McConnell, Edward J. & Judith S. vs. Dew Mutual Expense Sharing Group

Posted on April 15, 2013 by [email protected]

Case Summary

Case ID	12F-H1213013-BFS
Agency	Department of Fire, Building, and Life Safety
Tribunal	Office of Administrative Hearings
Decision Date	2013-04-15
Administrative Law Judge	Brian Brendan Tully
Outcome	The ALJ dismissed the petition. The Petitioners failed to establish that they complied with the certified mail requirement of A.R.S. § 33-1803(C), which meant the HOA was not liable for a violation of § 33-1803(D). Additionally, the evidence showed Petitioners violated the CC&Rs and A.R.S. § 33-1221(2) by altering common elements without written permission.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Edward J. McConnell and Judith S. McConnell	Counsel	—
Respondent	Dew Mutual Expense Sharing Group	Counsel	—

Alleged Violations

A.R.S. § 33-1803(D)

Outcome Summary

The ALJ dismissed the petition. The Petitioners failed to establish that they complied with the certified mail requirement of A.R.S. § 33-1803(C), which meant the HOA was not liable for a violation of § 33-1803(D). Additionally, the evidence showed Petitioners violated the CC&Rs and A.R.S. § 33-1221(2) by altering common elements without written permission.

Why this result: Failure to satisfy burden of proof regarding certified mail service; confirmation of unauthorized alteration of common elements.

Key Issues & Findings

Failure to provide statutory response to violation notice

Petitioners alleged the HOA violated A.R.S. § 33-1803(D) by delaying the denial of their shade structure request and failing to provide required information. The dispute arose after Petitioners installed a shade structure on common elements without prior written approval.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

A.R.S. § 33-1803(C)
A.R.S. § 33-1803(D)
A.R.S. § 33-1221(2)
A.R.S. § 33-1252

Video Overview

Audio Overview

Decision Documents

12F-H1213013-BFS Decision – 334072.pdf

Uploaded 2026-04-24T10:45:29 (112.1 KB)

12F-H1213013-BFS Decision – 339518.pdf

Uploaded 2026-04-24T10:45:34 (59.5 KB)

Administrative Law Judge Decision Briefing: McConnell v. Dew Mutual Expense Sharing Group

Executive Summary

This briefing document analyzes the administrative legal dispute between homeowners Edward J. and Judith S. McConnell (Petitioners) and the Dew Mutual Expense Sharing Group (Respondent), an unincorporated condominium association in Sun City, Arizona. The central conflict arose from the Petitioners’ unauthorized installation of an Alumawood™ shade structure on common elements following the trimming of a Palo Verde tree that previously provided shade to their unit.

Following an evidentiary hearing held on March 26, 2013, Administrative Law Judge (ALJ) Brian Brendan Tully determined that the Petitioners failed to sustain their burden of proof. The ALJ found that the Petitioners violated association rules and state statutes by erecting a structure on common elements without written board approval or the required 80% membership conveyance. Conversely, the Petitioners' claims of statutory violations by the Board were dismissed due to procedural failures on the part of the Petitioners. On May 21, 2013, the Office of Administrative Hearings certified the ALJ’s decision as the final administrative action.

Detailed Analysis of Key Themes

1. Compliance with Governing Documents and Architectural Control

The core of the dispute involves the interpretation of Rules & Regulations, Article 2.04 and CC&Rs Paragraph 11. These provisions strictly mandate that no exterior additions or alterations to buildings or structures may be commenced until plans are submitted to and approved in writing by the Board of Management.

The Petitioners' Argument: They contended that since the Board’s initial response on September 17, 2012, "neither approved nor denied" their request, the subsequent installation was not a clear violation.
The Legal Finding: The ALJ concluded that the absence of an explicit denial does not constitute a "de facto" approval. Because written approval was never granted, the installation of the shade structure on October 24, 2012, was a direct violation of Section 2.04.

2. Jurisdiction over Common Elements

A critical factor in the ruling was the location of the shade structure. The evidence established that the structure was erected outside the condominium unit in the "common elements."

Defining Common Elements: Under Paragraph 10 of the CC&Rs, common elements include land not specifically conveyed with individual units, trees, and pavements. In this case, common elements extended from the exterior of the units to the sidewalk.
Statutory Requirements (A.R.S. § 33-1252 & § 33-1221): Arizona law prohibits members from changing the appearance of common elements without written permission. Furthermore, erecting a permanent structure on common elements requires a conveyance of that portion of the elements by at least 80% of the association's members. The Petitioners did not seek or obtain this conveyance.

3. Procedural Technicalities and Statutory Interpretation

The Petitioners alleged that the Board violated A.R.S. § 33-1803(D) by failing to provide a timely and detailed response to their inquiries.

The Certified Mail Requirement: Under A.R.S. § 33-1803(C) and (D), the association's obligation to provide a detailed written explanation (including the specific rule violated and the observer of the violation) is triggered only after the member sends a response to a violation notice via certified mail.
The Ruling: Because the Petitioners failed to prove they sent their November 18, 2012, response by certified mail, the Board was not legally held to the ten-day response requirement or the specific disclosure mandates of the statute.

4. Administrative Outcomes and Limitations

While the Petitioners lost their case, the Board was also denied its request for an order requiring the immediate removal of the structure.

Reasoning: The ALJ noted that the Respondent (the Board) had not filed its own petition with the Department seeking removal. The hearing was limited to the issues raised in the Petitioners’ filing; therefore, the ALJ lacked the authority to grant the Board affirmative relief for removal in this specific proceeding.

Important Quotes with Context

Quote	Context
"The response letter we received from the board dated September 17, 2012 neither denied nor approved our request."	Petitioners' Argument: Used to justify proceeding with construction despite the lack of formal written permission.
"Respondent’s Board expressed its 'misgivings regarding the . . . proposal for an Alumawood™ shade structure . . .' and requested that Petitioners 'explore other options less obtrusive.'"	Board's Initial Response: Evidence that the Board did not grant approval and explicitly asked the owners to seek alternatives.
"No building shall be constructed on any part of the common elements."	CC&Rs Paragraph 10: The foundational restriction that prohibited the Petitioners from placing a structure on the land surrounding their unit.
"Since Petitioners did not establish that their response had been sent to Respondent by certified mail, it is concluded that Respondent did not violate the provisions of A.R.S. § 33-1803(D)."	Legal Conclusion: Highlights the impact of procedural strictness in Arizona homeowners association law.

Actionable Insights

For Homeowners

Verification of Property Boundaries: Homeowners must explicitly confirm where their individual unit ends and "common elements" begin before planning any exterior improvements.
Written Approval is Non-Negotiable: Under standard HOA/Condominium CC&Rs, the absence of a "no" is not a "yes." Construction should never commence without an affirmative written approval from the Board or Architectural Committee.
Strict Statutory Adherence: When disputing a violation notice, homeowners must use certified mail as required by A.R.S. § 33-1803 to preserve their rights and trigger the association's statutory obligations.

For Association Boards

Clear Communication: While "expressing misgivings" was sufficient to show non-approval in this case, explicit denials coupled with references to specific rules (like Section 2.04) provide stronger protection against claims of ambiguity.
Filing Cross-Petitions: If an association wants an administrative order to compel a homeowner to take action (like removing a structure), it must file its own petition or cross-petition rather than simply requesting it in an answering brief.
Common Element Protection: Boards must be aware that any conveyance of common elements for private use (like a permanent shade structure) typically requires a high threshold of membership approval (80% in this jurisdiction).

Procedural History

Petition Filed: December 20, 2012
Hearing Date: March 26, 2013
ALJ Decision Transmitted: April 15, 2013
Final Certification: May 21, 2013 (Certified by Cliff J. Vanell, Director of the Office of Administrative Hearings, after the Department of Fire, Building, and Life Safety took no action to modify the decision).

Study Guide: McConnell v. Dew Mutual Expense Sharing Group

This study guide provides a comprehensive overview of the administrative hearing between Edward J. and Judith S. McConnell and the Dew Mutual Expense Sharing Group. It explores the legal complexities of homeowner association (HOA) governance, architectural control, and the statutory requirements governing disputes within a condominium association.

Key Case Overview

The case centers on a dispute regarding the unauthorized installation of a shade structure in the common elements of a 24-unit condominium association in Sun City, Arizona.

Element	Detail
Petitioners	Edward J. and Judith S. McConnell
Respondent	Dew Mutual Expense Sharing Group (Unincorporated Association)
Case Number	12F-H1213013-BFS
Presiding Judge	Administrative Law Judge Brian Brendan Tully
Primary Issue	Alleged violation of Rules and Regulations Article 2.04 regarding architectural approval.

Core Themes and Legal Principles

1. Architectural Control and Approval Processes

The governing documents of the association, specifically the Covenants, Conditions, and Restrictions (CC&Rs) and the Rules and Regulations, mandate that no exterior additions or alterations can be made without prior written approval from the Board of Management.

Article 2.04: Requires plans and specifications (nature, shape, height, location, and cost) to be submitted and approved in writing before construction begins.
CC&R Paragraph 11: Emphasizes that design and location must be in "conformity and harmony" with existing structures.

2. Common Elements vs. Individual Units

The definition and use of "common elements" are central to this dispute.

Definition: Land not specifically conveyed with individual units, including trees, pavements, streets, and utility lines. It also includes the exterior of condominium units up to the sidewalk.
Restriction: No buildings shall be constructed on any part of the common elements.
Conveyance: Under A.R.S. § 33-1252(A), a portion of the common elements cannot be conveyed or subjected to a security interest without the agreement of at least 80% of the association members.

3. Burden of Proof and Legal Standards

In administrative hearings of this nature, the petitioner bears the burden of proof.

Preponderance of the Evidence: The standard used to determine if a contention is "more probably true than not."
A.R.S. § 33-1221(2): Explicitly prohibits members from changing the appearance of common elements or the exterior of a unit without written permission.

4. Statutory Notification Requirements (A.R.S. § 33-1803)

The case highlights specific procedural requirements for communications between members and associations regarding violations:

A member must send a written response to a violation notice via certified mail within ten business days.
The association must then respond within ten business days of receiving that certified mail with specific information, including the person who observed the violation and the process to contest the notice.

Short-Answer Practice Questions

What event prompted the Petitioners to request a shade structure?

The trimming of a Palo Verde tree in the common elements that previously provided shade to the Petitioners’ kitchen and breakfast room.

On what date did the Petitioners install the shade structure?

October 24, 2012.

What was the Board’s initial response to the Petitioners’ September 12 request?

A letter dated September 17, 2012, expressing "misgivings" and requesting that the Petitioners explore less obtrusive options.

According to the ALJ, why did the Respondent not violate A.R.S. § 33-1803(D)?

Because the Petitioners failed to prove they sent their response to the Board's violation notice via certified mail, which is a statutory prerequisite for triggering the association's response requirements.

What percentage of association members must approve the conveyance of common elements?

At least 80%.

Why was the Respondent’s request to have the shade structure removed denied by the ALJ?

The Respondent had not filed its own petition with the Department seeking an order for removal; the hearing was limited to the single issue raised by the Petitioners.

What was the final outcome of the Petition?

The Administrative Law Judge recommended dismissal of the petition because the Petitioners failed to sustain their burden of proof.

Essay Prompts for Deeper Exploration

The Ambiguity of Informal Communication: Analyze the Petitioners' claim that the Board's September 17 letter was neither a denial nor an approval. Discuss how the lack of a formal "Yes" or "No" contributed to the escalation of the conflict and the legal implications of proceeding with construction during a period of perceived ambiguity.
Common Elements and Property Rights: Explore the definition of "common elements" provided in the CC&Rs. Contrast the individual homeowner's right to property enjoyment (e.g., seeking shade) with the collective ownership rights of the 24-unit association. How does A.R.S. § 33-1252 protect the collective interest?
Procedural Compliance in HOA Disputes: Evaluate the importance of A.R.S. § 33-1803(C) and (D). Why does the law mandate specific methods of communication (like certified mail)? Discuss how a failure to adhere to these procedural "technicalities" can determine the outcome of a legal dispute regardless of the underlying facts.

Glossary of Important Terms

Alumawood™: A specific brand or type of material used for shade structures, characterized in this case as an exterior addition.
Covenants, Conditions, and Restrictions (CC&Rs): The legal documents that lay out the rules for a real estate development and the responsibilities of the homeowners' association.
Common Elements: Areas of a condominium project intended for the use and enjoyment of all owners, rather than being owned by a single individual unit owner.
Conveyance: The legal process of transferring property or rights from one party to another.
Preponderance of the Evidence: A legal standard of proof that is met when the evidence shows that the fact sought to be proved is more likely than not.
Respondent: The party against whom a petition is filed (in this case, the Dew Mutual Expense Sharing Group).
Unincorporated Association: A group of individuals who act together for a common purpose without a formal corporate charter, such as the condominium group in this case.
Violation Notice: A formal communication from an HOA Board informing a member that a condition of their property violates the community documents.

The Shade Structure Saga: Lessons in HOA Compliance and Common Elements

Introduction: A Cautionary Tale of Condominium Living

In many Arizona communities, the desert sun makes shade a precious commodity. For Edward and Judith McConnell, residents of the Dew Mutual Expense Sharing Group in Sun City, the quest for relief began when a Palo Verde tree in the common area—which previously shaded their kitchen and breakfast room—was trimmed back significantly due to unhealthy limbs. Seeking to reclaim their cool interior, the McConnells decided to install a permanent Alumawood™ shade structure.

What followed was a nearly year-long legal dispute (spanning August 2012 to May 2013) that reached the Office of Administrative Hearings (Case No. 12F-H1213013-BFS). This case serves as a high-stakes cautionary tale, illustrating the emotional and financial drain that occurs when homeowners bypass Governing Documents. For the McConnells, the conflict involved multiple filings with state agencies and a formal evidentiary hearing, all over a structure that lacked the one thing every HOA project requires: a formal "yes."

The Timeline of a Dispute

The conflict between the McConnells and their association provides a clear map of how compliance failures escalate into legal battles:

August 2012: A common-area Palo Verde tree is trimmed, removing natural shade from the Petitioners' unit.
September 12, 2012: The Petitioners submit a written request for an Alumawood™ shade structure. During this exchange, Board member Ronald Wayne McIntyre testified that Mr. McConnell stated they would build the structure "with or without the Board's approval."
September 17, 2012: The Board responds in writing, expressing "misgivings" and asking the Petitioners to "explore other options less obtrusive."
October 24, 2012: Despite the lack of approval, the Petitioners proceed with the installation.
November 14, 2012: The Board issues a formal denial and orders the structure dismantled, citing a violation of Section 2.04 of the Rules and Regulations.
November 18, 2012: The McConnells respond, doubling down by stating their choice was "the most attractive and the least obtrusive one," despite the formal denial.

The Critical Error: The Petitioners mistook a dialogue about "misgivings" for a green light. In an HOA, proceeding with construction without an explicit, written approval is a gamble that homeowners rarely win.

Understanding "Common Elements" and Rule 2.04

A central issue in this case was the physical location of the structure. The association established that the shade structure was erected within "common elements," a legal distinction that limits homeowner autonomy.

Under Paragraph 10 of the CC&Rs, "common elements" are defined specifically as:

"…including, but not limited to, land not otherwise specifically conveyed with individual units, community and commercial facilities, if any, swimming pools, pumps, trees, pavements, streets, pipes, wires, conduits and other public utility lines."

The legal hurdles for private construction on shared ground are nearly insurmountable:

The 80% Rule (A.R.S. § 33-1252): Because the structure was built on common elements, it was legally considered a private use of shared property. Under Arizona law, this requires a conveyance approved by at least 80% of the association members. The McConnells failed to obtain this.
Section 2.04 Requirements: The association's rules explicitly state that no exterior additions or alterations shall be commenced until plans showing the nature, height, and location are submitted to and approved in writing by the Board.

The Legal Turning Point: The "Certified Mail" Pivot

The McConnells’ legal strategy relied on holding the Board to the strict requirements of A.R.S. § 33-1803(D). They argued the Board failed to respond within 10 business days and failed to provide specific information required by law, such as the observer’s name, the date of the violation, and the contest process (paragraphs 2, 3, and 4 of the statute).

However, the Administrative Law Judge (ALJ) ruled that the Petitioners' entire case collapsed on a single procedural technicality. Under A.R.S. § 33-1803(C), a homeowner responding to a violation notice must send their response via certified mail.

The McConnells sent a response, but they did not use certified mail. Consequently, the Board was never legally triggered to provide the detailed response required by Section (D). This "Aha!" moment in court proved that "sending a letter" is not the same as fulfilling a statutory requirement.

Consultant's Rule: The Statute is Your Script In Arizona HOA law, your rights are often tied to specific delivery methods. If the law says "certified mail," an email or standard letter—no matter how well-written—is legally invisible. Follow the statute to the letter to preserve your right to a defense.

The Judge’s Decision and Final Certification

The ALJ concluded that the Petitioners failed to sustain their burden of proof. The evidence was clear: they had built a permanent structure on common elements without written permission or an 80% member conveyance.

The "Recommended Order" contained a final lesson in procedural irony. While the Judge dismissed the McConnells' petition, he also denied the Board’s request to force the removal of the structure. Why? Because the Board had only filed an "Answer" to the complaint rather than filing their own formal cross-petition for removal. This serves as a reminder that everyone—both homeowners and Boards—is bound by the strict procedural rules of the court.

On May 21, 2013, Director Cliff J. Vanell of the Office of Administrative Hearings certified the decision as the final administrative action, officially dismissing the case.

Key Takeaways for Homeowners

Silence is Not Consent: A Board's "misgivings" or a delay in their response is never a substitute for a written approval letter.
Know Your Boundaries: Understand that "common elements" often include everything from the exterior paint of your unit to the ground beneath your feet. Private use of shared land is a high legal bar.
Technicalities Matter: In legal disputes, the method of delivery (certified mail) is just as important as the facts of the case.
Written Approval is Mandatory: Never proceed based on verbal conversations. As the McIntyre testimony showed, a "willful violation" (building with or without approval) creates a difficult narrative to overcome in court.

Conclusion

The "Shade Structure Saga" highlights the delicate balance between individual comfort and collective governance. While the McConnells simply wanted to enjoy their kitchen without the glare of the sun, their decision to ignore the technical and procedural requirements of the CC&Rs led to an exhausting and ultimately unsuccessful legal journey. In a community association, following the process is not just a suggestion—it is a prerequisite for every nail, bolt, and beam.

Case Participants

Petitioner Side

Edward J. McConnell (Petitioner)
Member of Respondent association
Judith S. McConnell (Petitioner)
Member of Respondent association

Respondent Side

Kenn MacIntosh (authorized representative)
Dew Mutual Expense Sharing Group
Spelled 'Ken Macintosh' in mailing list
Ronald Wayne McIntyre (board member)
Dew Mutual Expense Sharing Group
Received written request from Petitioners
Jan Mayfield (Secretary)
Dew Mutual Expense Sharing Group
Listed as 'Dew Condo Group Secretary' on mailing list

Neutral Parties

Brian Brendan Tully (ALJ)
Office of Administrative Hearings
Cliff J. Vanell (OAH Director)
Office of Administrative Hearings
Certified the ALJ decision
Gene Palma (Agency Director)
Department of Fire, Building, and Life Safety
Received copy of decision
Joni Cage (Agency Staff)
Department of Fire, Building, and Life Safety
c/o for Gene Palma on mailing list

Walter, Margo vs. Kingswood Owners Association

Posted on March 29, 2013 by [email protected]

Case Summary

Case ID	12F-H1213012-BFS
Agency	DFBLS
Tribunal	OAH
Decision Date	2013-05-10
Administrative Law Judge	Brian Brendan Tully
Outcome	The petition was dismissed because the HOA does not own any real property (common elements) and therefore does not qualify as a 'planned community' under Arizona law, depriving the agency of jurisdiction.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Margo L. Walter	Counsel	—
Respondent	Kingswood Owners Association	Counsel	—

Alleged Violations

A.R.S. § 33-1802(4)

Outcome Summary

The petition was dismissed because the HOA does not own any real property (common elements) and therefore does not qualify as a 'planned community' under Arizona law, depriving the agency of jurisdiction.

Why this result: Lack of jurisdiction; Respondent is not a planned community pursuant to A.R.S. § 33-1802(4).

Key Issues & Findings

Maintenance of private property / Jurisdiction

Petitioner alleged the HOA maintained private driveways in violation of CC&Rs despite the streets being annexed by the city. Respondent moved to dismiss on grounds that it does not own real property and is not a planned community.

Orders: Petition dismissed for lack of jurisdiction. Respondent's request for attorney fees denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1802(4)
A.R.S. § 41-2198.01

Video Overview

Audio Overview

Decision Documents

12F-H1213012-BFS Decision – 332161.pdf

Uploaded 2026-04-24T10:45:18 (72.1 KB)

12F-H1213012-BFS Decision – 337656.pdf

Uploaded 2026-04-24T10:45:21 (57.5 KB)

Briefing Document: Walter v. Kingswood Owners Association (Case No. 12F-H1213012-BFS)

Executive Summary

The matter of Margo L. Walter v. Kingswood Owners Association centered on a dispute regarding the use of association dues for the maintenance of private driveways. The Petitioner, Margo L. Walter, alleged that the Kingswood Owners Association (the "Respondent") was improperly funding periodic snow removal and crack sealing for six private driveways without a formal agreement and in violation of the association's Articles and CC&Rs.

The case was brought before the Arizona Office of Administrative Hearings to determine if the Department of Fire, Building, and Life Safety ("Department") had jurisdiction to adjudicate the claim. The Administrative Law Judge (ALJ) determined that because the Respondent does not own real estate—having sold its private streets to the City of Prescott in 2000—it does not meet the statutory definition of a "planned community" under Arizona Revised Statutes (A.R.S.) § 33-1802(4). Consequently, the Department lacked jurisdiction, leading to the dismissal of the Petition. This decision was certified as the final agency action on May 10, 2013.

Detailed Analysis of Key Themes

1. Allegations of Misallocated HOA Funds

The core of the Petitioner's complaint was the alleged unauthorized maintenance of private property. Following the annexation of private streets by the City of Prescott on June 9, 2000, the Petitioner argued that the Respondent continued to maintain six private driveways.

Maintenance Activities: Activities included periodic snow removal and crack sealing.
Legal Basis for Complaint: The Petitioner asserted these actions violated the association's governing documents (Articles and CC&Rs) and that no formal agreement existed to justify the expenditure of membership dues on these specific driveways.

2. Jurisdictional Limits of the Department

The Respondent moved to dismiss the case based on a lack of jurisdiction. Under A.R.S. § 41-2198, the Department's authority to adjudicate disputes is strictly limited to three types of entities:

Mobile home parks (under the Arizona Mobile Home Parks Residential Landlord Tenant Act).
Condominium associations (under Title 33, chapter 9).
Planned community associations (under Title 33, chapter 16).

The Respondent successfully argued that it did not fall into any of these categories, specifically refuting the "planned community" label.

3. The Statutory Definition of a "Planned Community"

The case hinged on the technical definition of a "planned community" found in A.R.S. § 33-1802(4). To be classified as such, a development must include real estate "owned and operated by a nonprofit corporation or unincorporated association of owners."

The evidence showed that the Respondent is a nonprofit corporation but does not own real property. This fact was supported by:

The Sale of Assets: The Respondent sold its private streets to the City of Prescott in 2000.
Legal Counsel Advice: A letter from the Respondent’s former counsel, Beth Mulcahy, Esq., dated October 31, 2011, explicitly advised the Board that "the Association does not own real property . . . therefore, the Association is not legally considered a planned community."

4. Denial of Costs and Attorney Fees

Despite winning the motion to dismiss, the Respondent’s request for costs and attorney fees under A.R.S. § 41-1092.12 was denied. The ALJ ruled that this specific statute applies exclusively to the Arizona Department of Environmental Quality, rendering it inapplicable to this proceeding.

Important Quotes with Context

Quote	Context
"Maintenance of private property funded by HOA membership dues. … Kingswood Owners Association has continued to maintain six private driveways in violation of Articles and CC&R."	The original allegation filed by Petitioner Margo L. Walter, initiating the case.
"It is uncontroverted that Respondent, a nonprofit corporation, does not own any real estate since it sold its private streets to the City of Prescott in 2000."	The ALJ’s finding of fact that effectively removed the Respondent from the Department's jurisdiction.
"The Association does not own real property . . . therefore, the Association is not legally considered a planned community."	Legal advice from Beth Mulcahy, Esq. to the Respondent's Board, used as evidence to support the motion to dismiss.
"Because Respondent is not a planned community pursuant to A.R.S. § 33-1802(4), the Department lacks jurisdiction over Respondent under A.R.S. §§ 41-2198 and 41-2198.01(B)."	The primary Conclusion of Law leading to the dismissal of the petition.

Actionable Insights

For Homeowners and Petitioners

Verify Association Status: Before filing a petition with the Department of Fire, Building, and Life Safety, it is critical to verify whether the association meets the strict statutory definition of a "planned community" (i.e., it must own and operate common real estate).
Identify Appropriate Forums: If an association does not own real property, disputes regarding CC&R violations or mismanagement of funds may need to be pursued in Superior Court rather than through administrative hearings, as the Department lacks jurisdiction in these instances.

For Association Boards

Impact of Asset Divestment: Selling common areas (such as streets) to a municipality can change the legal status of an association, potentially removing it from the purview of certain state statutes and administrative oversight.
Resource Allocation for Legal Defense: While an association may successfully dismiss a petition based on jurisdictional grounds, they may still be responsible for their own legal fees if they cite inapplicable statutes (e.g., A.R.S. § 41-1092.12) when requesting a recovery of costs.

Procedural Status

Finality of Decision: The decision became final on May 6, 2013, due to the Department's inaction within the statutory timeframe.
Right to Rehearing/Appeal: Parties have the right to request a rehearing from the Department under A.R.S. § 41-1092.09(A) or seek review by the Superior Court under A.R.S. § 41-1092.08(H).

Study Guide: Walter v. Kingswood Owners Association

This study guide provides a comprehensive overview of the administrative legal proceedings in the case of Margo L. Walter v. Kingswood Owners Association (No. 12F-H1213012-BFS). It covers the core legal arguments regarding jurisdiction, the statutory definition of a planned community, and the administrative procedures of the Arizona Office of Administrative Hearings.

Key Concepts and Case Summary

1. The Core Dispute

The Petitioner, Margo L. Walter, filed a petition against the Kingswood Owners Association (Respondent) with the Arizona Department of Fire, Building, and Life Safety. The primary allegation was the improper use of homeowner association (HOA) dues for the maintenance of private property. Specifically, the Petitioner alleged that the Association continued to fund snow removal and crack sealing for six private driveways despite the City of Prescott annexing the private streets on June 9, 2000. The Petitioner argued this violated the Association’s Articles and CC&Rs (Covenants, Conditions, and Restrictions).

2. The Jurisdictional Challenge

The Respondent moved to dismiss the petition on the grounds that the Department lacked jurisdiction under A.R.S. § 41-2198.01. The Association argued that it did not meet the legal criteria of a mobile home park, a condominium, or a planned community, which are the entities over which the Department has adjudicatory authority.

3. Statutory Definition of a "Planned Community"

Under A.R.S. § 33-1802(4), a planned community is defined by specific criteria:

It must be a real estate development.
It must include real estate owned and operated by a nonprofit corporation or unincorporated association of owners.
The entity must be created to manage, maintain, or improve the property.
Owners of separate lots must be mandatory members and required to pay assessments.
It specifically excludes timeshare plans or associations.

4. The Administrative Ruling

Administrative Law Judge (ALJ) Brian Brendan Tully determined that the Kingswood Owners Association was not a planned community because it did not own any real estate. The Association had sold its private streets to the City of Prescott in 2000. Based on this finding, the ALJ concluded that the Department lacked jurisdiction, leading to the dismissal of the petition.

5. Final Certification

The ALJ's recommended order was issued on March 29, 2013. Under A.R.S. § 41-1092.08, the Department had until May 6, 2013, to accept, reject, or modify the decision. Because the Department took no action by that deadline, the ALJ decision was certified as the final administrative decision on May 10, 2013.

Short-Answer Practice Questions

Who is the Petitioner and who is the Respondent in this case?
What specific maintenance activities did the Petitioner claim were being improperly funded?
On what date did the City of Prescott annex the private streets relevant to this case?
According to A.R.S. § 33-1802(4), what is the essential requirement regarding real estate ownership for an association to be considered a "planned community"?
Why did the ALJ deny the Respondent’s request for attorneys' fees and costs under A.R.S. § 41-1092.12?
What was the final outcome regarding the Petitioner’s claim?
What action (or lack thereof) by the Department of Fire, Building, and Life Safety led to the ALJ's decision becoming final?
To which court may a party petition for a review of the final administrative decision?

Essay Prompts for Deeper Exploration

The Impact of Property Ownership on Jurisdiction: Analyze how the transfer of real estate from a private association to a municipality (such as the City of Prescott) alters the legal classification of that association. Explain the relationship between property ownership and the Department’s authority to adjudicate disputes under Arizona Revised Statutes.

Administrative Procedure and Timelines: Discuss the significance of the "Certification of Decision" process. Why is it important for an agency to have a specific window (in this case, until May 6, 2013) to act upon an ALJ’s decision, and what are the legal consequences for the parties involved if the agency fails to act?

Statutory Interpretation: Compare the Petitioner's allegations of CC&R violations with the Respondent's jurisdictional defense. Explain why the ALJ had to address the jurisdictional question before considering the merits of the maintenance dispute.

Glossary of Important Terms

Term	Definition
A.R.S. § 33-1802(4)	The Arizona statute that provides the legal definition for a "planned community."
A.R.S. § 41-2198.01	The statute outlining the Department's jurisdiction to hear petitions concerning violations of planned community documents.
Annexation	The legal transition of land (in this case, private streets) from the control of a private entity to the jurisdiction of a city.
CC&R	Covenants, Conditions, and Restrictions; the governing documents that outline the rules and maintenance obligations of a property association.
Jurisdiction	The legal authority of a court or administrative body to hear a case and make a binding decision.
Planned Community	A development where real estate is owned/operated by a nonprofit association, membership is mandatory for lot owners, and assessments are required for maintenance.
Preponderance of the Evidence	The standard of proof in this administrative hearing, meaning the party with the burden of proof must show their claim is more likely true than not.
Respondent	The party against whom a petition is filed; in this case, the Kingswood Owners Association.
Tribunal	A body established to settle disputes; used in the context of the Office of Administrative Hearings.

When an HOA Is Not a "Planned Community": Lessons from Walter v. Kingswood Owners Association

1. Introduction: A Surprising Jurisdictional Twist

In the realm of Arizona homeowners association (HOA) disputes, most owners assume that the state’s administrative system provides a guaranteed path to justice. However, the case of Margo L. Walter vs. Kingswood Owners Association (No. 12F-H1213012-BFS) serves as a stark reminder that without the proper legal foundation, months of litigation and thousands of dollars in effort can result in a total "nullity."

The dispute began with a homeowner challenging how her dues were being allocated, but it ended with a jurisdictional "plot twist": the discovery that the Association did not actually meet the statutory definition of a "planned community." This technicality stripped the state of its power to intervene, rendering the entire administrative process void before it could even reach a hearing on the merits.

2. The Core Dispute: Maintenance and Membership Dues

The Petitioner, Margo L. Walter, filed her petition with the Arizona Department of Fire, Building, and Life Safety, alleging a breach of the community’s governing documents. Her central claim was that the Kingswood Owners Association was improperly using membership assessments to fund the upkeep of private property.

The conflict involved six private driveways within the development. Historically, the City of Prescott had annexed the community's private streets on June 9, 2000. While the streets became public, the driveways remained "private" in the Petitioner’s view. She alleged that the Association continued to perform maintenance on these driveways despite a lack of formal agreements and in direct violation of the Association’s Articles and CC&Rs.

The specific maintenance activities identified in the source documents included:

Periodic snow removal
Crack sealing

3. The Legal Definition: What Makes a "Planned Community"?

The case hinged on a specific "legal landmine" regarding the Association’s property ownership. Under Arizona law, an association is only subject to the Department’s jurisdiction if it meets the rigid criteria of a "planned community."

### The Statutory Definition: A.R.S. § 33-1802(4) "Planned community" means a real estate development which includes real estate owned and operated by a nonprofit corporation or unincorporated association of owners that is created for the purpose of managing, maintaining or improving the property and in which the owners of separately owned lots, parcels or units are mandatory members and are required to pay assessments to the association for these purposes.

The "uncontroverted" fact that derailed the Petitioner’s case was that the Kingswood Owners Association owned no real estate. When the Association sold its private streets to the City of Prescott in 2000, it effectively stripped itself of its "planned community" status. This was not a new discovery; the Petitioner even produced a letter dated October 31, 2011, from former counsel Beth Mulcahy, Esq., who had explicitly warned the Board of Directors that because the Association owned no real property, it was "not legally considered a planned community."

4. The Ruling: Why the Case Was Dismissed

Administrative Law Judge (ALJ) Brian Brendan Tully determined that the Department lacked the authority to adjudicate the dispute. This ruling clarifies the interplay between two key statutes: while A.R.S. § 41-2198.01 grants a homeowner the right to file a petition, the Department’s authority to act on that petition is strictly limited by A.R.S. § 41-2198 to entities defined as mobile home parks, condominiums, or planned communities.

Because Kingswood was neither a condominium nor a mobile home park, and because it failed the ownership test in A.R.S. § 33-1802(4), it sat outside the Department’s reach. The ALJ issued a recommended order for dismissal on March 29, 2013.

The administrative timeline concluded as follows:

March 29, 2013: The ALJ issued the decision to dismiss.
April 1, 2013: The decision was transmitted to the Department.
May 6, 2013: The statutory deadline for the Department to accept, reject, or modify the decision.
May 10, 2013: After the Department took no action, the Director of the Office of Administrative Hearings certified the decision as the final administrative action.

5. The Attorney Fees Side-Bar

In a move that highlights the irony often found in legal posturing, the Association (Respondent) moved for the dismissal while simultaneously requesting that the Petitioner pay its costs and attorney fees.

As a legal analyst, it is noteworthy that the Association successfully argued it was not a "planned community" to avoid the Petitioner’s claims, yet it then attempted to claim fees under A.R.S. § 41-1092.12. The ALJ sharply denied this request, pointing out a fundamental error in the Respondent's legal strategy: that specific statute applies exclusively to the Arizona Department of Environmental Quality. The Association’s attempt to use an environmental statute in a housing dispute was as legally misplaced as the original petition.

6. Conclusion: Key Takeaways for Homeowners and Associations

The dismissal of Walter v. Kingswood Owners Association is a cautionary tale for any party entering the administrative hearing process. It underscores that an association’s functional existence—collecting dues and maintaining property—does not always equate to its legal classification.

Key Insights:

Ownership is the Deciding Factor: To be a "planned community" under A.R.S. § 33-1802(4), an association must own and operate real estate. Selling streets or common areas to a city can fundamentally change an HOA's legal standing.
Jurisdiction is Not Universal: The Department’s authority is narrow. If an association does not meet the statutory definition, the administrative process is a dead end.
Statutory Accuracy is Critical: Both petitioners and respondents must cite the correct statutes. Attempting to recover fees under irrelevant environmental laws like A.R.S. § 41-1092.12 is a failed strategy.
Verify Status Before Filing: Homeowners should conduct due diligence on their association’s property ownership before filing a petition to ensure they are in the correct legal forum.

Ultimately, understanding the specific legal classification of an association is the first and most vital step in any real estate dispute. Without it, even a well-intentioned claim can be dismissed before the facts are ever heard.

Case Participants

Petitioner Side

Margo L. Walter (Petitioner)
Also spelled 'Walters' in distribution list

Respondent Side

Beth Mulcahy (attorney)
Mulcahy Law Firm (implied by context of letter)
Former counsel for Respondent; wrote opinion letter dated Oct 31, 2011

Neutral Parties

Brian Brendan Tully (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Gene Palma (Director)
Department of Fire, Building, and Life Safety
Agency Director
Cliff J. Vanell (Director)
Office of Administrative Hearings
Signed Certification of Decision
Joni Cage (staff)
Department of Fire, Building, and Life Safety
Care of for Gene Palma in distribution list

Brown, William vs. Terravita Community Association, Inc.

Posted on October 3, 2012 by [email protected]

Case Summary

Case ID	12F-H1212014-BFS
Agency	Department of Fire, Building and Life Safety
Tribunal	OAH
Decision Date	2012-10-04
Administrative Law Judge	Brian Brendan Tully
Outcome	The Administrative Law Judge granted the Respondent's Motion for Summary Judgment for Mootness. The ALJ concluded the Petitioner was not entitled to view the requested records because they were either non-existent, privileged attorney-client communications, or confidential executive session minutes.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	William M. Brown	Counsel	—
Respondent	Terravita Community Association, Inc.	Counsel	Curtis S. Ekmark, Esq.; Jason F. Wood, Esq.

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Administrative Law Judge granted the Respondent's Motion for Summary Judgment for Mootness. The ALJ concluded the Petitioner was not entitled to view the requested records because they were either non-existent, privileged attorney-client communications, or confidential executive session minutes.

Why this result: The requested records were legally protected from disclosure by attorney-client privilege and statutes governing executive session confidentiality.

Key Issues & Findings

Failure to provide requested records (engagement letter and executive session minutes)

Petitioner requested an engagement letter between the Association and its counsel, and minutes from two executive session meetings. Respondent argued the engagement letter did not exist or was privileged, and executive session minutes are protected from disclosure.

Orders: Respondent's Motion for Summary Judgment for Mootness granted.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1805(A)
A.R.S. § 33-1805(B)
A.R.S. § 33-1804(A)
A.R.S. § 33-1805(B)(3)

Video Overview

Audio Overview

Decision Documents

12F-H1212014-BFS Decision – 309140.pdf

Uploaded 2026-04-24T10:42:55 (89.1 KB)

12F-H1212014-BFS Decision – 313671.pdf

Uploaded 2026-04-24T10:43:07 (59.0 KB)

Administrative Law Judge Decision and Certification: William M. Brown v. Terravita Community Association, Inc.

Executive Summary

On October 4, 2012, Administrative Law Judge (ALJ) Brian Brendan Tully issued a decision in the matter of William M. Brown v. Terravita Community Association, Inc. (No. 12F-H1212014-BFS). The Petitioner, William M. Brown, alleged that the Respondent, Terravita Community Association, Inc., violated A.R.S. § 33-1805(A) by failing to provide specific records requested on May 25, 2012.

The ALJ granted the Respondent’s Motion for Summary Judgment for Mootness, concluding that the Petitioner was not legally entitled to the records requested—specifically legal engagement letters and executive session meeting minutes—regardless of their existence. This decision was officially certified as the final administrative action on November 13, 2012, after the Department of Fire, Building and Life Safety declined to modify or reject the ruling.

Detailed Analysis of Key Themes

1. Limits of Homeowner Records Requests (A.R.S. § 33-1805)

The primary conflict centered on the interpretation of A.R.S. § 33-1805, which governs the production of association records to members. The Petitioner argued that the association failed to fulfill a request for professional service contracts and executive session minutes. The Respondent successfully argued that these specific categories of documents are protected from disclosure under the "plain language" of the statute.

2. Attorney-Client Privilege and Professional Service Contracts

The Petitioner requested the engagement letter and fee schedule between the Association and its legal counsel, Ekmark & Ekmark, L.L.C. The ruling established two defensive pillars for the Association:

Non-Existence: The Respondent stated no such engagement letter existed.
Legal Privilege: The ALJ ruled that even if such a document existed, it would be protected by attorney-client privilege under A.R.S. § 33-1805(B). Disclosure to a third party (the Petitioner) would require an express waiver of privilege by the Association.

3. Confidentiality of Executive Session Minutes

The Petitioner sought minutes from executive session meetings held on March 27, 2012, and April 24, 2012. The ALJ's analysis focused on the distinction between open meetings and executive sessions:

A.R.S. § 33-1804(A): Establishes that executive sessions are not open to the public or non-Board members.
A.R.S. § 33-1805(B)(3): Explicitly protects executive session minutes from being treated as public records available to members.

The ALJ noted that since the Petitioner would have been legally excluded from the meeting itself, he remains excluded from the minutes documenting those meetings.

4. Procedural Finality and Agency Oversight

The case highlights the procedural path of administrative hearings in Arizona:

The Office of Administrative Hearings (OAH) conducts the evidentiary review.
The resulting ALJ decision is transmitted to the relevant department (in this case, the Department of Fire, Building and Life Safety).
The Department has a statutory window to accept, reject, or modify the decision. If no action is taken within the timeframe (by November 8, 2012, in this matter), the ALJ’s decision becomes the final agency action by default.

Important Quotes and Context

Quote	Context
"Petitioner is not entitled to receive or view the requested records, whether they exist or not."	The ALJ’s ultimate conclusion, clarifying that the legal nature of the documents (privileged/confidential) supersedes the question of their physical existence.
"Even if an engagement letter did exist, the engagement letter would be protected by attorney/client privilege that could not be disclosed to any third party…"	Legal justification regarding the protection of records related to legal services under A.R.S. § 33-1805(B).
"The minutes of Respondent’s Board’s executive session meeting… are not public minutes available to Petitioner or any other non-Board member, pursuant to A.R.S. § 33-1805(B)(3)."	Interpretation of the law regarding the confidentiality of board executive sessions.
"Respondent’s understanding [of] the ‘plain language’ of A.R.S. § 33-1805(B)(3) is as mistaken as Respondent’s affirmation [of compliance]."	The Petitioner's argument against the Association, which the ALJ ultimately rejected due to a lack of legal authority provided by the Petitioner.

Actionable Insights

For Community Associations

Statutory Protections: Associations can rely on A.R.S. § 33-1805(B) to protect sensitive documents, such as legal fee schedules and executive session minutes, from general member requests.
Documentation Existence: If a requested record does not exist, the Association should explicitly state this in its response, which can serve as grounds for a motion of mootness.
Privilege Maintenance: Associations should be cautious not to waive attorney-client privilege, as doing so could potentially open those records to member inspection.

For Petitioners/Homeowners

Legal Authority Requirement: Merely filing a petition is insufficient; the Petitioner must provide specific legal authority to support the right to view restricted documents. In this case, the Petitioner's failure to provide legal authority was noted by the ALJ.
Understanding Statutory Limits: Homeowners should recognize that the right to examine association records is not absolute and does not extend to executive sessions or privileged legal communications.

Procedural Rights

Rehearing and Appeals: Once a decision is certified as final, parties have the right to request a rehearing from the Department (A.R.S. § 41-1092.09(A)) or appeal to the Superior Court (A.R.S. § 41-1092.08(H)). These actions must be taken in a "timely manner" to avoid the loss of rights.

Legal Analysis and Study Guide: Brown v. Terravita Community Association, Inc.

This study guide provides a comprehensive overview of the administrative law case William M. Brown v. Terravita Community Association, Inc. (No. 12F-H1212014-BFS). It explores the legal standards governing records requests within community associations, the protections afforded to privileged legal documents, and the confidentiality of executive board sessions under Arizona law.

Case Overview and Key Entities

Entity	Role
William M. Brown	Petitioner; the individual requesting association records.
Terravita Community Association, Inc.	Respondent; the community association denying the records request.
Ekmark & Ekmark, L.L.C.	The law firm representing the Respondent.
Office of Administrative Hearings (OAH)	The independent agency that conducted the evidentiary review.
Department of Fire, Building and Life Safety	The state department overseeing the petition and final agency action.

Core Legal Concepts

1. Records Requests and Statutory Exemptions

Under A.R.S. § 33-1805(A), members of a community association generally have the right to request and examine association records. However, this right is not absolute. A.R.S. § 33-1805(B) outlines specific categories of information that are protected from disclosure.

Attorney-Client Privilege: Legal service agreements, engagement letters, and fee schedules are protected by attorney-client privilege. Unless the association explicitly waives this privilege, these documents cannot be disclosed to third parties.
Executive Session Records: Minutes from board meetings held in executive session are explicitly protected under A.R.S. § 33-1805(B)(3).

2. Executive Sessions

Pursuant to A.R.S. § 33-1804(A), a Board of Directors may hold executive sessions that are not open to the public or non-Board members. Because the meetings themselves are closed to maintain confidentiality, the minutes resulting from those meetings are not considered public documents and are not available for examination by non-Board members.

3. Summary Judgment for Mootness

A motion for summary judgment for mootness may be granted if the issues in the petition no longer require an evidentiary hearing. In this case, the Administrative Law Judge (ALJ) determined that even if the requested records existed, the Petitioner had no legal right to view them, rendering a hearing unnecessary.

4. Final Agency Action

An ALJ decision is transmitted to the relevant Department (in this case, the Department of Fire, Building and Life Safety). If the Department does not accept, reject, or modify the decision within a specific timeframe (governed by A.R.S. § 41-1092.08), the ALJ’s decision is certified as the final administrative decision.

Short-Answer Practice Questions

1. What two specific categories of records did William M. Brown request from the Terravita Community Association?

Answer: 1) Engagement letters, retainer agreements, or professional service contracts between the association and the law firm Ekmark & Ekmark, L.L.C. 2) Minutes from the board of directors' executive session meetings held on March 27, 2012, and April 24, 2012.

2. On what grounds did the Respondent claim the March 27, 2012, executive session minutes were protected?

Answer: The Respondent argued they were protected under the plain language of A.R.S. § 33-1805(B)(3), which shields executive session minutes from disclosure.

3. Why was the request for the April 24, 2012, minutes denied regardless of the law?

Answer: The Respondent contended that no executive session meeting actually took place on that date, meaning the records did not exist.

4. According to the ALJ, what is required for a third party to view an engagement letter between an association and its counsel?

Answer: The association must explicitly waive its attorney/client privilege.

5. What happened when the Department of Fire, Building and Life Safety failed to act on the ALJ's decision by November 8, 2012?

Answer: Pursuant to A.R.S. § 41-1092.08(D), the ALJ's decision was certified as the final administrative decision of the Department.

6. What are the two primary avenues for a party to challenge a final administrative decision?

Answer: A party may request a rehearing from the Department (A.R.S. § 41-1092.09(A)) or appeal the matter to the Superior Court (A.R.S. § 41-1092.08(H)).

Essay Prompts for Deeper Exploration

Transparency vs. Confidentiality in HOAs: Analyze the tension between a member's right to access association records under A.R.S. § 33-1805(A) and the association’s right to maintain privileged communications under A.R.S. § 33-1805(B). Is the balance struck by the statutes appropriate for maintaining community trust?
The Role of the Administrative Law Judge: Discuss the ALJ's rationale for granting the Motion for Summary Judgment for Mootness. Evaluate whether the determination that "Petitioner is not entitled to receive or view the requested records, whether they exist or not" is an efficient use of judicial resources or an obstacle to discovery.
The Certification Process: Explain the procedural journey of an administrative decision from the Office of Administrative Hearings to "final agency action." Focus on the significance of statutory deadlines and the implications of departmental inaction.

Glossary of Important Terms

A.R.S. (Arizona Revised Statutes): The codified laws of the state of Arizona.
Administrative Law Judge (ALJ): An official who presides over an administrative hearing and issues a decision based on evidence and law.
Attorney-Client Privilege: A legal principle that keeps communications between an attorney and their client confidential and protected from disclosure to third parties.
Certification: The process by which an ALJ decision becomes a final, binding administrative order, often due to the passage of time without departmental intervention.
Executive Session: A portion of a board meeting that is closed to the general membership, typically used to discuss legal advice, personnel matters, or sensitive litigation.
Mootness: A legal status where a matter no longer presents a justiciable controversy, often because the legal relief sought would have no practical effect.
Petitioner: The party who initiates a legal action or petition (in this case, William M. Brown).
Respondent: The party against whom a legal action or petition is filed (in this case, Terravita Community Association, Inc.).
Summary Judgment: A legal determination made by a judge without a full trial or evidentiary hearing, usually because there are no disputed material facts or the law clearly favors one side.

Understanding HOA Record Disclosure: Lessons from the Terravita Case

1. Introduction: The Tension Between Transparency and Privacy

In the realm of Homeowners Association (HOA) governance, a perennial friction exists between a member’s desire for transparency and a Board’s fiduciary duty to protect sensitive information. While Arizona law establishes a broad right for members to examine association records, that right is not unlimited. Navigating these boundaries requires a precise understanding of the statutory exemptions that shield certain documents from disclosure.

The case of William M. Brown vs. Terravita Community Association, Inc. (Case No. 12F-H1212014-BFS) serves as a definitive case study in this area of administrative law. This ruling clarifies exactly where the line is drawn under Arizona Revised Statutes, reinforcing a Board's ability to maintain confidentiality even when faced with aggressive litigation. The following analysis distills the Administrative Law Judge's (ALJ) decision to clarify which records an HOA is legally permitted—and in some cases, required—to withhold.

2. The Records Request: What Started the Dispute?

The dispute originated from a records request submitted by the Petitioner, William M. Brown, on May 25, 2012. Mr. Brown sought to examine and obtain copies of specific association documents, citing his rights under A.R.S. § 33-1805(A).

The request specifically targeted:

Legal Engagement Documentation: The engagement letter, retainer agreement, or professional services contract (including the current fee schedule) between Terravita Community Association, Inc. and the law firm Ekmark & Ekmark, L.L.C.
Executive Session Records: Minutes from the Board of Directors' executive session meetings held on March 27, 2012, and April 24, 2012.

When the Association declined to produce these records, the Petitioner filed a grievance alleging a violation of the statutory duty to provide records for examination. Practice Pointer: A critical failure in the Petitioner’s strategy, as noted by the ALJ, was the failure to provide any specific legal authority that would override the statutory protections granted to these specific categories of documents.

3. The Legal Shield: Protecting Attorney-Client Privilege

Regarding the request for legal service agreements and fee schedules, the ALJ upheld a "dual-layered defense" presented by the Association. This defense provides a robust framework for Boards facing similar demands:

Factual Non-existence: The Association asserted that a specific engagement letter as described did not exist.
Statutory Protection: More importantly, the ALJ ruled that even if such a document existed, it would be protected under A.R.S. § 33-1805(B).

In HOA governance, attorney-client privilege is not limited merely to emails or advice; it extends to the very foundation of the legal relationship. The ALJ's decision reinforces that the financial terms, fee schedules, and professional services contracts between an Association and its counsel are privileged. These documents are shielded from disclosure to third parties—including homeowners—unless the Board voluntarily chooses to waive that privilege.

4. Behind Closed Doors: Why Executive Session Minutes are Private

The Petitioner’s demand for executive session minutes was denied based on the fundamental distinction between open meetings and confidential Board business. The ALJ emphasized that because non-Board members are legally excluded from attending executive sessions under A.R.S. § 33-1804(A), they have no derivative right to the records of those sessions.

The following table summarizes the statutory framework that separates general membership rights from executive confidentiality:

Access to Meetings vs. Access to Minutes

Category	Statutory Rule (A.R.S. §)	Legal Standing for Non-Board Members	Consultant’s Note
Executive Session Meetings	33-1804(A)	Explicitly excluded; no right to attend.	Confidentiality of the meeting is the primary shield.
Executive Session Minutes	33-1805(B)(3)	Explicitly excluded from records "open to examination."	Statutory protection applies regardless of whether the meeting date is disputed.

This ruling reinforces that the "open to examination" requirement of A.R.S. § 33-1805(A) is strictly qualified by subsection (B)(3), which keeps executive minutes confidential to protect the Board's ability to discuss sensitive legal, health, or personal matters.

5. The Final Verdict: Summary Judgment and Certification

The Association moved for Summary Judgment for Mootness, a motion the ALJ granted in full. The core of this "mootness" ruling is a powerful legal principle: The Threshold of Statutory Entitlement.

The ALJ determined that because the Petitioner was not legally entitled to the records under Arizona law, any factual dispute over whether the documents existed (such as the disputed April 24 meeting minutes) was irrelevant. Consequently, the evidentiary hearing was vacated because there were no triable issues of fact that could change the legal outcome.

The Procedural Timeline:

October 4, 2012: The ALJ signed the initial decision granting Summary Judgment.
November 8, 2012: The statutory deadline by which the Department of Fire, Building and Life Safety was required to accept, reject, or modify the ALJ decision. The Department took no action.
November 13, 2012: Having received no modification from the Department by the Nov. 8 deadline, Cliff J. Vanell, Director of the Office of Administrative Hearings, officially certified the decision as the final administrative action.

6. Conclusion: Key Takeaways for Homeowners and Boards

The Terravita case offers a roadmap for community associations navigating the complexities of A.R.S. § 33-1804 and § 33-1805. The following takeaways are essential for maintaining proper governance:

Privilege Includes Financial Terms: Legal service agreements and current fee schedules are protected by attorney-client privilege. Boards are not required to disclose the financial nuances of their legal counsel's contracts to the membership.
Statutory Exclusion is Absolute: A.R.S. § 33-1805(B)(3) is an explicit carve-out. Executive session minutes are not "association records" for the purposes of member examination.
Existence is Secondary to Entitlement: If a homeowner does not have a legal right to a document, the Association is not required to prove its existence or non-existence in an evidentiary hearing. The law protects the record regardless of its status.

Understanding these statutory protections allows Boards to operate with the necessary confidentiality while ensuring homeowners have realistic expectations regarding their rights to transparency.

Case Participants

Petitioner Side

William M. Brown (petitioner)

Respondent Side

Curtis S. Ekmark (attorney)
Ekmark & Ekmark L.L.C.
Jason F. Wood (attorney)
Ekmark & Ekmark L.L.C.

Neutral Parties

Brian Brendan Tully (ALJ)
Office of Administrative Hearings
Gene Palma (Agency Director)
Department of Fire, Building and Life Safety
Cliff J. Vanell (OAH Director)
Office of Administrative Hearings
Signed Certification of Decision
Holly Textor (agency staff)
Department of Fire, Building and Life Safety
Listed as c/o for Gene Palma

Gruner, James Vincent vs. Hunter’s Pointe Condominium Association

Posted on January 17, 2012 by [email protected]

Case Summary

Case ID	11F-H1112002-BFS
Agency	Department of Fire, Building, and Life Safety
Tribunal	OAH
Decision Date	2012-01-18
Administrative Law Judge	Brian Brendan Tully
Outcome	The ALJ ruled that while the HOA could remove the obsolete fountain, the CC&Rs required restoration of the common element. Leaving the base filled with rubble violated the requirement to restore property to an attractive condition. The HOA was ordered to install a replacement fountain.
Filing Fees Refunded	$550.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	James Vincent Gruner	Counsel	—
Respondent	Hunters Pointe Condominium Association	Counsel	Jeffrey B. Corben

Alleged Violations

CC&Rs Paragraph 10.2

Outcome Summary

The ALJ ruled that while the HOA could remove the obsolete fountain, the CC&Rs required restoration of the common element. Leaving the base filled with rubble violated the requirement to restore property to an attractive condition. The HOA was ordered to install a replacement fountain.

Key Issues & Findings

Failure to restore common element (fountain)

Petitioner alleged the HOA improperly removed a large fountain at the entry way and failed to restore the property, leaving a base filled with debris. The HOA claimed obsolescence and lack of funds.

Orders: Respondent is ordered to comply with paragraph 10.2 of the CC&Rs by the installation of a common element that is in substance a 'fountain,' to be 'substantially' in the location of the former fountain, and that is 'attractive, sound and [of] desirable condition' within 180 days.

Filing fee: $550.00, Fee refunded: Yes

Disposition: petitioner_win

Video Overview

Audio Overview

Decision Documents

11F-H1112002-BFS Decision – 283494.pdf

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11F-H1112002-BFS Decision – 286426.pdf

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These legal documents detail a dispute between James Vincent Gruner and the Hunters Pointe Condominium Association regarding the unauthorized removal of a community fountain. The Administrative Law Judge determined that the association violated its governing Covenants, Conditions and Restrictions (CC&Rs) by failing to maintain the property according to its original plans. While the association argued that financial hardship and modern safety codes justified the removal, the court found the resulting debris to be an unattractive safety hazard. Consequently, the association was ordered to restore the fountain within 180 days and reimburse the petitioner’s filing fees. A subsequent certification confirmed this ruling as the final administrative decision after the state agency failed to modify or reject the judge’s initial findings.

How did the association justify removing the community fountain?

What was the final ruling regarding the fountain’s restoration?

How do CC&Rs govern the maintenance of common elements?

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How did the association justify removing the community fountain?

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How did the association justify removing the community fountain?

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How do CC&Rs govern the maintenance of common elements?

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Case Participants

Petitioner Side

James Vincent Gruner (Petitioner)
Hunters Pointe Condominium Association (Resident)
Resided in association for 15 years
Ronald W. Stephenson (Witness)
Hunters Pointe Condominium Association (Resident, Unit 2016)
Testified on behalf of Petitioner

Respondent Side

Jeffrey B. Corben (Attorney)
Maxwell & Morgan P.C.
Represented Hunters Pointe Condominium Association
Cathy Gillespie (Board Member)
Hunters Pointe Condominium Association
Board Secretary; testified for Respondent

Neutral Parties

Brian Brendan Tully (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Gene Palma (Agency Director)
Department of Fire, Building and Life Safety
Director receiving transmittal
Cliff J. Vanell (Director)
Office of Administrative Hearings
Certified the ALJ decision
Beth Soliere (Agency Staff)
Department of Fire, Building and Life Safety
Recipient of decision copy

Morris, Jean E. -vs- Verde Sante Fe Community Association

Posted on February 2, 2009 by [email protected]

Case Summary

Case ID	08F-H089010-BFS
Agency	DFBLS
Tribunal	OAH
Decision Date	2009-02-02
Administrative Law Judge	Brian Brendan Tully
Outcome	The ALJ initially dismissed the petition, finding the HOA properly exercised its discretion in denying the awning request. However, a subsequent order issued the same day set aside the ALJ decision and remanded the matter to the Department, citing a Superior Court Order for Declaratory and Injunctive Relief.
Filing Fees Refunded	$550.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Jean E. Morris	Counsel	—
Respondent	Verde Santa Fe Community Association	Counsel	Bob J. McCullough

Alleged Violations

Architectural Guidelines, Sec. 4.13

Outcome Summary

The ALJ initially dismissed the petition, finding the HOA properly exercised its discretion in denying the awning request. However, a subsequent order issued the same day set aside the ALJ decision and remanded the matter to the Department, citing a Superior Court Order for Declaratory and Injunctive Relief.

Why this result: In the dismissed decision, the ALJ ruled the Petitioner failed to prove the HOA abused its discretion or violated the architectural guidelines.

Key Issues & Findings

Denial of request to install awnings

Petitioner sought approval to install five fixed vertical rib canvass awnings. The Architectural Committee denied the request stating they were not in keeping with the architectural character. Petitioner argued the guidelines did not prohibit awnings.

Orders: Petition dismissed. The ALJ found the HOA properly exercised discretion. Note: This decision was set aside and remanded by a separate order on the same date due to a Superior Court order.

Filing fee: $550.00, Fee refunded: No

Disposition: respondent_win

Video Overview

Audio Overview

Decision Documents

08F-H089010-BFS Decision – 206974.pdf

Uploaded 2026-04-24T10:36:07 (85.9 KB)

08F-H089010-BFS Decision – 207095.pdf

Uploaded 2026-04-24T10:36:12 (53.5 KB)

Briefing Document: Morris v. Verde Santa Fe Community Association (No. 08F-H089010-BFS)

Executive Summary

This briefing document details a legal dispute between Jean E. Morris (“Petitioner”) and the Verde Santa Fe Community Association (“Respondent”) regarding the denial of an architectural request to install window awnings. Initially, an Administrative Law Judge (ALJ) ruled in favor of the Association, finding that the Architectural Committee had properly exercised its discretionary authority to maintain the aesthetic character of the community. However, on the same day the decision was issued, a superior court order for declaratory and injunctive relief necessitated that the ALJ decision be set aside. The matter was subsequently remanded to the Arizona Department of Fire, Building and Life Safety for further action.

Case Overview and Parties

Entity

Representation

Jean E. Morris

Petitioner / Homeowner

Self-represented

Verde Santa Fe Community Association

Respondent / HOA

Bob J. McCullough, Esq.

Office of Administrative Hearings

Adjudicating Body

Brian Brendan Tully (ALJ)

The dispute centers on real property located at 6245 Wide Horizon Court, Cornville, Arizona, within the Verde Santa Fe planned community in Yavapai County.

Factual Background of the Dispute

The conflict arose from the Petitioner’s desire to install exterior window treatments on her residence. The following timeline and specifications outline the development of the dispute:

• Initial Request (June 11, 2008): The Petitioner submitted an Architectural Design Request to the Association’s management company for five fixed vertical rib canvas awnings.

◦ Specifications: One 64” long Bay window, two 30” long Bay windows, and two 68” long windows.

◦ Design Details: 24” drop with a 30” horizontal projection; Sunbrella Color 4627-0000 (salmon); square edging on the valances.

• Initial Denial (June 26, 2008): The Architectural Committee rejected the application, stating the awnings were “not in keeping with the architectural character of Verde Santa Fe.”

• Appeal and Reconsideration (July – August 2008): The Petitioner requested reconsideration on July 27, 2008. On August 20, 2008, the Board of Directors informed her that the Committee had reconsidered and again rejected the request.

• Petition Filing: The Petitioner filed a single-count violation alleging that the Association’s position—that no awnings would be approved—violated community guidelines and state statutes (A.R.S. Title 33, Chapter 16).

Governing Documents and Regulatory Framework

The rights and obligations of both parties are governed by the following documents and statutes:

1. Community Documents

• CC&Rs (Section 5.12.2): Grants the Architectural Committee the authority to promulgate design guidelines and standards (including color palettes). It stipulates that Committee decisions are final.

• Architectural Guidelines (Section 4.13): Explicitly states, “No awnings or exterior shutters or grills will be permitted without Committee approval.”

2. State Statutes

• A.R.S. § 41-2198.01(B): Designates the Arizona Department of Fire, Building and Life Safety as the agency for filing homeowner/association dispute petitions.

• A.R.S. § 41-2198(B): States that an ALJ order is a final administrative decision enforceable through contempt of court proceedings.

Initial Administrative Findings

In the initial decision dated February 2, 2009, the ALJ dismissed the petition based on the following findings:

• Proper Exercise of Discretion: The ALJ found credible evidence that the Architectural Committee acted within its authority. The rejection was based on “aesthetic suitability,” which is a valid exercise of discretion under the CC&Rs.

• Burden of Proof: Under A.A.C. R2-19-119(B), the Petitioner held the burden of proof by a preponderance of the evidence and failed to establish that the Association violated Section 4.13 of the guidelines.

• Survey Evidence: The Petitioner submitted a survey of her neighbors supporting her request. The ALJ ruled this “not persuasive,” noting that if homeowners are dissatisfied with governing documents, they must follow established procedures to change them rather than bypassing committee approval via surveys.

Procedural Reversal and Remand

The initial decision to dismiss the petition was immediately complicated by concurrent legal proceedings in a higher court:

1. Superior Court Intervention: On January 29, 2009, Superior Court Judge Paul J. McMurdie issued an Order for Declaratory and Injunctive Relief.

2. Order to Set Aside: This Superior Court order was filed with the Office of Administrative Hearings on February 2, 2009—the same day the ALJ’s initial decision was issued.

3. Final Action: Consequently, ALJ Brian Brendan Tully issued a secondary order setting aside the initial decision and remanding the matter to the Arizona Department of Fire, Building and Life Safety.

As a result of this remand, the initial dismissal is no longer in effect, and the dispute remains subject to further administrative or legal resolution in accordance with the Superior Court’s directives.

Study Guide: Morris v. Verde Santa Fe Community Association

This study guide provides a comprehensive review of the administrative proceedings between Jean E. Morris and the Verde Santa Fe Community Association. It covers the factual background of the architectural dispute, the initial legal findings of the Administrative Law Judge (ALJ), and the subsequent setting aside of that decision due to superior court intervention.

Short-Answer Quiz

1. Who are the primary parties involved in this dispute and what is their relationship? The Petitioner is Jean E. Morris, a homeowner and member of the Verde Santa Fe Community Association. The Respondent is the Verde Santa Fe Community Association, a homeowners association located in Yavapai County, Arizona, to which the Petitioner is subject via the association’s governing documents.

2. What specific architectural modification did the Petitioner seek to install at her residence? The Petitioner requested approval for five fixed vertical rib canvas awnings in a salmon color (Sunbrella Color 4627-0000). These were intended to cover one 64-inch long bay window, two 30-inch long bay windows, and two 68-inch long windows at her property in Cornville, Arizona.

3. What was the primary reason provided by the Architectural Committee for denying the Petitioner’s request? The Architectural Committee denied the application on June 26, 2008, stating that the requested awnings were not in keeping with the architectural character of Verde Santa Fe. This decision was upheld upon reconsideration by the Board of Directors in August 2008.

4. According to Section 4.13 of the Verde Santa Fe Architectural Guidelines, under what conditions are awnings permitted? Section 4.13 of the guidelines states that no awnings, exterior shutters, or grills are permitted without committee approval. This effectively prohibits such installations unless the Architectural Committee specifically grants an exception or approval.

5. What authority does the Arizona Department of Fire, Building and Life Safety hold regarding homeowner disputes? Pursuant to A.R.S. § 41-2198.01(B), this department is the designated state agency where petitions are filed when a homeowner or a planned community/condominium association requests a hearing regarding a dispute. It also has the authority to require filing fees and forward petitions to the Office of Administrative Hearings.

6. What is the burden of proof in these administrative proceedings, and who carries it? According to A.A.C. R2-19-119, the Petitioner carries the burden of proof. The legal standard required to prevail in the matter is the “preponderance of the evidence.”

7. Why did the Administrative Law Judge initially find that the Architectural Committee had not abused its discretion? The ALJ determined that the committee properly exercised its discretion because it based its decision on aesthetic suitability. The judge found that the committee complied with the governing documents, which grant them the final authority on architectural matters submitted to them.

8. What was the Administrative Law Judge’s initial ruling regarding the $550.00 filing fee? In the initial decision dated February 2, 2009, the ALJ ruled that the Petitioner was not the prevailing party. Consequently, under A.R.S. § 41-2198.02(A), she was not entitled to the repayment of her $550.00 filing fee from the Respondent.

9. What happened to the Administrative Law Judge’s initial decision on the same day it was issued? On February 2, 2009, the ALJ issued an order setting aside his own decision. This action was taken because a copy of a Superior Court Order for Declaratory and Injunctive Relief, issued by Judge Paul J. McMurdie on January 29, 2009, was filed with the Office of Administrative Hearings.

10. What was the final procedural outcome of the case as described in the provided documents? The matter was remanded to the Arizona Department of Fire, Building and Life Safety. The original decision to dismiss the petition was vacated in light of the superior court’s intervention, effectively restarting or redirecting the administrative process.

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Answer Key

1. Parties: Jean E. Morris (Petitioner/Homeowner) and Verde Santa Fe Community Association (Respondent/HOA).

2. Request: Five fixed vertical rib salmon-colored canvas awnings for various bay and standard windows.

3. Reason for Denial: The awnings were deemed not in keeping with the architectural character of the community.

4. Awning Conditions: They are prohibited unless the Architectural Committee provides explicit approval.

5. Department Authority: It is the state agency for filing dispute petitions and forwarding them for formal hearings.

6. Burden of Proof: The Petitioner holds the burden; the standard is “preponderance of the evidence.”

7. Abuse of Discretion: The ALJ found the committee acted within its rights to make aesthetic determinations as allowed by the CC&Rs.

8. Filing Fee: The ALJ initially denied the request for fee repayment because the Petitioner did not prevail.

9. Immediate Change: The decision was set aside due to a conflicting Superior Court Order for Declaratory and Injunctive Relief.

10. Final Outcome: The case was remanded to the Arizona Department of Fire, Building and Life Safety.

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Essay Questions

1. The Scope of HOA Authority: Discuss the extent of an Architectural Committee’s power to deny homeowner requests based on “aesthetic suitability.” Should a committee have the final word on aesthetics if the governing documents do not explicitly prohibit a specific item like awnings?

2. Administrative vs. Judicial Overlap: Analyze the procedural conflict that occurred on February 2, 2009. What does the setting aside of the ALJ’s decision suggest about the hierarchy between the Office of Administrative Hearings and the Superior Court?

3. The Burden of Proof in Homeowner Disputes: Evaluate the difficulty a homeowner faces in proving an “abuse of discretion” by an HOA board. What type of evidence, beyond neighbor surveys, might a petitioner need to meet the “preponderance of the evidence” standard?

4. Interpretation of Governing Documents: Section 4.13 of the Architectural Guidelines states awnings are permitted with approval, but the Petitioner argued they were “not prohibited.” Explore the legal distinction between an item not being prohibited and an item requiring express permission.

5. The Role of State Agencies: Based on the documents, assess the role of the Arizona Department of Fire, Building and Life Safety in regulating planned communities. How does this administrative path serve as an alternative to traditional litigation?

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Glossary of Key Terms

• A.R.S. (Arizona Revised Statutes): The codified laws of the state of Arizona used to determine legal authority and procedures in the case.

• Administrative Law Judge (ALJ): An official who presides over hearings and makes decisions regarding disputes involving state agency actions or regulations.

• Architectural Committee: A body within a homeowners association responsible for reviewing and approving or denying changes to the exterior of properties based on community standards.

• CC&Rs (Covenants, Conditions, Restrictions, and Easements): The governing documents that establish the rules and limitations for a planned community or condominium.

• Declaratory and Injunctive Relief: A legal remedy where a court issues a judgment defining the rights of the parties (declaratory) or requiring a party to do or refrain from doing specific acts (injunctive).

• Petitioner: The party who initiates a lawsuit or petition; in this case, Jean E. Morris.

• Preponderance of the Evidence: The standard of proof in most civil cases, meaning that the proposition is more likely to be true than not true.

• Remand: To send a case back to a lower court or a previous agency for further action or reconsideration.

• Respondent: The party against whom a petition is filed; in this case, the Verde Santa Fe Community Association.

• Set Aside: To annul or vacate a prior legal decision or order, rendering it void.

The Great Salmon Awning Standoff: 5 Surprising Lessons from an HOA Legal Battle

Introduction

For the modern homeowner, the purchase of a residence is often viewed as the ultimate exercise of personal autonomy. Yet, for those living within a planned community, that autonomy is frequently illusory, bound by the rigid and often subjective oversight of a Homeowners Association (HOA). The dream of a simple aesthetic upgrade can rapidly devolve into a protracted administrative battle, characterized by jurisdictional complexity and significant financial risk.

This tension is perfectly encapsulated in the case of Jean E. Morris vs. Verde Santa Fe Community Association. What began as a request to install five salmon-colored canvas awnings transformed into a high-stakes legal standoff that reached the Arizona Office of Administrative Hearings. The resulting decision offers a masterclass in the power dynamics of community governance and the contractual obligations that define life under an HOA.

1. The “Approval” Trap: When Silence Is a De Facto Prohibition

A common misconception among homeowners is the belief that if an architectural feature is not explicitly forbidden in the community’s governing documents, it is permitted. The Morris case serves as a stark rebuttal to this logic. The conflict centered on Section 4.13 of the Verde Santa Fe Architectural Guidelines, which shifts the burden of proof entirely onto the petitioner.

The Administrative Law Judge (ALJ) highlighted a critical legal nuance in Finding of Fact 16: when a guideline requires approval for an item, that item is effectively prohibited until the board says otherwise. This grants the Architectural Committee a powerful gatekeeping role, where the “default” state of any modification is illegality.

By interpreting this language, the ALJ concluded that “awnings are prohibited in the homeowners association unless the Architectural Committee approves [them].” For homeowners, the lesson is clear: in the absence of an explicit “yes,” the law assumes a “no.”

2. Aesthetics as Law: Physical Specs and the Power of “Finality”

The Architectural Committee’s denial of Morris’s request was not based on a lack of detail. Morris submitted a comprehensive plan for five fixed vertical rib canvas awnings (Sunbrella Color 4627-0000) designed to cover one 64” bay window, two 30” bay windows, and two 68” windows. Despite these specific dimensions and the high-quality materials, the committee dismissed the project as “not in keeping with the architectural character of Verde Santa Fe.”

This highlights the immense discretionary power held by HOA boards. This power is protected by “Finality Clauses” within the CC&Rs, which limit the scope of judicial review. As long as the board follows its own procedures, a judge is unlikely to second-guess their aesthetic “judgment call.”

The ALJ found that the committee “properly exercised its discretion” by determining the awnings were not “aesthetically suitable.” In HOA law, “suitability” is a legal standard that can override even the most well-documented architectural plan.

3. Why Neighborly Support Fails as a Legal Defense

When faced with a board rejection, many homeowners attempt to use democratic pressure to reverse the decision. After her initial denial on June 26, 2008, Morris requested a reconsideration. The Board of Directors deliberated and, by letter dated August 20, 2008, formally rejected the request a second time (Finding of Fact 15).

In response, Morris presented a survey of her neighbors to prove the community supported her salmon-colored awnings. However, the ALJ dismissed this evidence entirely in Finding of Fact 19. The takeaway is a cold reality of property law: an HOA is a contractual regime, not a pure democracy. The CC&Rs are a binding contract between the owner and the association. “Peer support” or neighborly consensus cannot override the contractual authority granted to the Architectural Committee. To change the outcome, one must change the documents themselves through formal amendment, not merely poll the neighbors.

4. The High Cost of Losing: The Administrative “Pay-to-Play” System

Litigating an HOA dispute through the Arizona Department of Fire, Building and Life Safety is often perceived as a more accessible alternative to Superior Court, but it remains a significant financial gamble. Under A.R.S. § 41-2198.01(B), the Department acts as the administrative clearinghouse for these petitions, requiring a $550.00 nonrefundable filing fee.

The sting of Morris’s defeat was compounded by the “prevailing party” rule. Because the ALJ initially dismissed her petition, she was not entitled to the recovery of her costs under A.R.S. § 41-2198.02(A). This creates a “pay-to-play” environment where a homeowner must be prepared to lose their filing fee—and potentially face the association’s legal costs—if their interpretation of the guidelines does not align with the court’s. Administrative finality comes at a price that many homeowners are unprepared to pay.

5. The “Same-Day” Plot Twist: A Lesson in Parallel Litigation

The most dramatic lesson of the Morris case is the inherent volatility of the legal landscape. On February 2, 2009, the ALJ issued a formal decision dismissing Morris’s petition. However, in a stunning turn of events, that decision was “set aside” and remanded later that same day.

The cause was an intervention by the Yavapai County Superior Court. Judge Paul J. McMurdie had issued an “Order for Declaratory and Injunctive Relief” on January 29, 2009, which reached the administrative office just hours after the ALJ’s ruling. This illustrates the concept of Parallel Litigation: while an administrative judge is weighing guidelines and filing fees, a higher court may simultaneously be weighing constitutional rights or broader injunctive relief. For homeowners and boards alike, this serves as a warning that an administrative victory is never truly “final” until the jurisdictional hierarchy has been fully exhausted.

Conclusion: Beyond the Awnings

The “Salmon Awning Standoff” is more than a dispute over window treatments; it is a microcosm of the fundamental tension in modern property law. It pits the individual’s right to improve their home against the association’s mandate to preserve a collective aesthetic.

As the Morris case demonstrates, the broad “discretionary power” granted to Architectural Committees creates a high degree of unpredictability for homeowners. Does this discretion provide the stability necessary to maintain property values, or does it subject a homeowner’s significant financial investment to the subjective whims of a shifting board? For those living under an HOA, the answer often depends on how well they understand the contractual “gatekeeping” they agreed to at the time of purchase.

Case Participants

Petitioner Side

Jean E. Morris (Petitioner)
Verde Santa Fe Community Association (Member)
Owner of real property at 6245 Wide Horizon Court, Cornville, Arizona

Respondent Side

Bob J. McCullough (attorney)
Verde Santa Fe Community Association

Neutral Parties

Brian Brendan Tully (ALJ)
Office of Administrative Hearings
Issued Decision; subsequently issued Order Setting Aside Decision
Paul J. McMurdie (Judge)
Superior Court
Issued Order for Declaratory and Injunctive Relief dated January 29, 2009
Robert Barger (Director)
Department of Fire, Building and Life Safety
Listed on mailing list
Debra Blake (Agency Staff)
Department of Fire, Building and Life Safety
Listed on mailing list

Renner, Patrick vs. Ponderosa Trails Unit 8 Community Association

Posted on December 23, 2008 by [email protected]

Case Summary

Case ID	08F-H089005-BFS
Agency	Department of Fire, Building and Life Safety
Tribunal	OAH
Decision Date	2008-12-23
Administrative Law Judge	Brian Brendan Tully
Outcome	The ALJ granted the Respondent's Motion to Compel Arbitration and dismissed the Petition. The ALJ found that the Petitioner failed to follow the mandatory dispute resolution procedures in the CC&Rs, which required binding arbitration after mediation failed.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Patrick Renner	Counsel	—
Respondent	Ponderosa Trails Unit 8 Community Association	Counsel	Kurt M. Zitzer; Kevin T. Minchey

Alleged Violations

Article 15

Outcome Summary

The ALJ granted the Respondent's Motion to Compel Arbitration and dismissed the Petition. The ALJ found that the Petitioner failed to follow the mandatory dispute resolution procedures in the CC&Rs, which required binding arbitration after mediation failed.

Why this result: Petitioner failed to submit the dispute to binding arbitration as required by CC&Rs Article 15.5.

Key Issues & Findings

Failure to Follow Dispute Resolution Provisions

Petitioner alleged Respondent failed to enter mediation. The ALJ found that mediation occurred but failed, and under CC&Rs Article 15.5, the Petitioner was required to submit the dispute to binding arbitration rather than filing a Petition with the Department.

Orders: Respondent's Motion to Compel Arbitration is granted; Petition is dismissed; Petitioner ordered to comply with Article 15 (Arbitration).

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

CC&Rs Article 15
A.R.S. § 41-2198.02(A)

Video Overview

Audio Overview

Decision Documents

08F-H089005-BFS Decision – 204829.pdf

Uploaded 2026-04-24T10:35:25 (77.2 KB)

Briefing Document: Renner v. Ponderosa Trails Unit 8 Community Association

Executive Summary

This document synthesizes the findings and decision of the Office of Administrative Hearings regarding the dispute between Petitioner Patrick Renner and Respondent Ponderosa Trails Unit 8 Community Association (Case No. 08F-H089005-BFS).

The core of the dispute centers on the enforcement of the dispute resolution provisions outlined in the community’s Declaration of Covenants, Conditions and Restrictions (CC&Rs). Following a previously settled petition, the Petitioner alleged that the Respondent failed to engage in mediation as required. However, the Administrative Law Judge (ALJ) determined that while mediation was attempted and ultimately failed, the Petitioner bypassed the contractually mandated next step—binding arbitration—by filing a second administrative petition.

The ALJ concluded that the Respondent had complied with the CC&Rs, while the Petitioner had not. Consequently, the Respondent’s Motion to Compel Arbitration was granted, and the Petition was dismissed.

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Case Overview

Entity

Detail

Case Number

08F-H089005-BFS

Petitioner

Patrick Renner

Respondent

Ponderosa Trails Unit 8 Community Association

Jurisdiction

Office of Administrative Hearings, Phoenix, Arizona

Presiding Judge

Brian Brendan Tully, Administrative Law Judge

Date of Decision

December 23, 2008

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Procedural History and Background

The Initial Petition

The current case represents the second petition filed by Patrick Renner against the Ponderosa Trails Unit 8 Community Association. The first petition was resolved through a settlement agreement where both parties agreed to utilize the dispute resolution provisions found in the community’s CC&Rs. That initial case was dismissed following the settlement and reached finality as neither party appealed the decision to the Superior Court.

The Second Petition

The Petitioner filed the instant case with the Department of Fire, Building and Life Safety, alleging that the Respondent failed to follow the CC&Rs’ dispute resolution provisions following the closure of the first case. Specifically, the Petitioner claimed the Respondent refused to enter into mediation.

In response, the Respondent filed a Motion to Compel Arbitration on November 21, 2008. Following a prehearing conference on December 10, 2008, the ALJ evaluated whether the parties had adhered to their contractual obligations.

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Contractual Framework: Article 15 Dispute Resolution

The conduct of the parties is governed by Article 15 of the CC&Rs, which stipulates that all claims must be resolved exclusively through specific procedures. The hierarchy of resolution includes:

1. Negotiation (Article 15.2): The parties must first attempt to resolve disputes through negotiation within a prescribed timeframe.

2. Mediation (Article 15.4): If negotiation is unsuccessful, the dispute must be submitted to mediation under the American Arbitration Association (AAA) or another mutually agreed-upon independent mediator.

3. Binding Arbitration (Article 15.5): If mediation fails to resolve the dispute, the claimant is required to submit the matter to binding arbitration.

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Analysis of the Dispute Resolution Process

The evidence presented during the proceedings established a timeline of the parties’ attempts to resolve their conflict:

• Failure of Negotiation: The parties were unable to reach an agreement through initial negotiation.

• Engagement in Mediation: The parties moved to mediation, agreeing to use Marc Kalish as a private mediator. To reduce costs, the parties permitted the mediator to participate via telephone.

• The Mediation Impasse: A tentative settlement was reached during mediation; however, the Respondent subsequently refused to execute the written agreement. The Respondent then requested a second mediation session.

• Mediator’s Conclusion: Mediator Marc Kalish informed the parties that further mediation efforts would be a “waste of the parties’ money and [his] time,” effectively declaring the mediation process a failure.

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Findings of Fact and Legal Conclusions

The Administrative Law Judge reached the following conclusions based on the sequence of events:

• Compliance of Respondent: The Respondent was found to have complied with the requirements of Article 15. The refusal to sign a tentative agreement and the subsequent failure of the mediation process did not constitute a breach of the CC&Rs.

• Failure of Petitioner: The ALJ determined that the Petitioner was the party who failed to comply with the CC&Rs. Rather than proceeding to binding arbitration as required by Article 15.5 after the mediation failed, the Petitioner improperly filed a second petition with the Department.

• Prevailing Party Status: Because the Petitioner did not adhere to the mandatory contractual procedures, he was not deemed the prevailing party. Under A.R.S. § 41-2198.02(A), the Petitioner is not entitled to the reimbursement of filing fees.

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Final Administrative Order

The Office of Administrative Hearings issued the following orders:

1. Motion to Compel Arbitration: The Respondent’s motion is granted. The parties are directed to proceed to binding arbitration pursuant to Article 15.5 of the CC&Rs.

2. Mandatory Compliance: The Petitioner is ordered to comply with all provisions of Article 15 of the CC&Rs regarding the current dispute.

3. Dismissal: Case No. HO-08-9/005 (Docket No. 08F-H089005-BFS) is dismissed.

Appeal Rights

This order constitutes the final administrative decision and is not subject to a request for rehearing. Any party wishing to appeal must file a complaint in the Superior Court within 35 days of the service of this decision, as per A.R.S. § 12-904(A). Service is considered complete upon personal delivery or five days after the decision is mailed to the party’s last known address.

Study Guide: Renner v. Ponderosa Trails Unit 8 Community Association

This study guide provides a comprehensive overview of the administrative hearing between Patrick Renner and the Ponderosa Trails Unit 8 Community Association. It focuses on the application of dispute resolution provisions within community association governing documents and the procedural requirements for legal recourse in such matters.

Short-Answer Quiz

1. Who are the primary parties involved in this administrative case, and what is the nature of their relationship?

2. What was the resolution of the first petition filed by the Petitioner?

3. On what grounds did the Petitioner file the second petition against the Respondent?

4. According to Article 15.2 of the CC&Rs, how must claims between the parties be resolved?

5. What does Article 15.4 of the CC&Rs dictate regarding the selection of a mediator?

6. Under what conditions does Article 15.5 require a claimant to submit to binding arbitration?

7. Who was selected as the private mediator for the parties’ second dispute, and why did he participate via telephone?

8. Why did the mediation process between the Petitioner and Respondent ultimately fail?

9. What was the Administrative Law Judge’s final ruling regarding the second petition and the Respondent’s motion?

10. What are the specific requirements for a party wishing to appeal the final administrative decision?

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Quiz Answer Key

1. The primary parties are Patrick Renner, designated as the Petitioner, and the Ponderosa Trails Unit 8 Community Association, designated as the Respondent. This is a legal dispute between an individual homeowner and his homeowners association regarding the enforcement of community rules and procedures.

2. The first petition was resolved through a settlement agreement between the parties, the essential terms of which were read into the record. Because neither party appealed the decision to the Superior Court, the case reached finality and was dismissed.

3. The Petitioner filed the second petition alleging that the Respondent failed to follow the dispute resolution provisions of the CC&Rs after the first case closed. Specifically, the Petitioner claimed that the Respondent failed to enter into mediation as required.

4. Article 15.2, titled “Agreement to Resolve Certain Disputes Without Litigation,” states that the parties contractually agreed that all claims must be resolved exclusively through the procedures set forth in Article 15. This mandates that the parties use the specific internal dispute resolution framework rather than proceeding directly to outside litigation.

5. Article 15.4 provides that if negotiation fails, a party may submit the dispute to mediation under the auspices of the American Arbitration Association (AAA). Alternatively, the parties may use an independent mediator or mediation service selected by mutual agreement.

6. Article 15.5 stipulates that if the mediation process is unsuccessful in resolving the dispute, the claimant is then required to submit the matter to binding arbitration. This represents the final step in the internal dispute resolution hierarchy defined by the CC&Rs.

7. The parties mutually agreed to use Marc Kalish as their private mediator. He participated via telephone to accommodate the parties and save them the personal appearance costs associated with traveling to Flagstaff.

8. Although a tentative settlement was reached, the Respondent refused to execute the written agreement and demanded a second mediation session. The mediator, Mr. Kalish, subsequently informed the parties that further mediation would be a waste of time and money, effectively ending the process.

9. The Administrative Law Judge granted the Respondent’s Motion to Compel Arbitration and ordered the Petitioner to comply with Article 15.5 of the CC&Rs. Consequently, the second petition was dismissed because the Petitioner had failed to pursue binding arbitration before filing with the Department.

10. A party must file a complaint to review the final administrative decision within thirty-five days of the decision being served. Service is considered complete upon personal delivery or five days after the decision is mailed to the party’s last known address.

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Essay Questions

1. Hierarchy of Dispute Resolution: Analyze the progression of dispute resolution steps mandated by Article 15 of the CC&Rs. Explain why the Petitioner’s decision to file a second petition with the Department was deemed a failure to comply with this hierarchy.

2. The Role of Mediation in Contractual Disputes: Discuss the mediation process as described in the text, including the roles of the American Arbitration Association (AAA) and private mediators. How does the text characterize the limitations of mediation in ensuring a resolution?

3. Procedural Finality and Appeals: Examine the legal standards for finality in administrative decisions as presented in the case. What are the consequences of failing to appeal a decision, as seen in the transition between the first and second petitions?

4. Contractual Obligations vs. Administrative Filing: Evaluate the conflict between the Petitioner’s right to file a petition with the Department of Fire, Building and Life Safety and his contractual obligations under the CC&Rs. Why did the CC&Rs take precedence in this ruling?

5. The “Prevailing Party” and Financial Responsibility: Discuss the legal reasoning behind denying the Petitioner’s request for filing fee reimbursement. How is the status of “prevailing party” determined in this administrative context according to A.R.S. § 41-2198.02(A)?

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Glossary of Key Terms

• A.R.S. § 41-2198.01 / 41-2198.02(A): Arizona Revised Statutes governing the filing fees and the reimbursement of those fees for parties involved in administrative hearings regarding homeowners associations.

• Administrative Law Judge (ALJ): An official who presides over administrative hearings, hears arguments, and issues binding decisions or orders.

• American Arbitration Association (AAA): A national organization that provides alternative dispute resolution services, including mediation and arbitration.

• Binding Arbitration: A formal dispute resolution process where an impartial third party makes a final, legally enforceable decision that the parties are contracted to follow.

• CC&Rs (Covenants, Conditions and Restrictions): The governing documents of a community association that outline the rules, regulations, and contractual obligations of the members and the association.

• Department of Fire, Building and Life Safety: The state agency responsible for overseeing certain aspects of homeowners association disputes in this jurisdiction.

• Mediation: A collaborative process where a neutral third party (mediator) assists disputing parties in reaching a voluntary agreement.

• Motion to Compel Arbitration: A legal request asking the court or judge to order a party to honor a contractual agreement to resolve a dispute through arbitration rather than litigation or administrative petitions.

• Petitioner: The party who initiates a legal or administrative action by filing a petition.

• Prevailing Party: The party in a legal proceeding that succeeds on the main issues and is often entitled to certain recoveries, such as filing fees.

• Respondent: The party against whom a legal or administrative action is filed.

• Settlement Agreement: A voluntary agreement between parties to resolve a dispute, often resulting in the dismissal of pending legal actions.

When Mediation Fails: 4 Hard Truths About HOA Legal Battles

1. Introduction: The “Forever Dispute” Trap

There is a specific, grinding frustration reserved for homeowners who believe they have reached the end of a legal battle, only to find themselves trapped in a loop. It is the “forever dispute”—a scenario where a settlement is reached, yet the conflict continues to evolve until the “resolution process” itself becomes the new battlefield.

In the case of Renner vs. Ponderosa Trails Unit 8 Community Association, we see a classic cautionary tale of a strategic tactical error. The Petitioner sought justice through the Department of Fire, Building and Life Safety, only to have his case dismissed. The surprising reality is that the Petitioner actually helped build the trap that snared him: by settling his first petition and agreeing to follow the community’s private dispute resolution rules, he effectively locked the door to administrative relief for all future related claims.

2. Takeaway 1: Even Professional Mediators Have a Breaking Point

In this matter, the parties attempted to resolve their issues through a private mediator, Marc Kalish. In a clear attempt to manage resources, the parties even agreed to let Mr. Kalish participate via telephone to save the costs of a personal appearance in Flagstaff. However, after a “tentative settlement” was reached, the Respondent (the HOA) refused to sign the written agreement and demanded a second mediation session.

When the mediator was asked to continue, he recognized that the process had reached a terminal dead end. He provided a blunt assessment that serves as a warning to anyone over-relying on mediation:

From a strategic standpoint, mediation is a tool for assistance, not a guarantee of resolution. Even when one party is perceived as obstructive, a mediator has no power to force a signature; they can only signal when the process has shifted from a productive negotiation to a total drain on resources.

3. Takeaway 2: The Contract is King (The Power of CC&Rs)

The legal foundation of this dismissal rested on Article 15 of the community’s Declaration of Covenants, Conditions and Restrictions (CC&Rs). Specifically, Article 15.2 dictates that all claims shall be resolved “exclusively” in accordance with the procedures set forth in the Article.

This is where the Petitioner’s earlier settlement became a “contractual bottleneck.” Because the first petition was dismissed based on a settlement where the parties agreed to the CC&R process, those terms became the exclusive path forward. By signing the deed to a home in an HOA, a homeowner often unknowingly signs away their right to go directly to a state department or court. From a strategic perspective, this is a total forfeiture of leverage; you are bound to a private resolution ladder that must be climbed one rung at a time, regardless of how much you may prefer a judge’s intervention.

4. Takeaway 3: You Can’t Skip the “Binding Arbitration” Step

The primary error in this case was the Petitioner’s failure to recognize a “condition precedent.” The CC&Rs established a clear, mandatory hierarchy:

• Article 15.4 (Mediation): If negotiation fails, parties move to mediation.

• Article 15.5 (Binding Arbitration): If mediation is unsuccessful, the claimant shall submit the dispute to binding arbitration.

After mediation failed following the HOA’s refusal to sign the tentative agreement, the Petitioner made a fatal tactical move: he bypassed Article 15.5 and filed a second petition with the Department. The Administrative Law Judge ruled that following the exact sequence of a dispute resolution clause is not optional. You cannot return to an administrative agency simply because the mediation phase was frustrating. Arbitration was not just a suggestion; it was a prerequisite for a valid claim.

5. Takeaway 4: The Losing Side of “Winning”

The final ruling by Administrative Law Judge Brian Brendan Tully resulted in a total dismissal of the case. While the Petitioner viewed the HOA as the party obstructing the settlement, the Judge found that the Respondent had complied with the dispute resolution provisions, while the Petitioner had not.

The consequences were both procedural and financial:

• Motion to Compel Arbitration: The Judge granted the HOA’s Motion to Compel Arbitration, legally forcing the Petitioner back into the very private process he had spent months trying to escape.

• Lack of Fee Reimbursement: Under A.R.S. § 41-2198.02(A), only a “prevailing party” is entitled to an order requiring the opposing party to pay their filing fees. Because the Petitioner was not the prevailing party, he was denied any reimbursement for the costs of filing a petition that was ultimately dismissed.

The irony is sharp: the Petitioner turned to the Department to compel the HOA to act, but the legal system instead compelled the Petitioner to return to a private arbitration table dictated by the HOA’s own governing documents.

6. Conclusion: The Final Pivot

The Renner case serves as a masterclass in the weight of private contract obligations. For homeowners and associations alike, it demonstrates that “dispute resolution” is a rigid contractual framework, not a flexible suggestion. Once you agree to a specific hierarchy of remedies, that path becomes your only map.

As we evaluate the balance between private CC&Rs and the desire for judicial oversight, we must ask: In the pursuit of a “settlement,” are you inadvertently signing away your future access to the public justice system? In the world of HOAs, the “day in court” you were promised may very well be a mandatory, private, and costly seat at an arbitrator’s table.

Case Participants

Petitioner Side

Patrick Renner (Petitioner)

Respondent Side

Kurt M. Zitzer (Respondent Attorney)
Meagher & Greer, P.L.L.P.
Kevin T. Minchey (Respondent Attorney)
Meagher & Greer, P.L.L.P.

Neutral Parties

Michael G. Wales (ALJ)
Office of Administrative Hearings
Vacated the scheduled hearing; ordered prehearing conference
Brian Brendan Tully (ALJ)
Office of Administrative Hearings
Signed the decision
Marc Kalish (Mediator)
AAA
Private mediator agreed upon by parties
Robert Barger (Director)
Department of Fire, Building and Life Safety
Listed on transmission
Debra Blake (Agency Staff)
Department of Fire, Building and Life Safety
Listed on transmission

Hogue, Thomas vs. Shadow Moutain Villas Condominiums

Posted on December 22, 2008 by [email protected]

Case Summary

Case ID	08F-H089011-BFS
Agency	DFBLS
Tribunal	OAH
Decision Date	2008-12-22
Administrative Law Judge	Brian Brendan Tully
Outcome	Default judgment entered against Respondent for failure to answer. ALJ found Respondent violated A.R.S. § 33-1247 and CC&Rs by failing to maintain common element drainage, causing flooding. Petitioner prevailed on the merits and was awarded filing fees and a civil penalty was imposed. Petitioner's claim for monetary damages for repairs was denied due to lack of administrative jurisdiction.
Filing Fees Refunded	$550.00
Civil Penalties	$2,500.00

Parties & Counsel

Petitioner	Thomas Hogue	Counsel	—
Respondent	Shadow Mountain Villas Condominiums	Counsel	—

Alleged Violations

A.R.S. § 33-1247

Outcome Summary

Default judgment entered against Respondent for failure to answer. ALJ found Respondent violated A.R.S. § 33-1247 and CC&Rs by failing to maintain common element drainage, causing flooding. Petitioner prevailed on the merits and was awarded filing fees and a civil penalty was imposed. Petitioner's claim for monetary damages for repairs was denied due to lack of administrative jurisdiction.

Key Issues & Findings

Failure to maintain common elements (drainage)

Petitioner alleged Respondent failed to maintain proper drainage of Common Elements, resulting in flooding of Petitioner's unit. Respondent failed to answer the petition.

Orders: Respondent ordered to comply with A.R.S. § 33-1247 and Article 5 of the CC&Rs; reimburse Petitioner's $550.00 filing fee; pay a $2,500.00 civil penalty.

Filing fee: $550.00, Fee refunded: Yes, Civil penalty: $2,500.00

Disposition: petitioner_win

Cited:

A.R.S. § 33-1247
CC&Rs Article 5

Video Overview

Audio Overview

Decision Documents

08F-H089011-BFS Decision – 204771.pdf

Uploaded 2026-04-24T10:36:23 (79.9 KB)

Administrative Law Judge Decision: Thomas Hogue vs. Shadow Mountain Villas Condominiums

Executive Summary

On December 22, 2008, Administrative Law Judge (ALJ) Brian Brendan Tully issued a Decision on Default against Shadow Mountain Villas Condominiums (Respondent) regarding a petition filed by Thomas Hogue (Petitioner). The dispute centered on the Respondent’s failure to maintain common elements and drainage systems, which resulted in significant flood damage to the Petitioner’s unit.

Due to the Respondent’s failure to file a timely answer to the petition, the ALJ ruled in favor of the Petitioner by default. The Respondent was ordered to pay a civil penalty of $2,500.00 to the Arizona Department of Fire, Building and Life Safety, reimburse the Petitioner’s $550.00 filing fee, and comply with state statutes and community governing documents. While the Petitioner incurred over $1,400 in repair costs, the ALJ noted that the administrative forum lacks the jurisdiction to award compensatory damages, which must be sought in civil court.

Case Background and Allegations

The matter (No. 08F-H089011-BFS) was brought before the Arizona Office of Administrative Hearings following a petition submitted by Thomas Hogue on approximately October 20, 2008.

Core Grievances

The Petitioner alleged that on July 6, 2008, the Respondent committed specific acts or omissions that violated condominium regulations:

• Failure to Maintain: The Respondent failed to maintain drainage systems and common elements.

• Property Damage: This failure caused the Petitioner’s condominium to suffer significant flood damage during the monsoon season.

• Statutory Violations: The Petitioner cited a violation of A.R.S. § 33-1247, which pertains to the maintenance of condominiums.

Procedural Default and Legal Findings

The decision was reached primarily through a “Default,” as the Respondent failed to engage in the administrative legal process.

Timeline of Default

• Notification: Department staff mailed a Notice of Petition to the Respondent on approximately October 2, 2008.

• Receipt: On October 30, 2008, the Department received a certified mail receipt signed by the Respondent, confirming they had received the notice.

• Failure to Respond: Per A.R.S. § 41-2198.01(D), the Respondent was required to submit a written response within 20 days. No response was filed.

• Legal Admission: Under A.R.S. § 41-2198.01(F), the failure to file an answer is legally deemed an admission to the factual allegations in the petition.

Statutory and Document Violations

The ALJ concluded that the Respondent was in violation of both state law and the specific governing documents of the community:

• A.R.S. § 33-1247: General statutory requirement for condominium maintenance.

• Article 5 of the CC&Rs: Specifically covers “Condominium Maintenance and Repair,” requiring the association to maintain common elements to avoid issues such as flooding.

Analysis of Damages and Aggravating Factors

The ALJ’s decision highlighted several factors that weighed against the Respondent, as well as the limitations of the administrative forum regarding financial recovery.

Financial Impacts to Petitioner

The Petitioner documented specific financial losses resulting from the flooding:

• Repair Costs: $1,433.05 spent on the interior of the unit.

• Compensatory Damages: $500.00 claimed by the Petitioner.

Jurisdictional Limitation: The ALJ explicitly stated, “This administrative forum does not permit an award to Petitioner for damages.” The Petitioner was advised that claims for repair costs and compensatory damages must be addressed in a civil court of competent jurisdiction.

Aggravating Factors

The ALJ identified three “strong matters in aggravation” regarding the Respondent’s conduct:

1. The failure to maintain Common Elements that led to the flooding.

2. The failure to ameliorate the damage caused to the Petitioner’s unit.

3. The failure to respond to the legal Petition.

Final Order and Compliance Requirements

The ALJ issued a structured order to penalize the Respondent and ensure future compliance with state and community regulations.

Requirement

Recipient

Amount

Deadline

Filing Fee Reimbursement

Petitioner

$550.00

Within 40 days of Order

Civil Penalty

Dept. of Fire, Building and Life Safety

$2,500.00

Within 60 days of Order

Statutory Compliance

Compliance with A.R.S. § 33-1247 and CC&Rs

Immediate/Ongoing

Enforcement and Appeal Rights

• Finality: This is a final administrative decision and is not subject to a request for rehearing.

• Enforcement: The order is enforceable through contempt of court proceedings in the Superior Court.

• Appeals: Any party wishing to appeal the final decision must file a complaint within 35 days of service, as per Title 12, Chapter 7, Article 6 of the Arizona Revised Statutes.

Study Guide: Thomas Hogue v. Shadow Mountain Villas Condominiums

This study guide provides a comprehensive review of the administrative law judge decision regarding the dispute between Thomas Hogue and Shadow Mountain Villas Condominiums. It explores the legal mechanisms of the Arizona Department of Fire, Building and Life Safety, the consequences of default in administrative proceedings, and the jurisdictional limits of administrative hearings.

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Part 1: Short Answer Quiz

Instructions: Answer the following questions in two to three sentences based on the provided source context.

1. What was the core allegation made by Thomas Hogue in his petition against Shadow Mountain Villas Condominiums?

2. What role does the Arizona Department of Fire, Building and Life Safety play in homeowner or condominium association disputes?

3. Why was the Administrative Law Judge’s decision issued “on default”?

4. According to the document, what specific statute and internal document did the Respondent violate regarding maintenance?

5. How much was the filing fee paid by the Petitioner, and what was the final ruling regarding this fee?

6. Why did the Administrative Law Judge deny the Petitioner’s request for $1,433.05 in repair costs and $500.00 in compensatory damages?

7. What were the “matters in aggravation” cited by the judge in this case?

8. What is the significance of A.R.S. § 41-2198(B) regarding the finality of the judge’s order?

9. What are the financial penalties imposed on the Respondent aside from the reimbursement of the filing fee?

10. What is the process and timeframe for a party to appeal this final administrative decision?

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Part 2: Answer Key

1. Core Allegation: The Petitioner alleged that the Respondent failed to maintain proper drainage and common elements of the property. This failure resulted in significant flood damage to the Petitioner’s condominium unit during the monsoon season on or about July 6, 2008.

2. Role of the Department: Pursuant to A.R.S. § 41-2198.01(B), the Department serves as the state agency where homeowners or condominium associations file petitions for hearings regarding disputes. It has the authority to receive petitions, collect filing fees, and refer matters to the Office of Administrative Hearings.

3. Decision on Default: The decision was issued on default because the Respondent failed to submit a written response to the Notice of Petition within the required 20-day timeframe. By failing to answer, the Respondent was legally deemed to have admitted to the factual allegations contained in the petition.

4. Violated Statutes and Documents: The Respondent violated A.R.S. § 33-1247, which pertains to the maintenance of condominiums. Additionally, the Respondent failed to adhere to Article 5 of the CC&Rs (Condominium Maintenance and Repair).

5. Filing Fee Ruling: The Petitioner paid a nonrefundable filing fee of $550.00 to the Department upon filing. As the prevailing party, the judge ordered the Respondent to reimburse the Petitioner the full $550.00 within 40 days of the order.

6. Denial of Damages: The judge noted that the administrative forum does not have the jurisdiction to permit an award for damages. To seek the $1,433.05 in repair costs and $500.00 in compensatory damages, the Petitioner must file a claim in a civil court of competent jurisdiction.

7. Matters in Aggravation: The judge identified three factors in aggravation: the Respondent’s failure to maintain common elements leading to the flood, the failure to ameliorate the resulting damage to the unit, and the failure to respond to the legal petition.

8. Finality of the Order: Under A.R.S. § 41-2198(B), an order from an assigned Administrative Law Judge is a final administrative decision and is not subject to a rehearing. It is legally binding and can be enforced through contempt of court proceedings in the Superior Court.

9. Financial Penalties: In addition to the fee reimbursement, the Respondent was ordered to pay a civil penalty of $2,500.00 to the Department. This payment was required within 60 days of the order, unless granted an extension by the Department.

10. Appeal Process: A party may appeal the decision to the Superior Court by filing a complaint within 35 days of the decision being served. Service is considered complete upon personal delivery or five days after the decision is mailed to the party’s last known address.

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Part 3: Essay Questions

Instructions: Use the provided source context to develop comprehensive responses to the following prompts.

1. The Impact of Procedural Default: Discuss how the Respondent’s failure to answer the petition shifted the burden of proof and determined the outcome of this case. How does A.R.S. § 41-2198.01(F) define the legal weight of a failure to respond?

2. Administrative vs. Civil Jurisdiction: Analyze the limitations placed on the Administrative Law Judge regarding the awarding of relief. Why could the judge levy a civil penalty and order fee reimbursement but not award repair costs or compensatory damages?

3. Statutory Obligations of Condominium Associations: Examine the responsibilities of a condominium association as outlined in A.R.S. § 33-1247 and Article 5 of the CC&Rs based on the findings of this case. What are the consequences for a failure to maintain “Common Elements”?

4. The Role of Aggravating Factors in Administrative Law: Evaluate how the Respondent’s conduct—both before and during the legal process—influenced the judge’s decision-making. How do “matters in aggravation” impact the severity of the final order?

5. Enforcement and Finality: Explain the legal mechanisms that ensure an Administrative Law Judge’s decision is followed. Discuss the relationship between the Office of Administrative Hearings and the Superior Court in terms of enforcement and the appeals process.

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Part 4: Glossary of Key Terms

Definition

A.R.S. § 33-1247

The specific Arizona Revised Statute cited regarding the maintenance of condominium properties and common elements.

A.R.S. § 41-2198.01

The statute granting the Arizona Department of Fire, Building and Life Safety the authority to receive petitions and facilitate hearings for homeowner disputes.

Administrative Law Judge (ALJ)

The presiding official who reviews the facts, applies the law, and issues a final decision in administrative disputes.

Aggravation

Factors or circumstances that increase the severity of a violation or justify a harsher penalty, such as failing to ameliorate damage or ignoring a legal petition.

Covenants, Conditions, and Restrictions; the governing documents of a condominium or planned community (specifically Article 5 in this case).

Civil Penalty

A monetary fine (in this case $2,500.00) imposed by the judge for violations of statutes or community documents, payable to the state department rather than the petitioner.

Common Elements

The shared areas and infrastructure of a condominium complex, such as drainage systems, that the association is responsible for maintaining.

Default

A failure to fulfill a legal obligation, specifically the Respondent’s failure to file a written answer to the petition within the 20-day statutory limit.

Petitioner

The party who initiates the legal action by filing a petition (Thomas Hogue).

Respondent

The party against whom a legal action is brought (Shadow Mountain Villas Condominiums).

When Silence Costs $3,000: The Price of HOA Arrogance

1. Introduction

Imagine waking up to the roar of an Arizona monsoon, only to find the storm has followed you inside. As water rushes into your living room, you realize the HOA’s neglected drainage system has failed. You do the “right thing”—you document the damage, you reach out for help, and you file a formal petition. Then, you wait. And you wait. But instead of a repair crew, you get total, stony silence from your Board of Directors.

For Thomas Hogue, this wasn’t just a hypothetical nightmare; it was the reality of his life at Shadow Mountain Villas. However, as the case of Thomas Hogue vs. Shadow Mountain Villas Condominiums proves, an HOA’s “ostrich strategy”—burying its head in the sand and ignoring legal notices—is a form of procedural suicide. Today, we’re looking at a cautionary tale that reveals the surprising power of Arizona’s administrative hearing process and the heavy price an association pays when it treats a legal summons like junk mail.

2. Silence as an Admission of Guilt

In the world of community law, silence isn’t a strategy; it’s an admission. When Mr. Hogue filed his petition, the association was served a formal Notice of Petition by the state. Under A.R.S. § 41-2198.01(D), the HOA had exactly 20 days to provide a written answer. They didn’t just miss the deadline; they ignored the process entirely.

This arrogance triggered a “Decision on Default.” By failing to participate, the HOA committed the ultimate legal “own goal.” Under A.R.S. § 41-2198.01(F), because the association failed to file an answer, they were legally deemed to have admitted to every single factual allegation Mr. Hogue made. As the Administrative Law Judge noted:

Ignoring a legal problem is the fastest way to lose your right to a defense. By the time the Judge took the bench, the HOA had already “confessed” to its own negligence.

3. The High Cost of Maintenance Neglect

The facts of the case, now legally undisputed due to the default, painted a grim picture of failed stewardship. On July 6, 2008, the association’s failure to maintain common drainage elements led to significant flooding in Mr. Hogue’s unit. This wasn’t just a maintenance lapse; it was a violation of A.R.S. § 33-1247 and Article 5 of the community’s own CC&Rs.

The financial “teeth” of the administrative process were applied swiftly. The Judge ordered the following:

• A $2,500.00 civil penalty.

• The mandatory reimbursement of the Petitioner’s $550.00 filing fee.

There is a biting irony here. The cost to simply clear a drain or fix a pipe is often a pittance. Instead, the HOA’s neglect turned a routine maintenance task into a $3,050.00 legal bill.

4. The Administrative “Dead End” for Damages

While this case is a victory for homeowner rights, it also highlights a critical jurisdictional limit that every resident must understand. In Finding of Fact #11, the Judge acknowledged that Mr. Hogue spent 1,433.05∗∗oninteriorrepairsandsoughtanadditional∗∗500.00 in damages.

However, the Office of Administrative Hearings—which operates under the Arizona Department of Fire, Building and Life Safety—is not a “one-stop shop” for money. While the Judge found the HOA liable, the law does not allow this specific administrative forum to award compensatory repair costs to the homeowner. Note the payee: the $2,500.00 fine goes to the State Treasury, not the victim.

Homeowners Must Still Seek Recovery in Civil Court This is the “Administrative Dead End.” Mr. Hogue walked away with his 550.00∗∗feereimbursed,buttoactuallyseeacheckforhis∗∗1,433.05 in repairs, he would have to take this final administrative ruling and file a separate action in a “civil court of competent jurisdiction.” The administrative victory proves the HOA broke the law, but a civil judge must be the one to order them to pay for the carpet.

5. “Matters in Aggravation” and Finality

The Judge’s ruling didn’t pull any punches regarding the HOA’s behavior, citing “matters in aggrevation” [sic]. This is a legal term of art essentially meaning the HOA made a bad situation worse. The Judge specifically pointed to the HOA’s failure to “ameliorate the damage”—they didn’t just cause the flood; they stood by and watched the damage sit there. This, combined with their contemptuous silence toward the legal petition, is precisely why the civil penalty reached $2,500.00.

Boards should take note: this decision is not a suggestion. Per A.R.S. § 41-2198.02(B), this order is a final administrative action. It is not subject to a rehearing. If the HOA refuses to pay the State its fine or the homeowner their fee, the order is enforceable through contempt of court proceedings in the Superior Court.

6. Conclusion: A Lesson in Accountability

The Hogue v. Shadow Mountain Villas case is a reminder that homeowners are not powerless. Arizona statutes like A.R.S. Title 33 provide the shield, and the administrative process provides the sword. While the “split” between state penalties and civil damages is a hurdle for homeowners, the “teeth” of the law are very real for negligent boards.

When an association ignores its duty to maintain the property and then ignores a legal summons, it isn’t “saving money”—it’s gambling with the community’s coffers. Is your board’s ego and lack of responsiveness worth a $2,500.00 “default” lesson from the State? If they aren’t proactive today, they might be paying for it tomorrow.

Case Participants

Petitioner Side

Thomas Hogue (Petitioner)

Neutral Parties

Brian Brendan Tully (ALJ)
Office of Administrative Hearings
Robert Barger (Director)
Department of Fire, Building and Life Safety
Listed on service list
Debra Blake (Agency Staff)
Department of Fire, Building and Life Safety
Listed on service list

Bittner, Elmer -v- Greenfield Glen Homeowners Association

Posted on September 1, 2008 by [email protected]

Case Summary

Case ID	08F-H088018-BFS
Agency	DFBLS
Tribunal	OAH
Decision Date	2008-09-02
Administrative Law Judge	Brian Brendan Tully
Outcome	The ALJ found that the Association's governing documents did not authorize unequal assessments based on garage size. The Association was ordered to cease the practice and refund the Petitioner's filing fee.
Filing Fees Refunded	$550.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Elmer Bittner	Counsel	—
Respondent	Greenfield Glen Homeowners Association	Counsel	Franklyn D. Jeans, Esq. and Nicole S. Cassett, Esq.

Alleged Violations

Declaration Paragraph 32.6

Outcome Summary

The ALJ found that the Association's governing documents did not authorize unequal assessments based on garage size. The Association was ordered to cease the practice and refund the Petitioner's filing fee.

Key Issues & Findings

Unequal Assessments based on garage size

Petitioner challenged the Association's practice of charging higher assessments for units with 2-car garages compared to 1-car garages. The Respondent admitted the governing documents did not support this allocation.

Orders: Respondent shall abide by its governing documents in future assessments of Unit owners irrespective of the size of a Unit owner's garage unless documents are amended.

Filing fee: $550.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 41-2198
Declaration Paragraph 32.6

Video Overview

Audio Overview

Decision Documents

08F-H088018-BFS Decision – 197550.pdf

Uploaded 2026-04-24T10:34:47 (102.0 KB)

Administrative Law Judge Decision: Bittner vs. Greenfield Glen Homeowners Association

Executive Summary

This briefing document summarizes the administrative law judge (ALJ) decision in the matter of Elmer Bittner vs. Greenfield Glen Homeowners Association (Case No. 08F-H088018-BFS). The dispute centered on whether the Greenfield Glen Homeowners Association (Respondent) possessed the legal authority under its governing documents to charge unequal common element dues based on the number of garage spaces in a unit.

The ALJ determined that the Respondent’s governing documents do not authorize tiered assessments based on garage size. Despite the Respondent’s long-standing practice of charging higher rates for two-car garage units, the court found no legal basis for this distinction in the Association’s Declaration or subsequent amendments. Consequently, the Respondent was ordered to cease unequal assessments and reimburse the Petitioner for his filing fees.

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Case Overview and Jurisdiction

Parties Involved

• Petitioner: Elmer Bittner, owner of a residence with a two-car garage within the Greenfield Glen development in Mesa, Arizona.

• Respondent: Greenfield Glen Homeowners Association, an entity whose powers are subject to specific governing documents and Arizona law.

Statutory Authority

The dispute was adjudicated by the Office of Administrative Hearings pursuant to A.R.S. § 41-2198.01(B), which authorizes the Arizona Department of Fire, Building and Life Safety to receive petitions regarding disputes between homeowners’ associations and their members. The jurisdiction of the Office is limited to ensuring compliance with A.R.S. Title 33, Chapter 16 and the specific planned community documents of the association.

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The Core Dispute: Unequal Assessments

The Petitioner challenged a dues structure that had been in place since approximately March 22, 1988. The Petitioner alleged that the Respondent violated the condominium and community documents by implementing the following monthly rate disparity:

Unit Type

Common Element Dues

2-Car Garage Unit

$70.58

1-Car Garage Unit

$57.75

Procedural Limitation

The ALJ ruled that the Petition could only address issues occurring after September 21, 2006, the effective date of the relevant statutes (A.R.S. § 41-2198, et seq.). The central legal question was narrowed to whether the Respondent’s governing documents provided the authority since September 2006 to assess owners at different rates based on garage capacity.

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Analysis of Governing Documents

The ALJ reviewed several key documents to determine the Respondent’s authority:

1. Original Declaration (1985): The Declaration of Horizontal Property Regime and Covenants, Conditions and Restrictions (CC&Rs).

2. Amendments (1986, 1989, 1994): Various recorded amendments to the original Declaration.

3. Clarification and Amendment Agreement (1987): Specifically, the addition of Paragraph 32.6.

Findings Regarding Paragraph 32.6

The Respondent cited Paragraph 32.6 as a potential source of authority. However, the ALJ’s analysis found this paragraph irrelevant to the current assessment practice:

• Scope: Paragraph 32.6 pertains specifically to the “Platting of Additional Property.”

• Purpose: It outlines how the “share of Common Expenses” should be calculated for units added to the Declaration at a later date, providing a formula for pro-rata portions if the number of units added differs from the original platting plan.

• Application: The document specifies that the calculation examples provided were intended only to illustrate the method for calculating assessments for added units and were not intended to reflect actual dollar amounts or general assessment practices for existing units.

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Respondent’s Admissions and Internal Challenges

In its answer to the complaint, the Respondent made several critical admissions that undermined its legal position:

• Lack of Support: The Respondent admitted that the Petitioner’s claim regarding unequal assessments was “endemic of a problem” and that the practice was not supported by Section 32.6 or any other provision in the Declaration.

• Loss of Institutional Knowledge: The Respondent stated that “no one currently serving on the Board of Directors… or Unit owners available to the Board can explain what Section 32.6 was intended to cover or how it was intended to be applied.”

• Attempted Reformation: The Board indicated they were attempting to pass an amendment to align the Declaration with past assessment practices. However, they expressed “fear” that the amendment would not pass, as it requires a 75% favorable vote of all unit owners.

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Conclusions of Law and Final Order

Legal Conclusions

1. Burden of Proof: The Petitioner carried the burden of proof by a preponderance of the evidence.

2. Unauthorized Assessments: The Respondent’s governing documents do not grant the authority to impose unequal assessments based on whether a unit has a one-car or two-car garage.

3. Compliance: The Respondent must abide by its governing documents, which, in their current state, require equal assessments.

Final Order

The Administrative Law Judge issued the following mandates:

• Cease Unequal Assessments: The Respondent must assess all unit owners equally, regardless of garage size, unless and until the governing documents are legally amended to provide for unequal assessments.

• Reimbursement of Fees: As the prevailing party, the Petitioner is entitled to the recovery of his filing fee. The Respondent was ordered to pay the Petitioner $550.00 within 30 days of the decision (September 2, 2008).

• Finality: This decision is the final administrative action and is enforceable through contempt of court proceedings.

Study Guide: Elmer Bittner vs. Greenfield Glen Homeowners Association

This study guide provides a comprehensive overview of the administrative hearing between Elmer Bittner and the Greenfield Glen Homeowners Association. It examines the legal dispute regarding assessment dues, the interpretation of governing documents, and the final decision rendered by the Office of Administrative Hearings.

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Review Quiz

1. What was the core allegation made by Elmer Bittner in his petition against the Greenfield Glen Homeowners Association? Elmer Bittner alleged that the Association changed common element dues from an equal rate to an unequal rate based on garage size. Specifically, he challenged the assessment of $70.58 for units with two-car garages compared to $57.75 for units with one-car garages, arguing this violated the condominium’s governing documents and Arizona law.

2. Which state agencies were involved in the processing and adjudication of this dispute? The Arizona Department of Fire, Building and Life Safety is authorized by statute to receive petitions regarding disputes between homeowner associations and their members. Once received, these petitions are forwarded to the Office of Administrative Hearings, an independent agency, for a formal hearing and decision.

3. Why was the scope of the Administrative Law Judge’s review limited to issues occurring after September 21, 2006? The Administrative Law Judge ruled that the petition could not address issues predating the effective date of A.R.S. § 41-2198, et seq. Because this specific statute became effective on September 21, 2006, the judge narrowed the dispute to whether the Association had the authority to assess unequal rates from that date forward.

4. According to the Findings of Fact, what are the primary governing documents of the Greenfield Glen Homeowners Association? The governing documents include the original 1985 Declaration of Horizontal Property Regime and Covenants, Conditions and Restrictions, as well as several amendments. These amendments were recorded in Maricopa County in February 1986, August 1987, August 1989, and December 1994.

5. How did the 1987 Clarification and Amendment Agreement (Paragraph 32.6) describe the calculation of assessments for added units? Paragraph 32.6 stated that the share of common expenses for units added to the Declaration must be equal to the pro rata portion that would have been borne if the property had been platted according to the original Exhibit “B.” It provided a mathematical example showing that if a parcel intended for 21 units was replatted for 14, the expenses would be redistributed so the total amount collected remained consistent with the original plan.

6. What admission did the Respondent make in its Answer regarding the practice of unequal assessments? The Association admitted that it had levied unequal assessments based on garage spaces for a number of years. However, it explicitly stated that this practice was not supported by Section 32.6 or any other provision in the Declaration, and that current board members could not explain the original intent of that section.

7. What plan did the Association’s Board of Directors outline to resolve the discrepancy between their practices and the Declaration? The Board planned to submit an amendment to the Unit owners to align the Declaration with past assessment practices. If the required seventy-five percent favorable vote was not obtained, the Board intended to appeal to the Superior Court of Maricopa County to reform the Declaration.

8. What is the legal standard of proof required in this administrative matter, and who carries it? Pursuant to A.A.C. R2-19-119(B), the Petitioner (Elmer Bittner) carries the burden of proof. The standard of proof required to prevail in the matter is a preponderance of the evidence.

9. What was the Administrative Law Judge’s final legal conclusion regarding the Association’s authority to charge different rates? The judge concluded that the Respondent’s governing documents, including the specific language in paragraph 32.6, did not grant the Association the authority to impose unequal assessments based on garage size. Consequently, the Association was ordered to abide by its documents and assess units equally in the future.

10. Aside from the change in future assessment practices, what financial restitution was ordered? Because the Petitioner was the prevailing party, the judge ordered the Respondent to pay the Petitioner his $550.00 filing fee. This payment was required to be made within 30 days of the date of the decision.

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Answer Key

1. Answer: The Petitioner alleged that the Association violated governing documents by charging higher common element dues for two-car garage units (70.58)thanforone−cargarageunits(57.75).

2. Answer: The Arizona Department of Fire, Building and Life Safety (received the petition) and the Office of Administrative Hearings (conducted the formal hearing).

3. Answer: The statute granting the authority for such administrative hearings (A.R.S. § 41-2198) did not become effective until September 21, 2006.

4. Answer: The 1985 Declaration and four subsequent amendments/agreements dated 1986, 1987, 1989, and 1994.

5. Answer: Assessments for added property must be a pro rata portion of common expenses based on the original platting density; if fewer units are built than originally planned, each unit pays a higher share to cover the total expenses.

6. Answer: The Association admitted that unequal assessments were “endemic of a problem” and conceded that no provision in the Declaration actually supported the practice.

7. Answer: They attempted to pass an amendment requiring 75% approval and, if that failed, planned to seek a court-ordered reformation of the Declaration.

8. Answer: The Petitioner carries the burden of proof, and the standard is “preponderance of the evidence.”

9. Answer: The judge found that the governing documents did not authorize unequal assessments and ordered the Association to cease the practice until or unless the documents are legally amended.

10. Answer: The Respondent was ordered to reimburse the Petitioner’s $550.00 filing fee within 30 days.

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Essay Questions

1. Statutory Limitations on Administrative Relief: Discuss the implications of the Administrative Law Judge’s ruling to exclude issues predating September 21, 2006. How does the effective date of a statute (like A.R.S. § 41-2198) impact the ability of a homeowner to seek redress for long-standing association practices?

2. Interpretation of Governing Documents: Analyze the Association’s admission that its assessment practices were not supported by its own Declaration. Why is strict adherence to the written Declaration critical in the management of a homeowners association, and what are the risks of “past assessment practices” that deviate from these documents?

3. The Complexity of Paragraph 32.6: Explain the logic of the “pro rata portion” calculation described in the 1987 Amendment. How does this provision attempt to protect the Association’s budget when the density of a development changes, and why was it insufficient to justify the garage-based assessments in this case?

4. The Amendment Process and Legal Reformation: The Association expressed fear that a 75% vote for an amendment would not pass. Compare the process of member-led amendments to the legal process of “reforming” a Declaration through the Superior Court. What are the democratic and legal hurdles involved in each?

5. The Role of the Petitioner in Administrative Law: Evaluate the role of Elmer Bittner as the Petitioner. Given that he had the legal recourse to sue since 1988 but waited until 2008, discuss how the administrative hearing process provides a different or more accessible avenue for justice compared to traditional litigation.

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Glossary of Key Terms

Definition

A.R.S. § 41-2198

The Arizona Revised Statute that authorizes the Department of Fire, Building and Life Safety to receive petitions regarding HOA disputes.

Administrative Law Judge (ALJ)

A judge who presides over hearings and makes decisions in disputes involving government agencies.

Assessment

The amount of money a homeowner is required to pay to the association for common expenses and maintenance.

Common Expenses

The costs associated with the operation, maintenance, and repair of the common elements of a condominium or planned community.

Declaration

The primary governing document (CC&Rs) that outlines the rights and responsibilities of the association and the unit owners.

Horizontal Property Regime

A legal structure for property ownership, commonly used for condominiums, where individuals own units and share common areas.

Petitioner

The party who initiates a legal action or petition (in this case, Elmer Bittner).

Platting / Replatting

The process of creating or changing a map (plat) showing the divisions of a piece of land into individual units or lots.

Preponderance of the Evidence

The standard of proof in most civil cases, meaning that the claim is more likely to be true than not true.

Pro Rata

A proportional allocation or distribution based on a specific factor (such as the number of units).

Respondent

The party against whom a petition is filed (in this case, the Greenfield Glen Homeowners Association).

The 20-Year “Garage Tax”: What One Arizona Homeowner’s Victory Teaches Us About HOA Power

The Hook: The Hidden Cost of Living in an Association

For most residents of planned communities, monthly Homeowners Association (HOA) dues are accepted as a necessary evil—the price of admission for clean streets and shared amenities. We pay them under a contract of trust, assuming the Board is following the law. But what happens when that trust is broken by a David-versus-Goliath struggle against institutional overreach?

Elmer Bittner, a resident of the Greenfield Glen Homeowners Association in Mesa, Arizona, looked at his bill and realized something was fundamentally wrong. For years, he and other residents were being subjected to what can only be described as “unauthorized taxation.” Bittner discovered he was being charged significantly higher monthly dues than his neighbors for one reason: he had a two-car garage. This discovery sparked a legal showdown at the Arizona Office of Administrative Hearings that exposed how easily an HOA can drift into illegal financial practices under the guise of “tradition.”

Takeaway 1: Longevity Does Not Equal Legality

One of the most alarming aspects of Bittner v. Greenfield Glen is the sheer duration of the injustice. The unequal assessment practice began on March 22, 1988, yet it took until 2008 for a legal ruling to stop it. This 20-year “garage tax” persisted because of institutional inertia—the dangerous tendency of homeowners to assume a rule is valid simply because “that’s the way it’s always been.”

While the unfairness spanned two decades, the Administrative Law Judge (ALJ) highlighted a critical hurdle for civic-minded homeowners: the law often has a short memory. The ALJ ruled that the case could only address issues arising after September 21, 2006—the effective date of A.R.S. § 41-2198. This serves as a vital lesson: your right to challenge HOA overreach often depends on specific, modern legal tools that may not have existed when the original “tradition” began. The financial discrepancy was stark:

Takeaway 2: The “We Don’t Know Why” Defense

When forced to justify why they were overcharging residents, the Association’s defense was a masterclass in absurdity. In Section 14 of the Findings of Fact, the Board essentially admitted they were enforcing a financial penalty that they themselves did not understand.

The Association attempted to hide behind “Section 32.6” of the governing documents. However, a deeper look at the 1987 Clarification and Amendment Agreement reveals that Section 32.6 was actually titled “Platting of Additional Property.” It was a clause meant to handle the shapes and sizes of units when adding new land to the development—not a license to charge different rates for garage space. The Association’s own admission in their Answer to the Complaint was a stunning display of incompetence:

For a governing body to demand money based on a clause they cannot explain is more than just a mistake; it is a breach of fiduciary duty.

Takeaway 3: The Governing Documents Are Final (Until They Aren’t)

The ALJ made it clear: an HOA must abide by its written documents, regardless of past practices. The Board at Greenfield Glen knew they were on shaky ground and attempted to “align” the documents with their illegal practices through a post-facto amendment. However, they faced a terrifying hurdle: the requirement for a 75% favorable vote of all Unit owners (voting or not).

This “voting or not” provision is a trap for modern homeowners. In this system, a neighbor’s apathy—simply failing to return a ballot—is legally recorded as a “No” vote. This makes reforming even an illegal practice nearly impossible. Rather than admitting fault when the vote seemed likely to fail, the Board planned a secondary aggressive maneuver: they intended to “appeal to the Superior Court… to reform the Declaration.” Essentially, the Board was prepared to spend the community’s own money on high-stakes litigation to force a legal change that would have validated their past unauthorized assessments.

Takeaway 4: The Small Victories Matter

The ruling was a definitive win for homeowner rights. The ALJ didn’t just suggest a change; he issued a mandate. The Association was ordered to cease unequal assessments and refund Bittner’s $550 filing fee.

For the individual homeowner, these administrative hearings are a powerful equalizer. They offer a venue to seek justice without the crushing initial costs of a Superior Court lawsuit. Perhaps most importantly, the ALJ’s decision has “teeth.” The order specifically notes that it is “enforceable through contempt of court proceedings.” This means that if an HOA decides to ignore the ruling and continue its unauthorized taxation, the Board could face the full weight of the judicial system.

Conclusion: A Final Thought for the Modern Homeowner

The victory of Elmer Bittner is a testament to the power of a single homeowner with a copy of the Declaration and the courage to ask “why?” It highlights a disturbing reality: many HOAs operate on a foundation of “tradition” and “past practice” that contradicts the very laws they are sworn to uphold.

If you looked at your HOA’s founding documents today, would the fees you pay actually be in writing, or are you paying for a tradition that doesn’t legally exist?

Case Participants

Petitioner Side

Elmer Bittner (petitioner)
Appeared personally

Respondent Side

Franklyn D. Jeans (HOA attorney)
Beus Gilbert, PLC
Nicole S. Cassett (HOA attorney)
Beus Gilbert, PLC

Neutral Parties

Brian Brendan Tully (ALJ)
Office of Administrative Hearings
Robert Barger (Director)
Department of Fire, Building and Life Safety
Listed on mailing distribution
Debra Blake (Agency staff)
Department of Fire, Building and Life Safety
Listed on mailing distribution

Jacobson III, Clayton vs. Rio Lindo Shores Homeowners Association

Posted on June 12, 2008 by [email protected]

Case Summary

Case ID	08F-H088016-BFS
Agency	Department of Fire, Building and Life Safety
Tribunal	OAH
Decision Date	2008-06-12
Administrative Law Judge	Brian Brendan Tully
Outcome	Respondent failed to appear and was deemed to have admitted to 15 violations by default. Petitioner was awarded a full refund of the $2,000 filing fee and Respondent was assessed $750 in civil penalties. Five other allegations were dismissed because they occurred prior to the enactment of the relevant jurisdictional statutes.
Filing Fees Refunded	$2,000.00
Civil Penalties	$750.00

Parties & Counsel

Petitioner	Clayton Jacobson III	Counsel	—
Respondent	Rio Lindo Shores Homeowners Association, Inc.	Counsel	—

Alleged Violations

A.R.S. § 41-2198.01
A.R.S. § 33-1812

Outcome Summary

Respondent failed to appear and was deemed to have admitted to 15 violations by default. Petitioner was awarded a full refund of the $2,000 filing fee and Respondent was assessed $750 in civil penalties. Five other allegations were dismissed because they occurred prior to the enactment of the relevant jurisdictional statutes.

Why this result: Five specific allegations were dismissed because the events occurred prior to the enactment of A.R.S. § 41-2198 et seq.

Key Issues & Findings

Multiple Violations (Default Judgment)

Respondent failed to answer the petition and was deemed to have admitted to 15 validly filed violations.

Orders: Respondent ordered to abide by statutes and documents; pay $750 civil penalty ($50 per violation); refund $2,000 filing fee.

Filing fee: $2,000.00, Fee refunded: Yes, Civil penalty: $750.00

Disposition: petitioner_win

Cited:

A.R.S. § 41-2198.01
A.R.S. § 41.2198.02(A)

Voting and Record Keeping Violations (Pre-Statute)

Petitioner alleged violations regarding voting procedures, assessment recording, and reimbursements dating between 1980 and 2006.

Orders: Dismissed as untimely.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

A.R.S. § 33-1812
CC&R Article 9.3
Bylaws Article 6.2.3

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Video Overview

Audio Overview

Decision Documents

08F-H088016-BFS Decision – 192712.pdf

Uploaded 2026-04-24T10:34:38 (78.5 KB)

Briefing: Administrative Decision in Jacobson v. Rio Lindo Shores Homeowners Association

Executive Summary

This briefing summarizes the administrative law decision in Case No. 08F-H088016-BFS, involving Petitioner Clayton Jacobson III and Respondent Rio Lindo Shores Homeowners Association, Inc. The matter was adjudicated by the Arizona Office of Administrative Hearings following a petition alleging multiple violations of planned community statutes and governing documents.

The core outcome of the case was a default judgment against the Rio Lindo Shores Homeowners Association due to its failure to respond to official notices. As a result, the Respondent was deemed to have admitted to 15 validly filed violations. The Administrative Law Judge (ALJ) ordered the Respondent to refund the Petitioner’s $2,000.00 filing fee and pay $750.00 in civil penalties. However, five specific allegations were dismissed because they predated the enactment of the relevant enabling legislation (A.R.S. § 41-2198 et seq.).

Procedural History and Default

The administrative process followed a strict statutory timeline, which the Respondent failed to meet at every stage:

• Initial Petition: Filed by Clayton Jacobson III on April 8, 2008, with the Department of Fire, Building and Life Safety (“Department”).

• Addendum: Filed by the Petitioner on April 10, 2008.

• Official Notifications: The Department mailed a Notice of Petition on April 10, 2008, and an Amended Notice of Petition on April 14, 2008.

• Statutory Deadline: Under A.R.S. § 41-2198.01(D), the Respondent was required to submit a written response within 20 days.

• Failure to Respond: The Respondent failed to respond to both the original and the amended notices.

• Notice of Default: Issued by the Department on May 15, 2008.

Consequently, pursuant to A.R.S. § 41-2198.01(F), the Respondent’s failure to file a timely response resulted in the legal admission of the alleged violations, subject to statutory jurisdiction.

Legal Findings and Jurisdictional Limitations

The Department and the Office of Administrative Hearings operate under specific statutory authorities:

• A.R.S. § 41-2198.01: Authorizes the Department to process petitions regarding disputes between owners and planned communities.

• A.R.S. § 41-2198: Authorizes the Office of Administrative Hearings to adjudicate these disputes.

Dismissed Allegations

The ALJ identified five violations that, while admitted by default, were legally unenforceable because they occurred before the enactment of the statutes granting the Office of Administrative Hearings its adjudicative authority. These dismissed allegations included:

Date of Occurrence

Alleged Violation

Legal/Documentary Reference

March 5, 2006

Failure to provide absentee ballots or delivery methods for voting; use of proxies.

A.R.S. § 33-1812

March 4, 2006

Restricted voting rights for members who paid dues up until the annual meeting.

Bylaws Articles 6.1.12 & 9; CC&R Article 4.8

March 7, 2004

Increased annual assessment from $200 to $300 without recording at the recorder’s office.

CC&R Article 9.3

January 24, 1996

Refusal to reimburse Petitioner $125.00 for association business expenses.

Bylaws Article 6.2.3

November 1, 1980

Amended Declaration to add Bylaws without recording at the County Recorder’s Office.

CC&R Article 9.3

Admitted Violations and Penalties

Excluding the five untimely allegations, the Respondent was found liable for 15 validly filed violations. The ALJ issued the following mandates:

1. Compliance: The Respondent must abide by all statutes and community documents cited in the violations.

2. Petitioner Reimbursement: The Respondent was ordered to pay the Petitioner $2,000.00 to cover the multiple violation filing fee within 30 days.

3. Civil Penalties: The ALJ assessed a civil penalty of 50.00perviolation∗∗.With15admittedviolations,thetotalpenaltyof∗∗750.00 was ordered to be paid to the Department within 30 days.

Finality of Decision

The Order, dated June 12, 2008, constitutes the final administrative decision. Under A.R.S. § 41-2198.04(A), it is not subject to a request for rehearing. The Order is legally binding and enforceable through contempt of court proceedings pursuant to A.R.S. § 41-2198.02(B).

Study Guide: Jacobson v. Rio Lindo Shores Homeowners Association

This study guide provides a comprehensive review of the administrative law case Clayton Jacobson III vs. Rio Lindo Shores Homeowners Association (No. 08F-H088016-BFS). It examines the procedural history, findings of fact, legal conclusions, and the final order issued by the Office of Administrative Hearings on June 12, 2008.

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Part I: Short-Answer Quiz

Instructions: Provide a 2–3 sentence answer for each of the following questions based on the case details.

1. Identify the Petitioner and the Respondent in this case and their relationship to one another.

2. What was the initial action taken by Clayton Jacobson III on April 8, 2008, and which state department received it?

3. Describe the procedural failure of the Rio Lindo Shores Homeowners Association following the mailing of the Notice of Petition.

4. Why did the Administrative Law Judge dismiss the allegations regarding the unrecorded assessment increase from March 2004?

5. What was the specific violation alleged regarding the annual meeting held on March 5, 2006?

6. Explain the legal consequence of the Respondent’s failure to file a timely response to the Petition.

7. How many “validly filed violations” were eventually used to calculate the civil penalty, and what was the cost per violation?

8. What specific financial reimbursement did the Petitioner seek regarding a transaction from January 24, 1996, and what was the outcome?

9. Under the final Order, what is the deadline for the Respondent to pay the assessed fees and penalties?

10. What is the status of this Order regarding future appeals or rehearings according to A.R.S. § 41-2198.04(A)?

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Part II: Answer Key

1. Identify the Petitioner and the Respondent: The Petitioner is Clayton Jacobson III, who is a member of the homeowners association. The Respondent is the Rio Lindo Shores Homeowners Association, Inc., a planned community located in Parker, Arizona.

2. Initial Action and Department: On April 8, 2008, the Petitioner submitted a Petition alleging multiple complaints and violations by the Respondent. This was filed with the Department of Fire, Building and Life Safety.

3. Procedural Failure: After being mailed a Notice of Petition and an Amended Notice of Petition, the Respondent was required by A.R.S. § 41-2198.01(D) to submit a written response within 20 days. The Respondent failed to provide a response to either notice, leading to a Notice of Default.

4. Dismissal of 2004 Allegation: The allegation concerning the unrecorded assessment increase was dismissed because it occurred on March 7, 2004. This was prior to the enactment of A.R.S. § 41-2198 et seq., making the complaint untimely for the Department’s jurisdiction.

5. March 2006 Violation: The Petitioner alleged that the Respondent held an annual meeting but failed to provide absentee ballots or other delivery methods for voting. Instead, votes were cast by proxy in violation of A.R.S. § 33-1812.

6. Consequence of Failure to Respond: Under A.R.S. § 41-2198.01(F), a respondent who fails to file a timely response is deemed to have admitted the violations alleged in the Petition. This resulted in the Department issuing a Notice of Default against the association.

7. Calculation of Violations: The Respondent was found to have admitted to 15 validly filed violations. The Administrative Law Judge assessed a civil penalty of $50.00 for each of these violations.

8. 1996 Reimbursement Claim: The Petitioner alleged that on January 24, 1996, the Respondent refused to reimburse him $125.00 for expenses incurred while conducting association business. However, this claim was dismissed because the event occurred before the enactment of the governing statutes.

9. Payment Deadline: The Respondent is ordered to pay both the $2,000.00 filing fee reimbursement to the Petitioner and the $750.00 total civil penalty to the Department. These payments must be made within 30 days of the effective date of the Order.

10. Finality of the Order: Pursuant to A.R.S. § 41-2198.04(A), this Order serves as the final administrative decision. It is not subject to any requests for rehearing and is enforceable through contempt of court proceedings.

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Part III: Essay Questions

Instructions: Use the provided case facts and legal conclusions to draft comprehensive responses to the following prompts.

1. The Impact of Default in Administrative Hearings: Analyze how the Rio Lindo Shores Homeowners Association’s failure to respond to the Department’s notices dictated the legal outcome of the case. Discuss the role of A.R.S. § 41-2198.01(F) in this process.

2. Statutory Temporality and Jurisdiction: Explain why the Administrative Law Judge dismissed five specific violations despite the Respondent’s default. Focus on the significance of the enactment date of A.R.S. § 41-2198 et seq.

3. Financial Restitution and Penalties: Detail the financial obligations imposed on the Respondent. Distinguish between the multiple violation filing fee and the civil penalties, explaining to whom each is paid and why.

4. HOA Governance and Compliance: Based on the dismissed violations (Findings of Fact 8a–e), identify the various governing documents and statutes an HOA must follow, such as CC&Rs, Bylaws, and the Arizona Revised Statutes.

5. Enforcement and Finality: Discuss the finality of the Administrative Law Judge’s decision. What are the implications of the Order being “not subject to a request for rehearing,” and how can the Order be enforced if the Respondent fails to comply?

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Part IV: Glossary of Key Terms

Definition

A.R.S.

Arizona Revised Statutes; the codified laws of the state of Arizona used to regulate planned communities and administrative procedures.

Administrative Law Judge (ALJ)

A presiding official who hears evidence and issues decisions in disputes involving state agency regulations, such as those between homeowners and HOAs.

Bylaws

The internal rules and regulations that govern the daily operations and administration of an organization like a homeowners association.

Covenants, Conditions, and Restrictions; legal obligations and rules tied to the use of land within a planned community or homeowners association.

Civil Penalty

A financial fine imposed by a government agency (in this case, the Department) as a consequence for violating regulations or statutes.

Contempt of Court

A legal mechanism used to enforce an order; being found in contempt can result from failing to obey the directives of the Administrative Law Judge.

Default

A failure to fulfill a legal obligation, such as failing to file a required response to a legal petition within the specified 20-day timeframe.

Department of Fire, Building and Life Safety

The Arizona state department authorized to receive and process petitions regarding disputes in planned communities.

Office of Administrative Hearings (OAH)

The agency authorized to adjudicate petitions and disputes between owners and planned communities.

Petitioner

The party who initiates a legal action or petition (in this case, Clayton Jacobson III).

Respondent

The party against whom a legal action or petition is filed (in this case, Rio Lindo Shores Homeowners Association, Inc.).