action.

Across two hearings—an initial hearing on September 6, 2018, and a rehearing on January 2, 2019—Administrative Law Judge Thomas Shedden consistently ruled in favor of the Association. The central legal finding was that Bylaw Section 5.4 serves as a "shield" against liability for Board members rather than a "sword" for petitioners to challenge Board decisions. Consequently, the petition was dismissed, and the Association was deemed the prevailing party.

Detailed Analysis of Key Themes

1. Interpretation of Bylaw Section 5.4 (Indemnification and Liability)

The crux of the Petitioner's argument rested on Section 5.4 of the Association Bylaws. Mr. Stewart used this section to assert a "good faith" requirement for Board decisions.

  • The Provision: Section 5.4 states that as long as a Board member acts in "good faith on the basis of information actually possessed," they shall not be liable for damages or loss related to the approval or disapproval of plans or any act/failure to act by the Association.
  • The Legal Conflict: The Association argued that Section 5.4 was inapplicable because no Board member had been charged with an act requiring indemnity.
  • The Ruling: The Administrative Law Judge (ALJ) determined that Section 5.4 does not impose a duty on the Board to act in a specific way toward owners; rather, it is a liability shield. Mr. Stewart eventually acknowledged that Section 5.4 acts as a "shield" and not a "sword," admitting he cited it only because he could find no other "good faith" reference in the governing documents.
2. Allegations of Bias and Lack of Good Faith

Mr. Stewart contended that the Board's decision was not made in good faith and that Board member David Larson was specifically biased against him.

  • Evidence of Bias: Stewart cited Mr. Larson’s biography, meeting notes from November 2017 regarding "Fair Notice" of enforcement (towing, violation notices), and a letter Larson wrote in October 2018 urging members not to vote for Stewart in an election.
  • Evidence of Bad Faith: Stewart testified that the Board members were unwilling to physically inspect his changes and only took a "cursory look" at his photographs.
  • The Ruling: The ALJ found the evidence insufficient to prove bias or bad faith by a preponderance of the evidence. Regarding the meeting notes, Larson’s refusal to discuss Board business in driveways or his intent to enforce CC&Rs did not constitute legal bias against Mr. Stewart’s specific variance request.
3. "Pandora's Box" and Reasonable Enforcement

A significant theme was the Board's rationale for denying the variance.

  • The Association's Defense: The Board denied the request on the basis that granting it would "open a Pandora’s Box," encouraging other owners to request similar variances for common areas.
  • Selective Enforcement Claims: Mr. Stewart argued he was treated unfairly, presenting photos of other units allegedly not in conformity with the CC&Rs.
  • The Ruling: The ALJ determined that the Board's fear of a "Pandora's Box" was a reasonable position for a condominium association. Furthermore, the specifics of Stewart’s changes were deemed not germane to the decision if the Board's policy was to prevent a precedent of common area modifications. The evidence of other non-conforming units was dismissed because there was no proof those owners had requested or been denied variances, nor was it known if they had received prior approval.

Important Quotes with Context

Quote Context
"Mr. Stewart appeared to acknowledge that section 5.4 acts as a 'shield' and not a 'sword,' but he testified to the effect that that was the only section that included a 'good faith' requirement." Findings of Fact, Para 21 (Initial Decision). This highlights the Petitioner's struggle to find a legal basis for his claim within the governing documents.
"The Board disapproved his changes because they were fearful of opening a Pandora’s Box of people requesting changes to the common area. This was not an unreasonable position for the Board of a condominium association." Conclusions of Law, Para 7. The Judge validates the Association’s right to deny variances based on the risk of setting a precedent.
"A preponderance of the evidence is… evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue." Conclusions of Law, Para 3. This defines the standard of proof Mr. Stewart failed to meet in his allegations of bias.
"Bylaws Section 5.4 does not impose any duty on the Board members, but rather shields them from liability if they have acted in good faith." Conclusions of Law, Para 5 (Rehearing). This is the definitive legal interpretation that led to the dismissal of the petition.

Actionable Insights

For Homeowners and Board Members
  • Prior Authorization is Mandatory: Modifications to common or limited common areas must receive written approval before work begins. Attempting to secure a "variance" after the fact (as Mr. Stewart did) places the owner in a precarious legal position where the Board has broad discretion to deny the request to prevent setting a precedent.
  • Understanding Bylaw Limitations: General "good faith" clauses found in indemnification sections are typically intended to protect the Association and its officers from lawsuits; they do not necessarily provide a cause of action for an owner to overturn a Board's discretionary decision.
  • Evidence Standards in Administrative Hearings: To prove bias or "bad faith," a petitioner must provide specific, probative evidence that links the bias directly to the decision in question. General disagreements or a Board member’s rigorous enforcement of rules do not legally equate to bias.
  • Burden of Proof: In these administrative matters, the petitioner bears the burden of proof by a "preponderance of the evidence." If the evidence is equally balanced or insufficient to "incline a fair and impartial mind" to the petitioner's side, the case will be dismissed.
For Association Governance
  • Consistency in Rationale: The Board's use of a consistent rationale (preventing a "Pandora's Box") was viewed as reasonable by the court. Boards should document the policy-based reasons for denying variances to withstand legal scrutiny.
  • Recusal Protocols: While Mr. Stewart disputed whether he had agreed to recuse himself, the case underscores the importance of clear, documented recusal when a Board member has a personal interest in a matter before the Board.

Study Guide: Stewart v. Canyon Gate Condominium Association, Inc.

This study guide provides a comprehensive overview of the administrative law cases between Lawrence M. Stewart (Petitioner) and the Canyon Gate Condominium Association, Inc. (Respondent). It explores the legal disputes regarding condominium governance, homeowners' association (HOA) board conduct, and the interpretation of association bylaws.

Case Overview and Entities

The conflict arose when Lawrence M. Stewart, a condominium owner and former board member, made unauthorized changes to the common or limited common areas surrounding his unit. The resulting legal proceedings focused on whether the Association Board acted in good faith and within its authority when it denied Mr. Stewart's request for a variance to keep those changes.

Key Entities and Figures
Entity/Figure Role
Lawrence M. Stewart Petitioner; unit owner and former Board member of Canyon Gate Condominium Association.
Canyon Gate Condominium Association, Inc. Respondent; the homeowners' association governing the condominium complex.
Thomas Shedden Administrative Law Judge (ALJ) who presided over the hearings and issued the decisions.
David Larson Board member of the Association; accused of bias by Mr. Stewart.
Sandra Fernandez Board member of the Association during the dispute.
Arizona Department of Real Estate The state agency with authority over the matter under Ariz. Rev. Stat. Title 32.

Core Themes and Legal Principles

1. The Nature of Association Bylaws

Bylaws are legally viewed as a contract between the Association and the owners. Both parties are required to comply with the terms of this contract. When exercising authority under these bylaws, the Association must act reasonably.

2. The "Shield vs. Sword" Interpretation of Section 5.4

A central point of contention was Bylaws Article V, Section 5.4 (Liability).

  • The Provision: It states that Board members are not liable for damages or prejudice resulting from their acts (including approval or disapproval of plans) as long as they act in good faith based on information they possess.
  • The Interpretation: The court determined that Section 5.4 acts as a "shield" (protecting board members from liability) rather than a "sword" (a provision that owners can use to sue the board for lack of good faith in administrative decisions).
3. Standards of Evidence
  • Burden of Proof: The Petitioner (Mr. Stewart) carries the burden of proving his claims.
  • Preponderance of the Evidence: The standard of proof required. This is defined as evidence with the most "convincing force" or "superior evidentiary weight," sufficient to incline an impartial mind toward one side of the issue.
4. Board Reasonableness: The "Pandora’s Box" Defense

The Board denied Mr. Stewart’s variance request because they believed granting it would open a "Pandora’s Box," leading other owners to demand similar changes to common areas. The ALJ ruled this was a reasonable position for a condominium association board to take.

Procedural History

Date Event
November 15, 2017 Association counsel informs Mr. Stewart he is in violation of CC&Rs Section 5.1.
December 27, 2017 Association attorney erroneously writes that Mr. Stewart recused himself from the matter.
February 18, 2018 Board meeting held. Mr. Stewart resigns. The Board votes to deny the variance and orders restoration of the area.
May 21, 2018 Mr. Stewart files his petition with the Arizona Department of Real Estate.
September 6, 2018 Initial hearing conducted at the Office of Administrative Hearings.
September 14, 2018 ALJ issues decision dismissing the petition.
January 2, 2019 Rehearing conducted.
January 17, 2019 Final ALJ decision issued, again dismissing the petition and affirming the Association as the prevailing party.

Short-Answer Practice Questions

1. What specific section of the CC&Rs did the Association claim Mr. Stewart violated?

Answer: Section 5.1, by making changes to common or limited common areas without prior written permission.

2. Why did the ALJ conclude that the specific details of Mr. Stewart’s changes were not "germane" to the Board's decision?

Answer: Because the Board's denial was based on the policy of not wanting to set a precedent ("opening a Pandora’s Box") for common area modifications, the physical specifics of the changes were irrelevant to that policy-based refusal.

3. What evidence did Mr. Stewart provide to suggest David Larson was biased against him?

Answer: Mr. Stewart cited a biography of Larson, meeting notes where Larson gave "Fair Notice" of enforcement actions, Larson's refusal to discuss board business in driveways, and an October 2018 letter Larson wrote urging members not to vote for Stewart in an election.

4. Why was Mr. Stewart’s evidence regarding other non-conforming units deemed not probative?

Answer: Mr. Stewart could not prove those units had requested and been granted variances (as opposed to having pre-approval or being older than two years), meaning their status did not prove the Board treated him unfairly regarding his specific variance request.

5. How did the ALJ define "Preponderance of the Evidence"?

Answer: It is the greater weight of evidence that has the most convincing force; it is superior evidentiary weight that inclines a fair mind to one side even if it doesn't free the mind of all reasonable doubt.

Essay Prompts for Deeper Exploration

Prompt 1: The Scope of Good Faith and Liability

Analyze the Association’s Bylaw Section 5.4. Discuss the legal distinction between a provision that shields a director from personal liability and a provision that creates an actionable duty of "good faith" toward individual homeowners. Why did the ALJ determine that Mr. Stewart could not use Section 5.4 as a "sword"?

Prompt 2: Fairness in HOA Enforcement

Mr. Stewart argued that he was treated unfairly because other units were not in conformity with the CC&Rs. Evaluate the evidentiary requirements for a "selective enforcement" claim based on the case text. What must a petitioner prove to demonstrate that the board is acting inconsistently or in bad faith when denying a variance?

Prompt 3: Judicial Deference to Board Decisions

The ALJ found the Board’s "Pandora’s Box" argument to be a "reasonable position." Explore the balance of power between individual property rights and the collective authority of a homeowners' association. Under what circumstances should an Administrative Law Judge overrule the discretionary decision of a community board?

Glossary of Important Terms

  • Administrative Law Judge (ALJ): An official who presides over hearings and makes decisions regarding disputes involving government agencies (in this case, the Department of Real Estate).
  • CC&Rs: Covenants, Conditions, and Restrictions; the governing documents that dictate the rules for a planned community or condominium.
  • Common Area: Spaces within a condominium project that are owned or used by all members of the association.
  • Good Faith: An honest intent to act without taking an unfair advantage over another person; acting on the basis of information actually possessed.
  • Indemnification: A legal agreement to provide financial protection against loss or liability.
  • Limited Common Area: A portion of the common area reserved for the exclusive use of one or more (but fewer than all) of the units (e.g., a patio or walkway directly outside a unit).
  • Preponderance of the Evidence: The standard of proof in civil and administrative cases requiring that a fact be more likely true than not.
  • Recusal: The act of a person (like a board member) disqualifying themselves from participating in a decision due to a potential conflict of interest.
  • Variance: An official deviation from the set rules or bylaws granted by the governing body (the Board).

The "Pandora’s Box" Dilemma: Lessons from the Stewart vs. Canyon Gate HOA Dispute

1. Introduction: When Home Improvements Meet HOA Realities

Imagine the satisfaction of completing a home improvement project, only to receive a cease-and-desist letter from your HOA Board. This is the nightmare scenario for many homeowners: you’ve modified a common area or balcony, believing it was your right, only to find you have bypassed the Association’s governing documents. What follows is often a high-stakes legal chess match over board authority and the elusive definition of "good faith."

The dispute in Lawrence M. Stewart vs. Canyon Gate Condominium Association, Inc. serves as a masterclass in this conflict. When Mr. Stewart implemented unauthorized changes to the common areas around his unit, he triggered a legal battle that reached the Arizona Office of Administrative Hearings—not once, but twice. This case provides a critical look at why a Board’s decision to deny a variance is often legally fortified and illustrates the steep uphill climb homeowners face when alleging "bad faith."

2. The Conflict: Unauthorized Changes and the Request for a Variance

The friction began when Mr. Stewart modified common or limited common areas without securing prior Board approval. On November 15, 2017, the Association’s legal counsel issued a stark ultimatum: submit a written request for a variance or face a civil lawsuit to compel the restoration of the area.

At the time, the situation was complicated by the fact that Mr. Stewart was a sitting member of the Board. During a tense Board meeting on February 18, 2018, the atmosphere soured. Sensing that his colleagues, Sandra Fernandez and David Larson, had already made up their minds, Mr. Stewart resigned his position mid-meeting. Immediately following his resignation, the remaining two members voted unanimously to deny the variance.

Perhaps the most telling aspect of the legal proceedings that followed was that the Association presented no witnesses. They did not need to. By relying purely on the legal interpretation of the governing documents and the Petitioner’s failure to meet his burden of proof, the Association successfully defended its position without a single person taking the stand on its behalf.

3. The Legal Tug-of-War: Is Good Faith a "Shield" or a "Sword"?

Mr. Stewart’s primary legal gambit rested on Bylaw Section 5.4, which he argued required the Board to act in "good faith." However, the Association dismantled this argument by clarifying that the bylaw was never intended to be a "sword" used to overturn Board votes. Instead, it is an indemnification provision—a "shield" designed to protect Board members from personal financial liability.

The Administrative Law Judge (ALJ) emphasized that Section 5.4 protects members from damages or monetary loss. Because Mr. Stewart was seeking to validate a variance rather than suing for money, the "shield" was legally irrelevant to his cause of action.

Petitioner’s Interpretation (Mr. Stewart) Association’s Interpretation (Successful Argument)
Argued Section 5.4 imposes a performance duty on the Board to act in "good faith" when denying variances. Argued Section 5.4 is an indemnification provision protecting members from personal liability.
Attempted to use the section as a "sword" to invalidate the Board’s vote. Successfully used the section as a "shield" against liability for damages, not a standard for voting.
4. Proving Bias: Why the "Preponderance of Evidence" Matters

In administrative law, the "burden of proof" is the Petitioner's heaviest lift. Mr. Stewart was required to prove his case by a "Preponderance of Evidence." As defined in Black’s Law Dictionary 1373, this means:

"The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force… sufficient to incline a fair and impartial mind to one side of the issue rather than the other."

Mr. Stewart alleged that Board member David Larson was personally biased against him. To support this, he presented three pieces of evidence across the initial hearing and a subsequent rehearing:

  • A Professional Biography: A bio of Mr. Larson prepared by the property manager.
  • Meeting Notes: Notes from November 2017 where Mr. Larson used the term "Fair Notice" regarding towing and enforcement, and stated he was too busy to discuss Board business in driveways.
  • Election Correspondence (Rehearing Evidence): A letter from October 2018 where Mr. Larson urged members not to vote for Mr. Stewart in an upcoming election.

The ALJ found these "feelings" of bias legally insufficient. The judge noted that the "Fair Notice" comments were standard enforcement language, and the election letter—though part of a contentious rehearing process—did not prove the original variance denial was made in bad faith. Mr. Stewart could not point to any specific biased information, and the court ruled that personal friction does not automatically equate to a legal breach of duty.

5. The "Pandora’s Box" Defense and Selective Enforcement

The Association’s most potent defense was the "Pandora’s Box" argument. They argued that granting a variance for unauthorized work would set a community-wide precedent, effectively stripping the Board of its ability to enforce standards in the future.

Citing the legal precedent of Tierra Ranchos Homeowners Ass'n v. Kitchukov, the ALJ noted that an Association must act "reasonably." The judge found the "Pandora's Box" concern to be a quintessential example of reasonableness. Even if Mr. Stewart’s changes were not "readily seen by others," the Board’s duty is to the long-term integrity of the governing documents, not the aesthetics of a single unit.

Mr. Stewart also claimed "selective enforcement," providing photos of other non-conforming units. The ALJ rejected this evidence for three reasons:

  1. Lack of History: Stewart could not prove if those units had received variances more than two years prior.
  2. Pre-approval Unknown: He could not confirm if those changes had been pre-approved, rendering a variance unnecessary.
  3. No Probative Value: The photos were legally irrelevant because Stewart failed to show those owners had actually gone through the same variance process and been granted an exception.
6. Conclusion: Navigating HOA Disputes with Clarity

The final ruling was clear: the petition was dismissed, and the Canyon Gate Condominium Association was deemed the prevailing party. This case reinforces that Boards are afforded significant discretion when they act to prevent a "Pandora's Box" of non-compliance. Consistency is a Board's greatest defense, and the burden of overturning a decision is a high bar that requires more than just a sense of unfairness.

Key Takeaways for Homeowners
  • [ ] Prior Approval is Non-Negotiable: Always secure written approval from the Board before modifying common or limited common areas.
  • [ ] The "Shield" is Not a "Sword": Understand that bylaws regarding "good faith" are often designed to protect Board members from personal liability, not to provide a path to overturn their votes.
  • [ ] Evidence Over Emotion: To win an administrative hearing, you must provide a "preponderance of evidence." Personal feelings of bias or animosity are rarely enough.
  • [ ] Respect the Precedent: A Board’s primary responsibility is to the Governing Documents. Decisions based on preventing a negative community-wide precedent are almost always viewed as "reasonable" by the courts.

By adhering strictly to the governing documents and ensuring all approvals are in hand before a single hammer swings, homeowners can avoid the "Pandora’s Box" of costly, protracted litigation.

Case Participants

Petitioner Side

  • Lawrence M. Stewart (Petitioner)
    Appeared on his own behalf

Respondent Side

  • Mark K. Sahl (Counsel for Respondent)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
  • Nichols C. S. Nogami (Counsel for Respondent)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Also listed as Nicolas C. S. Nogami in related rehearing documents
  • Sandra Fernandez (Board Member)
    Canyon Gate Condominium Association, Inc.
  • David Larson (Board Member)
    Canyon Gate Condominium Association, Inc.

Neutral Parties

  • Thomas Shedden (Administrative Law Judge)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • F. Del Sol (Administrative Staff)
    Office of Administrative Hearings

Michael J. Stoltenberg vs. Rancho Del Oro Homeowners Association

Posted on by

Case Summary

Case ID 18F-H1818023-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-04-17
Administrative Law Judge Velva Moses-Thompson
Outcome 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.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael J. Stoltenberg Counsel —
Respondent Rancho Del Oro Homeowners Association Counsel Lydia Linsmeier, Esq.

Alleged Violations

CC&R section 2.5

Outcome Summary

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 2026-04-24T11:09:54 (77.0 KB)

18F-H1818023-REL Decision – 629162.pdf

Uploaded 2026-01-23T17:23:08 (77.0 KB)

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: 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.

Ellipsis

Case Participants

Petitioner Side

  • Michael J. Stoltenberg (petitioner)

Respondent Side

  • Lydia Peirce Linsmeier (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Nicole Payne (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Diana Crites (community manager)
    Rancho Del Oro Homeowners Association
    Testified for Respondent
  • James Van Sickle (board member)
    Rancho Del Oro Homeowners Association
    Chairman of the Board; testified for Respondent

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Gary W Moselle vs. Desert Mountain Master Association

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Case Summary

Case ID 18F-H1817005-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2018-05-10
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Gary W. Moselle Counsel —
Respondent Desert Mountain Master Association Counsel Curtis Ekmark

Alleged Violations

A.R.S. § 33-1804(A)

Outcome Summary

The ALJ denied the Petitioner's petition, concluding that the DMMA Communications committee meeting was not subject to the open meetings law because the committee did not hold 'regularly scheduled' meetings.

Why this result: Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804, as the committee meeting in question did not meet the definition of a 'regularly scheduled committee meeting' required to be open to members.

Key Issues & Findings

Whether the Respondent violated the open meeting statute by closing a committee meeting.

Petitioner alleged that the DMMA Communications committee meeting was improperly closed and subject to open meeting laws. The ALJ determined the committee did not hold 'regularly scheduled' meetings (defined as meetings occurring at regular intervals) and was therefore not subject to A.R.S. § 33-1804.

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1804
  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
  • Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)

Analytics Highlights

Topics: HOA Open Meetings Law, Committee Meeting, Regularly Scheduled
Additional Citations:

  • A.R.S. § 33-1804
  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
  • Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)

Video Overview

Audio Overview

Decision Documents

18F-H1817005-REL Decision – 634096.pdf

Uploaded 2026-04-24T11:07:35 (106.4 KB)

18F-H1817005-REL Decision – 605190.pdf

Uploaded 2026-04-24T11:07:41 (77.0 KB)

Briefing Document: Moselle v. Desert Mountain Master Association

Executive Summary

This document summarizes the Administrative Law Judge Decision in case number 18F-H1817005-REL-RHG, a dispute between homeowner Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (DMMA/Respondent). The central issue was whether a “closed” meeting of the DMMA Communications Committee on September 6, 2017, violated Arizona’s open meetings law for planned communities, A.R.S. § 33-1804.

The case hinged on the interpretation of the phrase “regularly scheduled committee meetings.” The Petitioner argued this meant any meeting scheduled in a normal fashion, while the Respondent contended it applied only to meetings occurring at fixed, regular intervals. The Respondent provided evidence that the committee in question met infrequently and without a set schedule.

The Administrative Law Judge ultimately ruled in favor of the Respondent, concluding that “regularly scheduled” refers to meetings held at regular intervals. The judge found that the specific language of the statute requiring only “regularly scheduled” committee meetings to be open superseded the statute’s general policy statement in favor of open meetings. The Petitioner’s petition was denied.

Case Background and Timeline

The dispute originated from a petition filed by Gary W. Moselle with the Arizona Department of Real Estate, alleging that the DMMA violated state law by holding a closed committee meeting. The case progressed through an initial hearing, a decision, a successful request for a rehearing based on new evidence, and a final binding decision.

September 1, 2017

Gary W. Moselle files a petition with the Arizona Department of Real Estate.

September 5, 2017

The Department issues a notice to DMMA regarding the petition.

September 6, 2017

The DMMA Communications Committee holds a closed meeting, which Moselle is not permitted to attend.

September 18, 2017

DMMA files an answer to the petition, denying all allegations.

November 17, 2017

The initial hearing is held before the Office of Administrative Hearings.

December 7, 2017

The Administrative Law Judge issues an initial decision denying the petition.

January 4, 2018

Moselle files a request for a rehearing, citing newly discovered material evidence.

January 26, 2017

The Department grants the request for a rehearing.

April 20, 2018

A rehearing is conducted.

May 10, 2018

The Administrative Law Judge issues a final, binding decision denying the Petitioner’s petition.

The Central Legal Question: Interpretation of A.R.S. § 33-1804

The core of the dispute was the correct interpretation of Arizona Revised Statute § 33-1804(A), which governs open meetings for planned communities. The key statutory language under scrutiny was:

“…all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”

The case required the Administrative Law Judge to define the term “regularly scheduled” in the context of homeowners’ association committee meetings.

Arguments Presented

Petitioner’s Position (Gary W. Moselle)

The Petitioner’s case was built on a broad interpretation of the statute, emphasizing the legislative intent for transparency.

• Definition of “Regularly Scheduled”: Moselle argued that “regularly scheduled” should be interpreted to mean “scheduled in a normal fashion,” rather than strictly meaning meetings held at fixed intervals (e.g., monthly or quarterly).

• Legislative Policy: He pointed to A.R.S. § 33-1804(F), which states a broad policy that “all meetings of a planned community… be conducted openly.” He argued this policy statement should guide the interpretation of subsection (A) in favor of openness for all committee meetings.

• Committee Practices: In his prehearing brief, Moselle asserted that five of the six “functioning DMMA committees” meet “at the request of the chair,” implying this was the normal scheduling method and should fall under the statute.

Respondent’s Position (Desert Mountain Master Association)

The Respondent advocated for a narrower, more literal interpretation of the statute.

• Definition of “Regularly Scheduled”: DMMA argued the phrase meant meetings that “occurred at regular intervals, such as on the third Thursday of every month, quarterly, or even annually.”

• Evidence of Infrequent Meetings: DMMA presented testimony that the Communications Committee met infrequently and without a fixed interval. The committee held only four meetings in 2016 and 2017: two in April 2016, one in June 2017, and the contested meeting on September 6, 2017.

• Lack of Board Action: To support the claim that the committee was not conducting core business of the Board, DMMA asserted that a recommendation made by the committee (to send an email blast) was not acted upon by the DMMA Board of Directors.

Judicial Findings and Legal Conclusions

The Administrative Law Judge, Tammy L. Eigenheer, denied the petition, siding with the Respondent’s interpretation of the statute. The decision was based on principles of statutory construction and the evidence presented.

1. Statutory Interpretation and Plain Language

The primary goal in construing a statute is to ascertain legislative intent by first looking at the plain language. The Judge concluded that the plain language of A.R.S. § 33-1804(A) supports the interpretation that “regularly scheduled committee meetings” are those that “occur at regular intervals.” While acknowledging that the phrase could have multiple meanings, this did not preclude an interpretation based on its plain language.

2. Petitioner’s Contradictory Testimony

A key factor in the decision was the Petitioner’s own testimony during cross-examination. When asked about his assertion that five DMMA committees meet at the request of the chair, the Judge noted:

“Petitioner stated that five of the committees listed in the Volunteer Request page ‘meet at the request of the chair and they’re not regularly scheduled.'” (Hearing record 30:52 – 31:15)

The Judge found that in this statement, the Petitioner himself used the phrase “not regularly scheduled” to describe meetings that were called as needed rather than held at fixed intervals, thereby undermining his own legal argument.

3. Specific Language Overrides General Policy

The Judge addressed the Petitioner’s argument regarding the statute’s broad policy statement in favor of open meetings (A.R.S. § 33-1804(F)). The decision explicitly states:

“The general policy statement in favor of open meetings set forth in A.R.S. § 33-1804(F) does not override the specific provisions of A.R.S. § 33-1804(A) that only ‘regularly scheduled’ committee meetings must be open to the members.”

This conclusion establishes that the specific qualifier “regularly scheduled” in subsection (A) creates a deliberate exception to the general policy for certain committee meetings.

Final Order and Implications

Order: The Administrative Law Judge ordered that the Petitioner’s petition be denied.

Conclusion: The Judge concluded that at the time of the September 6, 2017 meeting, the DMMA Communication Committee did not hold “regularly scheduled” meetings as defined by the statute. Therefore, the Respondent’s decision to hold a closed meeting was not a violation of A.R.S. § 33-1804.

This decision, issued on May 10, 2018, is binding on the parties. Any appeal must be filed with the superior court within thirty-five days from the date of service.

Study Guide: Moselle v. Desert Mountain Master Association (No. 18F-H1817005-REL-RHG)

This guide provides a detailed review of the Administrative Law Judge Decision in the case between Petitioner Gary W. Moselle and Respondent Desert Mountain Master Association. It includes a quiz with an answer key to test comprehension, essay questions for deeper analysis, and a glossary of key terms.

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Short-Answer Quiz

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

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

2. What specific event and action by the Respondent prompted the Petitioner to file his initial petition?

3. What was the Respondent’s primary argument at the November 17, 2017, hearing for why the Communications committee was not subject to the open meetings law?

4. What was the initial outcome of the case following the first hearing, as decided on December 7, 2017?

5. On what grounds did the Petitioner successfully file for a rehearing of the case?

6. How did the Petitioner, Gary W. Moselle, interpret the statutory phrase “regularly scheduled committee meetings”?

7. How did the Respondent, DMMA, interpret the same phrase, “regularly scheduled committee meetings”?

8. According to the document, what is the primary goal when construing a statute, and what is the first step in that process?

9. What was the significance of the policy statement in A.R.S. § 33-1804(F) regarding open meetings, and how did the judge rule on its applicability?

10. What was the final order issued by the Administrative Law Judge on May 10, 2018, and what was its legal effect on the parties?

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Answer Key

1. The primary parties were Petitioner Gary W. Moselle, a homeowner, and Respondent Desert Mountain Master Association (DMMA), an association of homeowners in Scottsdale, Arizona. Mr. Moselle filed a petition against the DMMA.

2. The Petitioner filed his petition after the Chair of the DMMA’s Communications Committee alleged that a scheduled meeting was “closed” and not subject to Arizona’s open meeting statute. The Petitioner was subsequently not allowed to attend the closed committee meeting held on September 6, 2017.

3. The Respondent argued that the Communications committee did not meet regularly and was therefore not subject to the open meetings law. To support this, they presented testimony that the committee had only met four times in 2016 and 2017.

4. Following the first hearing, the Administrative Law Judge issued a decision on December 7, 2017, in which the Petitioner’s petition was denied.

5. The Petitioner requested a rehearing based on what he cited as newly discovered material evidence, specifically an email sent by the Respondent after the first hearing concluded. He also argued the initial decision was contrary to law and that the Respondent may have misled the judge.

6. The Petitioner argued that “regularly scheduled” should be interpreted to mean scheduled in a normal or ordinary fashion. He contended that because the September 6, 2017, meeting was scheduled in this manner, it should have been open.

7. The Respondent argued that the phrase “regularly scheduled” meant meetings that occurred at regular intervals, such as on a specific day each month, quarterly, or annually. They contended that since the Communications committee met infrequently and without an established interval, its meetings were not “regularly scheduled.”

8. The primary goal when construing a statute is to ascertain the legislature’s intent. The first step is to look at the text of the statute itself and ascribe its plain meaning if the language is clear.

9. The policy statement in A.R.S. § 33-1804(F) declares that it is the state’s policy for all meetings of a planned community to be conducted openly. The judge ruled that this general policy statement does not override the specific provision in A.R.S. § 33-1804(A) that only “regularly scheduled” committee meetings must be open.

10. The final order, issued on May 10, 2018, was that the Petitioner’s petition is denied. As this order was the result of a rehearing, it was binding on the parties, with any further appeal requiring judicial review in the superior court.

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Essay Questions

The following questions are designed for longer, more analytical responses. Answers are not provided.

1. Analyze the competing interpretations of “regularly scheduled” as presented by the Petitioner and Respondent. Discuss which argument the Administrative Law Judge found more compelling and explain the legal reasoning provided in the decision.

2. Discuss the role and significance of Arizona Revised Statute (A.R.S.) § 33-1804(F) in this case. Explain how the Petitioner used this section to support his argument and why the Administrative Law Judge concluded it did not override the specific language in A.R.S. § 33-1804(A).

3. Trace the procedural history of the case from the initial petition filing on September 1, 2017, to the final order on May 10, 2018. Include key dates, events (hearings, decisions, requests), and the outcomes at each stage.

4. Evaluate the evidence presented by the Respondent regarding the meeting frequency of the DMMA Communication committee. How did this evidence support the Respondent’s legal argument and influence the final decision?

5. Based on the “Conclusions of Law” section, explain the standard of proof required in this proceeding (preponderance of the evidence) and the principles of statutory construction the judge applied to interpret the relevant statute.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and issues a decision on the matter.

A.R.S. § 33-1804

The specific Arizona Revised Statute at the center of the legal dispute. It mandates that meetings of a members’ association, its board of directors, and any “regularly scheduled committee meetings” must be open to all members of the association.

Cross-examination

A phase during the hearing where a party or their representative questions a witness from the opposing side. Petitioner Moselle underwent cross-examination during the April 20, 2018, rehearing.

Department

The Arizona Department of Real Estate, the state agency with which the Petitioner filed his initial petition and which has jurisdiction to hear disputes between homeowners and condominium owners associations.

An abbreviation for Desert Mountain Master Association, the Respondent in the case and the homeowners association for a planned community in Scottsdale, Arizona.

Open Meetings Law

The legal requirement, as outlined in A.R.S. § 33-1804, that certain meetings of a homeowners association must be open to all members, who must be permitted to attend and speak.

Petitioner

The party who initiates a legal action by filing a petition. In this case, the petitioner was homeowner Gary W. Moselle.

Preponderance of the Evidence

The burden of proof required in this proceeding. It is defined as “Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

Respondent

The party against whom a petition is filed. In this case, the respondent was the Desert Mountain Master Association (DMMA).

Statutory Construction

The process of interpreting and applying legislation. The judge noted that the primary goal is to ascertain legislative intent, first by looking at the plain language of the statute’s text.

Your HOA Can Legally Hold Secret Committee Meetings. Here’s How.

Most homeowners operate under a reasonable assumption: meetings that concern their community association should be open for them to attend. Transparency is a cornerstone of trust between residents and their HOA board. But what if some of those meetings, like committee meetings, could be held in private, entirely legally? The answer, revealed in a contentious Arizona case, lies in a two-word loophole that every homeowner should understand.

A legal case from Scottsdale, Arizona, Moselle vs. Desert Mountain Master Association, hinged on this very issue. It revealed a surprising and important nuance in the law, showing how specific wording can create exceptions to the general rule of open governance.

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1. The “Regularly Scheduled” Loophole That Allows for Closed Meetings

The central conflict of the case began when a homeowner, Gary Moselle, was barred from attending a Communications Committee meeting for his HOA, the Desert Mountain Master Association (DMMA). He filed a petition, arguing this action violated Arizona’s open meeting law for planned communities.

But the homeowner’s argument ran into a wall: the precise text of the law. The Administrative Law Judge’s ruling hinged on the wording of A.R.S. § 33-1804(A), which mandates openness for “any regularly scheduled committee meetings.” The judge found that the Communications Committee meeting was legally closed because it was not “regularly scheduled.”

Everything came down to the court’s interpretation of two words: “regularly scheduled.”

• The Homeowner’s Argument: Mr. Moselle contended that “regularly scheduled” simply meant “scheduled in a normal fashion.”

• The Court’s Conclusion: The HOA and the judge determined that the phrase means meetings that “occur at regular intervals,” such as monthly, quarterly, or annually.

The evidence supported the court’s conclusion. The DMMA Communications committee had only met four times in 2016 and 2017. This ad-hoc pattern was crucial evidence that the meetings were not “regularly scheduled” in the way the law required.

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2. Why a Law’s General Policy Doesn’t Always Overrule Its Specific Text

The petitioner argued that the law’s explicit policy statement, which strongly favors open meetings, should have been the guiding principle. He pointed to the text of A.R.S. § 33-1804(F):

It is the policy of this state as reflected in this section that all meetings of a planned community, whether meetings of the members’ association or meetings of the board of directors of the association, be conducted openly… and shall construe any provision of this section in favor of open meetings.

The judge’s conclusion illustrates a fundamental principle of legal interpretation: the specific almost always trumps the general. Despite the clear declaration of policy, the judge found that it did not override the more precise provision in the law. The general policy favoring open meetings could not change the fact that A.R.S. § 33-1804(A) explicitly limits the open meeting requirement to only “regularly scheduled” committee meetings.

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3. A Petitioner’s Own Words Undercut His Argument

The case took a surprising turn, however, when the petitioner himself handed the association its strongest piece of evidence. While trying to make a point about other committees within the DMMA, Mr. Moselle stated that five of them “meet at the request of the chair and they’re not regularly scheduled.”

This statement was a moment of legal irony that proved devastating to his case. The judge noted in the final decision that the petitioner’s own language aligned perfectly with the court’s ultimate interpretation. In a formal hearing, Mr. Moselle inadvertently defined the key term against his own interest, drawing a clear distinction between meetings called on an as-needed basis (“at the request of the chair”) and those that are “regularly scheduled.” This admission provided the exact plain-language interpretation the judge needed to resolve the ambiguity in the case at hand, significantly weakening the petitioner’s entire position.

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Conclusion: A Lesson in Legal Precision

The ultimate lesson from this case is that while homeowner transparency laws are powerful, their protections are defined by precise legal wording. Seemingly small details can have significant consequences. In this Arizona case, the distinction between ad-hoc meetings called as needed and those that occur at regular, predictable intervals was the deciding factor that allowed a committee meeting to be held behind closed doors.

This raises a critical question for homeowners and boards alike: Does this legal distinction provide necessary flexibility for informal committee work, or is it a loophole that ultimately undermines the spirit of open governance in our communities?

Case Participants

Petitioner Side

  • Gary W. Moselle (petitioner)
    Appeared on his own behalf; Chair of the Communications Committee

Respondent Side

  • Curtis Ekmark (respondent attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
  • Charles Markle (respondent attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Administrative Law Judge
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Felicia Del Sol (staff)
    Served order upon parties