Tag Archives: ADS

Susan E Abbass v. 10000 North Central Homeowners Association

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

Case Summary

Case ID 20F-H2020057-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-08-17
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Susan E Abbass Counsel —
Respondent 10000 North Central Homeowners Association Counsel Blake Johnson, Esq.

Alleged Violations

CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4

Outcome Summary

The Administrative Law Judge denied the Petitioner's single-issue petition, finding that the Petitioner failed to meet the burden of proof required to establish that the Respondent HOA violated the governing CC&R provisions.

Why this result: Petitioner failed to prove the alleged CC&R violations; specifically, the HOA was found to have the right to enter property for certain conditions (including emergencies or maintenance) but was under no obligation to do so, and the situation was not determined to be a true emergency by the ALJ.

Key Issues & Findings

Whether 10000 North Central Homeowners Association violated the CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4.

Petitioner claimed the Association violated specified CC&R sections by refusing to grant access to the neighboring property to determine and resolve the source of a water leak. Petitioner requested an ORDER requiring the Association to allow access. The ALJ found that the CC&Rs grant the HOA the right to enter, but not the obligation, and Petitioner failed to prove an emergency situation or a violation of the CC&Rs.

Orders: Petitioner's petition in this matter was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092
  • CC&R Article XII Section 6
  • CC&R Article XIII Section 1(d)
  • CC&R Article XIII Section 4

Analytics Highlights

Topics: HOA, CC&R, Easement, Maintenance, Drainage, Property Access, Burden of Proof
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
  • CC&R Article XII Section 6
  • CC&R Article XIII Section 1(d)
  • CC&R Article XIII Section 4

Video Overview

Audio Overview

Decision Documents

20F-H2020057-REL-RHG Decision – 839845.pdf

Uploaded 2026-01-23T17:33:10 (108.6 KB)

20F-H2020057-REL-RHG Decision – ../20F-H2020057-REL/815490.pdf

Uploaded 2026-01-23T17:33:15 (135.6 KB)





Briefing Doc – 20F-H2020057-REL-RHG


Briefing Document: Abbass v. 10000 North Central Homeowners Association

Executive Summary

This document synthesizes the findings from two Administrative Law Judge (ALJ) Decisions concerning a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the Association to exercise its authority under the community’s Covenants, Conditions, and Restrictions (CC&Rs) to enter a neighboring property to inspect the source of a persistent water leak affecting the Petitioner’s home.

The ALJ ultimately denied the Petitioner’s petition and subsequent appeal. The central conclusion across both hearings was that while the Association’s CC&Rs grant it the right to enter a member’s property under specific circumstances (such as for inspections or emergencies), they do not impose an obligation or duty to do so. The Petitioner failed to meet the burden of proof required to demonstrate that the Association violated any provision of the CC&Rs. The ALJ characterized the situation as a “neighbor versus neighbor dispute” and determined that the Association acted within its business judgment by requiring more definitive proof of the leak’s source before authorizing entry, citing concerns over potential liability.

Case Overview

This matter involves a single-issue petition filed by a homeowner against her Homeowners Association (HOA) with the Arizona Department of Real Estate. The case was referred to the Office of Administrative Hearings for adjudication.

Case Details

Information

Case Number

20F-H2020057-REL

Petitioner

Susan E. Abbass

Respondent

10000 North Central Homeowners Association

Administrative Law Judge

Adam D. Stone

Initial Hearing Date

July 28, 2020

Rehearing Date

November 24, 2020

Core Allegation

The Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) & 4 by failing to grant access to a neighbor’s property to investigate a water leak.

Chronology of Key Events

1. November 14, 2019: Ronald Pick, residing with the Petitioner, discovers the home office carpet is “completely soaked with water.” He determines the drainage issue originates from the neighboring property.

2. November 2019: After the neighbor refuses to cooperate, the Petitioner contacts Robert Kersten, the Association’s Community Manager. Kersten sends a violation notice to the neighbor.

3. January 2020: The Association’s Board of Directors informs Kersten that they will handle the matter directly, and he ceases interaction with the Petitioner.

4. May 5, 2020: The Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500.00 fee.

5. July 28, 2020: The initial evidentiary hearing is held before an Administrative Law Judge.

6. August 17, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding she failed to meet her burden of proof.

7. August 31, 2020: The Petitioner files a request for a rehearing.

8. October 14, 2020: The Commissioner of the Arizona Department of Real Estate grants the request for a rehearing.

9. November 24, 2020: The rehearing is conducted.

10. December 1, 2020: The ALJ issues a final decision, again finding for the Respondent and dismissing the Petitioner’s appeal.

Summary of Arguments

Petitioner’s Position (Susan E. Abbass)

• The Problem: A water leak originating from a neighboring property caused damage, with recurring water intrusion during rainfall.

• Attempted Resolution: The Petitioner and Mr. Pick attempted to work with the neighbor, who was uncooperative on the advice of her insurance company. They then sought the Association’s help to gain access for inspection.

• Core Argument: The Petitioner argued that the water leak constituted an “emergency situation” and that the Association had an obligation under the CC&Rs to grant access to the neighbor’s property for inspection.

• Evidence Provided: The Petitioner provided the Association with all available evidence, including a report from the City of Phoenix.

• Financial Responsibility: The Petitioner offered to pay for a geotechnical engineer and any associated costs for the inspection.

• Legal Basis: The Petitioner claimed the Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) and 4.

Respondent’s Position (10000 North Central HOA)

• Actions Taken: The Association, through its manager Robert Kersten, acknowledged the complaint and sent a violation notice to the neighbor regarding improper vegetation. They also contacted the neighbor to request access.

• Core Argument: The Association contended that the CC&Rs do not allow its manager to authorize entry “whenever they feel like it.” Entry requires “reasonable justification” and “some type of proof,” which the Board determined had not been provided by the Petitioner.

• Business Judgment and Liability: Respondent’s counsel argued the Board was exercising its business judgment to avoid potential liability that could arise from granting third-party access to a member’s property without sufficient cause.

• Neighbor’s Actions: The Association stated that, to its knowledge, the neighbor’s insurance company inspected the water flow and determined the neighbor was not at fault.

• Evidence Provided: At the rehearing, the Association submitted photographs (Exhibits K, L, M) purportedly showing a fixed pipe and drainage flowing away from the Petitioner’s property.

Analysis of CC&R Provisions

The dispute centered on the interpretation of specific articles within the Association’s Covenants, Conditions, and Restrictions.

Article

Provision Summary

XII, Section 6

Easement in Favor of Association: Grants the Association and its agents the right to enter Lots for specific purposes, including: (a) inspection of owner maintenance, (c) correction of emergency conditions, and (d) exercising its powers and duties.

XIII, Section 1(d)

Drainage Flow: States that “nothing shall be erected, planted or maintained to impede or interrupt said or normal drainage flow” in patio or yard areas that have been graded for drainage.

XIII, Section 4

Owner Maintenance and Association’s Right to Enter: Requires owners to keep their Lot in good order and repair. If an owner fails, the Association “shall have the right to enter upon said Lot or Patio to correct drainage and to repair, maintain and restore the Lot…” after providing notice to the owner and receiving approval from the Board.

Administrative Law Judge’s Findings and Rulings

The ALJ’s conclusions were consistent across both the initial decision and the rehearing. The Petitioner bore the burden of proving by a “preponderance of the evidence” that the Association violated the CC&Rs.

Key Findings from the Initial Decision (August 17, 2020)

• Right vs. Obligation: The judge’s central finding was that the Petitioner was “incorrect that the Respondent has an ‘obligation’ to enter the property.” The CC&Rs grant the Association a right to enter but do not impose a duty or obligation to do so.

• Lack of “True Emergency”: While Mr. Pick testified about water damage during rain, the judge noted a lack of testimony on the extent of the damage. The fact that over eight months had passed since the initial leak discovery indicated there was “no true emergency situation.”

• Stalemate and Business Judgment: The judge acknowledged the “stalemate” where the Petitioner could not obtain more proof without access, and the Association would not grant access without more proof. The Association’s decision was framed as an exercise of business judgment based on its determination that the submitted proof did not meet its standard for entry.

• Nature of the Dispute: The matter was characterized as a “neighbor versus neighbor dispute,” implying the Association was not the proper party to compel action.

• Conclusion: The Petitioner failed to meet her burden of proof.

Key Findings from the Rehearing Decision (December 1, 2020)

• No New Evidence: The Petitioner “failed to provide new evidence or witness testimony” that would alter the original conclusion.

• Petitioner’s Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”

• Respondent’s Compliance: The ALJ concluded that the Association “acted in compliance with the CC&Rs.” It was “receptive to the information provided by Petitioner and requested the neighboring property owners cooperation.” The lack of the neighbor’s full cooperation did not constitute a violation by the Association.

• Jurisdictional Limits: The judge stated that under statute A.R.S. § 32-2199.02(A), an ALJ can only order a party to abide by the community documents. The judge “cannot force the neighbor or the Respondent to grant access to the property.”

• Incorrect Venue: The decision noted that “it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”

Final Disposition

IT IS ORDERED that Petitioner’s petition in this matter be denied. The final decision from the rehearing on December 1, 2020, named the Respondent as the prevailing party and dismissed the Petitioner’s appeal. This order is binding on the parties, with any further appeal requiring judicial review in the superior court within thirty-five days of the order being served.






Study Guide – 20F-H2020057-REL-RHG


Study Guide: Abbass v. 10000 North Central Homeowners Association

This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.

——————————————————————————–

Short-Answer Quiz

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

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

2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?

3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.

4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?

5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?

6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?

7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?

8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.

9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?

10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?

——————————————————————————–

Answer Key

1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.

2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.

3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.

4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.

5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.

6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.

7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”

8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.

9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).

1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.

2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”

3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?

4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.

5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.

Arizona Department of Real Estate

The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.

Burden of Proof

The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.

Easement

A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.

Jurisdiction

The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.

Petitioner

The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.

Preponderance of the Evidence

The standard of proof in most civil cases. It is defined in the text as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”

Prevailing Party

The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.

Rehearing

A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.

Respondent

The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.






Blog Post – 20F-H2020057-REL-RHG


Study Guide: Abbass v. 10000 North Central Homeowners Association

This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.

——————————————————————————–

Short-Answer Quiz

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

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

2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?

3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.

4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?

5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?

6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?

7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?

8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.

9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?

10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?

——————————————————————————–

Answer Key

1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.

2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.

3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.

4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.

5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.

6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.

7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”

8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.

9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).

1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.

2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”

3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?

4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.

5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.

Arizona Department of Real Estate

The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.

Burden of Proof

The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.

Easement

A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.

Jurisdiction

The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.

Petitioner

The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.

Preponderance of the Evidence

The standard of proof in most civil cases. It is defined in the text as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”

Prevailing Party

The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.

Rehearing

A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.

Respondent

The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.


Case Participants

Petitioner Side

  • Susan E Abbass (petitioner)
  • Ronald Pick (witness)
    witness for Petitioner

Respondent Side

  • Blake Johnson (HOA attorney)
    Brown Olcott, PLLC
  • Robert Kersten (property manager)
    witness for Respondent
  • Kelly Oetinger (HOA attorney)
    Brown Olcott, PLLC

Neutral Parties

  • Adam D. Stone (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • c. serrano (staff)
    electronic transmission staff

Susan E Abbass v. 10000 North Central Homeowners Association

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

Case Summary

Case ID 20F-H2020057-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-12-01
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Susan E Abbass Counsel —
Respondent 10000 North Central Homeowners Association Counsel Blake R. Johnson

Alleged Violations

CC&R’s Article XII, Section 6 & Article XIII, Section 1(d) & 4

Outcome Summary

The Administrative Law Judge concluded that the Respondent HOA acted in compliance with the CC&R’s and was the prevailing party, finding that the HOA had the right to enter property to correct emergency conditions, but was under no obligation to do so. The petition was dismissed following the rehearing.

Why this result: Petitioner failed to sustain her burden to establish a violation by Respondent of Article XII Section 6, and Article XIII Section 1(d) and 4 or the CC&R’s. The ALJ noted that the relief sought (forcing access) may require a different venue or party.

Key Issues & Findings

Whether 10,000 North Central Homeowners Association violated the CCR’s Article XII, Section 6 & Article XIII, Section 1(d) & 4

Petitioner filed a single-issue petition alleging the HOA violated CC&Rs by refusing to grant access to a neighboring property to investigate and remedy a water leak causing damage. The ALJ found the HOA had the right, but not the obligation, to enter the property.

Orders: Petitioner’s petition was denied in the initial decision (August 17, 2020). Upon rehearing, the Administrative Law Judge concluded that there was no violation by the Respondent, and the Respondent was the prevailing party; Petitioner’s appeal was dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 41-2198.01

Analytics Highlights

Topics: HOA Dispute, CC&R Enforcement, Right of Entry, Drainage Issues, Rehearing
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 41-2198.01
  • CC&R’s Article XII Section 6
  • CC&R’s Article XIII Section 1(d) and 4

Video Overview

Audio Overview

Decision Documents

20F-H2020057-REL-RHG Decision – 839845.pdf

Uploaded 2025-10-09T03:35:20 (108.6 KB)

20F-H2020057-REL-RHG Decision – ../20F-H2020057-REL/815490.pdf

Uploaded 2026-01-20T13:57:22 (135.6 KB)





Briefing Doc – 20F-H2020057-REL-RHG


Briefing Document: Abbass v. 10000 North Central Homeowners Association

Executive Summary

This document synthesizes the findings from two Administrative Law Judge (ALJ) Decisions concerning a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the Association to exercise its authority under the community’s Covenants, Conditions, and Restrictions (CC&Rs) to enter a neighboring property to inspect the source of a persistent water leak affecting the Petitioner’s home.

The ALJ ultimately denied the Petitioner’s petition and subsequent appeal. The central conclusion across both hearings was that while the Association’s CC&Rs grant it the right to enter a member’s property under specific circumstances (such as for inspections or emergencies), they do not impose an obligation or duty to do so. The Petitioner failed to meet the burden of proof required to demonstrate that the Association violated any provision of the CC&Rs. The ALJ characterized the situation as a “neighbor versus neighbor dispute” and determined that the Association acted within its business judgment by requiring more definitive proof of the leak’s source before authorizing entry, citing concerns over potential liability.

Case Overview

This matter involves a single-issue petition filed by a homeowner against her Homeowners Association (HOA) with the Arizona Department of Real Estate. The case was referred to the Office of Administrative Hearings for adjudication.

Case Details

Information

Case Number

20F-H2020057-REL

Petitioner

Susan E. Abbass

Respondent

10000 North Central Homeowners Association

Administrative Law Judge

Adam D. Stone

Initial Hearing Date

July 28, 2020

Rehearing Date

November 24, 2020

Core Allegation

The Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) & 4 by failing to grant access to a neighbor’s property to investigate a water leak.

Chronology of Key Events

1. November 14, 2019: Ronald Pick, residing with the Petitioner, discovers the home office carpet is “completely soaked with water.” He determines the drainage issue originates from the neighboring property.

2. November 2019: After the neighbor refuses to cooperate, the Petitioner contacts Robert Kersten, the Association’s Community Manager. Kersten sends a violation notice to the neighbor.

3. January 2020: The Association’s Board of Directors informs Kersten that they will handle the matter directly, and he ceases interaction with the Petitioner.

4. May 5, 2020: The Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500.00 fee.

5. July 28, 2020: The initial evidentiary hearing is held before an Administrative Law Judge.

6. August 17, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding she failed to meet her burden of proof.

7. August 31, 2020: The Petitioner files a request for a rehearing.

8. October 14, 2020: The Commissioner of the Arizona Department of Real Estate grants the request for a rehearing.

9. November 24, 2020: The rehearing is conducted.

10. December 1, 2020: The ALJ issues a final decision, again finding for the Respondent and dismissing the Petitioner’s appeal.

Summary of Arguments

Petitioner’s Position (Susan E. Abbass)

• The Problem: A water leak originating from a neighboring property caused damage, with recurring water intrusion during rainfall.

• Attempted Resolution: The Petitioner and Mr. Pick attempted to work with the neighbor, who was uncooperative on the advice of her insurance company. They then sought the Association’s help to gain access for inspection.

• Core Argument: The Petitioner argued that the water leak constituted an “emergency situation” and that the Association had an obligation under the CC&Rs to grant access to the neighbor’s property for inspection.

• Evidence Provided: The Petitioner provided the Association with all available evidence, including a report from the City of Phoenix.

• Financial Responsibility: The Petitioner offered to pay for a geotechnical engineer and any associated costs for the inspection.

• Legal Basis: The Petitioner claimed the Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) and 4.

Respondent’s Position (10000 North Central HOA)

• Actions Taken: The Association, through its manager Robert Kersten, acknowledged the complaint and sent a violation notice to the neighbor regarding improper vegetation. They also contacted the neighbor to request access.

• Core Argument: The Association contended that the CC&Rs do not allow its manager to authorize entry “whenever they feel like it.” Entry requires “reasonable justification” and “some type of proof,” which the Board determined had not been provided by the Petitioner.

• Business Judgment and Liability: Respondent’s counsel argued the Board was exercising its business judgment to avoid potential liability that could arise from granting third-party access to a member’s property without sufficient cause.

• Neighbor’s Actions: The Association stated that, to its knowledge, the neighbor’s insurance company inspected the water flow and determined the neighbor was not at fault.

• Evidence Provided: At the rehearing, the Association submitted photographs (Exhibits K, L, M) purportedly showing a fixed pipe and drainage flowing away from the Petitioner’s property.

Analysis of CC&R Provisions

The dispute centered on the interpretation of specific articles within the Association’s Covenants, Conditions, and Restrictions.

Article

Provision Summary

XII, Section 6

Easement in Favor of Association: Grants the Association and its agents the right to enter Lots for specific purposes, including: (a) inspection of owner maintenance, (c) correction of emergency conditions, and (d) exercising its powers and duties.

XIII, Section 1(d)

Drainage Flow: States that “nothing shall be erected, planted or maintained to impede or interrupt said or normal drainage flow” in patio or yard areas that have been graded for drainage.

XIII, Section 4

Owner Maintenance and Association’s Right to Enter: Requires owners to keep their Lot in good order and repair. If an owner fails, the Association “shall have the right to enter upon said Lot or Patio to correct drainage and to repair, maintain and restore the Lot…” after providing notice to the owner and receiving approval from the Board.

Administrative Law Judge’s Findings and Rulings

The ALJ’s conclusions were consistent across both the initial decision and the rehearing. The Petitioner bore the burden of proving by a “preponderance of the evidence” that the Association violated the CC&Rs.

Key Findings from the Initial Decision (August 17, 2020)

• Right vs. Obligation: The judge’s central finding was that the Petitioner was “incorrect that the Respondent has an ‘obligation’ to enter the property.” The CC&Rs grant the Association a right to enter but do not impose a duty or obligation to do so.

• Lack of “True Emergency”: While Mr. Pick testified about water damage during rain, the judge noted a lack of testimony on the extent of the damage. The fact that over eight months had passed since the initial leak discovery indicated there was “no true emergency situation.”

• Stalemate and Business Judgment: The judge acknowledged the “stalemate” where the Petitioner could not obtain more proof without access, and the Association would not grant access without more proof. The Association’s decision was framed as an exercise of business judgment based on its determination that the submitted proof did not meet its standard for entry.

• Nature of the Dispute: The matter was characterized as a “neighbor versus neighbor dispute,” implying the Association was not the proper party to compel action.

• Conclusion: The Petitioner failed to meet her burden of proof.

Key Findings from the Rehearing Decision (December 1, 2020)

• No New Evidence: The Petitioner “failed to provide new evidence or witness testimony” that would alter the original conclusion.

• Petitioner’s Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”

• Respondent’s Compliance: The ALJ concluded that the Association “acted in compliance with the CC&Rs.” It was “receptive to the information provided by Petitioner and requested the neighboring property owners cooperation.” The lack of the neighbor’s full cooperation did not constitute a violation by the Association.

• Jurisdictional Limits: The judge stated that under statute A.R.S. § 32-2199.02(A), an ALJ can only order a party to abide by the community documents. The judge “cannot force the neighbor or the Respondent to grant access to the property.”

• Incorrect Venue: The decision noted that “it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”

Final Disposition

IT IS ORDERED that Petitioner’s petition in this matter be denied. The final decision from the rehearing on December 1, 2020, named the Respondent as the prevailing party and dismissed the Petitioner’s appeal. This order is binding on the parties, with any further appeal requiring judicial review in the superior court within thirty-five days of the order being served.






Study Guide – 20F-H2020057-REL-RHG


Study Guide: Abbass v. 10000 North Central Homeowners Association

This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.

——————————————————————————–

Short-Answer Quiz

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

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

2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?

3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.

4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?

5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?

6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?

7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?

8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.

9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?

10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?

——————————————————————————–

Answer Key

1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.

2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.

3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.

4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.

5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.

6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.

7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”

8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.

9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).

1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.

2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”

3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?

4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.

5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.

Arizona Department of Real Estate

The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.

Burden of Proof

The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.

Easement

A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.

Jurisdiction

The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.

Petitioner

The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.

Preponderance of the Evidence

The standard of proof in most civil cases. It is defined in the text as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”

Prevailing Party

The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.

Rehearing

A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.

Respondent

The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.






Blog Post – 20F-H2020057-REL-RHG


Study Guide: Abbass v. 10000 North Central Homeowners Association

This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.

——————————————————————————–

Short-Answer Quiz

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

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

2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?

3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.

4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?

5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?

6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?

7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?

8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.

9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?

10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?

——————————————————————————–

Answer Key

1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.

2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.

3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.

4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.

5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.

6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.

7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”

8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.

9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).

1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.

2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”

3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?

4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.

5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.

Arizona Department of Real Estate

The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.

Burden of Proof

The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.

Easement

A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.

Jurisdiction

The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.

Petitioner

The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.

Preponderance of the Evidence

The standard of proof in most civil cases. It is defined in the text as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”

Prevailing Party

The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.

Rehearing

A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.

Respondent

The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.


Case Participants

Petitioner Side

  • Susan E Abbass (petitioner)
  • Ronald Pick (witness)
    witness for Petitioner

Respondent Side

  • Blake Johnson (HOA attorney)
    Brown Olcott, PLLC
  • Robert Kersten (property manager)
    witness for Respondent
  • Kelly Oetinger (HOA attorney)
    Brown Olcott, PLLC

Neutral Parties

  • Adam D. Stone (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • c. serrano (staff)
    electronic transmission staff

Lori & James Jordan v. The Pines at Show Low Condominium Owners’

Posted on by

Case Summary

Case ID 21F-H2120014-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-12-01
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lori & James Jordan Counsel —
Respondent The Pines at Show Low Condominium Owners' Association, Inc. Counsel —

Alleged Violations

CC&Rs Sections 3.04, 3.07 & 3.09; 2012 Rules and Regulations Section 19

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the Petitioner failed to prove the Association violated the CC&Rs regarding sewer maintenance or deductible apportionment, finding that the Association properly applied its 2012 Rules and Regulations.

Why this result: Petitioner failed to meet her burden of proof that the Respondent violated the CC&Rs in apportioning a proportionate share of the insurance deductible.

Key Issues & Findings

Dispute over apportionment of insurance deductible following sewer backup damage in a common area.

Petitioner challenged the Association's decision to apportion 43.84% ($10,958.96) of the insurance deductible to her unit following damage caused by a main sewer line blockage in a common area.

Orders: Petitioner’s petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. REV. STAT. § 41-1092.09
  • Title 33, Chapter 9 of the Arizona Revised Statutes
  • CC&Rs Sections 3.04, 3.07, 3.09
  • 2012 Rules and Regulations Section 19

Analytics Highlights

Topics: Deductible Apportionment, Sewer Maintenance, Common Area, Condominium Documents, Rules and Regulations
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. REV. STAT. § 41-1092.09
  • Title 33, Chapter 9 of the Arizona Revised Statutes

Video Overview

Audio Overview

Decision Documents

21F-H2120014-REL Decision – 840033.pdf

Uploaded 2026-01-23T17:35:25 (138.3 KB)

Questions

Question

Can the HOA require a homeowner to pay a portion of the association's insurance deductible for damage caused by a common element failure?

Short Answer

Yes, if the community Rules and Regulations authorize the Board to apportion the deductible based on repair costs.

Detailed Answer

The ALJ found that the Association's Board had the authority to adopt rules regarding insurance deductibles. Specifically, the rules allowed the Board to apportion the deductible among unit owners and the association based on the proportion of repair costs when damage affects multiple units and common areas, even if the damage originated from a common element like a sewer line.

Alj Quote

Sections 19(b) and (c) appears to have anticipated the present scenario. There was damaged caused to two units and the common area, and Petitioner was apportioned 43.84% of the deductible. From the evidence presented, the Association also properly applied the applicable Rules and Regulations.

Legal Basis

Rules and Regulations Section 19

Topic Tags

  • insurance
  • deductible
  • assessments
  • common elements

Question

Who is responsible for ensuring insurance coverage for the 'gap' created by an HOA's insurance deductible?

Short Answer

The homeowner is responsible for obtaining personal insurance to cover the gap.

Detailed Answer

The decision highlights that governing documents or rules may explicitly state that owners must be aware of the deductible amount and secure their own coverage to handle that cost if assessed.

Alj Quote

Each Owner needs to be aware of the amount of the Association’s insurance deductible so that the Owner can determine that their personal insurance coverage will cover any gap.

Legal Basis

Rules and Regulations Section 19(e)

Topic Tags

  • insurance
  • homeowner responsibilities

Question

If the HOA fixes a maintenance issue after it occurs (like a sewer backup), can I still claim they violated their maintenance duty to avoid paying the deductible?

Short Answer

Likely no, as long as the HOA coordinated and accomplished the repairs.

Detailed Answer

The ALJ ruled that because the Association coordinated and completed the repairs once the issue occurred, the homeowner failed to prove that the Association neglected its maintenance duties under the CC&Rs. Therefore, the assessment of the deductible was not invalidated by a failure to maintain.

Alj Quote

Once the sewer backed up, the Association coordinated the repairs and accomplished the same. Petitioner failed to demonstrate that the Association failed to properly attend to the maintenance and/or repair of the sewer lines.

Legal Basis

CC&Rs Section 3.09

Topic Tags

  • maintenance
  • repairs
  • negligence

Question

What is the burden of proof for a homeowner challenging an HOA decision in an administrative hearing?

Short Answer

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

Detailed Answer

The homeowner (Petitioner) has the burden to prove that the HOA violated the governing documents or statutes. The standard is 'preponderance of the evidence,' meaning the claim must be shown to be more probably true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the CC&Rs… '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

Standard of Evidence

Topic Tags

  • legal procedure
  • evidence
  • burden of proof

Question

Can the HOA Board create rules that change how financial liabilities (like deductibles) are handled without amending the CC&Rs?

Short Answer

Yes, if the CC&Rs grant the Board the authority to adopt rules for the regulation of the property.

Detailed Answer

The decision upheld the enforcement of a rule regarding insurance deductibles found in the 'Rules and Regulations,' noting that the CC&Rs granted the authority to adopt such rules.

Alj Quote

Section 4.10 of the CC&Rs granted authority to adopt rules 'for the regulation and operation of the Property…'

Legal Basis

CC&Rs Section 4.10

Topic Tags

  • rulemaking
  • board authority
  • governing documents

Case

Docket No
21F-H2120014-REL
Case Title
Lori & James Jordan vs. The Pines at Show Low Condominium Owners' Association, Inc.
Decision Date
2020-12-01
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Can the HOA require a homeowner to pay a portion of the association's insurance deductible for damage caused by a common element failure?

Short Answer

Yes, if the community Rules and Regulations authorize the Board to apportion the deductible based on repair costs.

Detailed Answer

The ALJ found that the Association's Board had the authority to adopt rules regarding insurance deductibles. Specifically, the rules allowed the Board to apportion the deductible among unit owners and the association based on the proportion of repair costs when damage affects multiple units and common areas, even if the damage originated from a common element like a sewer line.

Alj Quote

Sections 19(b) and (c) appears to have anticipated the present scenario. There was damaged caused to two units and the common area, and Petitioner was apportioned 43.84% of the deductible. From the evidence presented, the Association also properly applied the applicable Rules and Regulations.

Legal Basis

Rules and Regulations Section 19

Topic Tags

  • insurance
  • deductible
  • assessments
  • common elements

Question

Who is responsible for ensuring insurance coverage for the 'gap' created by an HOA's insurance deductible?

Short Answer

The homeowner is responsible for obtaining personal insurance to cover the gap.

Detailed Answer

The decision highlights that governing documents or rules may explicitly state that owners must be aware of the deductible amount and secure their own coverage to handle that cost if assessed.

Alj Quote

Each Owner needs to be aware of the amount of the Association’s insurance deductible so that the Owner can determine that their personal insurance coverage will cover any gap.

Legal Basis

Rules and Regulations Section 19(e)

Topic Tags

  • insurance
  • homeowner responsibilities

Question

If the HOA fixes a maintenance issue after it occurs (like a sewer backup), can I still claim they violated their maintenance duty to avoid paying the deductible?

Short Answer

Likely no, as long as the HOA coordinated and accomplished the repairs.

Detailed Answer

The ALJ ruled that because the Association coordinated and completed the repairs once the issue occurred, the homeowner failed to prove that the Association neglected its maintenance duties under the CC&Rs. Therefore, the assessment of the deductible was not invalidated by a failure to maintain.

Alj Quote

Once the sewer backed up, the Association coordinated the repairs and accomplished the same. Petitioner failed to demonstrate that the Association failed to properly attend to the maintenance and/or repair of the sewer lines.

Legal Basis

CC&Rs Section 3.09

Topic Tags

  • maintenance
  • repairs
  • negligence

Question

What is the burden of proof for a homeowner challenging an HOA decision in an administrative hearing?

Short Answer

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

Detailed Answer

The homeowner (Petitioner) has the burden to prove that the HOA violated the governing documents or statutes. The standard is 'preponderance of the evidence,' meaning the claim must be shown to be more probably true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the CC&Rs… '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

Standard of Evidence

Topic Tags

  • legal procedure
  • evidence
  • burden of proof

Question

Can the HOA Board create rules that change how financial liabilities (like deductibles) are handled without amending the CC&Rs?

Short Answer

Yes, if the CC&Rs grant the Board the authority to adopt rules for the regulation of the property.

Detailed Answer

The decision upheld the enforcement of a rule regarding insurance deductibles found in the 'Rules and Regulations,' noting that the CC&Rs granted the authority to adopt such rules.

Alj Quote

Section 4.10 of the CC&Rs granted authority to adopt rules 'for the regulation and operation of the Property…'

Legal Basis

CC&Rs Section 4.10

Topic Tags

  • rulemaking
  • board authority
  • governing documents

Case

Docket No
21F-H2120014-REL
Case Title
Lori & James Jordan vs. The Pines at Show Low Condominium Owners' Association, Inc.
Decision Date
2020-12-01
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Lori Jordan (petitioner)
    Appeared and testified at the hearing
  • James Jordan (petitioner)
  • Chuck Stewart (witness)
    The Pines at Show Low Condominium Owners' Association, Inc. Board
    Testified for Petitioner; later joined Board and voted against apportionment

Respondent Side

  • Sean Lissarrague (board member)
    The Pines at Show Low Condominium Owners' Association, Inc.
    Vice President of the Board; appeared and testified for Respondent

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Received electronic transmission of the decision

Other Participants

  • c. serrano (administrative staff)
    Transmitted the electronic decision

Shannon Lee Trezza Irrevocable Trust v. Haciendas Del Conde

Posted on by

Case Summary

Case ID 20F-H2020045-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-11-18
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Shannon Lee Trezza Irrevocable Trust Counsel —
Respondent Haciendas Del Conde Association Counsel Sharon Briggs, Esq.

Alleged Violations

CCRs Section 21(m)

Outcome Summary

The Administrative Law Judge denied the Petition on all issues, concluding that the CCRs contained legally enforceable setback language (Section 21(m)) properly passed in 2017 under A.R.S. § 33-1817(A). The ALJ rejected Petitioner's arguments regarding improper voting procedures, statute of limitations, and selective enforcement.

Why this result: Petitioner failed to establish the alleged violations by a preponderance of the evidence. The CCRs were deemed valid, and the enforcement action was deemed reasonable.

Key Issues & Findings

Challenge to the validity and enforcement of the 10-foot setback requirement regarding the Petitioner's carport and claims of selective enforcement.

Petitioner asserted that the HOA violated CCR 21(m) by improperly adopting the 2017 CCRs and sought resolution on whether the setback language was enforceable, whether forcing Petitioner to move the carport was reasonable, whether selective enforcement was applied, and whether an easement existed. The ALJ concluded the CCRs were valid and enforceable under A.R.S. § 33-1817(A), rejected the selective enforcement claim, and denied the petition.

Orders: The Petition was denied on all issues. Respondent was deemed the prevailing party. No Civil Penalty was found appropriate.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 33-1817(A)
  • A.R.S. § 10-3708
  • CCRs Section 21(m)

Analytics Highlights

Topics: CCR_enforceability, setback_violation, voting_validity, selective_enforcement, carport
Additional Citations:

  • A.R.S. § 33-1817
  • A.R.S. § 10-3708
  • A.R.S. § 32-2199

Video Overview

Audio Overview

Decision Documents

20F-H2020045-REL Decision – 837850.pdf

Uploaded 2026-01-23T17:31:47 (132.2 KB)





Briefing Doc – 20F-H2020045-REL


Administrative Law Judge Decision: Trezza Irrevocable Trust vs. Haciendas Del Conde Association

Executive Summary

This briefing document analyzes the Administrative Law Judge (ALJ) decision in case number 20F-H2020045-REL, a dispute between the Shannon Lee Trezza Irrevocable Trust (Petitioner) and the Haciendas Del Conde Association (HDCA/Respondent). The ALJ denied the Petitioner’s petition on all issues, finding in favor of the HDCA and deeming it the prevailing party.

The core of the dispute was a carport constructed by the Petitioner in August 2019 without prior approval from the HDCA and in violation of a 10-foot property line setback requirement detailed in the community’s Covenants, Conditions, and Restrictions (CC&Rs). The Petitioner challenged the validity of the CC&Rs, alleged selective enforcement by the HDCA, and argued the setback rule was unreasonable.

The ALJ’s decision rested on several key conclusions:

• The HDCA’s 2017 CC&Rs, including the 10-foot setback rule in Section 21(m), were properly adopted and are legally enforceable. The Petitioner’s challenge to the voting procedure was unfounded, as it incorrectly cited corporate voting law instead of the statute governing planned communities.

• The HOA has the right to enforce rules that are more restrictive than municipal codes, rendering the Pima County code’s zero-foot setback irrelevant.

• There was no evidence of selective enforcement. The HDCA’s denial was based on the substantive setback violation, not the procedural failure to obtain prior approval, and the Petitioner was given an opportunity to cure the issue.

• The Petitioner is solely responsible for any financial burden associated with bringing the carport into compliance, as the situation was created by the failure to seek prior approval before construction.

I. Case Overview

• Case Name: Shannon Lee Trezza Irrevocable Trust v. Haciendas Del Conde Association

• Case Number: 20F-H2020045-REL

• Forum: Arizona Office of Administrative Hearings

• Presiding Judge: Adam D. Stone

• Date of Decision: November 18, 2020

• Parties:

◦ Petitioner: Shannon Lee Trezza Irrevocable Trust, represented by Trustee Steven Trezza, Esq.

◦ Respondent: Haciendas Del Conde Association (HDCA), represented by Sharon Briggs, Esq.

• Central Issue: The legal enforceability of the HDCA’s CC&Rs, specifically Section 21(m), which prohibits the construction of structures within ten feet of any side or back property line for specified lots. The Petitioner sought relief after the HDCA denied approval for a carport built in violation of this rule.

II. Factual Background

Steven Trezza, trustee for the Petitioner, testified that he has resided at the property for approximately 14 years. In August 2019, he designed and built a carport on the property. Crucially, he admitted to the following:

• He had not read the community’s CC&Rs prior to the HDCA’s denial of his application.

• He failed to obtain prior approval from the HDCA Board for the carport’s construction.

• He failed to obtain a required permit from Pima County.

The HDCA Board President, Brad Johns, testified that he first noticed the carport construction in late August 2019 and placed architectural approval forms on the Petitioner’s door. Johns clarified that the eventual denial was not based on the failure to obtain prior approval but on the substantive violation of the 10-foot setback rule.

On November 14, 2019, the HDCA’s Secretary/Treasurer, Philip Worcester, sent formal correspondence informing the Petitioner of the failure to submit a proposal and providing an additional thirty days to do so before facing penalties.

III. Petitioner’s Core Arguments

The Petitioner, represented by Mr. Trezza, presented several arguments to invalidate the HDCA’s enforcement action:

• Invalidity of the 2017 CC&Rs Vote: Mr. Trezza claimed the 2017 vote that adopted the current CC&Rs was improper.

◦ He argued the ballot was defective under Arizona statute A.R.S. § 10-3708 because it did not provide a place to vote “no.”

◦ He contended that Section 21(m), the setback rule, was not “redlined” in the proposed document sent to homeowners, implying it was not a change and therefore not properly adopted.

• Invalidity of the 1993 Amendment: The language of Section 21(m) originated in a 1993 Amendment. Mr. Trezza argued this amendment was also passed via an invalid vote. He claimed the statute of limitations had not expired on challenging it, as he only became aware of the 1993 Amendment during the course of the present dispute.

• Conflict with Pima County Code: Mr. Trezza testified that the 10-foot setback is incorrect under Pima County code, which he stated requires a zero-foot setback. He argued the HDCA Board had misinterpreted zoning requirements in 1993.

• Selective Enforcement: Mr. Trezza asserted that he was not treated fairly, claiming other HDCA members who had failed to obtain prior approval for projects were later granted it.

• Unreasonable Withholding of Approval: The Petitioner argued that the HDCA’s approval was unreasonably withheld because the carport was not unattractive, did not devalue community property, and did not violate county code.

IV. Respondent’s (HDCA) Position and Testimony

The HDCA countered each of the Petitioner’s claims through legal arguments and witness testimony:

• Validity of the CC&Rs: Ms. Briggs, counsel for the HDCA, argued that the 2017 vote was valid pursuant to A.R.S. § 33-1817, the statute governing planned communities. This statute requires only an “affirmative vote or written consent,” which was obtained. She asserted that the “redlining” argument was irrelevant because the entire CC&Rs document was presented to homeowners for a vote, and they could have rejected it if they disagreed with any provision, changed or not. This rendered the challenge to the 1993 amendment moot.

• Absence of Discrimination:

◦ HDCA President Brad Johns testified that the denial was based solely on the 10-foot setback violation, not the failure to obtain prior approval.

◦ He stated that the Board had successfully worked with other homeowners who failed to seek prior approval, but Mr. Trezza’s case was different because it involved a stand-alone structure rather than an addition.

◦ Both Mr. Johns and Secretary/Treasurer Philip Worcester testified that they had not known or interacted with Mr. Trezza prior to this issue, negating any claim of personal bias.

• Fair Process and Opportunity to Cure: Mr. Worcester testified that he complied with multiple document requests from Mr. Trezza and offered on at least two occasions for Mr. Trezza to accompany him to the association’s storage facility, an offer that was not accepted. The Board provided a 30-day window for the Petitioner to submit a formal proposal to resolve the issue.

V. Administrative Law Judge’s Conclusions of Law and Rationale

The ALJ methodically rejected each of the Petitioner’s arguments and found the HDCA’s position to be supported by law and evidence.

1. The CC&Rs Contain Legally Enforceable Setback Language:

◦ The Judge concluded that the 2017 CC&Rs vote was proper. The Petitioner’s reliance on A.R.S. § 10-3708 (corporate voting) was “unfounded.” The correct and controlling statute is A.R.S. § 33-1817(A) (planned community voting), which only requires an “affirmative vote or written consent.”

◦ The argument that Section 21(m) was not “redlined” was deemed “not persuasive,” as the entire proposed document was provided to members, who voted to accept the CC&Rs as written.

◦ An HOA may require different, and more restrictive, setback requirements than a municipality. Therefore, the Pima County code does not override the CC&Rs.

2. The Petitioner is Bound by the CC&Rs:

◦ The Judge found the argument regarding the 1993 Amendment and the statute of limitations “unpersuasive.” Upon purchasing the property, the Petitioner became bound by the CC&Rs in existence at that time, “whether he read them or not.”

3. No Selective Enforcement Occurred:

◦ Evidence showed that the Board “routinely allowed homeowners to provide a chance to cure their failure to obtain prior approval.”

◦ Testimony from Mr. Johns and Mr. Worcester clearly established that the denial was not due to the lack of prior approval but the substantive setback violation. The Petitioner was offered the same opportunity to cure the problem as others but chose not to.

4. The Cost of Compliance is Reasonable:

◦ The Judge concluded that it is reasonable to compel the Petitioner to comply with the setback requirement, regardless of the cost. The decision states: “it brought the additional expenses upon itself for failure to obtain prior approval.” By not seeking approval beforehand, the Petitioner, not the HDCA, created the financial burden of a remedy.

VI. Final Order and Implications

Based on the foregoing conclusions, the Administrative Law Judge issued the following order on November 18, 2020:

• The Petition filed by the Shannon Lee Trezza Irrevocable Trust is denied on all issues.

• The Respondent, Haciendas Del Conde Association, is deemed the prevailing party.

• No Civil Penalty is found to be appropriate in this matter.

The order is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.






Study Guide – 20F-H2020045-REL


Study Guide: Trezza Irrevocable Trust v. Haciendas Del Conde Association

This study guide provides a comprehensive review of the Administrative Law Judge Decision in case number 20F-H2020045-REL, concerning a dispute between the Shannon Lee Trezza Irrevocable Trust and the Haciendas Del Conde Association. It includes a quiz with an answer key to test factual recall, essay questions to encourage deeper analysis, and a glossary of key terms found within the legal decision.

Short-Answer Quiz

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

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

2. What specific provision of the community’s governing documents was at the center of the dispute?

3. What structure did the Petitioner build, and what two key approvals were initially neglected?

4. What was the Petitioner’s primary argument for why the 2017 vote on the CCRs was improper?

5. How did the Petitioner challenge the validity of the original 1993 Amendment concerning the setback?

6. What was the Respondent’s reasoning for denying the carport application, separate from the failure to get prior approval?

7. How did the Administrative Law Judge (ALJ) distinguish between the two Arizona statutes cited regarding voting procedures?

8. What was the ALJ’s conclusion regarding the Petitioner’s claim of selective enforcement?

9. Why did the ALJ rule that it was reasonable to force the Petitioner to bear the cost of moving the carport?

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

——————————————————————————–

Answer Key

1. The Petitioner was the Shannon Lee Trezza Irrevocable Trust, represented by Trustee Steven Trezza, Esq. The Respondent was the Haciendas Del Conde Association (HDCA), a Homeowners Association represented by Sharon Briggs, Esq.

2. The dispute centered on the Haciendas Del Conde Association’s Covenants, Conditions, and Restrictions (CCRs), specifically Section 21(m). This section mandates a ten-foot setback from any side or back property line for structures on specific lots.

3. The Petitioner, Mr. Trezza, designed and built a carport in August 2019. He failed to obtain prior approval from the HOA’s Board and also failed to obtain a required permit from Pima County.

4. The Petitioner argued that the ballot used for the 2017 vote was defective under A.R.S. § 10-3708 because it did not provide an option to vote “no.” He contended this made the entire vote improper and the resulting CCRs invalid.

5. The Petitioner argued that the 1993 Amendment, which first introduced the 10-foot setback, was itself based on an invalid vote. He also argued that because this language was not “redlined” as a change in the 2017 CCRs, homeowners were not properly notified of its adoption.

6. Brad Johns, President of the HDCA, testified that the denial was not due to the lack of prior approval but specifically because the carport violated the 10-foot setback requirement outlined in Section 21(m) of the CCRs.

7. The ALJ concluded that the Petitioner’s reliance on A.R.S. § 10-3708 was unfounded because it applies to corporation voting. The judge determined that A.R.S. § 33-1817(A), which governs planned community voting and only requires an “affirmative vote or written consent,” was the controlling statute.

8. The ALJ concluded there was no selective enforcement. Evidence showed that the Board routinely worked with other homeowners who failed to get prior approval, and that Mr. Trezza was not discriminated against but was given an opportunity to cure the problem.

9. The ALJ reasoned that by failing to seek prior approval before construction, the Petitioner, not the HDCA, created the expenses required to remedy the situation. Therefore, it was reasonable to make the Petitioner comply with the CCRs, regardless of the cost.

10. The Administrative Law Judge ordered that the Petition be denied on all issues. The judge further ordered that the Respondent (Haciendas Del Conde Association) be deemed the prevailing party in the matter.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for longer, more analytical responses. Formulate an argument using only the evidence and legal reasoning presented in the case document.

1. Analyze the Petitioner’s arguments regarding the invalidity of the 1993 Amendment and the 2017 CCRs. Why did the Administrative Law Judge find these arguments, including the “redlining” and statute of limitations claims, to be unpersuasive?

2. Discuss the concept of “selective enforcement” as an affirmative defense in this case. What evidence did the Petitioner and Respondent present on this issue, and how did the judge ultimately rule?

3. Examine the legal distinction made between A.R.S. § 10-3708 and A.R.S. § 33-1817(A). Explain how this distinction was critical to the judge’s conclusion about the validity of the 2017 CCRs and the enforceability of Section 21(m).

4. Evaluate the significance of the Petitioner’s failure to obtain prior Board and Pima County approval for the carport. How did this action impact the judge’s ruling, particularly concerning the reasonableness of the enforcement costs and the allegation of unfair treatment?

5. Compare and contrast the testimony presented by the Petitioner’s side (Steven Trezza, Phil Rosenberg) with the testimony from the Respondent’s side (Brad Johns, Philip Worcester). How did their differing accounts shape the central issues of the hearing?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions, in this case, for the Office of Administrative Hearings.

Affirmative Defense

A set of facts or legal arguments presented by the respondent that, if proven, can defeat or mitigate the legal consequences of the petitioner’s claim. In this case, “selective enforcement” was an affirmative defense.

A.R.S.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.

Covenants, Conditions, and Restrictions. These are legally binding rules and regulations that govern a planned community or subdivision, which property owners agree to abide by upon purchasing property.

Easement

A legal right to use another person’s land for a specific purpose. The Petitioner unsuccessfully argued for an easement for the carport under Section 33 of the CCRs.

HOA (Homeowners Association)

An organization in a planned community that makes and enforces rules for the properties and its residents. The Haciendas Del Conde Association is the HOA in this case.

Petitioner

The party who files a petition initiating a legal action. In this case, it was the Shannon Lee Trezza Irrevocable Trust.

Preponderance of the Evidence

The standard of proof in civil cases, meaning the evidence shows that a contention is more likely true than not. The Petitioner bore this burden to prove their claims.

Redlined

A method of marking a document to show additions, deletions, or changes, typically by underlining new text and striking through deleted text. The Petitioner argued a lack of redlining was misleading.

Respondent

The party against whom a petition is filed. In this case, it was the Haciendas Del Conde Association.

Setback

The minimum required distance that a building or other structure must be located from a property line, street, or other feature. The dispute centered on a 10-foot setback requirement.

Statute of Limitations

A law that sets the maximum time after an event within which legal proceedings may be initiated. The Petitioner argued the statute of limitations had not run for challenging the 1993 Amendment.

Trustee

An individual or entity that holds and administers property or assets for the benefit of a third party. Steven Trezza, Esq. appeared as Trustee for the Petitioner.

Variance

An officially granted exception to zoning ordinances or CCRs. The Petitioner unsuccessfully sought a variance for the carport.






Blog Post – 20F-H2020045-REL



📔

20F-H2020045-REL

1 source

The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings concerning a dispute between the Shannon Lee Trezza Irrevocable Trust (Petitioner) and the Haciendas Del Conde Association (Respondent). This Homeowners Association (HOA) Dispute arose because the Petitioner constructed a carport without prior approval, violating the community’s Covenants, Conditions, and Restrictions (CCR’s), specifically a ten-foot setback requirement in Section 21(m). The Petitioner argued that the setback language was unenforceable due to flawed voting procedures in both 1993 and 2017 when the CCR’s were adopted, and also claimed selective enforcement. The Administrative Law Judge ultimately found that the CCR’s were legally enforceable and properly adopted, concluding that the Petitioner must comply with the setback rule, and denied all issues raised in the petition.



Case Participants

Petitioner Side

  • Stephen Trezza (Trustee)
    Shannon Lee Trezza Irrevocable Trust
    Appeared for Petitioner; Testified on behalf of Petitioner
  • Philip Rosenberg (witness)
    Testified for Petitioner

Respondent Side

  • Sharon Briggs (HOA attorney)
    Haciendas Del Conde Association
  • Brad Johns (board member)
    Haciendas Del Conde Association
    President of HDCA; Testified for Respondent
  • Philip Worcester (board member)
    Haciendas Del Conde Association
    Secretary/Treasurer of HDCA; Testified for Respondent

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    ADRE
    Order transmitted electronically to

Shannon Lee Trezza Irrevocable Trust v. Haciendas Del Conde

Posted on by

Case Summary

Case ID 20F-H2020045-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-11-18
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Shannon Lee Trezza Irrevocable Trust Counsel —
Respondent Haciendas Del Conde Association Counsel Sharon Briggs, Esq.

Alleged Violations

CCRs Section 21(m)

Outcome Summary

The Administrative Law Judge denied the Petition on all issues, concluding that the CCRs contained legally enforceable setback language (Section 21(m)) properly passed in 2017 under A.R.S. § 33-1817(A). The ALJ rejected Petitioner's arguments regarding improper voting procedures, statute of limitations, and selective enforcement.

Why this result: Petitioner failed to establish the alleged violations by a preponderance of the evidence. The CCRs were deemed valid, and the enforcement action was deemed reasonable.

Key Issues & Findings

Challenge to the validity and enforcement of the 10-foot setback requirement regarding the Petitioner's carport and claims of selective enforcement.

Petitioner asserted that the HOA violated CCR 21(m) by improperly adopting the 2017 CCRs and sought resolution on whether the setback language was enforceable, whether forcing Petitioner to move the carport was reasonable, whether selective enforcement was applied, and whether an easement existed. The ALJ concluded the CCRs were valid and enforceable under A.R.S. § 33-1817(A), rejected the selective enforcement claim, and denied the petition.

Orders: The Petition was denied on all issues. Respondent was deemed the prevailing party. No Civil Penalty was found appropriate.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 33-1817(A)
  • A.R.S. § 10-3708
  • CCRs Section 21(m)

Analytics Highlights

Topics: CCR_enforceability, setback_violation, voting_validity, selective_enforcement, carport
Additional Citations:

  • A.R.S. § 33-1817
  • A.R.S. § 10-3708
  • A.R.S. § 32-2199

Video Overview

Audio Overview

Decision Documents

20F-H2020045-REL Decision – 837850.pdf

Uploaded 2025-10-09T03:34:55 (132.2 KB)





Briefing Doc – 20F-H2020045-REL


Administrative Law Judge Decision: Trezza Irrevocable Trust vs. Haciendas Del Conde Association

Executive Summary

This briefing document analyzes the Administrative Law Judge (ALJ) decision in case number 20F-H2020045-REL, a dispute between the Shannon Lee Trezza Irrevocable Trust (Petitioner) and the Haciendas Del Conde Association (HDCA/Respondent). The ALJ denied the Petitioner’s petition on all issues, finding in favor of the HDCA and deeming it the prevailing party.

The core of the dispute was a carport constructed by the Petitioner in August 2019 without prior approval from the HDCA and in violation of a 10-foot property line setback requirement detailed in the community’s Covenants, Conditions, and Restrictions (CC&Rs). The Petitioner challenged the validity of the CC&Rs, alleged selective enforcement by the HDCA, and argued the setback rule was unreasonable.

The ALJ’s decision rested on several key conclusions:

• The HDCA’s 2017 CC&Rs, including the 10-foot setback rule in Section 21(m), were properly adopted and are legally enforceable. The Petitioner’s challenge to the voting procedure was unfounded, as it incorrectly cited corporate voting law instead of the statute governing planned communities.

• The HOA has the right to enforce rules that are more restrictive than municipal codes, rendering the Pima County code’s zero-foot setback irrelevant.

• There was no evidence of selective enforcement. The HDCA’s denial was based on the substantive setback violation, not the procedural failure to obtain prior approval, and the Petitioner was given an opportunity to cure the issue.

• The Petitioner is solely responsible for any financial burden associated with bringing the carport into compliance, as the situation was created by the failure to seek prior approval before construction.

I. Case Overview

• Case Name: Shannon Lee Trezza Irrevocable Trust v. Haciendas Del Conde Association

• Case Number: 20F-H2020045-REL

• Forum: Arizona Office of Administrative Hearings

• Presiding Judge: Adam D. Stone

• Date of Decision: November 18, 2020

• Parties:

◦ Petitioner: Shannon Lee Trezza Irrevocable Trust, represented by Trustee Steven Trezza, Esq.

◦ Respondent: Haciendas Del Conde Association (HDCA), represented by Sharon Briggs, Esq.

• Central Issue: The legal enforceability of the HDCA’s CC&Rs, specifically Section 21(m), which prohibits the construction of structures within ten feet of any side or back property line for specified lots. The Petitioner sought relief after the HDCA denied approval for a carport built in violation of this rule.

II. Factual Background

Steven Trezza, trustee for the Petitioner, testified that he has resided at the property for approximately 14 years. In August 2019, he designed and built a carport on the property. Crucially, he admitted to the following:

• He had not read the community’s CC&Rs prior to the HDCA’s denial of his application.

• He failed to obtain prior approval from the HDCA Board for the carport’s construction.

• He failed to obtain a required permit from Pima County.

The HDCA Board President, Brad Johns, testified that he first noticed the carport construction in late August 2019 and placed architectural approval forms on the Petitioner’s door. Johns clarified that the eventual denial was not based on the failure to obtain prior approval but on the substantive violation of the 10-foot setback rule.

On November 14, 2019, the HDCA’s Secretary/Treasurer, Philip Worcester, sent formal correspondence informing the Petitioner of the failure to submit a proposal and providing an additional thirty days to do so before facing penalties.

III. Petitioner’s Core Arguments

The Petitioner, represented by Mr. Trezza, presented several arguments to invalidate the HDCA’s enforcement action:

• Invalidity of the 2017 CC&Rs Vote: Mr. Trezza claimed the 2017 vote that adopted the current CC&Rs was improper.

◦ He argued the ballot was defective under Arizona statute A.R.S. § 10-3708 because it did not provide a place to vote “no.”

◦ He contended that Section 21(m), the setback rule, was not “redlined” in the proposed document sent to homeowners, implying it was not a change and therefore not properly adopted.

• Invalidity of the 1993 Amendment: The language of Section 21(m) originated in a 1993 Amendment. Mr. Trezza argued this amendment was also passed via an invalid vote. He claimed the statute of limitations had not expired on challenging it, as he only became aware of the 1993 Amendment during the course of the present dispute.

• Conflict with Pima County Code: Mr. Trezza testified that the 10-foot setback is incorrect under Pima County code, which he stated requires a zero-foot setback. He argued the HDCA Board had misinterpreted zoning requirements in 1993.

• Selective Enforcement: Mr. Trezza asserted that he was not treated fairly, claiming other HDCA members who had failed to obtain prior approval for projects were later granted it.

• Unreasonable Withholding of Approval: The Petitioner argued that the HDCA’s approval was unreasonably withheld because the carport was not unattractive, did not devalue community property, and did not violate county code.

IV. Respondent’s (HDCA) Position and Testimony

The HDCA countered each of the Petitioner’s claims through legal arguments and witness testimony:

• Validity of the CC&Rs: Ms. Briggs, counsel for the HDCA, argued that the 2017 vote was valid pursuant to A.R.S. § 33-1817, the statute governing planned communities. This statute requires only an “affirmative vote or written consent,” which was obtained. She asserted that the “redlining” argument was irrelevant because the entire CC&Rs document was presented to homeowners for a vote, and they could have rejected it if they disagreed with any provision, changed or not. This rendered the challenge to the 1993 amendment moot.

• Absence of Discrimination:

◦ HDCA President Brad Johns testified that the denial was based solely on the 10-foot setback violation, not the failure to obtain prior approval.

◦ He stated that the Board had successfully worked with other homeowners who failed to seek prior approval, but Mr. Trezza’s case was different because it involved a stand-alone structure rather than an addition.

◦ Both Mr. Johns and Secretary/Treasurer Philip Worcester testified that they had not known or interacted with Mr. Trezza prior to this issue, negating any claim of personal bias.

• Fair Process and Opportunity to Cure: Mr. Worcester testified that he complied with multiple document requests from Mr. Trezza and offered on at least two occasions for Mr. Trezza to accompany him to the association’s storage facility, an offer that was not accepted. The Board provided a 30-day window for the Petitioner to submit a formal proposal to resolve the issue.

V. Administrative Law Judge’s Conclusions of Law and Rationale

The ALJ methodically rejected each of the Petitioner’s arguments and found the HDCA’s position to be supported by law and evidence.

1. The CC&Rs Contain Legally Enforceable Setback Language:

◦ The Judge concluded that the 2017 CC&Rs vote was proper. The Petitioner’s reliance on A.R.S. § 10-3708 (corporate voting) was “unfounded.” The correct and controlling statute is A.R.S. § 33-1817(A) (planned community voting), which only requires an “affirmative vote or written consent.”

◦ The argument that Section 21(m) was not “redlined” was deemed “not persuasive,” as the entire proposed document was provided to members, who voted to accept the CC&Rs as written.

◦ An HOA may require different, and more restrictive, setback requirements than a municipality. Therefore, the Pima County code does not override the CC&Rs.

2. The Petitioner is Bound by the CC&Rs:

◦ The Judge found the argument regarding the 1993 Amendment and the statute of limitations “unpersuasive.” Upon purchasing the property, the Petitioner became bound by the CC&Rs in existence at that time, “whether he read them or not.”

3. No Selective Enforcement Occurred:

◦ Evidence showed that the Board “routinely allowed homeowners to provide a chance to cure their failure to obtain prior approval.”

◦ Testimony from Mr. Johns and Mr. Worcester clearly established that the denial was not due to the lack of prior approval but the substantive setback violation. The Petitioner was offered the same opportunity to cure the problem as others but chose not to.

4. The Cost of Compliance is Reasonable:

◦ The Judge concluded that it is reasonable to compel the Petitioner to comply with the setback requirement, regardless of the cost. The decision states: “it brought the additional expenses upon itself for failure to obtain prior approval.” By not seeking approval beforehand, the Petitioner, not the HDCA, created the financial burden of a remedy.

VI. Final Order and Implications

Based on the foregoing conclusions, the Administrative Law Judge issued the following order on November 18, 2020:

• The Petition filed by the Shannon Lee Trezza Irrevocable Trust is denied on all issues.

• The Respondent, Haciendas Del Conde Association, is deemed the prevailing party.

• No Civil Penalty is found to be appropriate in this matter.

The order is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.






Study Guide – 20F-H2020045-REL


Study Guide: Trezza Irrevocable Trust v. Haciendas Del Conde Association

This study guide provides a comprehensive review of the Administrative Law Judge Decision in case number 20F-H2020045-REL, concerning a dispute between the Shannon Lee Trezza Irrevocable Trust and the Haciendas Del Conde Association. It includes a quiz with an answer key to test factual recall, essay questions to encourage deeper analysis, and a glossary of key terms found within the legal decision.

Short-Answer Quiz

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

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

2. What specific provision of the community’s governing documents was at the center of the dispute?

3. What structure did the Petitioner build, and what two key approvals were initially neglected?

4. What was the Petitioner’s primary argument for why the 2017 vote on the CCRs was improper?

5. How did the Petitioner challenge the validity of the original 1993 Amendment concerning the setback?

6. What was the Respondent’s reasoning for denying the carport application, separate from the failure to get prior approval?

7. How did the Administrative Law Judge (ALJ) distinguish between the two Arizona statutes cited regarding voting procedures?

8. What was the ALJ’s conclusion regarding the Petitioner’s claim of selective enforcement?

9. Why did the ALJ rule that it was reasonable to force the Petitioner to bear the cost of moving the carport?

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

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Answer Key

1. The Petitioner was the Shannon Lee Trezza Irrevocable Trust, represented by Trustee Steven Trezza, Esq. The Respondent was the Haciendas Del Conde Association (HDCA), a Homeowners Association represented by Sharon Briggs, Esq.

2. The dispute centered on the Haciendas Del Conde Association’s Covenants, Conditions, and Restrictions (CCRs), specifically Section 21(m). This section mandates a ten-foot setback from any side or back property line for structures on specific lots.

3. The Petitioner, Mr. Trezza, designed and built a carport in August 2019. He failed to obtain prior approval from the HOA’s Board and also failed to obtain a required permit from Pima County.

4. The Petitioner argued that the ballot used for the 2017 vote was defective under A.R.S. § 10-3708 because it did not provide an option to vote “no.” He contended this made the entire vote improper and the resulting CCRs invalid.

5. The Petitioner argued that the 1993 Amendment, which first introduced the 10-foot setback, was itself based on an invalid vote. He also argued that because this language was not “redlined” as a change in the 2017 CCRs, homeowners were not properly notified of its adoption.

6. Brad Johns, President of the HDCA, testified that the denial was not due to the lack of prior approval but specifically because the carport violated the 10-foot setback requirement outlined in Section 21(m) of the CCRs.

7. The ALJ concluded that the Petitioner’s reliance on A.R.S. § 10-3708 was unfounded because it applies to corporation voting. The judge determined that A.R.S. § 33-1817(A), which governs planned community voting and only requires an “affirmative vote or written consent,” was the controlling statute.

8. The ALJ concluded there was no selective enforcement. Evidence showed that the Board routinely worked with other homeowners who failed to get prior approval, and that Mr. Trezza was not discriminated against but was given an opportunity to cure the problem.

9. The ALJ reasoned that by failing to seek prior approval before construction, the Petitioner, not the HDCA, created the expenses required to remedy the situation. Therefore, it was reasonable to make the Petitioner comply with the CCRs, regardless of the cost.

10. The Administrative Law Judge ordered that the Petition be denied on all issues. The judge further ordered that the Respondent (Haciendas Del Conde Association) be deemed the prevailing party in the matter.

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Essay Questions

Instructions: The following questions are designed for longer, more analytical responses. Formulate an argument using only the evidence and legal reasoning presented in the case document.

1. Analyze the Petitioner’s arguments regarding the invalidity of the 1993 Amendment and the 2017 CCRs. Why did the Administrative Law Judge find these arguments, including the “redlining” and statute of limitations claims, to be unpersuasive?

2. Discuss the concept of “selective enforcement” as an affirmative defense in this case. What evidence did the Petitioner and Respondent present on this issue, and how did the judge ultimately rule?

3. Examine the legal distinction made between A.R.S. § 10-3708 and A.R.S. § 33-1817(A). Explain how this distinction was critical to the judge’s conclusion about the validity of the 2017 CCRs and the enforceability of Section 21(m).

4. Evaluate the significance of the Petitioner’s failure to obtain prior Board and Pima County approval for the carport. How did this action impact the judge’s ruling, particularly concerning the reasonableness of the enforcement costs and the allegation of unfair treatment?

5. Compare and contrast the testimony presented by the Petitioner’s side (Steven Trezza, Phil Rosenberg) with the testimony from the Respondent’s side (Brad Johns, Philip Worcester). How did their differing accounts shape the central issues of the hearing?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions, in this case, for the Office of Administrative Hearings.

Affirmative Defense

A set of facts or legal arguments presented by the respondent that, if proven, can defeat or mitigate the legal consequences of the petitioner’s claim. In this case, “selective enforcement” was an affirmative defense.

A.R.S.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.

Covenants, Conditions, and Restrictions. These are legally binding rules and regulations that govern a planned community or subdivision, which property owners agree to abide by upon purchasing property.

Easement

A legal right to use another person’s land for a specific purpose. The Petitioner unsuccessfully argued for an easement for the carport under Section 33 of the CCRs.

HOA (Homeowners Association)

An organization in a planned community that makes and enforces rules for the properties and its residents. The Haciendas Del Conde Association is the HOA in this case.

Petitioner

The party who files a petition initiating a legal action. In this case, it was the Shannon Lee Trezza Irrevocable Trust.

Preponderance of the Evidence

The standard of proof in civil cases, meaning the evidence shows that a contention is more likely true than not. The Petitioner bore this burden to prove their claims.

Redlined

A method of marking a document to show additions, deletions, or changes, typically by underlining new text and striking through deleted text. The Petitioner argued a lack of redlining was misleading.

Respondent

The party against whom a petition is filed. In this case, it was the Haciendas Del Conde Association.

Setback

The minimum required distance that a building or other structure must be located from a property line, street, or other feature. The dispute centered on a 10-foot setback requirement.

Statute of Limitations

A law that sets the maximum time after an event within which legal proceedings may be initiated. The Petitioner argued the statute of limitations had not run for challenging the 1993 Amendment.

Trustee

An individual or entity that holds and administers property or assets for the benefit of a third party. Steven Trezza, Esq. appeared as Trustee for the Petitioner.

Variance

An officially granted exception to zoning ordinances or CCRs. The Petitioner unsuccessfully sought a variance for the carport.






Blog Post – 20F-H2020045-REL



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20F-H2020045-REL

1 source

The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings concerning a dispute between the Shannon Lee Trezza Irrevocable Trust (Petitioner) and the Haciendas Del Conde Association (Respondent). This Homeowners Association (HOA) Dispute arose because the Petitioner constructed a carport without prior approval, violating the community’s Covenants, Conditions, and Restrictions (CCR’s), specifically a ten-foot setback requirement in Section 21(m). The Petitioner argued that the setback language was unenforceable due to flawed voting procedures in both 1993 and 2017 when the CCR’s were adopted, and also claimed selective enforcement. The Administrative Law Judge ultimately found that the CCR’s were legally enforceable and properly adopted, concluding that the Petitioner must comply with the setback rule, and denied all issues raised in the petition.



Case Participants

Petitioner Side

  • Stephen Trezza (Trustee)
    Shannon Lee Trezza Irrevocable Trust
    Appeared for Petitioner; Testified on behalf of Petitioner
  • Philip Rosenberg (witness)
    Testified for Petitioner

Respondent Side

  • Sharon Briggs (HOA attorney)
    Haciendas Del Conde Association
  • Brad Johns (board member)
    Haciendas Del Conde Association
    President of HDCA; Testified for Respondent
  • Philip Worcester (board member)
    Haciendas Del Conde Association
    Secretary/Treasurer of HDCA; Testified for Respondent

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    ADRE
    Order transmitted electronically to

Douglas E Kupel v. Hidden Valley Association

Posted on by

Case Summary

Case ID 21F-H2120006-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-10-30
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Douglas E. Kupel Counsel —
Respondent Hidden Valley Association Counsel Timothy Butterfield, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The Administrative Law Judge concluded that the Association's conduct did not violate ARIZ. REV. STAT. § 33-1805 because the Petitioner did not prove by a preponderance of the evidence that the requested records were in existence and subject to disclosure.

Why this result: Petitioner failed to establish that the requested records (communications) were in existence and subject to disclosure.

Key Issues & Findings

Failing to fulfill Petitioner’s records request

Petitioner claimed the HOA failed to provide copies of all communications (written/electronic) related to information requests, open meeting law compliance, and changes to bylaws, arguing they were not exempt from disclosure under ARIZ. REV. STAT. § 33-1805(B). The HOA asserted no disclosable records existed.

Orders: Petitioner's petition and request for civil penalty are denied. Respondent shall not reimburse Petitioner's filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: HOA Records Request, Records Disclosure, ARIZ. REV. STAT. 33-1805, Burden of Proof, Preponderance of Evidence
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092

Video Overview

Audio Overview

Decision Documents

21F-H2120006-REL Decision – 834142.pdf

Uploaded 2026-01-23T17:34:55 (147.6 KB)





Briefing Doc – 21F-H2120006-REL


Administrative Law Judge Decision: Kupel vs. Hidden Valley Association

Executive Summary

The Administrative Law Judge (ALJ) for the Arizona Office of Administrative Hearings denied a petition filed by homeowner Douglas E. Kupel against the Hidden Valley Association (HVA). The core of the dispute was Kupel’s allegation that HVA violated Arizona statute ARIZ. REV. STAT. § 33-1805 by failing to completely fulfill a comprehensive records request. While HVA provided its records retention policy and legal invoices, it withheld two categories of electronic and hard copy communications, claiming no such disclosable records existed.

Kupel argued that statements made in emails by HVA Board President Gary Freed—specifically that certain communications would be “filed as an HVA business record”—proved the existence of the requested records. HVA countered that this statement was a mistake on Freed’s part, resulting from an initial misunderstanding of retention requirements, and that no records subject to disclosure actually existed.

The ALJ ultimately concluded that Kupel failed to meet the “preponderance of the evidence” standard required to prove his claim. The judge found that the evidence presented was not sufficient to prove that the requested records existed and were being improperly withheld. Consequently, the petition was denied, and Kupel’s requests for reimbursement of his filing fee and the imposition of a civil penalty against HVA were also denied.

Case Overview

Case Name

Douglas E Kupel, Petitioner, vs. Hidden Valley Association, Respondent

Case Number

21F-H2120006-REL

Jurisdiction

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Adam D. Stone

Hearing Date

October 22, 2020

Decision Date

October 30, 2020

Key Parties

Douglas E. Kupel (Petitioner), Hidden Valley Association (Respondent), Gary Freed (HVA Board President)

Core Dispute: The Records Request

The central issue of the hearing was whether the Hidden Valley Association violated ARIZ. REV. STAT. § 33-1805 by failing to fully comply with a records request submitted by Kupel on June 22, 2020. HVA, through its community manager HOAMCO, provided a partial response on July 1, 2020.

Breakdown of the Records Request:

• Request 1 (Fulfilled): A copy of the HVA records retention policy adopted on January 15, 2020.

• Request 2 (Denied): Copies of all communications (email and hard copy) to or from current and former HVA Board and committee members regarding “information requests or open meeting law compliance” from July 2019 to the present.

• Request 3 (Denied): Copies of all communications (email and hard copy) to or from current and former HVA Board and committee members regarding any proposed, discussed, or adopted changes to the Association bylaws from January 2019 to the present.

• Request 4 (Fulfilled): Copies of invoices, billing statements, and payment records for legal services associated with revisions to the Association bylaws from January 2019 to the present.

HVA and its President, Gary Freed, asserted that the denied communications were not subject to disclosure under the exceptions outlined in ARIZ. REV. STAT. § 33-1805(B).

Petitioner’s Position and Evidence (Douglas E. Kupel)

• Allegation: Kupel accused HVA of willfully failing to fulfill his request, alleging that non-exempt records did exist and should have been disclosed.

• Primary Evidence: Kupel submitted several email messages from HVA President Gary Freed which contained the statement: “This communication has been received, and will be filed as an HVA business record in the files maintained by HOAMCO for the benefit of HVA” or substantially similar language.

• Argument: Kupel testified that these emails proved the existence of communications that did not meet the statutory exclusions and, therefore, HVA had failed to fully respond to his request.

• Requested Relief:

1. An order compelling HVA to abide by ARIZ. REV. STAT. § 33-1805.

2. Reimbursement of the $500 filing fee.

3. The levying of a civil penalty against HVA.

Respondent’s Position and Evidence (Hidden Valley Association)

• Witness Testimony: HVA Board President Gary Freed testified on behalf of the association.

• Core Defense: Freed testified that based on HVA’s records retention policy and his understanding of open meeting laws, “no records existed which were subject to disclosure.”

• Explanation of Contested Emails: Freed explained that his prior email statements about filing all communications were a mistake. He testified that he initially believed all communications needed to be retained but later learned this was incorrect.

• Search Process: Freed admitted that neither he nor other board members conducted a one-by-one search of every single email. However, he testified that he “may have scanned his personal e-mail” and did not dismiss the petitioner’s request “out-of-hand.”

• Association Practices: Freed asserted that HVA business was conducted via open meetings, with the exception of a single emergency situation, implying that no discoverable email correspondence regarding official business would exist.

Administrative Law Judge’s Analysis and Conclusion

The ALJ’s decision rested on the legal standard of “preponderance of the evidence,” defined as proof convincing the trier of fact that a contention is more probably true than not. The petitioner, Kupel, bore the burden of meeting this standard.

• Evaluation of Evidence: The judge found Kupel’s primary argument unpersuasive. The decision states, “Essentially, Petitioner is claiming that there must be other records in existence because of the language that Mr. Freed used… This is not persuasive as there was no evidence presented by Petitioner to prove that the records were in existence.”

• Credibility of Testimony: The judge gave weight to Freed’s testimony that he had been mistaken about record-keeping protocols. The decision also noted that HVA’s official records retention policy, adopted six months prior to the request, specifically outlined which communications were to be kept.

• Lack of Proof: The judge concluded that Freed believed any documents that might have existed were subject to statutory exemptions and that all relevant business was conducted in open meetings. Ultimately, Kupel failed to provide sufficient proof that discoverable records actually existed.

• Final Ruling: The ALJ concluded that “the Association’s conduct, as outlined above, did not violate the charged provisions of ARIZ. REV. STAT. § 33-1805.”

Final Order

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following orders:

Outcome

Petitioner’s Petition

Denied

Request for Civil Penalty

Denied

Reimbursement of Filing Fee

Denied (Respondent shall not reimburse Petitioner’s fee)

The decision is binding on the parties unless a request for rehearing is filed with the Commissioner of the Arizona Department of Real Estate within thirty days of the order’s service.






Study Guide – 21F-H2120006-REL


Study Guide: Kupel v. Hidden Valley Association, No. 21F-H2120006-REL

This study guide provides a review of the administrative hearing decision in the matter of Douglas E. Kupel versus the Hidden Valley Association. It includes a quiz with an answer key to test comprehension of the facts, a set of essay questions for deeper analysis, and a glossary of key terms.

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Quiz: Short-Answer Questions

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

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

2. What was the specific violation alleged by the Petitioner in his petition to the Department of Real Estate?

3. What four categories of records did the Petitioner request from the Hidden Valley Association (HVA) on June 22, 2020?

4. Which parts of the Petitioner’s records request did the HVA fulfill, and which parts did it deny?

5. What was the Petitioner’s central piece of evidence to argue that the HVA was improperly withholding existing communications?

6. How did HVA Board President Gary Freed explain the discrepancy between his email statements and the association’s refusal to provide the requested communications?

7. What is the “preponderance of the evidence” standard, and which party was required to meet this standard?

8. According to Mr. Freed’s testimony, where was all official HVA business conducted?

9. What was the Administrative Law Judge’s final conclusion regarding the HVA’s conduct in this matter?

10. What three specific outcomes were mandated by the final ORDER issued on October 30, 2020?

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Answer Key

1. The primary parties were the Petitioner, Douglas E. Kupel, a property owner and member of the Hidden Valley Association, and the Respondent, the Hidden Valley Association (HVA). The Petitioner brought the complaint against the Respondent, alleging a violation of state law.

2. The Petitioner alleged that the Hidden Valley Association violated ARIZ. REV. STAT. § 33-1805 by failing to completely fulfill his records request. Specifically, he claimed the association improperly withheld communications records.

3. The Petitioner requested: (1) the records retention policy; (2) communications regarding information requests or open meeting law compliance; (3) communications regarding proposed changes to the association bylaws; and (4) legal invoices and payment records related to bylaw revisions.

4. The HVA fulfilled the request for the records retention policy and the legal invoices. It denied the two requests for communications between board and committee members, claiming the requested records were not subject to disclosure.

5. The Petitioner’s central evidence consisted of several emails from HVA Board President Gary Freed in which Mr. Freed stated, “[t]his communication has been received, and will be filed as an HVA business record.” The Petitioner argued this proved that such communications existed and were official records.

6. Mr. Freed testified that he was initially mistaken in his belief that all communications needed to be retained and that this was why he included that language in his emails. He clarified that based on the HVA’s records retention policy and open meeting laws, no disclosable records of the type requested existed.

7. “Preponderance of the evidence” is the standard of proof requiring the evidence to convince the trier of fact that a contention is more probably true than not. The Petitioner, Douglas E. Kupel, bore the burden of proving his case by this standard.

8. Mr. Freed testified that all HVA business was conducted via open meetings. He stated that there were no meetings conducted solely by email, with the exception of a single emergency situation.

9. The Administrative Law Judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the HVA was in violation of ARIZ. REV. STAT. § 33-1805. The judge found the HVA’s conduct did not violate the charged statute.

10. The final ORDER (1) denied the Petitioner’s petition, (2) denied the Petitioner’s request for a civil penalty against the Respondent, and (3) ordered that the Respondent shall not be required to reimburse the Petitioner’s $500.00 filing fee.

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Essay Questions

The following questions are designed for in-depth analysis and discussion. Answers are not provided.

1. Analyze the legal arguments presented by both the Petitioner, Douglas E. Kupel, and the Respondent, Hidden Valley Association. How did each party use the evidence and ARIZ. REV. STAT. § 33-1805 to support their position?

2. Discuss the significance of the “preponderance of the evidence” standard in this case. Explain how the Administrative Law Judge determined that the Petitioner failed to meet this burden of proof.

3. Evaluate the testimony of HVA Board President Gary Freed. How did his explanations regarding his email statements and the association’s record-keeping practices influence the judge’s final decision?

4. Examine ARIZ. REV. STAT. § 33-1805(B), which outlines the exceptions for withholding records. Based on the case details, explain why the communications requested by the Petitioner were ultimately deemed non-disclosable or non-existent under this statute.

5. Describe the complete procedural history of the case, from the initial filing of the petition to the final order. Include key dates, entities involved (such as the Department of Real Estate and the Office of Administrative Hearings), and the final remedies sought by the Petitioner versus the actual outcome.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings and makes decisions on behalf of a government agency. In this case, the ALJ was Adam D. Stone.

ARIZ. REV. STAT. § 33-1805

The Arizona Revised Statute that governs the examination and disclosure of a homeowners’ association’s financial and other records by its members. It outlines the process for requests, a ten-business-day fulfillment window, and specific exemptions allowing an association to withhold certain records.

ARIZ. REV. STAT. § 32-2199.01(A)

The Arizona Revised Statute cited by the Petitioner that allows an administrative law judge to levy a civil penalty against a party found to be in violation of the law.

Burden of Proof

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

Covenants, Conditions, and Restrictions (CC&Rs)

The official governing documents that establish the rules and obligations for a homeowners’ association and its members.

Department of Real Estate (“Department”)

The Arizona state agency authorized to receive and decide petitions for hearings involving disputes between homeowners and their associations.

Hidden Valley Association (HVA)

The Respondent in the case; a homeowners’ association for the Hidden Valley Ranch subdivision in Prescott, Arizona, governed by CC&Rs and a Board of Directors.

HOAMCO

The company that served as the Community Manager for the Hidden Valley Association and initially responded to the Petitioner’s records request.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona to which the Department of Real Estate referred this matter for an evidentiary hearing.

Petitioner

The party who files a petition to initiate a legal proceeding. In this case, the Petitioner was Douglas E. Kupel, a homeowner and member of the HVA.

Preponderance of the Evidence

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

Respondent

The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Respondent was the Hidden Valley Association.






Blog Post – 21F-H2120006-REL


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