ARS 33-1213, ARS 33-1242, ARS 33-1248, ARS 33-1258
Outcome Summary
Petitioner was deemed the prevailing party regarding the alleged code of conduct violation because the code was not properly enacted when the violation occurred. The Respondent was ordered to refund the $500.00 filing fee and comply with community documents going forward.
Key Issues & Findings
Petitioner's alleged violation of the Respondent’s code of conducted based on Petitioner’s conduct at a board meeting on December 14, 2020
Whether the violation and associated fine issued to the Petitioner based on her conduct at a December 14, 2020 board meeting were proper, given that the code of conduct governing the violation was not properly enacted at that time.
Orders: Respondent ordered to pay Petitioner the filing fee of $500.00 and directed to comply with the requirements of its Community Documents going forward.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
32-2199
32-2199.01
32-2199.02
41-1092.09
33-1213
33-1242
33-1248
33-1258
Analytics Highlights
Topics: HOA Dispute, Code of Conduct, Violation, Procedural Compliance, Condominium Law, Filing Fee Refund
The case was dismissed because the Administrative Law Judge determined the Wintergardens Co-Operative, a cooperative mobile home park, did not qualify as a 'planned community' or 'condominium association' under Title 33, Chapter 9 or 16, thus the Arizona Department of Real Estate lacked jurisdiction to hear the dispute.
Why this result: The Respondent was found not to be a 'Planned Community' because its shareholders were lessees, not owners of 'separately owned lots, parcels or units' as required by A.R.S. § 33-1802(4).
Key Issues & Findings
Open Meeting Requirements
Petitioner alleged Respondent failed to comply with the open meeting requirements of A.R.S. § 33-1804.
Orders: The case was dismissed after Respondent's Motion to Dismiss was granted.
Filing fee: $0.00
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1804
A.R.S. § 33-1802(4)
A.R.S. § 32-2199.01(A)
Financial Records Provision
Petitioner alleged Respondent failed to provide certain financial records as required by A.R.S. § 33-1810.
Orders: The case was dismissed after Respondent's Motion to Dismiss was granted.
Filing fee: $0.00
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1810
A.R.S. § 33-1802(4)
A.R.S. § 32-2199.01(A)
Video Overview
Audio Overview
Decision Documents
23F-H059-REL Decision – 1074375.pdf
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23F-H059-REL Decision – 1089824.pdf
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23F-H059-REL Decision – 1089829.pdf
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23F-H059-REL Decision – 1091579.pdf
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Study Guide – 23F-H059-REL
{ “case”: { “docket_no”: “23F-H059-REL”, “case_title”: “Charlotte Tande vs. Wintergardens Co-Operative”, “decision_date”: “2023-09-05”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the Arizona Department of Real Estate have jurisdiction to hear disputes regarding housing cooperatives?”, “short_answer”: “No, not if the cooperative does not meet the legal definition of a ‘planned community’ or ‘condominium.'”, “detailed_answer”: “The Department only has jurisdiction over disputes involving condominium associations or planned community associations. If a housing cooperative does not fit the statutory definition of these entities (e.g., shareholders are lessees rather than owners of separate lots), the Department cannot hear the dispute.”, “alj_quote”: “Therefore, because Respondent does not fall within the definition of a planned community, the Department does not have jurisdiction to hear a dispute between Petitioner and Respondent.”, “legal_basis”: “A.R.S. § 32-2199.01(A); A.R.S. § 33-1802(4)”, “topic_tags”: [ “Jurisdiction”, “Cooperatives”, “Planned Community Definition” ] }, { “question”: “If I have a proprietary lease in a cooperative, am I considered an ‘owner’ for the purpose of filing an HOA dispute?”, “short_answer”: “Likely not, unless you hold title to a separately owned lot, parcel, or unit.”, “detailed_answer”: “Even if you own a share of the cooperative corporation, if you are a lessee under a proprietary lease and do not own a separate lot or unit, you may not meet the definition of an owner required to classify the community as a ‘planned community’ under Arizona law.”, “alj_quote”: “While the shareholders may be owners of a share of Respondent as an entity, nothing in any of the pleadings indicated that the shareholders were owners of any ‘separately owned lots, parcels or units.'”, “legal_basis”: “A.R.S. § 33-1802(4)”, “topic_tags”: [ “Ownership Status”, “Lease vs Ownership”, “Definitions” ] }, { “question”: “What is the legal definition of a ‘Planned Community’ in Arizona?”, “short_answer”: “It is a development where owners of separately owned lots are mandatory members of an association and must pay assessments.”, “detailed_answer”: “A planned community is defined as a real estate development managed by a nonprofit corporation where the declaration states that owners of separately owned lots, parcels, or units are mandatory members and are required to pay assessments.”, “alj_quote”: ““Planned community” means a real estate development… in which the declaration expressly states both that the owners of separately owned lots, parcels or units are mandatory members and that the owners are required to pay assessments to the association for these purposes.“, “legal_basis”: “A.R.S. § 33-1802(4)”, “topic_tags”: [ “Definitions”, “Planned Community” ] }, { “question”: “Can the Administrative Law Judge give me legal advice if I am representing myself?”, “short_answer”: “No, the Office of Administrative Hearings cannot provide legal advice to parties.”, “detailed_answer”: “The ALJ must remain neutral and cannot offer guidance or legal advice to either party involved in the dispute.”, “alj_quote”: “To the extent Petitioner was asking the Administrative Law Judge for guidance, the Office of Administrative Hearings cannot provide parties with legal advice.”, “legal_basis”: “Procedural Rule”, “topic_tags”: [ “Procedural”, “Legal Advice”, “OAH Role” ] }, { “question”: “What happens to my hearing if the judge determines the community is not a planned community?”, “short_answer”: “The case will be dismissed and the hearing vacated.”, “detailed_answer”: “If the judge finds that the community does not meet the statutory definition of a planned community or condominium, the ADRE/OAH lacks subject matter jurisdiction, and the motion to dismiss will be granted.”, “alj_quote”: “IT IS ORDERED granting Respondent’s Motion to Dismiss. The hearing in this matter is vacated from the calendar of the Office of Administrative Hearings.”, “legal_basis”: “Jurisdiction”, “topic_tags”: [ “Dismissal”, “Hearing Process”, “Jurisdiction” ] } ] }
Blog Post – 23F-H059-REL
{ “case”: { “docket_no”: “23F-H059-REL”, “case_title”: “Charlotte Tande vs. Wintergardens Co-Operative”, “decision_date”: “2023-09-05”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the Arizona Department of Real Estate have jurisdiction to hear disputes regarding housing cooperatives?”, “short_answer”: “No, not if the cooperative does not meet the legal definition of a ‘planned community’ or ‘condominium.'”, “detailed_answer”: “The Department only has jurisdiction over disputes involving condominium associations or planned community associations. If a housing cooperative does not fit the statutory definition of these entities (e.g., shareholders are lessees rather than owners of separate lots), the Department cannot hear the dispute.”, “alj_quote”: “Therefore, because Respondent does not fall within the definition of a planned community, the Department does not have jurisdiction to hear a dispute between Petitioner and Respondent.”, “legal_basis”: “A.R.S. § 32-2199.01(A); A.R.S. § 33-1802(4)”, “topic_tags”: [ “Jurisdiction”, “Cooperatives”, “Planned Community Definition” ] }, { “question”: “If I have a proprietary lease in a cooperative, am I considered an ‘owner’ for the purpose of filing an HOA dispute?”, “short_answer”: “Likely not, unless you hold title to a separately owned lot, parcel, or unit.”, “detailed_answer”: “Even if you own a share of the cooperative corporation, if you are a lessee under a proprietary lease and do not own a separate lot or unit, you may not meet the definition of an owner required to classify the community as a ‘planned community’ under Arizona law.”, “alj_quote”: “While the shareholders may be owners of a share of Respondent as an entity, nothing in any of the pleadings indicated that the shareholders were owners of any ‘separately owned lots, parcels or units.'”, “legal_basis”: “A.R.S. § 33-1802(4)”, “topic_tags”: [ “Ownership Status”, “Lease vs Ownership”, “Definitions” ] }, { “question”: “What is the legal definition of a ‘Planned Community’ in Arizona?”, “short_answer”: “It is a development where owners of separately owned lots are mandatory members of an association and must pay assessments.”, “detailed_answer”: “A planned community is defined as a real estate development managed by a nonprofit corporation where the declaration states that owners of separately owned lots, parcels, or units are mandatory members and are required to pay assessments.”, “alj_quote”: ““Planned community” means a real estate development… in which the declaration expressly states both that the owners of separately owned lots, parcels or units are mandatory members and that the owners are required to pay assessments to the association for these purposes.“, “legal_basis”: “A.R.S. § 33-1802(4)”, “topic_tags”: [ “Definitions”, “Planned Community” ] }, { “question”: “Can the Administrative Law Judge give me legal advice if I am representing myself?”, “short_answer”: “No, the Office of Administrative Hearings cannot provide legal advice to parties.”, “detailed_answer”: “The ALJ must remain neutral and cannot offer guidance or legal advice to either party involved in the dispute.”, “alj_quote”: “To the extent Petitioner was asking the Administrative Law Judge for guidance, the Office of Administrative Hearings cannot provide parties with legal advice.”, “legal_basis”: “Procedural Rule”, “topic_tags”: [ “Procedural”, “Legal Advice”, “OAH Role” ] }, { “question”: “What happens to my hearing if the judge determines the community is not a planned community?”, “short_answer”: “The case will be dismissed and the hearing vacated.”, “detailed_answer”: “If the judge finds that the community does not meet the statutory definition of a planned community or condominium, the ADRE/OAH lacks subject matter jurisdiction, and the motion to dismiss will be granted.”, “alj_quote”: “IT IS ORDERED granting Respondent’s Motion to Dismiss. The hearing in this matter is vacated from the calendar of the Office of Administrative Hearings.”, “legal_basis”: “Jurisdiction”, “topic_tags”: [ “Dismissal”, “Hearing Process”, “Jurisdiction” ] } ] }
Case Participants
Petitioner Side
Charlotte Tande(petitioner)
Respondent Side
Beth Mulcahy(attorney) Mulcahy Law Firm, PC Esq.
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings Signed Orders dated July 18, 2023 and September 5, 2023
Susan Nicolson(Commissioner) Arizona Department of Real Estate
Alyssa Leverette(ALJ) Office of Administrative Hearings Signed Minute Entry granting continuance dated September 5, 2023
AHansen(staff) Arizona Department of Real Estate Listed as contact/recipient for transmissions
vnunez(staff) Arizona Department of Real Estate Listed as contact/recipient for transmissions
djones(staff) Arizona Department of Real Estate Listed as contact/recipient for transmissions
labril(staff) Arizona Department of Real Estate Listed as contact/recipient for transmissions
CC&Rs Section 4.3 Storage, Section 4.17 Motor Vehicles, Community Guidelines 2007
Outcome Summary
The Administrative Law Judge dismissed the petition, finding that Petitioner failed to establish by a preponderance of the evidence that the North Canyon Ranch Owners Association violated its governing documents regarding the storage of a truck camper.
Why this result: Petitioner failed to meet the burden of proof. The ALJ concluded that the Petitioner's 'truck camper' falls within the scope of prohibited items, specifically as 'other similar equipment' under the CC&Rs and rules, making her argument one of semantics.
Key Issues & Findings
Whether the HOA violated its governing documents by issuing a fine for parking a mounted truck camper, based on the Petitioner's claimed 'legal loophole'.
Petitioner claimed a 'legal loophole' existed because the governing documents prohibited 'unmounted pickup camper units' or 'detached campers,' but not her currently mounted/attached truck camper. The ALJ found the truck camper was unequivocally prohibited as 'other similar equipment' under the CC&Rs and Rules, dismissing the petition.
Orders: Petition dismissed. No action is required of Respondent in this matter.
This legal transcript and subsequent judicial decision detail a dispute between homeowner Shawna Townsend and the North Canyon Ranch Owners Association regarding a fine for storing a truck camper in public view. Townsend argued that her equipment fell into a legal loophole because the association’s rules specifically prohibited “unmounted” or “detached” campers, while hers remained attached to her vehicle. In contrast, the Homeowners Association maintained that the camper violated multiple regulations prohibiting the storage of recreational type vehicles and similar equipment in driveways. During the administrative hearing, testimony was provided regarding the enforcement consistency of the community’s governing documents and the specific definitions of recreational vehicles under Arizona law. Ultimately, the Administrative Law Judge ruled in favor of the association, determining that the truck camper was clearly prohibited as “similar equipment” regardless of its attachment status. The petition was dismissed, confirming that the association acted within its authority when issuing the violation notices and fines.
What are the core legal arguments regarding the truck camper loophole?
How did the Administrative Law Judge rule on the association’s enforcement?
How do North Canyon Ranch guidelines define recreational vehicles and storage?
Thursday, February 12
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Today • 2:12 PM
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This legal transcript and subsequent judicial decision detail a dispute between homeowner Shawna Townsend and the North Canyon Ranch Owners Association regarding a fine for storing a truck camper in public view. Townsend argued that her equipment fell into a legal loophole because the association’s rules specifically prohibited “unmounted” or “detached” campers, while hers remained attached to her vehicle. In contrast, the Homeowners Association maintained that the camper violated multiple regulations prohibiting the storage of recreational type vehicles and similar equipment in driveways. During the administrative hearing, testimony was provided regarding the enforcement consistency of the community’s governing documents and the specific definitions of recreational vehicles under Arizona law. Ultimately, the Administrative Law Judge ruled in favor of the association, determining that the truck camper was clearly prohibited as “similar equipment” regardless of its attachment status. The petition was dismissed, confirming that the association acted within its authority when issuing the violation notices and fines.
What are the core legal arguments regarding the truck camper loophole?
How did the Administrative Law Judge rule on the association’s enforcement?
How do North Canyon Ranch guidelines define recreational vehicles and storage?
Thursday, February 12
Save to note
Today • 2:12 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
Shawna Townsend(petitioner) Appeared on her own behalf; also referred to as Shauna Townsen or Miss Townsen
Michael Townsen(co-owner) Co-owner and recipient of violation notices with Petitioner
Respondent Side
Haidyn DiLorenzo(HOA attorney) Represented Respondent North Canyon Ranch Owners Association
Justin DeLuca(HOA attorney) Represented Respondent North Canyon Ranch Owners Association
Josey Perkins(community manager/witness) North Canyon Ranch Owners Association Community Manager for the association, testified as a witness (also referred to as Joy Perkins)
Riner(board member) North Canyon Ranch Owners Association Board of Directors Made motion to deny petitioner's appeal
Robera Holler(board member) North Canyon Ranch Owners Association Board of Directors Seconded motion to deny petitioner's appeal
Petra Paul(Executive VP of Management Services) Management Services Vice President of management services, communicated with Petitioner about the appeal
Beth Mulcahy(HOA attorney) Mulcahy Law Firm, PC Listed as contact for transmission of the decision
Neutral Parties
Sondra J. Vanella(ALJ) OAH Administrative Law Judge (also referred to as Sandra Vanella)
James Knupp(Acting Commissioner, ADRE) Arizona Department of Real Estate Recipient of the decision
Sun City West Dec CC&Rs Article 4.2(F); Deer Valley CC&Rs Articles 1.16, 6.2, 2.3, 7.1, 7.3; Deer Valley HOA Rules & Regulations ¶ 7.1 and 7.2
Outcome Summary
The Administrative Law Judge denied the petition, concluding Petitioner failed to sustain the burden of proof that the Association violated community documents by failing to replace trees on Member lots. The CC&Rs did not establish a duty for the HOA to replace homeowner trees.
Why this result: Petitioner failed to meet the burden of proof; Petitioner was not an aggrieved party; Petitioner failed to establish causation by Respondent or duty to act by Respondent; trees belong to homeowners, and the Deer Valley CC&Rs do not require the HOA to replace trees under its maintenance obligations.
Key Issues & Findings
Whether Respondent is responsible for replacing dead and/or dying trees on all Member Lots in accordance with cited community documents.
Petitioner alleged the HOA violated governing documents by failing to replace dead trees on member lots, and sought an order compelling the replacement of 59 missing trees (at a rate of 10 per year).
Orders: Petitioner’s petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
Sun City West Dec CC&Rs Article 4.2(F)
Deer Valley CC&Rs Article 1.16
Deer Valley CC&Rs Article 6.2
Deer Valley CC&Rs Article 2.3
Deer Valley CC&Rs Article 7.1
Deer Valley CC&Rs Article 7.3
Deer Valley HOA Rules & Regulations ¶ 7.1
Deer Valley HOA Rules & Regulations ¶ 7.2
Analytics Highlights
Topics: HOA dispute, Landscape maintenance, Tree replacement, Burden of proof, Standing
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
If the CC&Rs require the HOA to perform 'maintenance', does that legally obligate them to replace dead plants or trees?
Short Answer
Not necessarily. The term 'maintenance' does not automatically include 'replacement' unless specified in the governing documents.
Detailed Answer
In this case, the HOA was found not to be in violation for refusing to replace trees because the CC&Rs governed 'maintenance,' which was interpreted as distinct from a requirement to replace items owned by the homeowner. The ALJ ruled the homeowner failed to prove the HOA had a duty to replace the trees.
Alj Quote
The Board declined Petitioner’s request, as it had concluded that the Deer Valley CC&Rs did not require replacement of trees under its maintenance obligations.
Legal Basis
Contract Interpretation / CC&Rs
Topic Tags
Maintenance vs Replacement
CC&Rs
Landscaping
Question
Can I file a petition against my HOA on behalf of the entire community regarding a general issue?
Short Answer
No. You must be an 'aggrieved party' with a specific injury to yourself or your property.
Detailed Answer
A homeowner cannot sue on behalf of other community members. To have standing, the petitioner must demonstrate that they personally suffered an injury. In this case, the petitioner had no dead trees on his own lot, so he was not considered an aggrieved party.
Alj Quote
Here, Petitioner is not an aggrieved party. Petitioner admitted that he brought forth his petition 'on behalf of all community members' and did not have a dead, dying, or missing tree on his lot.
Legal Basis
Standing / Aggrieved Party Status
Topic Tags
Standing
Procedural Requirements
Question
Can I argue that my neighbor's violations are diminishing my property value in an administrative hearing?
Short Answer
Generally, no, unless you have concrete evidence and it is a justiciable issue.
Detailed Answer
Claims that a neighbor's lack of maintenance (like dead trees) negatively impacts your property value may be dismissed as irrelevant or unsupported without significant proof. The tribunal may consider this non-justiciable.
Alj Quote
Notably, Petitioner’s allegation that his lot’s value has been diminished by neighboring lots due to their dead, dying, and/or missing trees is irrelevant, not supported by the record, and is not a justiciable issue for this tribunal.
Legal Basis
Evidence / Justiciable Issues
Topic Tags
Property Value
Evidence
Question
If I pay a filing fee for one issue, can I add other complaints to the hearing later?
Short Answer
No. The tribunal will only address the specific issue for which the filing fee was paid.
Detailed Answer
Administrative hearings are limited in scope to the specific issues properly petitioned and paid for. Tangential issues raised in addendums or during the hearing will likely not be adjudicated if a separate fee was not paid.
Alj Quote
Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioner raised in the addendum to his petition.
Legal Basis
ARIZ. REV. STAT. § 32-2199.05
Topic Tags
Filing Fees
Scope of Hearing
Question
Does the HOA have the authority to remove items (like trees) from my private lot without permission?
Short Answer
No, unless the governing documents explicitly grant that authority.
Detailed Answer
The HOA generally cannot enter a homeowner's lot to remove property, such as trees, without the owner's permission, unless the record establishes specific authority to do so.
Alj Quote
There is nothing in the record that establishes Respondent has the authority to remove a tree from a homeowner’s lot without permission, or that Respondent has done so in the past.
Legal Basis
Property Rights / HOA Authority
Topic Tags
Homeowner Rights
Trespass/Authority
Question
What level of proof is required for a homeowner to win a case against their HOA?
Short Answer
The standard is 'preponderance of the evidence'.
Detailed Answer
The petitioner must prove that their claim is more likely true than not. This is a lower standard than 'beyond a reasonable doubt' used in criminal cases, but still requires superior evidentiary weight.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Burden of Proof
Topic Tags
Legal Standards
Evidence
Question
Can I base my claim on the 'Master Association' CC&Rs if my specific HOA CC&Rs say something different?
Short Answer
Generally, the specific HOA CC&Rs form the enforceable contract for maintenance issues within that specific subdivision.
Detailed Answer
While a Master Association may have its own rules, the specific subdivision's CC&Rs are often the controlling documents regarding maintenance obligations for lots within that subdivision. The ALJ focused on the specific HOA's documents to determine liability.
Alj Quote
The record reflects that the Deer Valley CC&Rs govern landscaping maintenance for the Association… [and] did not require Respondent to replace dead, dying, or missing trees within the Association
Legal Basis
Governing Documents Hierarchy
Topic Tags
CC&Rs
Master Association
Case
Docket No
23F-H003-REL
Case Title
Matthew E Thompson vs. Deer Valley Homeowners Association Inc.
Decision Date
2022-12-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
If the CC&Rs require the HOA to perform 'maintenance', does that legally obligate them to replace dead plants or trees?
Short Answer
Not necessarily. The term 'maintenance' does not automatically include 'replacement' unless specified in the governing documents.
Detailed Answer
In this case, the HOA was found not to be in violation for refusing to replace trees because the CC&Rs governed 'maintenance,' which was interpreted as distinct from a requirement to replace items owned by the homeowner. The ALJ ruled the homeowner failed to prove the HOA had a duty to replace the trees.
Alj Quote
The Board declined Petitioner’s request, as it had concluded that the Deer Valley CC&Rs did not require replacement of trees under its maintenance obligations.
Legal Basis
Contract Interpretation / CC&Rs
Topic Tags
Maintenance vs Replacement
CC&Rs
Landscaping
Question
Can I file a petition against my HOA on behalf of the entire community regarding a general issue?
Short Answer
No. You must be an 'aggrieved party' with a specific injury to yourself or your property.
Detailed Answer
A homeowner cannot sue on behalf of other community members. To have standing, the petitioner must demonstrate that they personally suffered an injury. In this case, the petitioner had no dead trees on his own lot, so he was not considered an aggrieved party.
Alj Quote
Here, Petitioner is not an aggrieved party. Petitioner admitted that he brought forth his petition 'on behalf of all community members' and did not have a dead, dying, or missing tree on his lot.
Legal Basis
Standing / Aggrieved Party Status
Topic Tags
Standing
Procedural Requirements
Question
Can I argue that my neighbor's violations are diminishing my property value in an administrative hearing?
Short Answer
Generally, no, unless you have concrete evidence and it is a justiciable issue.
Detailed Answer
Claims that a neighbor's lack of maintenance (like dead trees) negatively impacts your property value may be dismissed as irrelevant or unsupported without significant proof. The tribunal may consider this non-justiciable.
Alj Quote
Notably, Petitioner’s allegation that his lot’s value has been diminished by neighboring lots due to their dead, dying, and/or missing trees is irrelevant, not supported by the record, and is not a justiciable issue for this tribunal.
Legal Basis
Evidence / Justiciable Issues
Topic Tags
Property Value
Evidence
Question
If I pay a filing fee for one issue, can I add other complaints to the hearing later?
Short Answer
No. The tribunal will only address the specific issue for which the filing fee was paid.
Detailed Answer
Administrative hearings are limited in scope to the specific issues properly petitioned and paid for. Tangential issues raised in addendums or during the hearing will likely not be adjudicated if a separate fee was not paid.
Alj Quote
Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioner raised in the addendum to his petition.
Legal Basis
ARIZ. REV. STAT. § 32-2199.05
Topic Tags
Filing Fees
Scope of Hearing
Question
Does the HOA have the authority to remove items (like trees) from my private lot without permission?
Short Answer
No, unless the governing documents explicitly grant that authority.
Detailed Answer
The HOA generally cannot enter a homeowner's lot to remove property, such as trees, without the owner's permission, unless the record establishes specific authority to do so.
Alj Quote
There is nothing in the record that establishes Respondent has the authority to remove a tree from a homeowner’s lot without permission, or that Respondent has done so in the past.
Legal Basis
Property Rights / HOA Authority
Topic Tags
Homeowner Rights
Trespass/Authority
Question
What level of proof is required for a homeowner to win a case against their HOA?
Short Answer
The standard is 'preponderance of the evidence'.
Detailed Answer
The petitioner must prove that their claim is more likely true than not. This is a lower standard than 'beyond a reasonable doubt' used in criminal cases, but still requires superior evidentiary weight.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Burden of Proof
Topic Tags
Legal Standards
Evidence
Question
Can I base my claim on the 'Master Association' CC&Rs if my specific HOA CC&Rs say something different?
Short Answer
Generally, the specific HOA CC&Rs form the enforceable contract for maintenance issues within that specific subdivision.
Detailed Answer
While a Master Association may have its own rules, the specific subdivision's CC&Rs are often the controlling documents regarding maintenance obligations for lots within that subdivision. The ALJ focused on the specific HOA's documents to determine liability.
Alj Quote
The record reflects that the Deer Valley CC&Rs govern landscaping maintenance for the Association… [and] did not require Respondent to replace dead, dying, or missing trees within the Association
Legal Basis
Governing Documents Hierarchy
Topic Tags
CC&Rs
Master Association
Case
Docket No
23F-H003-REL
Case Title
Matthew E Thompson vs. Deer Valley Homeowners Association Inc.
Decision Date
2022-12-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Matthew E Thompson(petitioner) Also referred to as Mathew E. Thompson; Appeared on his own behalf
Respondent Side
Beth Mulcahy(HOA attorney) Mulcahy Law Firm, PC Also referred to as Beth Mohei, Beth Moi, or Beth Mali
Haidyn DiLorenzo(HOA attorney) Mulcahy Law Firm, PC Also referred to as Hayden Dorenzo
Charles Dean Otto(Board President; witness) Deer Valley Homeowners Association Inc. Also referred to as Charles Deano; President of the board of management
Neutral Parties
Jenna Clark(ALJ) OAH Administrative Law Judge
Other Participants
Louis Dettorre(ADRE Commissioner) Arizona Department of Real Estate
Dan Gardener(ADRE staff) Arizona Department of Real Estate Constituent Services Manager
Miranda Alvarez(Legal Secretary) Transmitted electronic order
c. serrano(OAH staff) OAH Transmitted Minute Entry
Sam Muza(Contractor President) Verde Valley Landscape Services Signed contract with HOA
Charlene Frost(homeowner) Filed Request for Exterior Change application
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of official correspondence
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of official correspondence
djones(ADRE staff) Arizona Department of Real Estate Recipient of official correspondence
labril(ADRE staff) Arizona Department of Real Estate Recipient of official correspondence
CC&R Article 1, Section 10; Enforcement, Fines and Appeals Policy ("Policy")
Outcome Summary
Petitioner's complaint regarding the wrongful assessment of attorney's fees was dismissed because she failed to prove, by a preponderance of the evidence, that the HOA violated its Policy regarding pre-attorney notification requirements.
Why this result: Petitioner failed to meet her burden of proof; the ALJ found the Policy does not require the two notices prior to attorney escalation, as Petitioner had alleged.
Key Issues & Findings
Alleged violation of Policy concerning attorney's fees assessment and required pre-litigation notices.
Petitioner alleged the Association wrongfully assessed attorney's fees, arguing the Policy required providing the owner two warning notices and a certified letter before escalating a matter to attorney involvement.
Orders: Petitioner's petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. § 32-2199.02(A)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section 32-2199.04
ARIZ. REV. STAT. § 41-1092.07(F)(6)
Analytics Highlights
Topics: attorney fees, HOA policy enforcement, notice requirements, CC&Rs, due process
Additional Citations:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. § 32-2199.02(A)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section 32-2199.04
ARIZ. REV. STAT. § 41-1092.07(F)(6)
Video Overview
Audio Overview
Decision Documents
22F-H2221008-REL Decision – 926455.pdf
Uploaded 2026-01-23T17:40:13 (93.9 KB)
Study Guide – 22F-H2221008-REL
{
“case”: {
“docket_no”: “22F-H2221008-REL”,
“case_title”: “Susan L Jarzabek, Petitioner, vs. Hillcrest Improvement Association #2, Respondent”,
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“tribunal”: “OAH”,
“agency”: “ADRE”
},
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{
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{
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{
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{
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“notes”: null
},
{
“name”: “John Jarzabek”,
“role”: “spouse”,
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“notes”: “Petitioner’s husband, named on certified letter sent by Association”
},
{
“name”: “Louis Dettorre”,
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{
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{
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{
“name”: “Beth Mulcahy”,
“role”: “HOA attorney”,
“side”: “respondent”,
“affiliation”: “Mulcahy Law Firm, PC”,
“notes”: “Recipient of transmission; firm engaged by Association”
},
{
“name”: “Miranda Alvarez”,
“role”: “OAH staff”,
“side”: “neutral”,
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{ “case”: { “docket_no”: “22F-H2221008-REL”, “case_title”: “Susan L Jarzabek vs. Hillcrest Improvement Association #2”, “decision_date”: “2021-11-19”, “alj_name”: “Thomas Shedden”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can my HOA send a violation directly to their attorney without sending me warning letters first?”, “short_answer”: “Yes, if the community’s enforcement policy allows for immediate escalation to legal counsel.”, “detailed_answer”: “In this case, the ALJ ruled that the HOA did not violate its policy by involving a lawyer without prior notices, because the policy contained a provision stating that the standard notice procedure ceases to apply once a matter is escalated to an attorney.”, “alj_quote”: “The Policy also provides in pertinent part that the Association may escalate a matter to its attorney for further action, if a matter is escalated to the attorney, the notice-procedure will no longer apply”, “legal_basis”: “HOA Enforcement Policy / Contract Law”, “topic_tags”: [ “enforcement process”, “attorney referral”, “notice requirements” ] }, { “question”: “If the HOA sends my violation to a lawyer, do I have to pay the attorney’s fees?”, “short_answer”: “Yes, generally, if the CC&Rs and enforcement policy state that the owner is responsible for enforcement costs.”, “detailed_answer”: “The decision notes that the governing documents (CC&Rs) specifically allow the Association to recover enforcement costs, including attorney’s fees, from the owner. Additionally, the specific policy noted that upon escalation, the owner becomes responsible for these costs.”, “alj_quote”: “CC&R Art. VIII, Section 1, Enforcement, provides that the Association may recover from an owner its enforcement costs, including attorney’s fees.”, “legal_basis”: “CC&Rs Article VIII, Section 1”, “topic_tags”: [ “attorney fees”, “fines and penalties”, “collection costs” ] }, { “question”: “Who has to prove that the HOA did something wrong in a hearing?”, “short_answer”: “The homeowner (petitioner) filing the complaint bears the burden of proof.”, “detailed_answer”: “When a homeowner petitions the Department of Real Estate alleging a violation by the HOA, it is up to the homeowner to provide sufficient evidence to prove that the violation occurred.”, “alj_quote”: “Ms. Jarzabek bears the burden of proof to show that the alleged violation occurred.”, “legal_basis”: “ARIZ. ADMIN. CODE § R2-19-119”, “topic_tags”: [ “burden of proof”, “legal procedure”, “hearing standards” ] }, { “question”: “Is an HOA’s enforcement policy legally considered a binding contract?”, “short_answer”: “Yes, the policy is treated as part of the contract between the HOA and the homeowners.”, “detailed_answer”: “The Administrative Law Judge affirmed that community policies are part of the contractual agreement between the parties, meaning both the homeowner and the HOA are legally required to follow the terms written in that policy.”, “alj_quote”: “The Policy is part of contract between the parties and the parties are required to comply with its terms.”, “legal_basis”: “Contract Law; Johnson v. The Pointe Community Association”, “topic_tags”: [ “contract law”, “governing documents”, “policy enforcement” ] }, { “question”: “Can the Administrative Law Judge cancel the specific debt or fees I owe the HOA?”, “short_answer”: “Not necessarily; the tribunal’s jurisdiction may be limited to determining if a violation of documents occurred, not the validity of the debt itself.”, “detailed_answer”: “The ALJ explicitly noted in a footnote that while they can determine if the HOA violated its policy, they did not have the jurisdiction to decide if the specific attorney’s fees charged constituted a valid debt.”, “alj_quote”: “it is not within this tribunal’s jurisdiction to determine whether the attorney’s fees levied against Ms. Jarzabek are a valid debt, and the tribunal offers no opinion on that issue.”, “legal_basis”: “ARIZ. REV. STAT. § 41-1092.07(F)(6)”, “topic_tags”: [ “jurisdiction”, “debt validity”, “tribunal limitations” ] }, { “question”: “What standard of evidence is used to make a decision in an HOA dispute?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The standard is ‘preponderance of the evidence,’ which means the evidence must show it is more likely than not that the claim is true. It is described as the greater weight of the evidence.”, “alj_quote”: “The standard of proof on all issues in this matter is that of a preponderance of the evidence.”, “legal_basis”: “ARIZ. ADMIN. CODE § R2-19-119”, “topic_tags”: [ “legal standards”, “evidence”, “administrative hearing” ] } ] }
Blog Post – 22F-H2221008-REL
{
“case”: {
“docket_no”: “22F-H2221008-REL”,
“case_title”: “Susan L Jarzabek, Petitioner, vs. Hillcrest Improvement Association #2, Respondent”,
“decision_date”: “November 19, 2021”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“individuals”: [
{
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{
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},
{
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{
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},
{
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},
{
“name”: “Louis Dettorre”,
“role”: “ADRE staff”,
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“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Recipient of transmission”
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{
“name”: “AHansen”,
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“notes”: “Recipient of transmission (via email)”
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{
“name”: “djones”,
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{
“name”: “DGardner”,
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},
{
“name”: “vnunez”,
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{
“name”: “Beth Mulcahy”,
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{
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{ “case”: { “docket_no”: “22F-H2221008-REL”, “case_title”: “Susan L Jarzabek vs. Hillcrest Improvement Association #2”, “decision_date”: “2021-11-19”, “alj_name”: “Thomas Shedden”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can my HOA send a violation directly to their attorney without sending me warning letters first?”, “short_answer”: “Yes, if the community’s enforcement policy allows for immediate escalation to legal counsel.”, “detailed_answer”: “In this case, the ALJ ruled that the HOA did not violate its policy by involving a lawyer without prior notices, because the policy contained a provision stating that the standard notice procedure ceases to apply once a matter is escalated to an attorney.”, “alj_quote”: “The Policy also provides in pertinent part that the Association may escalate a matter to its attorney for further action, if a matter is escalated to the attorney, the notice-procedure will no longer apply”, “legal_basis”: “HOA Enforcement Policy / Contract Law”, “topic_tags”: [ “enforcement process”, “attorney referral”, “notice requirements” ] }, { “question”: “If the HOA sends my violation to a lawyer, do I have to pay the attorney’s fees?”, “short_answer”: “Yes, generally, if the CC&Rs and enforcement policy state that the owner is responsible for enforcement costs.”, “detailed_answer”: “The decision notes that the governing documents (CC&Rs) specifically allow the Association to recover enforcement costs, including attorney’s fees, from the owner. Additionally, the specific policy noted that upon escalation, the owner becomes responsible for these costs.”, “alj_quote”: “CC&R Art. VIII, Section 1, Enforcement, provides that the Association may recover from an owner its enforcement costs, including attorney’s fees.”, “legal_basis”: “CC&Rs Article VIII, Section 1”, “topic_tags”: [ “attorney fees”, “fines and penalties”, “collection costs” ] }, { “question”: “Who has to prove that the HOA did something wrong in a hearing?”, “short_answer”: “The homeowner (petitioner) filing the complaint bears the burden of proof.”, “detailed_answer”: “When a homeowner petitions the Department of Real Estate alleging a violation by the HOA, it is up to the homeowner to provide sufficient evidence to prove that the violation occurred.”, “alj_quote”: “Ms. Jarzabek bears the burden of proof to show that the alleged violation occurred.”, “legal_basis”: “ARIZ. ADMIN. CODE § R2-19-119”, “topic_tags”: [ “burden of proof”, “legal procedure”, “hearing standards” ] }, { “question”: “Is an HOA’s enforcement policy legally considered a binding contract?”, “short_answer”: “Yes, the policy is treated as part of the contract between the HOA and the homeowners.”, “detailed_answer”: “The Administrative Law Judge affirmed that community policies are part of the contractual agreement between the parties, meaning both the homeowner and the HOA are legally required to follow the terms written in that policy.”, “alj_quote”: “The Policy is part of contract between the parties and the parties are required to comply with its terms.”, “legal_basis”: “Contract Law; Johnson v. The Pointe Community Association”, “topic_tags”: [ “contract law”, “governing documents”, “policy enforcement” ] }, { “question”: “Can the Administrative Law Judge cancel the specific debt or fees I owe the HOA?”, “short_answer”: “Not necessarily; the tribunal’s jurisdiction may be limited to determining if a violation of documents occurred, not the validity of the debt itself.”, “detailed_answer”: “The ALJ explicitly noted in a footnote that while they can determine if the HOA violated its policy, they did not have the jurisdiction to decide if the specific attorney’s fees charged constituted a valid debt.”, “alj_quote”: “it is not within this tribunal’s jurisdiction to determine whether the attorney’s fees levied against Ms. Jarzabek are a valid debt, and the tribunal offers no opinion on that issue.”, “legal_basis”: “ARIZ. REV. STAT. § 41-1092.07(F)(6)”, “topic_tags”: [ “jurisdiction”, “debt validity”, “tribunal limitations” ] }, { “question”: “What standard of evidence is used to make a decision in an HOA dispute?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The standard is ‘preponderance of the evidence,’ which means the evidence must show it is more likely than not that the claim is true. It is described as the greater weight of the evidence.”, “alj_quote”: “The standard of proof on all issues in this matter is that of a preponderance of the evidence.”, “legal_basis”: “ARIZ. ADMIN. CODE § R2-19-119”, “topic_tags”: [ “legal standards”, “evidence”, “administrative hearing” ] } ] }
Case Participants
Petitioner Side
Susan L Jarzabek(petitioner, witness)
Respondent Side
Haidyn DiLorenzo(HOA attorney) Counsel for Respondent
Robert Cody(board president, witness) Hillcrest Improvement Association #2
Beth Mulcahy(HOA attorney) Mulcahy Law Firm, PC Recipient of transmission; firm engaged by Association
Neutral Parties
Thomas Shedden(ALJ)
Louis Dettorre(ADRE staff) Arizona Department of Real Estate Recipient of transmission
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission (via email)
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission (via email)
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of transmission (via email)
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of transmission (via email)
Miranda Alvarez(OAH staff) Transmitter of Decision
Other Participants
John Jarzabek(spouse) Petitioner's husband, named on certified letter sent by Association
The Administrative Law Judge dismissed the petition, finding that the Association did not violate the By-Laws regarding the special meeting request and that the homeowners' attempted amendments were invalid because authority to amend rests with the Board.
Why this result: Petitioner failed to prove a violation of the By-Laws; the Board had authority to set the meeting schedule and the governing documents did not grant homeowners the power to amend By-Laws without Board action.
Key Issues & Findings
Failure to call special meeting and recognize amendments
Petitioner alleged the HOA Board violated the By-Laws by denying a request for a special meeting and refusing to adopt amendments passed by homeowners at a meeting they organized themselves.
Orders: Petition dismissed. Respondent deemed prevailing party. Respondent's request for civil penalty against Petitioner denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Decision Documents
16F-H1616011-BFS Decision – 517259.pdf
Uploaded 2026-01-27T21:13:17 (44.0 KB)
16F-H1616011-BFS Decision – 517327.pdf
Uploaded 2026-01-27T21:13:17 (89.5 KB)
16F-H1616011-BFS Decision – 525294.pdf
Uploaded 2026-01-27T21:13:17 (62.1 KB)
**Case Title:** *David Carr vs. Sunset Plaza Condo Association* (No. 16F-H1616011-BFS)
**Hearing Proceedings**
The hearing was conducted on August 23, 2016, before Administrative Law Judge (ALJ) Thomas Shedden at the Office of Administrative Hearings in Phoenix, Arizona,. The matter was under the jurisdiction of the Arizona Department of Real Estate.
**Key Facts**
Petitioner David Carr alleged that the Respondent, Sunset Plaza Condo Association, violated Article VI, Section 2 of the Association’s By-Laws. The dispute originated when six homeowners submitted a written request for a special meeting to be held on February 13, 2016, or if that date was unacceptable, within thirty days.
The Board denied the request for the February 13 date, noting that an open meeting was already scheduled for February 22, 2016, at which homeowners could discuss agenda items. Despite the Board's decision, nine homeowners gathered on February 13 for what they deemed a special meeting and voted to approve revisions to the By-Laws and Rules. The Board refused to incorporate these changes, prompting Carr to file the petition,.
**Main Issues and Arguments**
The primary legal issues were whether the Board violated the By-Laws by failing to schedule the requested special meeting and whether the homeowners had the authority to amend governing documents unilaterally.
* **Petitioner’s Argument:** Carr argued that the Board violated the By-Laws and that a conflict existed between the By-Laws and the Declaration, asserting the Declaration was controlling,. He sought an order compelling the Association to adopt the amendments passed on February 13.
* **Respondent’s Argument:** The Association contended that Carr attempted to amend the By-Laws by improper means and requested that Carr be assessed a civil penalty for filing a frivolous petition.
**Legal Analysis and Findings**
The ALJ applied the standard of preponderance of the evidence.
1. **Alleged By-Law Violation:** The ALJ found the Board did not violate Article VI, Section 2. The homeowners' written request explicitly permitted the meeting to be held within thirty days of February 13. By providing a meeting on February 22, the Board acted within the timeframe requested.
2. **Authority to Amend:** The ALJ determined there was no conflict between the governing documents. The By-Laws and Declaration vest the authority to amend rules and by-laws in the Board, not the homeowners. While rule amendments require homeowner approval to become binding, the initiation and adoption process lies with the Board,. Consequently, the homeowners lacked the authority to validly amend the documents at their February 13 meeting.
**Outcome and Final Decision**
The ALJ ordered the dismissal of David Carr's petition, ruling that he failed to provide substantial evidence to support his claims,. The Association was deemed the prevailing party.
Regarding the Respondent's request for sanctions, the ALJ denied the civil penalty against Carr. The judge reasoned that although Carr had misconstrued the condominium documents, the Association failed to demonstrate that he had actually violated them.
The decision was certified as the final administrative decision of the Department of Real Estate on October 26, 2016.
Case Participants
Petitioner Side
David Carr(petitioner) Appeared on his own behalf
Respondent Side
Paige Hulton(attorney) Mulcahy Law Firm, PC Attorney for Respondent at hearing
Beth Mulcahy(attorney) Mulcahy Law Firm, PC Listed on mailing list for final certification
Neutral Parties
Thomas Shedden(ALJ) Office of Administrative Hearings Presiding Administrative Law Judge
Judy Lowe(Commissioner) Arizona Department of Real Estate Recipient of decision
Greg Hanchett(Interim Director) Office of Administrative Hearings Certified the decision
Rosella J. Rodriguez(clerk) Office of Administrative Hearings Processed mailing of certification
Other Participants
Leslie Grant(homeowner) Wrote letters regarding special meeting; provided replacement ballot
The ALJ granted the Respondent's request to dismiss the petition, finding that the Petitioner's single issue did not give rise to a cause of action because the governing documents did not prohibit the Association from holding a second vote to amend the By-Laws.
Why this result: The Petitioner failed to identify any provision in the By-Laws that prohibited the Respondent from conducting a second vote after the first vote failed.
Key Issues & Findings
Validity of Second Vote to Amend By-Laws
Petitioner argued that because a quorum was present at the first vote (which failed), the Respondent was precluded from holding a second vote to amend the By-Laws in December 2008.
Orders: The Petition was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
Article IV, Paragraph 5
Article X, Paragraph 3
Decision Documents
08F-H089015-BFS Decision – 206857.pdf
Uploaded 2026-01-25T15:24:13 (63.8 KB)
Briefing Doc – 08F-H089015-BFS
Briefing on Administrative Decision: Sawicki v. Clearwater Farms Estates
Executive Summary
This briefing examines the administrative decision in the case of Carl A. Sawicki vs. Clearwater Farms Estates (No. 08F-H089015-BFS), adjudicated by the Arizona Office of Administrative Hearings on January 29, 2009. The dispute centered on whether a homeowners’ association is prohibited from conducting a subsequent vote to amend its By-Laws shortly after an initial vote on the same amendment failed to pass despite reaching a quorum.
The Administrative Law Judge (ALJ) ruled in favor of the Respondent, Clearwater Farms Estates, dismissing the petition. The core finding was that the association’s By-Laws did not contain any provisions restricting or prohibiting multiple votes on amendments. Furthermore, the ruling clarified the limited jurisdiction of the Office of Administrative Hearings, noting it only has the power to address specific violations of planned community documents or state statutes as granted by law.
Case Overview and Parties
Entity
Carl A. Sawicki
Petitioner
Clearwater Farms Estates
Respondent
Lewis D. Kowal
Administrative Law Judge
Office of Administrative Hearings
Adjudicating Agency
Decision Date
January 29, 2009
Factual Timeline and Dispute
The controversy arose from two distinct attempts by the Clearwater Farms Estates Board of Directors to amend the association’s By-Laws to align with changes in Arizona State law regarding planned communities.
1. The First Vote (November 6, 2008)
• Status: A quorum of members was present, satisfying Article IV, Paragraph 5 of the By-Laws.
• Outcome: The amendment failed to pass.
• Reason for Failure: The vote did not reach the 2/3 majority of the membership required by Article X, Paragraph 3 of the By-Laws.
2. The Second Vote (December 4, 2008)
• Status: A quorum of members was present.
• Outcome: The amendment passed.
• Reason for Success: A 2/3 majority of the membership voted in favor of the amendment.
The Petitioner’s Argument
Petitioner Carl A. Sawicki did not dispute the mathematical results of the second vote. Instead, he argued that because a quorum was present during the first (failed) vote, the Respondent was legally or procedurally precluded from holding a second vote on the same amendment so soon after the first.
The Respondent’s Argument
Respondent Clearwater Farms Estates contended that the act of holding a second vote did not constitute a violation of the association’s By-Laws.
Legal Analysis and Jurisdictional Framework
The Administrative Law Judge’s decision rested on two primary pillars: the statutory limits of the agency’s authority and the specific language of the association’s governing documents.
Statutory Authority and Jurisdiction
The decision emphasized that the Office of Administrative Hearings is a creature of statute and lacks broad judicial powers.
• Limited Powers: The OAH does not possess “common law or inherent powers.” Its duties are strictly limited to those granted by statute (Ayala v. Hill, 136 Ariz. 88).
• Scope of Review: Under A.R.S. §§ 41-2198 and 41-2198.01(B), the agency’s jurisdiction is limited to determining if an association violated:
◦ Articles of Incorporation
◦ Bylaws
◦ Covenants, Conditions, and Restrictions (CC&Rs)
◦ A.R.S. Title 33, Chapter 9 or 16
Determination of the Issue
Upon review of the By-Laws and arguments, the ALJ concluded that the Petitioner failed to state a valid cause of action.
• Absence of Prohibition: The ALJ found that none of the By-Law provisions relied upon by the Petitioner—nor any other provisions in the documents—prohibit or restrict the membership from holding a second vote to amend the By-Laws.
• Lack of Violation: Because there was no rule against a second vote, the association could not have committed a violation.
Final Order
The Office of Administrative Hearings issued the following mandates:
1. Dismissal: The Respondent’s Request to Dismiss Petition was granted.
2. Removal from Docket: The matter was vacated from the OAH docket.
3. Finality: Pursuant to A.R.S. § 41.2198.04(A), the order serves as the final administrative decision. It is not subject to requests for rehearing.
Key Legal Citations
Study Guide – 08F-H089015-BFS
Study Guide: Sawicki v. Clearwater Farms Estates Administrative Decision
This study guide provides a comprehensive overview of the administrative case Carl A. Sawicki v. Clearwater Farms Estates (No. 08F-H089015-BFS). It is designed to assist in understanding the legal arguments, the jurisdiction of administrative bodies in Arizona, and the specific outcomes regarding the governance of planned communities.
Part 1: Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences based on the provided source context.
1. Who are the parties involved in this case and what is their legal relationship?
2. What occurred during the First Vote on November 6, 2008, regarding the Respondent’s By-Laws?
3. Why did the Clearwater Farms Estates Board of Directors seek to amend the By-Laws?
4. How did the outcome of the Second Vote on December 4, 2008, differ from the First Vote?
5. What was the Petitioner’s primary legal argument against the validity of the Second Vote?
6. According to the decision, how are the powers and duties of administrative agencies limited?
7. What specific documents or statutes does the Office of Administrative Hearings have the jurisdiction to review in cases involving planned communities?
8. What was the Administrative Law Judge’s conclusion regarding the Petitioner’s claim that a second vote was prohibited?
9. What was the final order issued by Judge Lewis D. Kowal on January 29, 2009?
10. What is the status of this decision regarding further administrative appeals or rehearings?
——————————————————————————–
Part 2: Answer Key
1. Who are the parties involved in this case and what is their legal relationship? The Petitioner is Carl A. Sawicki, and the Respondent is Clearwater Farms Estates. The case was heard in the Office of Administrative Hearings to determine if the Respondent violated its planned community documents or state statutes.
2. What occurred during the First Vote on November 6, 2008, regarding the Respondent’s By-Laws? A quorum was present for the First Vote as required by Article IV, Paragraph 5 of the By-Laws. However, the amendment failed to pass because it did not receive the 2/3 majority vote of the membership required by Article X, Paragraph 3.
3. Why did the Clearwater Farms Estates Board of Directors seek to amend the By-Laws? The Board of Directors initiated the amendment process to ensure the community’s internal rules were updated. Specifically, the amendment was sought to conform the By-Laws to changes in Arizona State law regarding planned communities.
4. How did the outcome of the Second Vote on December 4, 2008, differ from the First Vote? Unlike the first attempt, the Second Vote held on December 4, 2008, was successful. While both votes met the quorum requirement, the Second Vote achieved the necessary 2/3 majority of the membership in favor of the amendment.
5. What was the Petitioner’s primary legal argument against the validity of the Second Vote? The Petitioner argued that because a quorum was present during the failed First Vote, the Respondent was precluded from holding another vote on the same amendment so soon. He contended that the failure of the first vote effectively blocked a subsequent vote in December 2008.
6. According to the decision, how are the powers and duties of administrative agencies limited? Administrative agencies, such as the Office of Administrative Hearings, are limited strictly to the powers granted to them by statute. They do not possess any common law or inherent powers beyond what is explicitly defined in legislation.
7. What specific documents or statutes does the Office of Administrative Hearings have the jurisdiction to review in cases involving planned communities? The OAH has jurisdiction to determine violations of a community’s Articles of Incorporation, Bylaws, or Covenants Conditions and Restrictions (CC&Rs). Additionally, it can review violations of A.R.S. Title 33, Chapter 9 or 16.
8. What was the Administrative Law Judge’s conclusion regarding the Petitioner’s claim that a second vote was prohibited? The Judge concluded that the Petitioner’s issue did not give rise to a cause of action because no By-Law provisions restricted or prohibited a second vote. Since no specific provision was violated, there was no legal basis for the Petitioner’s complaint.
9. What was the final order issued by Judge Lewis D. Kowal on January 29, 2009? The Judge ordered that the Respondent’s Request to Dismiss Petition be granted. Furthermore, the matter was vacated from the docket of the Office of Administrative Hearings.
10. What is the status of this decision regarding further administrative appeals or rehearings? Pursuant to A.R.S. § 41.2198.04(A), this order constitutes the final administrative decision. As a final decision, it is explicitly not subject to any requests for rehearing.
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Part 3: Essay Questions
Instructions: Use the provided source text to develop comprehensive responses to the following prompts.
1. The Role of Quorum and Majority Thresholds: Analyze the importance of Article IV, Paragraph 5 and Article X, Paragraph 3 in the context of the Clearwater Farms Estates governance. How did these specific rules dictate the outcomes of both the November and December votes?
2. Administrative Jurisdiction and Statutory Limitations: Discuss the limitations of the Office of Administrative Hearings as outlined in the decision. Why is it significant that administrative agencies lack “common law or inherent powers” when adjudicating disputes between homeowners and associations?
3. Interpreting Planned Community Documents: Examine the Judge’s reasoning for dismissing the petition. How does the absence of a specific prohibitory provision in the By-Laws influence the legality of the Board’s actions?
4. Legislative Conformity: Explore the Board of Directors’ motivation for the amendment—conforming to State law. Why might a planned community prioritize aligning its By-Laws with state statutes, and how does this process intersect with membership voting rights?
5. The Finality of Administrative Decisions: Reflect on the procedural conclusion of this case. What are the implications for a petitioner when a decision is rendered “final” and “not subject to a request for rehearing” under A.R.S. § 41.2198.04(A)?
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Part 4: Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
A presiding officer who conducts hearings and issues decisions for administrative agencies, such as the Office of Administrative Hearings.
A.R.S. Title 33
The section of the Arizona Revised Statutes that contains laws pertaining to property, including planned communities (Chapters 9 and 16).
By-Laws
The internal rules and regulations established by an organization, such as a planned community, to govern its administration and the conduct of its members.
Cause of Action
A set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party.
Common Law
Law derived from custom and judicial precedent rather than statutes; the document notes administrative agencies do not have these powers.
Jurisdiction
The official power of a legal body to make legal decisions and judgments over a specific subject matter or geographic area.
Petitioner
The party who presents a petition to a court or administrative body (in this case, Carl A. Sawicki).
Planned Community Documents
The collective set of governing documents for a development, including Articles of Incorporation, Bylaws, and Covenants, Conditions, and Restrictions (CC&Rs).
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid.
Respondent
The party against whom a petition is filed or an appeal is taken (in this case, Clearwater Farms Estates).
Vacate
To cancel or render void a legal proceeding or a scheduled matter on a court’s docket.
Blog Post – 08F-H089015-BFS
Here is a concise summary of the administrative hearing decision in Carl A. Sawicki v. Clearwater Farms Estates (Case No. 08F-H089015-BFS).
Case Overview
This matter was heard before the Arizona Office of Administrative Hearings regarding a dispute between Petitioner Carl A. Sawicki and Respondent Clearwater Farms Estates1. On January 20, 2009, Administrative Law Judge Lewis D. Kowal held a pre-hearing conference where both parties presented arguments regarding the potential dismissal of the Petition12.
Key Facts and Arguments
The dispute arose from the Respondent’s attempts to amend its By-Laws to conform with changes in State law3.
• The First Vote: On November 6, 2008, the Respondent held an initial vote to amend the By-Laws2. While a quorum was present, the amendment failed because it did not receive the required 2/3 vote of the membership23.
• The Second Vote: On December 4, 2008, the Respondent held a second vote3. This time, a quorum was present, and the amendment passed with the necessary 2/3 majority3.
Petitioner’s Argument: The Petitioner did not dispute the results of the second vote or the presence of a quorum3. Instead, he argued that because the first vote had a quorum but failed, the Respondent was precluded from holding another vote on the amendment as soon as it did in December 20084.
Respondent’s Argument: The Respondent contended that the actions complained of did not constitute a violation of the community’s By-Laws4.
Legal Analysis and Decision
The Administrative Law Judge noted that the jurisdiction of the Office of Administrative Hearings is limited to determining if an Association has violated its planned community documents (such as By-Laws or Articles of Incorporation) or specific statutes under A.R.S. Title 335.
Upon reviewing the documents and arguments, the Judge concluded the following:
• No Violation Found: None of the By-Law provisions relied upon by the Petitioner prohibited or restricted the membership from conducting a second vote to amend the By-Laws6.
• No Cause of Action: Because the Respondent did not violate any provision of the By-Laws, the Petitioner’s complaint lacked a valid basis67.
The Administrative Law Judge granted the Respondent’s Request to Dismiss the Petition and vacated the matter from the docket7. This Order constituted a final administrative decision not subject to a request for rehearing7.
Case Participants
Petitioner Side
Carl A. Sawicki(Petitioner) ,
Respondent Side
Beth Mulcahy(Attorney) Mulcahy Law Firm, PC Esq. listed in mailing distribution
Neutral Parties
Lewis D. Kowal(Administrative Law Judge) Office of Administrative Hearings
Robert Barger(Director) Department of Fire Building and Life Safety Mailing list recipient
Debra Blake(Agency Staff) Department of Fire Building and Life Safety Mailing list recipient
The parties reached a settlement agreement. The Respondent acknowledged technical violations of the governing documents and instituted procedural changes to prevent recurrence. The Respondent agreed to reimburse the Petitioner's filing fee.
Key Issues & Findings
Technical violations of governing documents
Respondent acknowledged technical violations of the governing documents and instituted procedural changes to prevent recurrence.
Orders: Respondent agreed to pay Petitioner's filing fee; Respondent acknowledged violations and instituted procedural changes.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Decision Documents
07F-H067024-BFS Decision – 166731.pdf
Uploaded 2026-01-25T15:20:07 (62.4 KB)
Briefing Doc – 07F-H067024-BFS
Administrative Hearing Briefing: Carnes v. Casa Campa Homeowners Association
Executive Summary
This briefing document details the resolution of a legal dispute between Ray Carnes (Petitioner) and the Casa Campa Homeowners Association (Respondent) adjudicated by the Arizona Office of Administrative Hearings (Case No. 07F-H067024-BFS). On April 23, 2007, a hearing presided over by Administrative Law Judge Michael K. Carroll resulted in a settlement agreement before formal testimony commenced. The Respondent acknowledged technical violations of Association governing documents and implemented procedural changes to ensure future compliance. The matter concluded with an order for the Respondent to reimburse the Petitioner’s filing fee and the cessation of all claims within the petition.
Case Overview and Proceedings
The administrative hearing was convened to address allegations brought by Ray Carnes against the Casa Campa Homeowners Association. The proceedings were characterized by a shift from litigation to mediation at the outset of the scheduled hearing.
Case Metadata
Element
Detail
Case Number
07F-H067024-BFS
Petitioner
Ray Carnes (Pro se)
Respondent
Casa Campa Homeowners Association
Legal Counsel (Respondent)
Beth Mulcahy, Mulcahy Law Firm, PC
Presiding Judge
Michael K. Carroll, Administrative Law Judge
Hearing Date
April 23, 2007
Office of Administrative Hearings, Phoenix, Arizona
Settlement and Resolution Terms
At the commencement of the April 23 hearing, both parties requested a conference to discuss a potential settlement. This conference successfully resulted in a mutual agreement that was memorialized on the record, effectively resolving the dispute without the need for a full evidentiary hearing.
Key Provisions of the Agreement
The settlement comprised three primary components that addressed the Petitioner’s grievances and provided a framework for future operational compliance by the Association:
1. Acknowledgment of Violations: The Respondent acknowledged that the Petition alleged “technical violations” of the documents governing the Homeowners Association.
2. Procedural Remedies: To address these violations, the Respondent reported that it had already “instituted procedural changes” designed to prevent any recurrence of the issues raised in the Petition.
3. Release of Claims: In exchange for the procedural changes and the reimbursement of costs, the Petitioner acknowledged he would not proceed further with any allegations against the Respondent related to the Petition.
Final Administrative Order
Following the memorialization of the settlement, the Administrative Law Judge issued a formal order to close the matter and ensure the financial terms were met.
Judicial Mandates
• Conclusion of Matters: The Judge ordered that all matters subject to the Petition were officially concluded.
• Reimbursement of Fees: Under the authority of A.R.S. § 41-2198.01, the Respondent was ordered to pay the Petitioner’s filing fee.
Involved Entities and Contact Information
The final decision was transmitted to the following individuals and agencies involved in the administrative process:
• Robert Barger, Director: Department of Fire Building and Life Safety (Attn: Joyce Kesterman).
• Ray Carnes: Ray Carnes Enterprises, Glendale, Arizona.
• Beth Mulcahy, Esq.: Mulcahy Law Firm, PC, Phoenix, Arizona.
Study Guide – 07F-H067024-BFS
Administrative Law Study Guide: Carnes v. Casa Campa Homeowners Association
This study guide provides a comprehensive review of the administrative proceedings and settlement reached in the matter of Ray Carnes vs. Casa Campa Homeowners Association. The materials are based on the official decision issued by the Office of Administrative Hearings in Phoenix, Arizona.
Section 1: Short-Answer Quiz
Instructions: Answer the following questions in 2–3 sentences based on the provided source context.
1. Who were the primary parties involved in case No. 07F-H067024-BFS?
2. What was the official role of Michael K. Carroll in these proceedings?
3. How did the parties resolve the dispute at the start of the hearing?
4. What did the Respondent acknowledge concerning the allegations in the Petition?
5. What proactive steps did the Homeowners Association take to prevent future issues?
6. What specific financial restitution was the Respondent ordered to provide?
7. What did the Petitioner, Ray Carnes, agree to as part of the settlement terms?
8. Which Arizona Revised Statute was cited regarding the payment of the filing fee?
9. Who provided legal representation for the Respondent during the hearing?
10. What was the final status of the matters that were the subject of the Petition?
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Section 2: Answer Key
Question
Answer
The Petitioner was Ray Carnes, appearing on his own behalf. The Respondent was the Casa Campa Homeowners Association.
Michael K. Carroll served as the Administrative Law Judge (ALJ) for the Office of Administrative Hearings. He presided over the hearing and issued the final decision memorializing the settlement.
At the commencement of the hearing, the parties requested a conference to discuss a possible settlement. Following this conference, they reached an agreement that was memorialized on the record.
The Respondent acknowledged that the Petition alleged technical violations of the documents governing the Association. These allegations were addressed through the subsequent settlement agreement.
The Respondent instituted procedural changes designed to prevent a recurrence of the technical violations. This action was taken prior to or as part of the settlement reaching its final form.
The Respondent was ordered to pay the Petitioner’s filing fee. This requirement was explicitly stated in the ALJ’s final order.
The Petitioner acknowledged that because of the agreement reached, he would not proceed further against the Respondent. This applied to all allegations contained within the original Petition.
The filing fee was required and ordered pursuant to A.R.S. § 41-2198.01. This statute governs the financial obligations regarding the initiation of the administrative matter.
The Casa Campa Homeowners Association was represented by Beth Mulcahy, an attorney from the Mulcahy Law Firm, PC.
The Administrative Law Judge ordered that all matters which were the subject of the Petition were concluded. This finalized the agency action regarding the dispute.
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Section 3: Essay Questions
Instructions: Use the provided source context to develop comprehensive responses to the following prompts.
1. The Role of Mediation in Administrative Law: Analyze the process by which the parties moved from a scheduled hearing to a settlement conference. Discuss how this process facilitates the resolution of disputes without the need for a full evidentiary hearing.
2. Accountability and Procedural Reform: Examine the Respondent’s decision to institute procedural changes in response to alleged technical violations. Evaluate how such changes serve as a remedy in administrative disputes between homeowners and associations.
3. Legal Representation and Pro Se Petitioners: Compare the representation of the two parties in this case. Discuss the implications of a Petitioner appearing “on his own behalf” versus a Respondent appearing with professional legal counsel.
4. The Finality of ALJ Decisions: Discuss the significance of the phrase “ALJ Decision final by statute” and the judge’s order that all matters are “hereby concluded.” What does this suggest about the binding nature of settlements reached in the Office of Administrative Hearings?
5. Financial Burdens in Administrative Petitions: Using the case as a reference, discuss the importance of A.R.S. § 41-2198.01 regarding filing fees. Why is the reimbursement of these fees a critical component of the settlement reached between Carnes and the Association?
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Section 4: Glossary of Key Terms
• A.R.S. § 41-2198.01: The specific Arizona Revised Statute governing the filing fees and potentially other procedural requirements for matters brought before this administrative body.
• Administrative Law Judge (ALJ): A presiding officer (in this case, Michael K. Carroll) who conducts hearings and issues decisions for an administrative agency.
• Appearances: The formal record of the individuals present at the hearing and whom they represent (e.g., Ray Carnes for himself, Beth Mulcahy for the Respondent).
• Governing Documents: The legal instruments (such as bylaws or declarations) that dictate the rules and operations of the Casa Campa Homeowners Association.
• Memorialized on the Record: The act of formally recording the terms of an agreement or statement so that it becomes part of the official legal transcript and history of the case.
• Office of Administrative Hearings: The Arizona state agency responsible for conducting independent and impartial hearings for administrative disputes.
• Petition: The formal document filed by the Petitioner (Ray Carnes) to initiate the legal process and outline allegations against the Respondent.
• Petitioner: The party who initiates the legal action or appeal (Ray Carnes).
• Respondent: The party against whom a petition is filed or an action is brought (Casa Campa Homeowners Association).
• Technical Violations: Specific failures to adhere to the exact procedural or administrative requirements set forth in the association’s governing documents.
Blog Post – 07F-H067024-BFS
The Settlement Strategy: How a Pro Se Homeowner Outmaneuvered His HOA
The tension was palpable at the Office of Administrative Hearings when Ray Carnes, appearing “on his own behalf,” stood his ground against a professional attorney from the Mulcahy Law Firm. While many homeowners fear that a legal battle against an HOA is a David vs. Goliath mismatch, the case of Ray Carnes vs. Casa Campa Homeowners Association proves that procedural savvy can level the playing field. This 2007 dispute offers a masterclass in how a homeowner can leverage the administrative process to force systemic accountability without ever needing a final trial verdict.
### 2. Takeaway 1: The “Courthouse Steps” Resolution
At the very commencement of the scheduled hearing, the parties made a strategic pivot by requesting a conference with the Administrative Law Judge (ALJ) to discuss a settlement. This maneuver allowed the ALJ to serve as a mediator, facilitating a pragmatic agreement that avoided the risks and costs of a formal ruling. For the HOA, settling is often an “inside baseball” tactic to avoid a published Final Decision that could set a binding legal precedent for the entire community.
### 3. Takeaway 2: Technical Violations Lead to Systemic Change
A key tactical nuance in this settlement was the HOA’s acknowledgment that violations had been alleged, rather than admitting to specific guilt—a common “no-fault” strategy in legal resolutions. However, the real victory for Carnes was the revelation that the Association had already instituted procedural changes to prevent these issues from happening again. By forcing the HOA to correct its behavior before the hearing even began, the petitioner achieved a systemic win that is far more impactful than a simple apology or a one-time ruling.
### 4. Takeaway 3: The Cost of Accountability (The Filing Fee)
Accountability in these hearings is often cemented by the “fee-shifting” mechanism found in A.R.S. § 41-2198.01, which allows the successful party to recover their costs. Even though the case was settled, the ALJ specifically ordered the Respondent to pay Carnes’ filing fee, ensuring the homeowner was “made whole” financially. For a pro se petitioner, securing this reimbursement against a professional law firm is a significant validation of the merits of the case and a tangible reminder that HOAs are financially responsible for their procedural lapses.
### 5. Conclusion: A Blueprint for Resolution
The resolution of Carnes vs. Casa Campa provides a clear blueprint for any homeowner seeking to reform their community’s governance: prioritize procedural change and financial restitution over prolonged litigation. By focusing on “technical” compliance and using the ALJ conference as a mediation tool, you can secure meaningful reforms that outlast any single dispute. Is your own community’s board adhering to its governing documents, or could a focused demand for technical compliance be the key to the better governance you deserve?
Case Participants
Petitioner Side
Ray Carnes(Petitioner) Ray Carnes Enterprises Appeared on his own behalf
Respondent Side
Beth Mulcahy(Attorney) Mulcahy Law Firm, PC Attorney for Respondent
Neutral Parties
Michael K. Carroll(Administrative Law Judge) Office of Administrative Hearings
Robert Barger(Director) Department of Fire Building and Life Safety Listed on distribution list
Joyce Kesterman(Agency Staff) Department of Fire Building and Life Safety Listed on distribution list (ATTN)
The ALJ granted the petition, ruling that under CC&Rs § 11.4, the HOA's failure to issue a written decision within 45 days resulted in the automatic approval of the gate application. The HOA was ordered to approve the gate and refund filing fees. Requests for attorney's fees were denied.
Key Issues & Findings
Failure to Issue Written Decision Within 45 Days
Petitioners submitted an application for an electronic gate. The DRC tabled the request and failed to issue a formal written decision within 45 days. The CC&Rs state that failure to furnish a written decision within 45 days results in the application being deemed approved.
Orders: Respondent must deem approved the application for the private gate; Respondent must reimburse Petitioners $1,100.00 for filing fees.
Filing fee: $1,100.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
CC&Rs § 11.2
CC&Rs § 11.4
A.R.S. § 41-2198.01(B)
Audio Overview
Decision Documents
07F-H067010-BFS Decision – 162264.pdf
Uploaded 2026-01-25T15:19:35 (194.0 KB)
Briefing Doc – 07F-H067010-BFS
Briefing Document: Administrative Law Judge Decision on Shared Driveway Gate Approval
Executive Summary
This document summarizes the administrative legal proceedings and ultimate ruling regarding a dispute between property owners Steven Hedden and Paul Ryan (Petitioners) and the Eagle Mountain Community Association (Respondent/HOA). The central conflict involved the HOA’s denial of the Petitioners’ application to install a private electronic gate on their shared driveway in the Aerie Cliffs subdivision.
While the Administrative Law Judge (ALJ) found that the HOA had substantive grounds to deny the request based on community standards and neighbor opposition, the HOA ultimately lost the case due to a procedural failure. Under the community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs), the Design Review Committee (DRC) is required to furnish a written decision within 45 days of an application. Because the HOA exceeded this timeframe (taking over 70 days), the application was “deemed approved” by law. The HOA was ordered to approve the gate and reimburse the Petitioners for $1,100.00 in filing fees.
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Case Overview and Parties
• Case Numbers: 07F-H067010-BFS and 07F-H067011-BFS (Consolidated).
• Petitioners: Steven Hedden and Paul Ryan, owners of custom lots 14 and 15 in the Aerie Cliffs subdivision of Eagle Mountain.
• Respondent: Eagle Mountain Community Association (the HOA).
• Subject Property: A shared, 300-foot private driveway located off a cul-de-sac. Due to the topography (a small hill), the homes are not visible from the street.
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Governing Regulatory Framework: The CC&Rs
The rights and responsibilities of the parties are governed by the Declaration of Covenants, Conditions, and Restrictions recorded in 1995.
Key CC&R Provisions
Section
Provision
Core Requirement/Authority
Purpose
To maintain uniformity of architectural and landscaping standards to enhance aesthetic and economic value.
Operation
The DRC must consider and act upon proposals. Crucially, if a written decision is not furnished within 45 days, the application is “deemed approved.”
Discretion
The DRC has broad discretionary powers and may disapprove applications for insufficient or inaccurate information.
Waiver
Approval of one plan does not constitute a waiver of the right to withhold approval for similar future plans.
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The Dispute: Arguments for and Against the Gate
Petitioners’ Rationale for Installation
• Security and Trespassing: Petitioners testified that vehicles frequently use the private driveway to turn around or make cell phone calls (due to superior reception at the hill’s crest).
• Safety: Concerns were raised regarding children playing on the driveway, as the hill creates a blind spot for vehicles backing out.
• Property Value: Mr. Ryan, a professional appraiser, estimated the gate would add approximately 3% to property values ($50,000 to $70,000).
• Community Precedent: Petitioners argued that most other custom homes in Eagle Mountain are “double gated,” though they acknowledged those gates are usually at subdivision entrances on common property.
HOA Rationale for Denial
• Lack of Precedent: No other private home in the 580-home community has an automatic gate on a private driveway. Existing secondary gates are at subdivision entrances.
• Aesthetics and Utility: The HOA argued the gate would be an aesthetic detraction and cited potential issues with noise of operation and maintenance.
• Neighbor Opposition: Five neighbors (Lots 12, 6, 8, 9, and 39) opposed the gate, citing concerns over noise and pollution from vehicles idling in the cul-de-sac while waiting for the gate to open.
• Adequate Security: The HOA contended that the two existing 24-hour manned main gates provided sufficient security.
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Chronology of Procedural Failure
The following timeline illustrates the HOA’s failure to adhere to the 45-day “deemed approved” window:
1. May 1, 2006: Petitioners submit the application for the electronic gate.
2. May 10, 2006: DRC tables the request, referring it to the Board.
3. May 17, 2006: Board reviews the request and expresses objections based on neighbor feedback and lack of precedent.
4. June 14, 2006: DRC meets with Petitioners. The application is tabled again to seek neighbor waivers.
5. July 5, 2006: DRC formally votes to disapprove the application. (Day 65 since submission).
6. July 11, 2006: HOA sends a formal written denial to the Petitioners. (Day 71 since submission).
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Findings of Fact and Conclusions of Law
Substantive Merits
The ALJ found that the HOA’s substantive reasons for denial were largely valid. The court noted:
• The Petitioners failed to consult neighbors or demonstrate how the gate enhanced the value of the community as a whole, as required by Section 11.2.
• The HOA’s requirement for a “compelling reason” to approve novel structures was not explicitly in the CC&Rs but aligned with the goal of maintaining uniformity.
The Decisive Procedural Error
Despite the validity of the HOA’s concerns, the ALJ ruled that Section 11.4 is absolute.
• The DRC admitted they did not provide a written decision within 45 days.
• The HOA’s argument that the application was “incomplete” (and thus the clock hadn’t started) was rejected because the HOA never informed the Petitioners in writing that the application was considered incomplete.
• The CC&Rs do not allow the DRC to hold an application in abeyance indefinitely; they must either approve it, deny it on the merits, or deny it for incompleteness within the 45-day window.
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Final Order
The Administrative Law Judge issued the following orders:
1. Application Approval: The Respondent (HOA) must deem the application for the private gate approved due to the expiration of the 45-day limit.
2. Financial Reimbursement: The HOA must pay the Petitioners a total of $1,100.00 to reimburse their filing fees within 40 days of the order.
3. Legal Fees: Petitioners’ request for attorney’s fees was denied, as administrative proceedings do not qualify as an “action” under the relevant Arizona statutes (A.R.S. §§ 33-1807(H) or 12-341.01).
4. Future Precedent: The ALJ noted that this “deemed approved” status, resulting from a procedural error, should not prevent the DRC from denying similar applications in the future under Section 11.7, provided they follow proper timelines.
Study Guide – 07F-H067010-BFS
Case Study: Hedden and Ryan vs. Eagle Mountain Community Association
This study guide examines the administrative law proceedings between homeowners Steven Hedden and Paul Ryan and the Eagle Mountain Community Association regarding architectural approvals and the enforcement of Covenants, Conditions, and Restrictions (CC&Rs).
Part I: Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences based on the provided administrative law judge decision.
1. What was the central issue being adjudicated in this case?
2. According to Section 11.2 of the CC&Rs, what is the primary purpose of the Design Review Committee (DRC)?
3. What is the significance of the “45-day rule” outlined in Section 11.4 of the CC&Rs?
4. What specific safety concerns did the Petitioners provide as a rationale for installing the electronic gate?
5. On what grounds did the neighbors of Lots 14 and 15 object to the proposed gate installation?
6. How did the Respondent distinguish the Petitioners’ proposed gate from existing secondary gates in the community?
7. What did the Petitioners argue regarding the economic impact of the proposed gate?
8. Why did the DRC claim it took more than 70 days to reach a formal decision on the application?
9. Despite finding that the Petitioners failed to prove the gate enhanced community value, why did the Administrative Law Judge rule in their favor?
10. What was the final ruling regarding the payment of attorney’s fees and filing fees?
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Part II: Answer Key
1. What was the central issue being adjudicated in this case? The case addressed whether the Eagle Mountain Community Association (HOA) acted appropriately when it denied a request by homeowners Steven Hedden and Paul Ryan to install a private electronic gate at the entrance of their shared driveway. The Petitioners alleged that the HOA violated specific sections of the community’s CC&Rs during the review and denial process.
2. According to Section 11.2 of the CC&Rs, what is the primary purpose of the Design Review Committee (DRC)? The DRC’s purpose is to maintain uniform architectural and landscaping standards throughout the Eagle Mountain development. By doing so, the committee aims to enhance both the aesthetic and economic value of the community.
3. What is the significance of the “45-day rule” outlined in Section 11.4 of the CC&Rs? Section 11.4 mandates that the DRC must furnish a written decision within 45 calendar days after a complete application is submitted. If the committee fails to provide a written response within this timeframe, the application is automatically “deemed approved.”
4. What specific safety concerns did the Petitioners provide as a rationale for installing the electronic gate? The Petitioners expressed concern for their children and grandchildren playing in the driveway, as the driveway’s crest prevents drivers from seeing the area from the cul-de-sac. They also noted that unauthorized drivers frequently use the private driveway to turn around or make cellular phone calls due to the high elevation.
5. On what grounds did the neighbors of Lots 14 and 15 object to the proposed gate installation? Neighbors opposed the gate based on concerns regarding noise and pollution. Specifically, they feared that vehicles waiting for the electronic gate to open would back up and idle in the common-area cul-de-sac.
6. How did the Respondent distinguish the Petitioners’ proposed gate from existing secondary gates in the community? The HOA argued that existing secondary gates are located on common areas at the entrances to entire subdivisions, whereas the Petitioners’ request was for a private gate on private land. Furthermore, the HOA noted that several other custom home subdivisions in the community, such as Mira Vista, function without secondary gates.
7. What did the Petitioners argue regarding the economic impact of the proposed gate? Petitioner Paul Ryan, a real estate appraiser, testified that a private gate increases privacy and safety, which directly correlates to property value. He estimated that the gate would add approximately 3% to the value of the homes, amounting to an increase of $50,000 for his home and $70,000 for Mr. Hedden’s home.
8. Why did the DRC claim it took more than 70 days to reach a formal decision on the application? The DRC claimed the delay was intended to be “lenient” toward the homeowners by giving them extra time to obtain written waivers from their neighbors. The committee argued that it wanted to perform due diligence on a novel request that would set a community-wide precedent.
9. Despite finding that the Petitioners failed to prove the gate enhanced community value, why did the Administrative Law Judge rule in their favor? The judge ruled that the HOA’s failure to adhere to the procedural requirements of Section 11.4 was the deciding factor. Because the DRC did not issue a written disapproval within 45 days, the application was “deemed approved” by operation of the CC&Rs, regardless of the merits of the gate itself.
10. What was the final ruling regarding the payment of attorney’s fees and filing fees? The judge denied the request for attorney’s fees because an administrative proceeding is not considered an “action” under the relevant Arizona statutes. However, the HOA was ordered to reimburse the Petitioners for their filing fees, totaling $1,100.00.
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Part III: Essay Questions
Instructions: Use the source context to develop comprehensive responses to the following prompts.
1. Procedural Rigidity vs. Discretionary Power: Analyze the tension between the DRC’s “broad discretionary powers” granted in Section 11.4 and the strict 45-day notification deadline. How does this case demonstrate the potential consequences when a governing body prioritizes deliberations over procedural deadlines?
2. The Definition of Community Value: Section 11.2 of the CC&Rs focuses on enhancing the “aesthetic and economic value” of the community. Evaluate the arguments made by both the Petitioners and the Respondent regarding whether a private gate fulfills or contradicts this mandate.
3. The Role of Neighborhood Consensus: The HOA Board and the DRC placed significant weight on neighbor objections and the lack of written “waivers.” Discuss the extent to which a homeowner’s association should allow neighbor sentiment to influence architectural decisions not explicitly forbidden by the CC&Rs.
4. Custom vs. Tract Home Dynamics: The source context highlights differences in the values, sizes, and architectural rules for custom versus tract homes within Eagle Mountain. Discuss how these distinctions influenced the Petitioners’ expectations and the HOA’s concerns regarding precedent.
5. Contractual Nature of CC&Rs: The Administrative Law Judge noted that by accepting a deed, homeowners enter a “contractual relationship” with the HOA. Explain how the principles of contract interpretation, such as giving words their “ordinary meaning,” dictated the outcome of this specific legal dispute.
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Part IV: Glossary of Key Terms
Definition
A.R.S.
Arizona Revised Statutes; the codified laws of the state of Arizona used to govern administrative and civil proceedings.
Administrative Law Judge (ALJ)
An official who presides over hearings and renders decisions regarding disputes involving government agencies or specific statutory petitions.
Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and limitations for property use within a common interest development.
Common Area
Land or amenities within a development (such as cul-de-sacs or subdivision entrances) owned collectively by the HOA rather than individual homeowners.
Custom Lot
A plot of land within a development designated for a unique, owner-designed home, typically associated with higher property values than tract homes.
Deemed Approved
A legal status where an application is granted automatic approval because the governing body failed to act or respond within a contractually or legally mandated timeframe.
Design Review Committee (DRC)
A specific body within an HOA responsible for reviewing architectural plans to ensure they meet community standards.
Master-Planned Community
A large-scale residential development that is pre-designed with specific subdivisions, amenities, and uniform architectural guidelines.
Precedent
An action or decision that serves as a guide or justification for subsequent cases; in this context, the HOA feared private gates would lead to widespread requests.
Tract Home
A type of housing where multiple similar houses are built on a single tract of land by a developer, often at a lower price point than custom homes.
Waiver
In the context of this case, a written statement from neighbors indicating they do not object to a proposed architectural change.
Blog Post – 07F-H067010-BFS
The 45-Day Rule: How a Ticking Clock Won a Homeowner’s Battle Against Their HOA
In the world of master-planned communities, the tension between individual expression and architectural “uniformity” is a constant battleground. But in the case of Steven Hedden and Paul Ryan vs. Eagle Mountain Community Association, the conflict wasn’t just about aesthetics—it was about a 300-foot shared driveway and a ticking clock that the HOA board simply forgot to watch.
Petitioners Hedden and Ryan owned two adjacent custom homes in the Aerie Cliffs subdivision, valued between $1.6 million and $2.2 million. Their homes sat at the end of a private drive so long and steep that the houses were invisible from the cul-de-sac. Seeking to stop unwanted traffic from using their driveway as a turnaround point and to ensure the safety of their children and grandchildren, they applied for a private electronic gate.
The HOA board fought them every step of the way, citing “community standards” and neighbor objections. However, as an investigative consultant in the HOA space, I see this case as a masterclass in how administrative disarray can strip a board of its power. You can win against an HOA even if they have a valid reason to say “no”—if you catch them sleeping on the procedural requirements of their own governing documents.
The “Compelling Reason” Trap: When Boards Invent Their Own Power
One of the most common “ultra vires” moves—acting beyond one’s legal authority—occurs when an HOA board or Design Review Committee (DRC) invents a standard that doesn’t exist in the CC&Rs. In this case, the Eagle Mountain DRC and Board demanded that the homeowners provide a “compelling reason” for the gate, defined as “something abnormal” about the property.
This was a hurdle designed to give the board maximum gatekeeping power. However, when the case reached the Office of Administrative Hearings, Administrative Law Judge Diane Mihalsky saw right through it.
Homeowners should take note: Boards often use “unwritten rules” to maintain control where the CC&Rs are silent. If your HOA is demanding a “compelling reason” for your modification, they may be stepping outside their legal jurisdiction.
The “Deemed Approved” Clause: The 71-Day Self-Inflicted Wound
The central “smoking gun” in this case wasn’t the design of the gate, but the calendar. Section 11.4 of the Eagle Mountain CC&Rs contains a “deemed approved” clause—a common but frequently ignored provision that acts as a guillotine for slow-moving boards.
The homeowners submitted their application on May 1, 2006. The HOA spent the next two months in a state of internal confusion, shuffling the application between the DRC and the Board. They claimed they were being “lenient” by keeping the application open while the homeowners sought neighbor waivers. But the clock doesn’t stop for “lenience.”
By the time the HOA issued a formal denial on July 11, 71 days had passed. Because the HOA failed to act within the 45-day window, the merits of the gate—whether it caused an “aesthetic detraction” or not—became legally irrelevant. The clock had already ruled.
A Community Divided: Custom Estates vs. Tract Home Standards
This case highlights the friction inherent in mixed-product communities. Eagle Mountain contains 440 tract homes and 140 custom lots spread across subdivisions like Solitude Canyon, Crimson Canyon, and the Estates.
The petitioners argued that “uniformity” (required by Section 11.2) should be measured against other custom lots. They pointed out that almost every other custom lot in the community was “double-gated.” The HOA counter-argued by pointing to the Mira Vista subdivision, which also featured high-value custom homes but remained ungated.
This creates a “uniformity paradox.” The homeowners estimated the gate would add $50,000 to $70,000 in value to their properties. The HOA, perhaps looking at the community through the lens of its more modest tract homes, saw only a “precedent” they were afraid to set.
The “Confidential” Neighbor Strategy Backfires
In an attempt to bolster their denial, the HOA Board cited objections from five specific lots—12, 6, 8, 9, and 39—claiming neighbors feared “noise and pollution” from cars waiting at the gate. However, in a move that reeks of administrative opaqueness, the board refused to identify these neighbors to the petitioners at the time, claiming the identities were “confidential” to avoid feuds.
This lack of transparency is a high-risk gamble. The petitioners couldn’t address concerns they weren’t allowed to see. When an HOA hides behind “confidential” objections while the 45-day procedural clock is running, they lose the ability to use those objections as a defense once the deadline passes.
Administrative Disarray: “Poor Choice of Words” and Reflective Signs
The most damning evidence of the HOA’s failure came from their own internal records. Richard Kloster, Vice President of the Board and DRC member, admitted during testimony that the meeting minutes were often paraphrased and, in one instance, contained a “poor choice of words” regarding whether the homeowners were actually told their application was incomplete (Finding of Fact #24).
Furthermore, the board’s “alternative” to a security gate for these $2 million properties was nothing short of insulting: they recommended “Reflective signs” as a solution for trespassing (Finding of Fact #29). This total lack of understanding of the homeowners’ investment only underscored the board’s arbitrary stance.
The legal nail in the coffin, however, was Conclusion of Law #9 and #10. The judge noted that while the HOA could have disapproved the application for being “incomplete,” they failed to do so in writing within the 45-day window.
Conclusion: The Price of Accountability
Steven Hedden and Paul Ryan won the right to build their gate not because they proved it was an aesthetic masterpiece, but because their HOA failed to follow its own rulebook. The HOA’s desire to “perform due diligence” and “be fair” was actually a cover for administrative lethargy.
This victory cost the homeowners an $1,100 filing fee—a small price to pay for holding a board’s feet to the fire. It serves as a warning to every HOA board in the country: If you expect homeowners to follow the CC&Rs, you must be prepared to follow the clock.
Is your HOA board following the very rules they use to restrict you, or are they hiding behind “compelling reasons” and “confidential” complaints? In the battle between community aesthetics and procedural deadlines, the clock is often the only judge that truly matters.
Case Participants
Petitioner Side
Steven Hedden(petitioner) Classic Stellar Homes Owner of custom lot 15; Executive Vice President of Classic Stellar Homes
Paul Ryan(petitioner) Owner of custom lot 14; real estate appraiser
Andrew D. Lynch(petitioner attorney) The Lynch Law Firm, LLC
Respondent Side
Beth Mulcahy(respondent attorney) Mulcahy Law Firm, PC
Richard V. Kloster(board member) Eagle Mountain Community Association Vice President of Board; DRC member; witness
Burt Fischer(board member) Eagle Mountain Community Association President of Board; witness
Elaine Anghel(property manager) Eagle Mountain Community Association General Manager
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Robert Barger(agency director) Department of Fire, Building and Life Safety Director receiving copy of decision
Joyce Kesterman(agency staff) Department of Fire, Building and Life Safety Receiving copy of decision
The Administrative Law Judge granted the petition, ruling that the Design Review Committee's failure to issue a written decision within 45 days of the application submission required the application to be deemed approved under CC&Rs § 11.4. The HOA was ordered to approve the gate and refund the petitioners' filing fees.
Why this result: The Respondent failed to comply with the strict 45-day deadline in the CC&Rs to issue a written decision or explicitly deem the application incomplete in writing.
Key Issues & Findings
Failure to issue timely decision on architectural application
Petitioners submitted an application for a private electronic gate. The HOA Design Review Committee tabled the application and failed to issue a written decision within the 45-day timeframe mandated by the CC&Rs, resulting in a 'deemed approved' status.
Orders: Respondent is ordered to deem approved the application for the private gate at the end of Petitioners' shared driveway and reimburse $1,100.00 in filing fees.
Filing fee: $1,100.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
CC&Rs § 11.2
CC&Rs § 11.4
A.R.S. § 41-2198.01(B)
Audio Overview
Decision Documents
07F-H067011-BFS Decision – 162264.pdf
Uploaded 2026-01-25T15:19:38 (194.0 KB)
Briefing Doc – 07F-H067011-BFS
Administrative Law Judge Decision: Hedden and Ryan v. Eagle Mountain Community Association
Executive Summary
This document synthesizes the findings and legal conclusions from the consolidated administrative hearing between Petitioners Steven Hedden and Paul Ryan and the Eagle Mountain Community Association (the HOA). The central dispute concerned the HOA’s denial of the Petitioners’ application to install an electronic gate at the entrance of their shared private driveway.
While the Administrative Law Judge (ALJ) found that the Petitioners failed to prove the gate would enhance the community’s overall aesthetic or economic value, the HOA was ultimately ordered to approve the application. This decision rested on a procedural failure: the HOA’s Design Review Committee (DRC) violated Article 11, Section 11.4 of the Covenants, Conditions, and Restrictions (CC&Rs) by failing to provide a written decision within the mandated 45-day window. Consequently, the application was “deemed approved” by operation of law.
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Case Overview and Community Context
The dispute took place within the Eagle Mountain Community, a master-planned development in Fountain Hills consisting of 580 homes (140 custom and 440 tract homes).
Property Specifications
• Subdivision: Aerie Cliffs, which contains 17 tract homes and three custom homes.
• The Lots: Petitioners own Lots 14 and 15, which are custom homes sharing an approximately 300-foot-long driveway off a cul-de-sac.
• Geography: The driveway traverses a small hill, rendering the homes invisible from the cul-de-sac and vice versa.
Governance Framework
The community is governed by a Declaration of CC&Rs recorded in 1995. Architectural and landscaping standards are overseen by the Design Review Committee (DRC), which has the authority to approve or disapprove proposals to maintain community uniformity and value.
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The Dispute: Proposed Private Electronic Gate
On May 1, 2006, the Petitioners submitted an application for a “Driveway Renovation” to install a 22-foot-wide electronic gate at the entrance of their shared driveway.
Arguments for Approval (Petitioners)
• Security and Trespassing: Petitioners reported issues with unauthorized vehicles using the long driveway to turn around or to gain better cellular reception at the crest of the hill.
• Safety: Concerns were raised regarding children playing on the driveway, as visibility is obstructed by the hill.
• Property Value: Petitioners, one of whom is a master appraiser, estimated the gate would add 3% to their home values (approximately $50,000 to $70,000).
• Precedent for Custom Homes: Petitioners argued that nearly all other custom homes in Eagle Mountain are “double-gated” (accessed through a secondary subdivision gate), whereas Aerie Cliffs lacks such a feature.
Arguments for Denial (Respondent HOA)
• Lack of Precedent: No other home in the 580-unit community has a private electronic gate on a driveway; all existing secondary gates are located on common areas at subdivision entrances.
• Neighbor Opposition: Several neighbors objected to the gate, citing concerns over noise, pollution, and traffic backups in the cul-de-sac.
• Adequate Security: The HOA contended that the two main 24-hour manned gates for the entire community provided sufficient security.
• Aesthetics: The HOA argued the gate was an “esthetic detraction” and that no “compelling reason” (such as a unique property abnormality) existed to justify the installation.
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Procedural Timeline and Delays
A critical factor in the ruling was the timeline of the DRC’s review process, which exceeded the 45-day limit established in the CC&Rs.
May 1, 2006
Petitioners submit the architectural application.
May 10, 2006
DRC tables the application and refers it to the HOA Board.
May 17, 2006
HOA Board reviews the request and refers it back to the DRC.
May 18, 2006
General Manager informs Petitioners approval is “highly unlikely.”
June 14, 2006
DRC meets with Petitioners; application is tabled again to seek neighbor waivers.
July 5, 2006
DRC formally votes to disapprove the application.
July 11, 2006
Formal written denial is sent to the Petitioners (71 days after submission).
July 26, 2006
HOA Board denies the Petitioners’ appeal.
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Legal Analysis and Conclusions of Law
Interpretation of the CC&Rs
The ALJ examined two primary sections of the CC&Rs to determine the outcome:
1. Section 11.2 (Purpose): The DRC’s role is to maintain uniformity and enhance aesthetic/economic value. The ALJ concluded that the Petitioners failed to show the gate would enhance the value of the community as a whole, rather than just their own properties. Petitioners also failed to consult neighbors, which contradicted the goal of community enhancement.
2. Section 11.4 (Operation/Authority): This section contains a strict procedural requirement: “If a Design Review Committee fails to furnish a written decision within 45 calendar days after a complete application has been submitted… the application… shall be deemed approved.”
The “Compelling Reason” Standard
The HOA argued that Petitioners needed a “compelling reason” for the gate. The ALJ found that the CC&Rs contain no such requirement. While the HOA has broad discretionary power, they cannot impose standards not supported by the language of the restrictive covenants.
The Procedural Default
The HOA admitted that the review process took over 70 days. The HOA’s defense was that they were being “lenient” by holding the application open to allow Petitioners to gather neighbor support. However, the ALJ ruled that the CC&Rs do not allow the DRC to hold an application in abeyance indefinitely. If the DRC deemed the application incomplete, it was required to disapprove it in writing within the 45-day window.
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Final Order
The Administrative Law Judge ruled in favor of the Petitioners based solely on the procedural violation of Section 11.4.
• Application Approval: The HOA is ordered to deem the application for the private electronic gate approved.
• Reimbursement of Fees: The Respondent HOA must reimburse each Petitioner for their $550.00 filing fee, totaling $1,100.00.
• Attorneys’ Fees: The request for attorneys’ fees was denied, as administrative proceedings do not qualify as “actions” under the relevant Arizona statutes (A.R.S. §§ 33-1807(H) or 12-341.01).
• Precedent: The ALJ noted that this “deemed approved” status, resulting from a procedural error, does not prevent the DRC from disapproving similar future applications on their merits, provided they adhere to the 45-day timeline (pursuant to Section 11.7).
Study Guide – 07F-H067011-BFS
Study Guide: Hedden and Ryan vs. Eagle Mountain Community Association
This study guide provides a comprehensive review of the administrative law case between homeowners Steven Hedden and Paul Ryan and the Eagle Mountain Community Association. It focuses on the application of Covenants, Conditions, and Restrictions (CC&Rs) and the procedural requirements of homeowner association (HOA) governance.
Understanding the Dispute: Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences based on the source context.
1. What was the core request submitted by Steven Hedden and Paul Ryan to the Design Review Committee (DRC)?
2. According to Section 11.4 of the CC&Rs, what is the consequence if the DRC fails to provide a written decision within 45 days?
3. How did the DRC justify its use of the “compelling reason” standard when evaluating the Petitioners’ application?
4. What was the specific physical justification provided by the Petitioners for needing a gate on their shared driveway?
5. Why did the HOA Board of Directors initially object to the placement of the electronic gate?
6. What distinction did the source make between the locations of existing secondary gates in Eagle Mountain versus the gate proposed by the Petitioners?
7. How did the DRC view the potential approval of a private gate in terms of future community standards?
8. What was the Administrative Law Judge’s (ALJ) finding regarding the DRC’s claim that the application was “incomplete”?
9. Why were the Petitioners’ requests for attorney’s fees denied despite their victory in the case?
10. What was the final order issued by the Administrative Law Judge regarding the gate application and filing fees?
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Answer Key
1. The Petitioners requested approval to install a private electronic gate at the entrance of their shared driveway, which served two custom homes in the Aerie Cliffs subdivision. They intended the gate to match the aesthetic of existing gates in the Crimson Canyon development while complying with all safety and utility requirements.
2. Section 11.4 states that if the DRC fails to furnish a written decision within 45 calendar days after a complete application is submitted, the application is “deemed approved.” This clause serves as a procedural deadline to ensure the committee acts timely on homeowner proposals.
3. The DRC argued that a “compelling reason,” defined as something “abnormal” about a property, was necessary for granting applications for novel or unusual requests that might set a community precedent. However, the ALJ noted that the CC&Rs do not actually contain a legal requirement for a “compelling reason” to approve a departure from original plans.
4. The Petitioners cited safety concerns, noting that their 300-foot driveway goes over a hill, making it impossible to see children playing from the cul-de-sac. They also reported that strangers frequently used the driveway to turn around or to seek better cellular phone reception, creating trespassing and security issues.
5. The HOA Board objected primarily because several neighbors in the cul-de-sac expressed opposition to the gate, citing concerns over noise and vehicle idling. Additionally, the Board felt there was no “compelling reason” for the installation, as the community already had two manned security gates.
6. The evidence showed that all other secondary gates in Eagle Mountain were constructed on common areas at the entrances to entire subdivisions. In contrast, the Petitioners proposed a private gate on a shared driveway located on private land for the exclusive use of two specific lots.
7. The DRC was concerned that approving a private gate would set a precedent, potentially leading to a proliferation of private gates throughout the community. They believed this would deviate from the existing architectural uniformity where no other private automatic gates existed on individual driveways.
8. The ALJ found that while the DRC claimed the application was incomplete because neighbor “waivers” were missing, the committee never informed the Petitioners of this in writing. Furthermore, the DRC eventually voted to deny the application on its merits on July 5, 2006, undermining the argument that the application was too incomplete to act upon.
9. The ALJ ruled that an administrative proceeding does not qualify as an “action” under Arizona statutes that allow for the awarding of attorney’s fees. Therefore, while the Petitioners prevailed on the merits of the case, they were legally ineligible to recover their legal costs.
10. The ALJ ordered the Respondent HOA to deem the gate application approved because they failed to meet the 45-day written response deadline. Additionally, the HOA was ordered to reimburse the Petitioners for their filing fees, totaling $1,100.00.
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Essay Questions
Instructions: Use the source context to develop detailed responses to the following prompts.
1. Procedural vs. Substantive Compliance: Discuss how the “deemed approved” status in Section 11.4 functioned as a “trap” for the HOA. Even if the DRC had valid substantive reasons for denial (such as neighbor opposition or aesthetic uniformity), how did their procedural delays invalidate their decision?
2. The Interpretation of “Uniformity”: Analyze the Petitioners’ argument that the gate would maintain uniformity because other custom homes in Eagle Mountain are “double gated.” Contrast this with the HOA’s argument that uniformity meant no private gates on individual driveways.
3. The Rights of the Individual vs. the Community: Using the testimony regarding neighbor objections and “confidentiality,” evaluate the DRC’s duty to balance the desires of an individual lot owner with the concerns of the surrounding neighbors.
4. The Role of Developer Precedent: Explore the testimony of Mr. Hedden regarding Classic Stellar Homes and why certain subdivisions (like Aerie Cliffs) were not originally gated. How did the developer’s original intent influence the HOA’s later refusal to allow private gates?
5. Evidence of Value: Compare and contrast the Petitioners’ claims regarding the economic value added by the gate (approximately 3% or 50,000–70,000) with the DRC’s purpose under Section 11.2 to “enhance the aesthetic and economic value” of the community as a whole.
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Glossary of Key Terms
Definition
Aerie Cliffs
A subdivision within Eagle Mountain consisting of seventeen tract homes and three custom homes, where the Petitioners’ properties are located.
A.R.S. § 41-2198.01(B)
The Arizona Revised Statute under which the Petitioners filed their Petitions for Relief to the Department of Fire, Building & Life Safety.
Declaration of Covenants, Conditions, and Restrictions; the legal document that outlines the rules and architectural standards for the community.
Custom Home
Generally larger, more expensive homes (in this context, valued between $1.6M and $2.2M) that often have different DRC approval rules than tract homes.
Deemed Approved
A legal status where an application is automatically granted because the governing body (DRC) failed to issue a decision within the contractually mandated timeframe.
Design Review Committee (DRC)
The body responsible for maintaining architectural and landscaping standards and reviewing homeowner applications for property modifications.
Double Gated
A term used to describe homes that require passing through both a primary community gate and a secondary subdivision gate.
Precedent
A decision or action that serves as a guide or justification for subsequent cases; the HOA feared approving one gate would require them to approve others.
Tract Home
Standardized homes built in large numbers by a developer (in this context, typically smaller and valued lower than custom homes).
Waiver (Neighbor)
A written statement from potentially affected neighbors indicating they do not object to a proposed architectural change.
Blog Post – 07F-H067011-BFS
When Bureaucracy Backfires: 4 Lessons from a Shared Driveway Showdown
1. The High-Stakes Gatekeeping of Eagle Mountain
Eagle Mountain, a premier master-planned community in Fountain Hills, Arizona, is a study in architectural prestige. With 580 residences—ranging from tract homes to multi-million dollar custom estates—the community’s aesthetic integrity is guarded by a Design Review Committee (DRC) and a Board of Directors. For homeowners Steven Hedden and Paul Ryan, the residents of two custom homes on a shared 300-foot driveway in the Aerie Cliffs subdivision, a private electronic gate was a logical upgrade for security and privacy.
However, their request triggered a classic administrative standoff. The HOA viewed the gate as a threat to community uniformity, while the homeowners viewed it as an essential component of their property’s “custom” status. As a Senior Legal Analyst, I see this case not merely as a dispute over wrought iron and motors, but as a masterclass in how fiduciary negligence and a lack of procedural due process can strip a board of its discretionary power. In this multi-million dollar dispute, the final verdict didn’t hinge on the gate’s design, but on a simple, ticking clock.
2. The 71-Day Failure: The “Deemed Approved” Trap
The most impactful takeaway from the Eagle Mountain dispute is the absolute supremacy of procedural deadlines over aesthetic preferences. Under the community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs), the DRC is not merely encouraged to be prompt; they are legally bound by a “deemed approved” clause.
Section 11.4 of the CC&Rs states:
Hedden and Ryan submitted their application on May 1, 2006. The DRC and Board engaged in a series of internal referrals, “tabling” the matter to seek neighbor input and debating the “precedent” a gate might set. By the time a formal written denial was issued on July 11, 2006, 71 days had elapsed.
By overshooting their deadline by 26 days, the HOA fell victim to administrative estoppel. Strategically, the Board’s attempt to be “lenient” by holding the application open was their undoing. In community governance, a board must understand that process must always precede politeness. If an application is incomplete or controversial, the Board should issue a formal denial “without prejudice” to stop the clock, rather than tabling the motion into a legal forfeit.
3. The Myth of the “Compelling Reason”
During the review, the DRC applied a standard that was nowhere to be found in the CC&Rs: the “compelling reason” requirement. The Board testified that for a novel request like a private gate, they required “something abnormal about the property” to justify approval.
The Administrative Law Judge (ALJ) identified this as a critical error. The HOA had essentially invented an arbitrary standard, attempting to enforce “Board culture” as if it were codified law. For governance strategists, this is a glaring red flag. When a board applies unwritten rules, they invite litigation.
Strategic Advice for Boards: Conduct regular “document audits.” If your Board requires “compelling reasons” or “abnormal circumstances” for certain approvals, these standards must be formally adopted as Supplemental Design Guidelines. Without codification, these requirements are legally flimsiness and unenforceable in a challenge.
4. Uniformity vs. Economic Value: The “Custom” Conflict
The HOA’s primary defense was rooted in Section 11.2, which tasks the DRC with maintaining “uniformity” to protect the community’s aesthetic. They argued that because no other private driveway in the 580-home community had an automatic gate, approving one would be a “slippery slope.”
The homeowners countered by highlighting the specific geography of Eagle Mountain. As owners of high-end custom homes, they pointed out that they were surrounded by other custom subdivisions—specifically Crimson Canyon, Solitude Canyon, and the Estates—where “double-gating” (a secondary gate beyond the main community entrance) was the standard. Petitioner Paul Ryan, a master real estate appraiser, argued the gate would add $50,000 to $70,000 in market value.
The conflict here is between rigid uniformity and the protection of economic value. While the ALJ noted the petitioners failed to prove the gate benefited the entire community, the point became moot. The HOA’s failure to act within the 45-day window meant they lost the right to even argue the merits of uniformity.
5. The Anonymity Trap: Why Hidden Objections Paralyze Progress
The HOA attempted to justify its delay by citing “affected neighbors.” The Board claimed five neighbors (specifically from Lots 12, 6, 8, 9, and 39) opposed the gate due to concerns over noise and traffic. However, the Board refused to identify these neighbors to the petitioners to avoid “inciting feuds.”
This lack of transparency created a procedural deadlock. The DRC asked the petitioners to seek “waivers” from neighbors whose identities they were simultaneously concealing. This is the “Anonymity Trap.” By shielding the neighbors, the Board prevented the petitioners from addressing the specific objections (noise and pollution), which led the DRC to further delay their decision. That very delay—intended to be “fair” to the objecting neighbors—triggered the 45-day approval clause, effectively silencing those neighbors’ concerns forever.
Conclusion: The Cost of a Missed Deadline
The ALJ’s order was absolute: the HOA was forced to deem the gate application approved and reimburse the homeowners for $1,100 in filing fees. The Board spent months debating the definition of “uniformity” and the fears of neighbors, only to lose the case on a clerical failure.
However, there is a silver lining for the HOA. Under CC&R Section 11.7 (the Waiver clause), the ALJ noted that this specific “deemed approved” victory does not create a binding precedent for the rest of the community. The HOA preserved its right to deny gates to other homeowners in the future—provided they actually watch the clock next time.
In the world of community law, the lesson is clear: it is not enough for a board to be right in its aesthetics; it must be disciplined in its administration.
Does your community’s board have the administrative discipline to survive the “ticking clock” hidden within your own governing documents?
Case Participants
Petitioner Side
Steven Hedden(Petitioner) Classic Stellar Homes Owner of Lot 15; Executive Vice President of Classic Stellar Homes
Paul Ryan(Petitioner) Owner of Lot 14; Real estate appraiser
Andrew D. Lynch(attorney) The Lynch Law Firm, LLC
Respondent Side
Beth Mulcahy(attorney) Mulcahy Law Firm, PC
Richard V. Kloster(board member) Eagle Mountain Community Association Vice President of HOA Board; DRC member; Witness
Burt Fischer(board member) Eagle Mountain Community Association President of HOA Board; Witness
Elaine Anghel(General Manager) Eagle Mountain Community Association
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Robert Barger(Director) Department of Fire Building and Life Safety Recipient of order
Joyce Kesterman(agency staff) Department of Fire Building and Life Safety Recipient of order
