Tag Archives: Diane Mihalsky

John W. Griggs v. Executive Towers HOS

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Case Summary

Case ID 15F-H1516004-BFS
Agency Department of Fire, Building and Life Safety
Tribunal Office of Administrative Hearings
Decision Date 2016-01-20
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge dismissed the petition, ruling that the Association's conversion of a suite into a fitness center was not a structural alteration requiring a vote under the CC&Rs. Additionally, the $4,000 refurbishment cost did not trigger the Bylaws' $5,000 capital expenditure vote requirement, and the equipment lease payments were not considered capital expenditures.
Filing Fees Refunded $550.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John W. Griggs Counsel —
Respondent Executive Towers Homeowners Association Counsel Christina N. Morgan

Alleged Violations

CC&Rs Paragraph 13; Bylaws Article 4, Section 6

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the Association's conversion of a suite into a fitness center was not a structural alteration requiring a vote under the CC&Rs. Additionally, the $4,000 refurbishment cost did not trigger the Bylaws' $5,000 capital expenditure vote requirement, and the equipment lease payments were not considered capital expenditures.

Why this result: Petitioner failed to meet the burden of proof to establish that the renovation was a structural alteration or that the costs constituted a capital expenditure exceeding the limit requiring a vote.

Key Issues & Findings

Unauthorized Structural Alteration and Capital Expenditure

Petitioner alleged the Association violated the CC&Rs and Bylaws by converting a commercial suite into a fitness center without a majority vote of the membership required for structural alterations and capital expenditures exceeding $5,000.

Orders: The petition is dismissed.

Filing fee: $550.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 33-1202
  • A.R.S. § 41-1202
  • A.R.S. § 33-1242(A)(7)

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Decision Documents

15F-H1516004-BFS Decision – 477049.pdf

Uploaded 2026-04-24T10:55:26 (183.8 KB)

15F-H1516004-BFS Decision – 486638.pdf

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15F-H1516004-BFS Decision – 486698.pdf

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Briefing Document: Griggs v. Executive Towers Homeowners Association

Executive Summary

This briefing document analyzes the administrative hearing and subsequent decision regarding a dispute between John W. Griggs (Petitioner) and the Executive Towers Homeowners Association (Respondent). The core of the dispute centered on whether the Association's Board of Directors violated its Covenants, Conditions, and Restrictions (CC&Rs) and Bylaws by converting a revenue-generating common element (Suite 7) into a resident fitness center without a formal majority vote of the membership.

The Petitioner argued that the conversion constituted a "structural alteration" and a "capital expenditure" exceeding $5,000, both of which would require specific levels of membership approval. The Respondent contended that the Board acted within its authority to repurpose existing common elements to maintain property values and that the project costs did not hit the thresholds requiring a membership vote.

On January 20, 2016, Administrative Law Judge (ALJ) Diane Mihalsky recommended the dismissal of the petition, finding that the Petitioner failed to prove the Board violated governing documents. The decision was certified as the final administrative action on March 18, 2016.

Detailed Analysis of Key Themes

1. Definition and Threshold of "Structural Alterations"

A primary legal contention was the interpretation of Paragraph 13 of the CC&Rs, which requires a majority vote for "structural alterations or additions."

  • Petitioner's Interpretation: Mr. Griggs argued that "structural" could be interpreted mentally or monetarily, and specifically noted that repairing a subfloor constituted a structural modification.
  • Legal Determination: The ALJ applied a strict legal definition, defining a structural alteration as a "significant change… essentially creating a different building or structure." Because the work involved removing non-load-bearing walls, installing rubber flooring over existing concrete, and upgrading electrical systems without requiring permits, it did not meet the "structural" threshold.
2. Capital Expenditure vs. Operational Expense

The dispute highlighted the financial strategy used by the Board to stay within its autonomous spending limits. Article 4, § 6 of the Bylaws prohibits capital expenditures over $5,000 without two-thirds membership approval.

  • Refurbishment Costs: The Board limited physical refurbishment costs to approximately $4,000, funded by an operating budget surplus.
  • Equipment Acquisition: Rather than purchasing fitness equipment—which would have exceeded the $5,000 limit—the Board entered into a two-year lease-to-own agreement.
  • Legal Determination: The ALJ ruled that because the equipment was leased, it did not constitute a "fixed asset" and therefore the aggregate lease payments did not count as a single capital expenditure under the Bylaws.
3. Board Authority and Fiduciary Responsibility

The Respondent argued that the Board has a fiduciary duty to protect and enhance property values.

  • Market Competitiveness: Testimony established that Executive Towers was the only high-rise in the area without a fitness center, which negatively impacted real estate interest.
  • Economic Strategy: The Board argued that repurposing the space was more beneficial than leaving it vacant, especially following a history of commercial tenants failing to pay rent.
  • Historical Precedent: Evidence showed a long history of the Board repurposing common elements (e.g., converting a "kiddie pool" to a social pool, creating a mailroom, and converting a gym to storage) without seeking membership votes.
4. Membership Participation and Survey Validity

The Board conducted an informal survey rather than a formal vote, leading to disputes over the legitimacy of member "approval."

  • Participation Rates: While 61.8% of owners returned the survey, only 47.8% of the total possible votes (weighted by unit size) were in favor.
  • Petitioner’s Challenge: The Petitioner argued that 47.8% did not constitute a majority.
  • Respondent’s Defense: The Board maintained they were not legally required to hold a vote at all; the survey was a courtesy to "respect the Owners' wishes" rather than a legal requirement for the change in use.

Key Data Points

Survey and Voting Results
Metric Value
Survey Return Rate 61.8315% of possible votes
Votes in Favor 47.8365% of possible votes
Votes Opposed 13.3375% of possible votes
Survey Margin 3-to-1 in favor among respondents
Project Financials
Item Estimated Cost / Impact
Refurbishment (Construction) ~$4,000.00
Monthly Equipment Lease ~$702.63
End-of-Lease Purchase Option ~$2,270.04
Total Equipment Lease Cost ~$16,900.00 (over 2 years)
Potential Lost Rental Revenue ~$800.00/month
Estimated Cost Per Unit $10/month (Years 1-2); $5/month (thereafter)
Property Value Increase $16 per sq. ft. (average since opening)

Important Quotes with Context

On Structural Alterations

"A 'structural alteration' is '[a] significant change to a building or other structure, essentially creating a different building or structure.' … Petitioner did not bear his burden to establish that paragraph 13 of the CC&Rs required Respondent to obtain the approval of a majority of its members…"

— ALJ Decision, Conclusions of Law ¶ 5. (Context: This clarifies why the Board did not need a majority vote for the physical changes made to Suite 7.)

On Fiduciary Duty and Property Value

"The Board believes that the fitness center improves the value off the property at Executive Towers. The fitness center has been well received by the Owners, residents, and realtors touring the building."

— Respondent’s Answer to Petition. (Context: The Board’s justification for bypassing a formal vote, focusing on the outcome of improved marketability.)

On Capital Expenditures

"Because Respondent leased the fitness equipment, it was not a fixed asset. … Because aggregate lease payments over time is not a capital expenditure, Petitioner did not bear his burden to establish that Respondent made a capital expenditure over $5,000…"

— ALJ Decision, Conclusions of Law ¶ 7. (Context: The legal rationale for why the Board’s financial arrangement for equipment did not violate the $5,000 spending limit.)

On Board Autonomy

"Requiring a formal vote of the Owners is form over substance."

— Respondent’s Answer to Petition. (Context: The Association's argument that the clear preference shown in the survey should override the technicality of a formal meeting and vote.)

Actionable Insights

  • Leasing vs. Purchasing Assets: For HOAs governed by strict capital expenditure limits, leasing equipment rather than purchasing it outright can be a valid strategy to manage common elements without triggering requirements for membership votes, as long as the equipment does not qualify as a "fixed asset."
  • Defining "Structural": Minor internal renovations—such as removing non-load-bearing walls, replacing flooring, or updating electrical—generally do not constitute "structural alterations" under Arizona law unless they essentially create a "different building."
  • Board Authority in "Change of Use": Governing documents that grant boards power over "maintenance, repair, and operation" typically allow boards to repurpose existing common areas (e.g., commercial space to a fitness center) without a vote, provided the expenditure limits are respected.
  • Evidence of Value: In disputes regarding Board decisions, demonstrating a tangible increase in property value (e.g., the $16 per sq. ft. increase cited in this case) serves as strong evidence that the Board fulfilled its fiduciary duty.
  • Clarity in CC&Rs: The "final and binding" nature of Board interpretations of CC&Rs (as per Paragraph 4.2 of the Executive Towers CC&Rs) provides the Board with significant legal deference in administrative hearings.

Study Guide: Griggs v. Executive Towers Homeowners Association

This study guide provides a comprehensive overview of the administrative legal dispute between John W. Griggs and the Executive Towers Homeowners Association (Case No. 15F-H1516004-BFS). It covers the core legal issues, governing documents, evidentiary findings, and the final judicial determination.

I. Case Overview and Core Themes

The Dispute

The case centers on a petition filed by John W. Griggs (Petitioner) against the Executive Towers Homeowners Association (Respondent). The Petitioner alleged that the HOA Board violated the association’s governing documents when it converted "Suite 7," a revenue-generating commercial space, into a resident fitness center without obtaining a formal majority vote from the membership or approval from mortgage holders.

Central Legal Questions
  • Structural Alterations: Did the conversion of Suite 7 constitute a "structural alteration" under Paragraph 13 of the CC&Rs, requiring a majority vote?
  • Capital Expenditures: Did the cost of the project exceed the $5,000 threshold established in the Bylaws for unapproved capital expenditures?
  • Board Authority: To what extent does the Board have the discretion to repurpose "Common Elements" to serve the needs of the community and protect property values?

II. Key Concepts and Governing Provisions

Covenants, Conditions, and Restrictions (CC&Rs)
  • Paragraph 1.7 (Common Elements): Defines common elements as all portions of the property except individual apartments, specifically including store spaces, the building office, laundry, parking, and recreation rooms.
  • Paragraph 1.10 (Majority): Defines a "Majority" as owners of more than 50% of the undivided ownership of the Common Elements. Votes are weighted based on the size of the condominium units.
  • Paragraph 4.2 (Board Determination): States that the Board’s determination in disputes relating to the interpretation or application of CC&Rs or Bylaws is final and binding.
  • Paragraph 13 (Structural Alterations): Prohibits structural alterations or additions to the building without prior approval from a Majority of Owners and all mortgage holders/beneficiaries.
  • Paragraph 17 (Use of Common Elements): Specifies that special areas like the garage, laundry, and hospitality rooms shall be used for purposes approved by the Board.
Association Bylaws
  • Article 4, § 6: Prohibits the Board from approving any capital expenditure in excess of $5,000 (unless for emergencies or essential operations) or entering contracts longer than two years without approval from two-thirds of the total ownership.
Statutory Context (Arizona Revised Statutes)
  • A.R.S. § 33-1202: Defines "common elements" in a condominium.
  • A.R.S. § 33-1242(A)(7): Grants associations the power to cause additional improvements to be made as part of the common elements, subject to the CC&Rs.
  • A.R.S. § 41-2198.01: Authorizes the Department of Fire, Building and Life Safety to hear petitions regarding violations of homeowners' association documents.

III. Summary of Evidence and Findings

Project Justification

The Board argued that Executive Towers was the only high-rise in Phoenix without a fitness center, which negatively impacted property values. Efforts to lease Suite 7 to commercial tenants had failed for over six months, and previous tenants had been evicted for non-payment of rent.

Financials and Voting
  • Refurbishment Cost: Credible testimony established the physical refurbishment cost at approximately $4,000 (funded by an operating budget surplus).
  • Equipment Lease: The fitness equipment was leased for approximately $800/month for two years, with a $2,600 purchase option at the end of the term.
  • Member Survey: While not a formal vote, a survey was sent to 160 apartments. 61.8% of ownership responded; of those, owners favored the fitness center by a 3-1 margin. However, the total "yes" votes represented only 47.8% of total undivided ownership, falling short of a 50% absolute majority.
Historical Precedent

Witness testimony revealed a history of the Board repurposing common elements without membership votes, including:

  • Converting a basement gym to storage units.
  • Converting a parking garage roof to a tennis court.
  • Converting a "kiddie pool" into a social pool.
  • Relocating the mailroom.

IV. Short-Answer Practice Questions

  1. Who bears the burden of proof in this administrative hearing?
  • Answer: The Petitioner (Mr. Griggs) bears the burden of proof to establish violations by a preponderance of the evidence.
  1. How is a "Majority" calculated according to the Executive Towers CC&Rs?
  • Answer: It is defined as owners of more than 50% of the undivided ownership of the Common Elements, with votes weighted by the square footage/size of the units.
  1. What was the specific legal definition of a "structural alteration" used by the Judge to reach a decision?
  • Answer: A significant change to a building or structure that essentially creates a different building or structure.
  1. Why did the Judge rule that the $5,000 capital expenditure limit was not violated?
  • Answer: The physical refurbishment cost was $4,000, and the fitness equipment was leased rather than purchased outright. Under the law, aggregate lease payments over time do not constitute a "capital expenditure" for a fixed asset.
  1. What was the final outcome of the petition?
  • Answer: The petition was dismissed, and no action was required of the Respondent.

V. Essay Prompts for Deeper Exploration

  1. Board Discretion vs. Member Oversight: Analyze the tension between a Board’s fiduciary duty to maintain property values (as argued by Respondent) and the procedural requirements for member approval (as argued by Petitioner). Does the "Board's Determination Binding" clause (Paragraph 4.2) effectively grant the Board total immunity in interpreting the CC&Rs?
  2. The Definition of Structural vs. Cosmetic: The Petitioner argued that repairing a subfloor or "monetary/mental" changes could be considered "structural." Critique this argument based on the Judge’s application of Black’s Law Dictionary and the facts regarding the removal of non-load-bearing walls and the absence of required building permits.
  3. The Impact of Leasing on Capital Expenditure Limits: Discuss the legal and financial implications of the Board’s decision to lease equipment rather than purchase it. Does this strategy represent a legitimate management tool or a loophole used to bypass membership voting requirements for large expenditures?

VI. Glossary of Important Terms

Term Definition from Source Context
Capital Expenditure An outlay of funds to acquire or improve a fixed asset.
Common Elements Portions of a condominium other than the units, including lobbies, storage, parking, and recreation areas.
Council of Co-owners The governing body (Association) of the owners for the maintenance and operation of the property.
Fixed Asset A long-term tangible piece of property or equipment that a firm owns and uses in its operations.
Preponderance of the Evidence Proof that convinces the trier of fact that a contention is more probably true than not; evidence with the most convincing force.
Structural Alteration A significant change to a building or other structure, essentially creating a different building or structure.
Undivided Ownership The percentage of interest each owner holds in the common elements, usually determined by unit size.

The Fitness Center Friction: Key Lessons from the Executive Towers HOA Dispute

1. Introduction: A High-Rise Conflict

The Executive Towers, a mid-century landmark in central Phoenix built in 1964, recently served as the staging ground for a pivotal legal test of Homeowners Association (HOA) governance. The dispute centered on a familiar tension in high-density living: the Board’s desire to modernize and maintain property competitiveness versus an individual owner’s right to enforce the strict letter of the community's governing documents.

The conflict erupted when the Board moved to convert "Suite 7"—a vacant 600-square-foot commercial unit in the west wing lobby—into a fitness center. This decision was met with a formal legal challenge from homeowner John W. Griggs in Griggs v. Executive Towers. At the heart of the case were two fundamental questions for any HOA: What constitutes a "structural alteration," and how should a board navigate the "capital expenditure" thresholds that trigger a mandatory membership vote?

2. The Catalyst: Why the Board Acted

As a Real Estate & HOA Legal Analyst, it is essential to view the Board's actions through the lens of Fiduciary Duty. The Board argued that the Executive Towers was the only high-rise in the Phoenix market without a fitness center, a deficit that significantly hampered marketability. Suite 7 had sat vacant for six months despite being advertised on platforms like Craigslist and through on-site signage.

The Board justified the conversion as a strategic move to protect and enhance property values, citing several key drivers:

  • Market Competitive Disadvantage: High-rise units without modern amenities like gyms were increasingly overlooked by realtors and prospective buyers.
  • Inefficient Use of Common Elements: Repurposing non-revenue-generating "dead space" into a desirable amenity.
  • Proven Economic Impact: Subsequent market data indicated that unit values increased by an average of $16 per square foot following the center's opening.
  • High Resident Utilization: Usage metrics showed over 100 residents utilized the facility weekly, with a laundry volume of 30 towels per day.

Crucially, the Board relied on a history of repurposing to establish precedent. Under the implied "Business Judgment Rule," the Board had previously converted the parking garage roof into a tennis court, turned a "kiddie pool" into a social pool, and established a mailroom and trash pickup areas—all without seeking a formal membership vote.

3. The Legal Challenge: Griggs vs. Executive Towers

Petitioner John W. Griggs alleged that the Board violated Paragraph 13 of the CC&Rs and Article 4, § 6 of the Bylaws. The following table contrasts the legal positions of both parties:

Petitioner’s Allegations (John W. Griggs) HOA Board's Defense
Violation of CC&R Paragraph 13: The conversion was a "structural alteration" requiring a majority vote of all Owners and the prior approval of all mortgage holders. Broad Discretion: The changes were cosmetic and non-structural. Under CC&R Paragraph 17, "special areas" like the lobby can be used for purposes approved by the Board.
Violation of Bylaws Article 4, § 6: The project was a capital expenditure exceeding the $5,000 limit, requiring a two-thirds vote of total ownership. Budgetary Compliance: The immediate refurbishment cost was only $4,000, and equipment was acquired through a lease, not an immediate capital outlay.
Incorrect Voting Threshold: Argued that "Majority of Owners" required 50% of the membership, and the survey failed this mark. Management Authority: The Board possessed the authority to manage common elements under Paragraphs 4.2 and 5; the survey was a non-binding courtesy.
4. Defining the Terms: Structural vs. Cosmetic

The Administrative Law Judge (ALJ) leaned heavily on Black’s Law Dictionary to settle the "structural alteration" debate, defining it as a "significant change to a building… essentially creating a different building or structure."

The ALJ rejected the Petitioner’s novel argument that "structural" could be interpreted in "mental or monetary" terms. In a win for literal legal interpretation, the court ruled that the project was non-structural based on the physical realities of the work:

  • Non-Load-Bearing Walls: The removal involved only temporary walls.
  • Superficial Flooring: A floating floor was replaced with rubber matting over existing concrete.
  • ADA Compliance: While a new door was installed for the bathroom and minor asbestos remediation occurred, no building permits were required for the repurposing.

Since these changes did not affect the essential "structure" of the Apartments or the building, the majority approval requirement of Paragraph 13 was never triggered.

5. The $5,000 Threshold: Capital Expenditure Analysis

The most nuanced legal takeaway involves the definition of a "capital expenditure." Article 4, § 6 of the Bylaws prohibits capital expenditures over $5,000 without a two-thirds vote. The Petitioner claimed the "total contract value" of the project—including 24 months of lease payments and a payoff—exceeded $27,000.

However, the ALJ applied a strict accounting definition: a capital expenditure is an immediate outlay of funds to acquire a fixed asset. The Board navigated this through a strategic financial structure:

  1. Direct Refurbishment: $4,000 was spent on physical renovations, pulled from a surplus in the Operating Budget.
  2. Equipment Lease: The Board entered a two-year lease for cardio and strength equipment at exactly $702.63 per month.
  3. End-of-Lease Purchase: The contract included an option to purchase the equipment for approximately $2,600.

The ALJ concluded that aggregate lease payments are not capital expenditures because the Association does not own the equipment during the lease term; thus, it is not a "fixed asset" at the time of the agreement. This "ongoing expense" vs. "immediate outlay" distinction allowed the Board to bypass the $5,000 voting trigger.

6. The Role of Resident Feedback

While not legally required to vote, the Board conducted a survey of the 160 Apartments in June 2015. A critical detail here is weighted voting: per Paragraph 1.10 of the CC&Rs, votes are counted based on the size of the unit (undivided ownership interest), not a "one unit, one vote" system.

The survey results were as follows:

  • Total Returns: 61.8315% of the total ownership interest.
  • In Favor: 75 Apartments, representing 47.8365% of the total possible votes.
  • Opposed: 21 Apartments, representing 13.3375% of the total possible votes.

The Petitioner argued that 47.8365% fell short of a "majority." However, the ALJ ruled the survey was a "gauge" of support rather than a formal election. Because the Board already possessed "broad discretion" under CC&R Paragraph 17 to approve the use of "special areas," the lack of a 50%+ majority was legally irrelevant.

7. Conclusion: The Verdict and Community Takeaways

The ALJ dismissed the petition, affirming the Board’s broad management authority. This case serves as a powerful reminder that while governing documents provide a framework, the Board’s fiduciary duty to protect property values often grants them significant latitude in the "maintenance, administration, and operation" of the community.

Essential Takeaways for Homeowners and Boards:

  • Broad Management Authority over Common Elements: Boards typically have the right to repurpose "special areas" (like lobbies or storage) for incidental residential use without a vote, provided the change is not "structural."
  • The Technicality of Capital Expenditures: Leasing vs. purchasing is a legitimate management strategy. By opting for a lease, a Board can acquire significant amenities as an "operating expense" rather than a "capital expenditure," potentially avoiding the need for a membership-wide vote.
  • The Strategic Utility of Non-Binding Surveys: Surveys are an effective tool for gauging community sentiment. As seen here, they do not carry the same legal weight as a formal vote mandated by CC&Rs, allowing Boards to maintain the "Business Judgment" to proceed with unpopular but value-additive projects.

Case Participants

Petitioner Side

  • John W. Griggs (petitioner)
    Appeared on own behalf; owner of a residence in Executive Towers
  • Linda Pollack (witness)
    Resident/owner; testified for Petitioner
  • Helen Jerzy (witness)
    Executive Towers Homeowners Association
    Board Member; testified for Petitioner

Respondent Side

  • Christina N. Morgan (HOA attorney)
    VialFotheringham LLP
  • William B. Early (witness)
    Former board member; testified for Respondent
  • Wayne Peter Parente (board president)
    Executive Towers Homeowners Association
    Testified for Respondent
  • Jay Russett (property manager)
    Executive Towers Homeowners Association
    Executive Director; testified for Respondent

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Debra Blake (agency director)
    Department of Fire Building and Life Safety
    Interim Director
  • Greg Hanchett (agency director)
    Office of Administrative Hearings
    Interim Director; certified the decision
  • Joni Cage (agency staff)
    Department of Fire Building and Life Safety
    c/o for Debra Blake
  • Rosella J. Rodriguez (administrative staff)
    Office of Administrative Hearings
    Signed copy certification

Catherine Mullane vs.Thunder FE Condominium Group

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Case Summary

Case ID 15F-H1515016-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2015-09-22
Administrative Law Judge Diane Mihalsky
Outcome The ALJ dismissed the petition, finding that the Petitioner failed to prove the HOA violated the bylaws. The evidence showed the HOA membership had previously voted to increase the board's spending authority limit from $50 to $7,500, covering the phased landscaping costs.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Catherine Mullane Counsel —
Respondent Thunder Fe Condominium Group Counsel —

Alleged Violations

Bylaws Article V, paragraph i, number 1

Outcome Summary

The ALJ dismissed the petition, finding that the Petitioner failed to prove the HOA violated the bylaws. The evidence showed the HOA membership had previously voted to increase the board's spending authority limit from $50 to $7,500, covering the phased landscaping costs.

Why this result: Petitioner did not meet the burden of proof to show a violation; the HOA successfully demonstrated the spending limit had been validly amended by the membership.

Key Issues & Findings

Unapproved Capital Expenditure

Petitioner alleged the HOA Board spent $13,700 on a landscape project to remove grass and install desert landscaping without a vote of all unit owners, violating the $50 limit in the Bylaws.

Orders: The petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

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Decision Documents

15F-H1515016-BFS Decision – 458291.pdf

Uploaded 2026-04-24T10:54:11 (111.0 KB)

15F-H1515016-BFS Decision – 463668.pdf

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Case Briefing: Catherine Mullane vs. Thunder Fe Condominium Group

Executive Summary

The case of Catherine Mullane vs. Thunder Fe Condominium Group (No. 15F-H1515016-BFS) centered on a dispute over homeowners' association (HOA) governance and the authorization of capital expenditures. The Petitioner, Catherine Mullane, alleged that the Thunder Fe Condominium Group Board of Management (BOM) violated its bylaws and Arizona statutes by approving a $13,700 desert landscaping project without a vote from all unit owners.

The Respondent, Thunder Fe, argued that the project was a multi-year, phased initiative originally approved by membership in 2010. They further contended that the spending limit for the Board Chairman had been legally increased from $50.00 to $7,500.00 by a unanimous vote at an annual meeting in 2014. The administrative hearing, held on September 2, 2015, resulted in a dismissal of the petition. Administrative Law Judge (ALJ) Diane Mihalsky ruled that the HOA had acted within its authority and had not violated its bylaws. This decision was certified as final on October 28, 2015.

Key Themes and Analysis

1. Evolution of HOA Governance and Bylaws

A central conflict in the case was the modernization of the HOA’s financial protocols. For years, the association’s bylaws restricted the Chairman from approving expenditures exceeding $50.00 without a broader vote.

  • The Change: At the Annual General Meeting on January 29, 2014, members unanimously voted to increase this limit to $7,500.00.
  • Operational Necessity: Testimony from Board Chairman Cliff DeVlieg highlighted that the $50.00 limit was functionally impossible to adhere to, noting that even printing notices for meetings cost more than that amount.
  • Legal Standing: The ALJ found that because the limit had been raised via a valid meeting of qualified owners, the subsequent landscaping contracts did not breach the association's governing documents.
2. Resource Management and Financial Urgency

The decision to transition from grass to desert landscaping was framed not as an aesthetic choice, but as a fiscal necessity driven by external economic factors.

  • Utility Inflation: The HOA was facing an 86% to 87% increase in water and wastewater treatment rates from EPCOR water, as approved by the Arizona Corporation Commission.
  • Cost Savings: Following the transition to desert landscaping, Thunder Fe reported a reduction in water bills of approximately $400.00 per month.
  • Phased Implementation: The project was executed in phases (sod removal followed by contouring and rock placement) to manage cash flow through the "landscape" account.
3. Member Participation and Communication

The case highlighted a disconnect between the Board’s actions and certain residents’ awareness.

  • Absentees and "Snowbirds": The HOA noted a high percentage of absentee owners, which complicated communication and quorum requirements.
  • Notice Procedures: The Board provided evidence that a notice describing the scope and schedule of the work was sent to all homes two realized weeks before the project began, receiving no initial comments or objections.
  • Attendance Issues: While the Petitioner’s witness expressed surprise at the landscaping changes, she admitted to not attending general or Board meetings where these issues were discussed.

Important Quotes

Regarding the Expenditure Limit

"The $50.00 limit on expenditures had been regularly violated because $50.00 was not enough to cover any expenditure… [the Chairman] cannot even get a bid for work to be done for $50.00."

— Cliff DeVlieg, Chairman of the Board of Management

Regarding the Shift to Desert Landscaping

"The urgency of the work was spurred by the Rate Increase by EPCOR water… which would increase the cost of water and wastewater treatment by 86%."

— Respondent’s Answer to the Petition

Legal Conclusion of the Administrative Law Judge

"Thunder Fe’s Board of Management established by a preponderance of the evidence that at a duly noticed general meeting, the qualified owners in the community unanimously voted to raise the expenditure allowed… to $7,500.00. Therefore, Petitioner did not establish… that Thunder Fe’s Board of Management violated any bylaw."

— ALJ Diane Mihalsky

Analysis of Evidence and Findings

Evidence Category Findings and Data Points
Financial Authority Article V, paragraph i, number 1 of the Bylaws was amended to grant the Chairman authority for expenditures up to $7,500.00.
Project Cost Total project estimated at $13,700, but managed in phases: $6,500 for sod removal and a separate bill in 2015 for rock and watering systems.
Voting Majority Article III and V require a two-thirds affirmative vote of owners present at a meeting for bylaw amendments. The 2014 amendment was unanimous.
Operational Impact Conversion to desert landscape resulted in a $400/month reduction in utility costs.

Actionable Insights for HOAs and Residents

  • Bylaw Modernization is Critical: Outdated financial caps (such as a $50 limit) can paralyze HOA operations. Regular reviews of governing documents ensure that the Board has the flexibility to handle routine maintenance and respond to utility price hikes without constant litigation.
  • The Weight of Meeting Minutes: The case was decided largely on the strength of the HOA’s record-keeping. The inclusion of minutes from 2010, 2011, 2012, 2013, and 2014 provided a clear "paper trail" that the project was not a surprise expenditure but a long-discussed plan.
  • Owner Responsibility: Residents who do not attend annual meetings or review sent notices have a significantly higher burden of proof if they wish to challenge Board actions later. The court noted the witness's failure to attend meetings as a factor in the context of her lack of awareness regarding the project.
  • Phased Projects and Budgeting: Breaking large capital improvements into distinct phases (e.g., removal vs. installation) can help HOAs manage budgets within their authorized spending limits while still achieving long-term sustainability goals.

Study Guide: Catherine Mullane vs. Thunder Fe Condominium Group

This study guide provides a comprehensive overview of the administrative law case Catherine Mullane vs. Thunder Fe Condominium Group (No. 15F-H1515016-BFS). It explores the legal disputes regarding homeowners' association (HOA) governance, the amendment of bylaws, and the authority of a Board of Management to oversee community projects.

Key Concepts and Case Background

1. The Dispute

The case originated from a petition filed by Catherine Mullane (Petitioner) against the Thunder Fe Condominium Group (Respondent). The Petitioner alleged that the Respondent’s Board of Management (BOM) violated community bylaws and Arizona statutes by spending $13,700 on a landscaping project—transitioning from grass to desert landscape—without obtaining a vote from all unit owners.

2. Governance and Authority
  • The Department of Fire, Building and Life Safety: The Arizona state agency authorized to receive and hear petitions regarding violations of planned community documents or statutes.
  • Board of Management (BOM) Powers: Under the Thunder Fe bylaws, the BOM is granted the right and power to maintain common areas and enter into contracts.
  • Expenditure Limits: A central point of contention was a bylaw (Article V, paragraph i, number 1) that originally limited the Chairman’s spending authority to $50.00. This limit was reportedly raised to $7,500.00 by a unanimous vote at an annual general meeting in January 2014.
3. Justification for the Landscape Project

The Respondent argued the project was necessary and financially prudent due to:

  • Water Costs: An anticipated 86% to 87% rate increase by EPCOR water.
  • Operational Savings: Following the transition to desert landscaping, the community's water bills decreased by $400.00 per month.
  • Long-term Planning: The transition had been discussed and voted upon in various phases since 2010.
4. Legal Standards
  • Burden of Proof: The Petitioner bears the burden of establishing a violation by a "preponderance of the evidence."
  • Preponderance of the Evidence: A legal standard meaning the contention is "more probably true than not," or established by evidence with the most convincing force.

Short-Answer Practice Questions

1. What was the total cost of the landscaping project challenged by the Petitioner?

  • Answer: $13,700.00.

2. According to the Respondent, why was the original $50.00 expenditure limit regularly violated?

  • Answer: The limit was too low to cover basic costs; for example, printing notices for meetings cost more than $50.00, and no contractor would provide a bid for that amount.

3. What was the specific percentage of the water rate increase that spurred the urgency of the landscaping work?

  • Answer: The Respondent cited an 86% to 87% increase by the AZ Corporation Commission/EPCOR.

4. How did the BOM justify the appointment of Rod Beale as treasurer?

  • Answer: Under Article V, paragraph m of the bylaws, if a vacancy occurs on the BOM for any reason, the remaining members may appoint a replacement to fill the unexpired term.

5. What is the quorum requirement for the transaction of business at Thunder Fe meetings according to Article V, paragraph e?

  • Answer: The presence, either in person or by proxy, of a majority of the owners.

6. What was the final ruling by Administrative Law Judge Diane Mihalsky regarding the Petitioner’s claims?

  • Answer: The petition was dismissed because the Petitioner failed to establish that the BOM violated any bylaws.

Essay Prompts for Deeper Exploration

1. Procedural Requirements for Bylaw Amendments

Analyze the distinction between Article III and Article V of the Thunder Fe Bylaws regarding voting requirements. Article III suggests amendments require a two-thirds vote of "owners of record," while Article V, paragraph h, refers to a two-thirds vote of "owners present at a meeting." Discuss how these differing standards might impact the legitimacy of a Board’s actions and how the court reconciled these in the context of the January 2014 vote.

2. Fiscal Responsibility vs. Homeowner Oversight

In this case, the Board argued that a $50.00 spending limit was functionally impossible to follow in a modern HOA. Evaluate the tension between a community's need for efficient management (represented by the Board) and the homeowners' right to control major expenditures. Use the evidence regarding water rate increases and the subsequent $400 monthly savings to support your argument on whether the Board acted within its fiduciary duty.

3. The Role of Administrative Law in HOA Disputes

Based on the "Certification of Decision" provided in the source material, describe the process of an Administrative Law Judge (ALJ) decision becoming final in Arizona. What role does the Department of Fire, Building and Life Safety play in accepting, rejecting, or modifying the decision, and what recourse does a party have if they are dissatisfied with the final administrative action?

Glossary of Important Terms

  • A.R.S. (Arizona Revised Statutes): The codified laws of the state of Arizona used to regulate planned communities and administrative hearings.
  • BOM (Board of Management): The governing body of the homeowners' association responsible for maintenance and contract execution.
  • CC&Rs (Covenants, Conditions, and Restrictions): Recorded documents that govern the use of land within a common interest development; in this case, the Respondent claimed these were recorded by Del Webb and could not be easily changed.
  • Certification of Decision: The process by which an ALJ's decision is officially recognized as the final agency action, typically occurring if the department head does not act to modify or reject the decision within a statutory timeframe (e.g., 30 days).
  • Desert Landscaping (Xeriscaping): A landscaping method used to reduce or eliminate the need for supplemental water from irrigation, used in this case to replace grass (sod).
  • Owners of Record: The individuals officially listed as the owners of the condominium units, entitled to vote on community matters.
  • Preponderance of the Evidence: The evidentiary standard in civil and administrative cases requiring that a claim be more likely true than not.
  • Quorum: The minimum number of members of an assembly that must be present at any of its meetings to make the proceedings of that meeting valid.
  • Snowbird Residents: A term used in the document to describe seasonal residents who are frequently absentee owners.

From Grass to Gravel: Navigating HOA Governance and Landscaping Disputes

The Hook: A Battle in Sun City

At the Thunder Fe Condominium Group in Sun City, Arizona, a fundamental disagreement over community aesthetics and fiscal authority recently escalated into a formal legal challenge. The conflict centered on a $13,700 landscape project initiated by the Board of Management (BOM) to convert traditional grass areas into desert landscaping. Catherine Mullane, a homeowner and member of the association, filed a petition alleging that the board had overstepped its bounds. The core question before the Office of Administrative Hearings was whether the board possessed the authority to approve such a significant expenditure without a community-wide vote.

As a consultant in this space, I often see these disputes framed as purely financial, but they are deeply personal. This case was no exception; during the hearing, testimony from neighbor Jacque Ledbetter—who is blind due to macular degeneration—illustrated the human impact. She described being "caught off guard" when she stepped out to find the area in front of her home transformed into rock without her knowledge.

The Petitioner’s Complaint: The $50 Rule and Governing Documents

In her testimony and filings, Catherine Mullane argued that the board violated Article V, paragraph i, number 1 of the association's bylaws. Her primary contention was that any expenditure exceeding $50 required a vote from the full membership—a rule she claimed was bypassed when the board approved the $13,700 project.

Beyond the expenditure limit, Mullane raised a significant legal argument regarding the hierarchy of documents. She contended that for a change of this magnitude, the Covenants, Conditions, and Restrictions (CC&Rs) needed to be amended, not just the bylaws. She further argued that the community’s character was at stake, testifying that the property was valuable and should not be treated as "rinky dinky," citing a 1990s survey where residents expressed a clear preference for grass over "rock."

The Board’s Defense: Evolution of a Decision and Strategic Phasing

The Board of Management (BOM), represented by Chairman Cliff DeVlieg, argued that the transition to desert landscaping was a deliberative process spanning years, driven by fiscal necessity.

Key Governance Milestones:

  • November 18, 2010: Owners voted 20 to 3 in favor of transitioning from grass to desert landscape during the Annual Meeting.
  • 2011–2013: The board continued discussions and scheduled the work in phases based on available funds.
  • January 29, 2014: During the Annual General Meeting, the membership voted unanimously to amend the expenditure limit in the bylaws from $50 to $7,500.
  • May 2015: The Sun City Condo Owner Association (SCCOA), an advisory body for 386 HOAs, "approved everything" the board had done, providing a vital third-party validation of their processes.

From a tactical standpoint, the Board’s most effective defense was their use of phased contracting. By splitting the work, they remained in strict compliance with their newly updated $7,500 spending limit. They paid $6,500 in December 2014 for sod removal and the remaining balance in 2015 for the rock and irrigation systems. This move was spurred by an 86–87% water rate increase from EPCOR, a hike that the Board successfully countered by saving the association $400 per month through the new landscaping.

The Legal Turning Point: Amending the Bylaws

The pivotal moment in the case was the January 29, 2014, annual general meeting. The board successfully updated financial restrictions that had become functionally obsolete and impossible to follow in a modern economy.

Old Expenditure Limit New Expenditure Limit
$50.00 $7,500.00

This amendment exposed a common source of HOA litigation: the conflict between different sections of the bylaws. Article III of the Thunder Fe bylaws suggests amendments require a two-thirds vote of "owners of record"—a high bar that is often difficult to reach. However, Article V(h) allows for amendments via a two-thirds vote of "owners present" at a meeting. The Board utilized Article V(h), and because the vote was unanimous among those in attendance, the Judge determined the amendment was validly adopted.

The Verdict: Why the Petition was Dismissed

Administrative Law Judge Diane Mihalsky applied the "Preponderance of the Evidence" standard. This requires that a contention be proven "more probably true than not."

The Judge concluded that the Board of Management demonstrated that the bylaws were legally amended at a duly noticed meeting. While the Petitioner argued that the CC&Rs were the controlling document, the Chairman testified that the CC&Rs (recorded by the developer, Del Webb) could not be changed in this manner, whereas the Bylaws explicitly granted the Board the power to maintain common areas. Because the board followed the updated $7,500 limit and the Petitioner failed to prove a violation of the current governing documents, the petition was dismissed.

Key Takeaways for Homeowners and Boards

This case serves as a masterclass in community governance. As a consultant, I recommend three critical lessons:

  • Understand the Amendment Process and Perform Periodic Audits: Bylaws are living documents. Boards should conduct periodic audits to ensure limits (like a $50 spending cap) haven't become "functionally obsolete." Understanding whether your community requires a vote of "owners of record" or "owners present" is the difference between a valid amendment and a lawsuit.
  • The Power of the Quorum: The "unanimous" vote in this case was decided only by those who bothered to show up. In many HOAs, a small, active group can make major changes because the "quorum" hurdle is met by those in the room (or represented by proxy). Attendance is the only way for residents to ensure their voice is part of that majority.
  • Data-Driven Governance: The board’s defense was bulletproof because it was rooted in data. By documenting the 87% water rate hike and the subsequent $400 monthly savings, they proved that their "transformation to rock" was a matter of fiscal survival rather than a whim.
Closing: The Balance of Community Governance

The resolution of this case highlights the delicate balance between board authority and resident engagement. While the board successfully navigated the legal requirements for governance, the friction caused by the project reminds us that transparency is just as important as legality.

The final administrative decision, certifying the board's compliance and dismissing the complaint, was officially finalized on October 28, 2015. For any community association, the best defense against protracted legal conflict remains a combination of clear documentation, adherence to the amendment process, and an active, informed membership.

Case Participants

Petitioner Side

  • Catherine Mullane (Petitioner)
    Thunder Fe Condominium Group (Unit Owner)
    Appeared on her own behalf; has macular degeneration/is blind,
  • Jacque Ledbetter (Witness)
    Thunder Fe Condominium Group (Resident)
    Drove Petitioner to hearing; testified regarding landscape changes,

Respondent Side

  • Cliff DeVlieg (Board Member)
    Thunder Fe Condominium Group (Chairman of the Board of Management)
    Appeared on behalf of Respondent
  • Rod Beale (Board Member)
    Thunder Fe Condominium Group (Treasurer)
    Appointed to fill vacancy; testified at hearing,,
  • Terry Lord (Former Treasurer)
    Thunder Fe Condominium Group
    Resigned late summer/early fall 2014; discussed in testimony,

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
    Presiding Administrative Law Judge,
  • Debra Blake (Agency Director)
    Department of Fire, Building and Life Safety
    Interim Director; recipient of decision,
  • Greg Hanchett (OAH Director)
    Office of Administrative Hearings
    Interim Director; signed Certification of Decision
  • Joni Cage (Agency Staff)
    Department of Fire, Building and Life Safety
    c/o for Debra Blake
  • Rosella J. Rodriguez (Clerk/Staff)
    Office of Administrative Hearings
    Mailed/faxed copy of certification

Wojtowicz, Lawrence M. -v- Voyager at Juniper Ridge RV Resort and Country Club

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Case Summary

Case ID 07F-H067002-BFS
Agency Department of Fire, Building and Life Safety
Tribunal OAH
Decision Date 2007-02-21
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge dismissed the Petitioner's complaint for lack of jurisdiction. The Petitioner admitted the dispute was not against the HOA but against the Developer/LLC regarding the validity of CC&R amendments and control of amenities. The tribunal found it lacked jurisdiction over disputes concerning the design/construction/sale/ownership involving the developer. The HOA's request for attorney's fees was denied because the CC&Rs did not explicitly provide for fee awards in administrative proceedings.
Filing Fees Refunded $550.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lawrence M. Wojtowicz Counsel —
Respondent Voyager at Juniper Ridge Homeowners’ Association Counsel Tanis A. Duncan

Alleged Violations

A.R.S. § 41-2198.01(B)

Outcome Summary

The Administrative Law Judge dismissed the Petitioner's complaint for lack of jurisdiction. The Petitioner admitted the dispute was not against the HOA but against the Developer/LLC regarding the validity of CC&R amendments and control of amenities. The tribunal found it lacked jurisdiction over disputes concerning the design/construction/sale/ownership involving the developer. The HOA's request for attorney's fees was denied because the CC&Rs did not explicitly provide for fee awards in administrative proceedings.

Why this result: Dismissed for lack of jurisdiction; the dispute was against the Developer/Declarant regarding validity of amendments, not the HOA.

Key Issues & Findings

Board Constitution and Validity of CC&R Amendments

Petitioner alleged the HOA Board was not properly constituted and that 2003/2006 amendments to the CC&Rs were invalid because the original 1985 CC&Rs specified a 30-year term. Petitioner sought to return common areas to their 2003 condition.

Orders: Complaint dismissed for lack of jurisdiction.

Filing fee: $550.00, Fee refunded: No

Disposition: petitioner_loss

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Video Overview

Audio Overview

Decision Documents

07F-H067002-BFS Decision – 162561.pdf

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Case Briefing: Wojtowicz v. Voyager at Juniper Ridge Homeowners’ Association (No. 07F-H067002-BFS)

Executive Summary

On February 5, 2007, the Office of Administrative Hearings for the State of Arizona issued a decision regarding a dispute brought by Petitioner Lawrence M. Wojtowicz against the Voyager at Juniper Ridge Homeowners’ Association (the “HOA”). The Petitioner sought to invalidate the 2003 and 2006 amendments to the community’s Covenants, Conditions, and Restrictions (CC&Rs), arguing that the original 1985 governing documents precluded such changes until a 30-year term had expired.

The Administrative Law Judge (ALJ) dismissed the complaint on jurisdictional grounds, concluding that the Petitioner’s grievances were directed at the actions of the developer/declarant (Voyager at Juniper Ridge, LLC) rather than the HOA itself. Furthermore, the ALJ denied the HOA’s application for attorney’s fees, ruling that administrative proceedings do not qualify as “actions” under Arizona law for the purpose of fee recovery, despite provisions within the CC&Rs.

Background of the Planned Community and Governing Documents

The Original 1985 CC&Rs

Voyager at Juniper Ridge RV Resort and Country Club is a planned community comprising 529 lots. The original CC&Rs were recorded on September 24, 1985, by the developer, Global Development. Key provisions included:

• Duration: The CC&Rs were to run with the land for an initial term of 30 years, after which they would automatically extend for 10-year periods.

• Amendments: Amendments required an instrument signed by owners representing at least two-thirds of the outstanding votes.

• Attorney’s Fees: Section 11.3 stipulated that in any “action arising out of or in connection with this Declaration,” the prevailing party would be entitled to recover reasonable attorney’s fees and court costs.

Ownership Succession

Between 1985 and 2003, ownership shifted due to slow sales and the bankruptcy of the Baptist Foundation, which had acquired unsold lots and development rights. In April 2003, Voyager at Juniper Ridge, LLC (the “LLC”), managed by N.E. Isaacson, purchased 228 lots and the Declarant’s rights at auction.

Evolution of CC&R Amendments

Following the acquisition, the LLC recorded significant changes to the governing documents to facilitate community revitalization and expansion.

Amendment Type

Key Changes

Approval Level

July 9, 2003

Amended and Restated Declaration

Established two classes of membership (Class A for owners, Class B for Declarant with 10 votes per lot); defined board composition.

72% of record owners

Nov 5, 2003

First Amendment

Further modifications to the restated declaration.

Not specified

Feb 21, 2006

Additional Amendment

Allowed a “Joint Use and Maintenance Agreement” with White Mountain Lake Vistas HOA.

87% of record owners

During this period, the LLC reportedly invested approximately $600,000 in common area repairs (including tennis and bocce ball courts) and $300,000 in lot development.

The Petitioner’s Challenge

Legal Basis of the Dispute

Petitioner Lawrence M. Wojtowicz, who purchased a lot in 2004 and briefly served on the HOA Board, challenged the validity of the 2003 and 2006 amendments. His arguments, supported by legal counsel, centered on the following:

1. Term Restrictions: Citing Scholten v. Blackhawk Partners, the Petitioner argued that the CC&Rs could only be amended upon the expiration of the initial term in September 2015.

2. Successor Rights: He contended that the LLC was not a proper successor to the original Declarant, Global Development.

3. Invalidity of Governance: He argued that because the amendments were unlawful, the current HOA Board was improperly constituted and its actions were null and void.

Requested Relief

The Petitioner sought a ruling requiring the LLC to return the common area amenities to their April 2003 condition and requested reimbursement for $10,891.45 in legal expenses plus filing fees.

Administrative Findings and Dismissal

The ALJ granted the HOA’s motion to dismiss the complaint based on several legal and jurisdictional factors:

Lack of Jurisdiction

Under A.R.S. § 41-2198.01(B), the Department of Building, Fire and Life Safety lacks jurisdiction over:

• Disputes between owners where the association is not a party.

• Disputes between an owner and a person or entity engaged in the business of constructing or selling property within a planned community.

The ALJ determined that the Petitioner’s dispute was fundamentally with the LLC and Mr. Isaacson regarding their status as Declarants and their right to amend documents. Since the Petitioner admitted his dispute was not against the HOA itself, the matter fell outside the administrative forum’s authority.

Inappropriate Forum for Declaratory Relief

The ALJ noted that the relief sought—the invalidation of amendments affecting all residents and the physical restoration of common areas—was more appropriate for a declaratory judgment action in superior court. Such an action would allow for the joinder of all potentially affected property owners, which is not possible in an administrative proceeding.

Adjudication of Attorney’s Fees

The HOA filed an application for attorney’s fees based on Section 11.3 of the CC&Rs. The ALJ denied this application, citing established Arizona case law (Semple v. Tri-City Drywall, Inc.):

• Definition of “Action”: An administrative agency is not characterized as a “court,” and therefore an administrative proceeding does not constitute an “action” for the purposes of statutory fee recovery (A.R.S. § 12-341.01).

• Original Intent: The ALJ found no evidence that the original 1985 Declarant or subsequent voters intended for the fee-shifting provision to apply to administrative tribunals that did not exist at the time of the original recording.

• Strict Interpretation: Because the language of the CC&Rs mirrored statutory language typically applied to court actions, the ALJ inferred it should be interpreted consistently with those statutes, which exclude administrative proceedings.

Final Order

The Administrative Law Judge ordered the following:

1. The Petitioner’s complaint against Voyager at Juniper Ridge Homeowners Association was dismissed.

2. The Respondent HOA’s application for attorney’s fees was denied.

Study Guide: Lawrence M. Wojtowicz v. Voyager at Juniper Ridge Homeowners’ Association

This study guide provides a comprehensive review of the administrative law case involving Lawrence M. Wojtowicz and the Voyager at Juniper Ridge Homeowners’ Association. It explores the history of the planned community’s governing documents, the nature of the legal dispute, and the final decision regarding jurisdiction and attorney’s fees.

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Part I: Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences based on the provided administrative decision.

1. What were the requirements for amending the original 1985 Declaration of Covenants, Conditions and Restrictions (CC&Rs)?

2. How did the 2003 amendments change the voting structure within the planned community?

3. What was the primary legal argument Petitioner Lawrence M. Wojtowicz used to challenge the 2003 CC&R amendments?

4. Why did the HOA President, Sue Fuller, initially request that the Department of Building, Fire and Life Safety dismiss the petition?

5. What specific improvements did Voyager at Juniper Ridge, LLC (the LLC) make to the community after the 2003 auction?

6. According to the Conclusions of Law, what is the definition of a “preponderance of the evidence”?

7. On what grounds did the Administrative Law Judge (ALJ) determine that the Office of Administrative Hearings lacked jurisdiction?

8. What was the outcome of the HOA’s application for attorney’s fees?

9. How did the case Semple v. Tri-City Drywall, Inc. influence the ALJ’s decision regarding legal costs?

10. What alternative legal path did the ALJ suggest for the Petitioner to seek relief against the LLC and Mr. Isaacson?

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Part II: Answer Key

1. Amendment Requirements: The 1985 CC&Rs stated that the provisions would bind the land for 30 years and then automatically extend for 10-year periods. Any amendments during this time required a recorded instrument signed by owners holding at least two-thirds of the outstanding votes.

2. Voting Structure Changes: The 2003 amendments established two classes of membership: Class A for regular owners (one vote per lot) and Class B for the Declarant (ten votes per lot). Class B membership was designed to cease only when the Declarant no longer owned any portion of the property.

3. Petitioner’s Legal Argument: Citing Scholten v. Blackhawk Partners, Wojtowicz argued that the CC&Rs could only be amended at the expiration of the initial term in 2015, making the 2003 changes ineffective. He also challenged whether the LLC was a legitimate successor to the original Declarant, Global Development.

4. HOA Motion to Dismiss: President Sue Fuller argued that the Department lacked jurisdiction because the dispute was clearly between the Petitioner and the LLC/N.E. Isaacson, rather than the Association itself. Under A.R.S. § 41-2198.01(B), the Department does not have the authority to hear disputes between owners and developers regarding the sale or construction of property.

5. Community Improvements: Following the 2003 auction, the LLC invested more than $600,000 to repair and develop common facilities, including the construction of tennis and bocce ball courts. Additionally, approximately $300,000 was spent to complete the development of remaining lots for marketing.

6. Preponderance of the Evidence: This legal standard is defined as proof that convinces the trier of fact that a contention is more probably true than not. It represents the superior evidentiary weight or “greater weight of the evidence” that inclines an impartial mind toward one side of an issue.

7. Jurisdictional Determination: The ALJ found that the dispute concerned the validity of the amendments and the actions of the developer/declarant rather than the application of the CC&Rs by the HOA. Because the statutes exclude disputes between owners and those engaged in the business of constructing or selling property within a community, the OAH had no authority to rule.

8. Attorney’s Fees Outcome: The ALJ denied the HOA’s application for attorney’s fees. The judge concluded that administrative proceedings do not qualify as “actions” under the relevant statutes or the specific language of the community’s CC&Rs.

9. Influence of Semple v. Tri-City Drywall, Inc.: This case established that an administrative agency is not a court and therefore its proceedings are not “actions” for the purpose of awarding attorney’s fees under A.R.S. § 12-341.01. The ALJ applied this precedent to determine that the HOA was not entitled to recover fees despite being the prevailing party.

10. Suggested Alternative Relief: The ALJ noted that the Petitioner could seek a declaratory judgment in superior court. This venue would allow for the joinder of all potentially affected property owners in the planned community, which is necessary for a dispute affecting the rights of all residents.

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Part III: Essay Questions

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

1. The Role of the Declarant: Analyze the transition of Declarant rights from Global Development to Voyager at Juniper Ridge, LLC. Discuss the significance of these rights in the context of the 2003 amendments and the Petitioner’s challenge to the “unbroken chain” of assignment.

2. Jurisdictional Boundaries of the OAH: Evaluate why the Administrative Law Judge determined that the Office of Administrative Hearings was an improper venue for this specific dispute. Compare the statutory limitations of A.R.S. § 41-2198.01(B)(1) and (2) with the Petitioner’s stated “Prayers to the Court.”

3. Contractual Interpretation of “Action”: Discuss the HOA’s argument that the 1985 CC&Rs intended “action” to include administrative proceedings. Contrast this with the ALJ’s reasoning regarding the timeline of the Semple decision and the subsequent amendments to the CC&Rs.

4. The Scholten v. Blackhawk Partners Precedent: Detail how the Scholten case served as the foundation for the Petitioner’s complaint. Explain the LLC’s counter-argument regarding why this case should not be considered controlling authority for the Juniper Ridge community.

5. Equitable Defenses and Property Value: Based on the correspondence from Attorney Rollman, examine the potential consequences of invalidating the 2003 CC&R amendments. Discuss the “equitable defenses” raised regarding the LLC’s financial investments and the potential impact on community property values.

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Part IV: Glossary of Key Terms

Definition

A.R.S. § 41-2198.01

The Arizona Revised Statute that allows property owners in a planned community to petition for a hearing concerning violations of community documents or state statutes.

Administrative Law Judge (ALJ)

A presiding officer who conducts hearings and issues decisions for administrative agencies; in this case, Diane Mihalsky.

Amended and Restated Declaration

A legal document recorded in 2003 that modified the original 1985 CC&Rs, including changes to voting rights and board composition.

Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and operations of a planned community.

Class B Membership

A specific category of membership reserved for the Declarant, granting ten votes for each lot owned, effectively maintaining control over the association.

Common Areas

The shared facilities and land within a planned community, such as tennis courts and bocce ball courts, managed by the HOA.

Declarant

The entity (originally Global Development, later Voyager at Juniper Ridge, LLC) that established the community and holds specific rights to develop and manage it.

Declaratory Judgment

A legal determination by a court that resolves legal uncertainty for the litigants without necessarily awarding damages or ordering specific action.

Office of Administrative Hearings (OAH)

The agency responsible for conducting independent administrative hearings for the state of Arizona.

Petitioner

The party who initiates a legal proceeding or petition; in this case, Lawrence M. Wojtowicz.

Preponderance of the Evidence

The standard of proof in civil and administrative cases, meaning that the evidence shows a fact is more likely true than not.

Respondent

The party against whom a petition or legal action is filed; in this case, the Voyager at Juniper Ridge Homeowners’ Association.

Successor in Interest

A party that takes over the rights and obligations of another party through a legal transfer, such as the purchase of lots and Declarant rights.

Case Summary: Wojtowicz v. Voyager at Juniper Ridge Homeowners’ Association Case No: 07F-H067002-BFS Forum: Office of Administrative Hearings (Arizona) Date: February 21, 2007

Key Facts and Proceedings Petitioner Lawrence M. Wojtowicz filed a complaint against the Voyager at Juniper Ridge Homeowners’ Association (HOA) regarding the validity of amendments made to the community’s Covenants, Conditions and Restrictions (CC&Rs)12. The original CC&Rs, recorded in 1985, contained a provision stating they would bind the land for a term of 30 years3. In 2003, a successor developer, Voyager at Juniper Ridge, LLC (the LLC), acquired the remaining lots and recorded amendments to the CC&Rs which, among other changes, altered voting rights and board composition4….

The Petitioner challenged these amendments, arguing that under the legal precedent Scholten v. Blackhawk Partners, the CC&Rs could not be amended until the initial 30-year term expired in 201528. He sought to invalidate the amendments and restore the community to its 2003 condition9. The dispute was referred to the Office of Administrative Hearings10.

Main Issues and Arguments The primary issues concerned subject matter jurisdiction and the award of attorney’s fees.

1. Motion to Dismiss (Jurisdiction): The HOA and the LLC moved to dismiss the case. They argued that the Department of Building, Fire and Life Safety and the OAH lacked jurisdiction because the dispute was essentially between an owner and a developer regarding the validity of community documents, rather than a violation of existing documents by the HOA1112.

2. Attorney’s Fees: The HOA requested attorney’s fees based on Section 11.3 of the CC&Rs, which allowed the prevailing party to recover fees in any “action arising out of or in connection with this Declaration”1314.

Final Decision and Legal Analysis Administrative Law Judge (ALJ) Diane Mihalsky issued a decision dismissing the complaint and denying the application for attorney’s fees15.

• Dismissal on Jurisdiction: The ALJ granted the motion to dismiss16. During the hearing, the Petitioner admitted his dispute was not actually against the Respondent HOA16. The ALJ found that the Petitioner’s allegations centered on the LLC’s (the developer’s) wrongful amendment of the CC&Rs12. Under A.R.S. § 41-2198.01(B), the administrative body lacks jurisdiction over disputes between owners and developers regarding the design, construction, or sale of property within a planned community1217. The ALJ concluded that the Petitioner’s remedy lay in filing a declaratory judgment action in Superior Court, where all affected parties could be joined17.

• Denial of Attorney’s Fees: The ALJ denied the HOA’s request for fees15. Citing Semple v. Tri-City Drywall, Inc., the ALJ determined that an administrative agency is not a court, and an administrative proceeding does not constitute an “action” under A.R.S. § 12-341.0118. The Judge reasoned that because the CC&Rs borrowed language from the statute, the drafters likely intended the fee provision to apply only to court actions, not administrative hearings19. The HOA failed to provide evidence that the amendments made after Semple was decided intended to expand fee liability to administrative forums20.

Case Participants

Petitioner Side

  • Lawrence M. Wojtowicz (Petitioner)
    Homeowner
    Appeared on his own behalf
  • Dan G. Curtis (attorney)
    Provided legal opinion/expenses incurred by Petitioner
  • Michael J. Brown (attorney)
    Brown and Brown Law Offices, P.C.
    Hired by Petitioner to challenge 2003 amendments
  • Douglas E. Brown (attorney)
    Brown and Brown Law Offices, P.C.
    Hired by Petitioner to challenge 2003 amendments

Respondent Side

  • Tanis A. Duncan (attorney)
    Voyager at Juniper Ridge Homeowners’ Association
  • N.E. Isaacson (managing member)
    Voyager at Juniper Ridge, LLC
    Developer; LLC moved to intervene
  • Sue Fuller (HOA President)
    Voyager at Juniper Ridge Homeowners’ Association
    Attended hearing
  • Richard M. Rollman (attorney)
    Voyager at Juniper Ridge, LLC
    Gabroy, Rollman, & Bossé, P.C.; represented intervening LLC
  • Michael Botwin (attorney)
    Voyager at Juniper Ridge, LLC
    Represented intervening LLC
  • Mr. Fuller (witness)
    Homeowner
    Husband of Sue Fuller; attended hearing

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Robert Barger (Director)
    Department of Fire Building and Life Safety
    Agency Director
  • Joyce Kesterman (agency staff)
    Department of Fire Building and Life Safety
    Agency contact

Other Participants

  • Clifton R. Jessup, Jr. (attorney)
    Patton Boggs, LLP
    Recipient of letter from Dan Curtis in 2003

Hedden, Steven -v- Eagle Mountain Community Association (ROOT)

Posted on by

Case Summary

Case ID 07F-H067010-BFS and 07F-H067011-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2007-02-14
Administrative Law Judge Diane Mihalsky
Outcome The ALJ granted the petition, ruling that under CC&Rs § 11.4, the HOA's failure to issue a written decision within 45 days resulted in the automatic approval of the gate application. The HOA was ordered to approve the gate and refund filing fees. Requests for attorney's fees were denied.
Filing Fees Refunded $1,100.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Steven Hedden Counsel Andrew D. Lynch
Respondent Eagle Mountain Community Association Counsel Beth Mulcahy

Alleged Violations

CC&Rs § 11.4

Outcome Summary

The ALJ granted the petition, ruling that under CC&Rs § 11.4, the HOA's failure to issue a written decision within 45 days resulted in the automatic approval of the gate application. The HOA was ordered to approve the gate and refund filing fees. Requests for attorney's fees were denied.

Key Issues & Findings

Failure to Issue Written Decision Within 45 Days

Petitioners submitted an application for an electronic gate. The DRC tabled the request and failed to issue a formal written decision within 45 days. The CC&Rs state that failure to furnish a written decision within 45 days results in the application being deemed approved.

Orders: Respondent must deem approved the application for the private gate; Respondent must reimburse Petitioners $1,100.00 for filing fees.

Filing fee: $1,100.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&Rs § 11.2
  • CC&Rs § 11.4
  • A.R.S. § 41-2198.01(B)

Video Overview

Audio Overview

Decision Documents

07F-H067010-BFS Decision – 162264.pdf

Uploaded 2026-04-28T10:13:50 (194.0 KB)

Briefing Document: Administrative Law Judge Decision on Shared Driveway Gate Approval

Executive Summary

This document summarizes the administrative legal proceedings and ultimate ruling regarding a dispute between property owners Steven Hedden and Paul Ryan (Petitioners) and the Eagle Mountain Community Association (Respondent/HOA). The central conflict involved the HOA’s denial of the Petitioners’ application to install a private electronic gate on their shared driveway in the Aerie Cliffs subdivision.

While the Administrative Law Judge (ALJ) found that the HOA had substantive grounds to deny the request based on community standards and neighbor opposition, the HOA ultimately lost the case due to a procedural failure. Under the community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs), the Design Review Committee (DRC) is required to furnish a written decision within 45 days of an application. Because the HOA exceeded this timeframe (taking over 70 days), the application was “deemed approved” by law. The HOA was ordered to approve the gate and reimburse the Petitioners for $1,100.00 in filing fees.

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Case Overview and Parties

• Case Numbers: 07F-H067010-BFS and 07F-H067011-BFS (Consolidated).

• Petitioners: Steven Hedden and Paul Ryan, owners of custom lots 14 and 15 in the Aerie Cliffs subdivision of Eagle Mountain.

• Respondent: Eagle Mountain Community Association (the HOA).

• Subject Property: A shared, 300-foot private driveway located off a cul-de-sac. Due to the topography (a small hill), the homes are not visible from the street.

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Governing Regulatory Framework: The CC&Rs

The rights and responsibilities of the parties are governed by the Declaration of Covenants, Conditions, and Restrictions recorded in 1995.

Key CC&R Provisions

Section

Provision

Core Requirement/Authority

Purpose

To maintain uniformity of architectural and landscaping standards to enhance aesthetic and economic value.

Operation

The DRC must consider and act upon proposals. Crucially, if a written decision is not furnished within 45 days, the application is “deemed approved.”

Discretion

The DRC has broad discretionary powers and may disapprove applications for insufficient or inaccurate information.

Waiver

Approval of one plan does not constitute a waiver of the right to withhold approval for similar future plans.

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The Dispute: Arguments for and Against the Gate

Petitioners’ Rationale for Installation

• Security and Trespassing: Petitioners testified that vehicles frequently use the private driveway to turn around or make cell phone calls (due to superior reception at the hill’s crest).

• Safety: Concerns were raised regarding children playing on the driveway, as the hill creates a blind spot for vehicles backing out.

• Property Value: Mr. Ryan, a professional appraiser, estimated the gate would add approximately 3% to property values ($50,000 to $70,000).

• Community Precedent: Petitioners argued that most other custom homes in Eagle Mountain are “double gated,” though they acknowledged those gates are usually at subdivision entrances on common property.

HOA Rationale for Denial

• Lack of Precedent: No other private home in the 580-home community has an automatic gate on a private driveway. Existing secondary gates are at subdivision entrances.

• Aesthetics and Utility: The HOA argued the gate would be an aesthetic detraction and cited potential issues with noise of operation and maintenance.

• Neighbor Opposition: Five neighbors (Lots 12, 6, 8, 9, and 39) opposed the gate, citing concerns over noise and pollution from vehicles idling in the cul-de-sac while waiting for the gate to open.

• Adequate Security: The HOA contended that the two existing 24-hour manned main gates provided sufficient security.

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Chronology of Procedural Failure

The following timeline illustrates the HOA’s failure to adhere to the 45-day “deemed approved” window:

1. May 1, 2006: Petitioners submit the application for the electronic gate.

2. May 10, 2006: DRC tables the request, referring it to the Board.

3. May 17, 2006: Board reviews the request and expresses objections based on neighbor feedback and lack of precedent.

4. June 14, 2006: DRC meets with Petitioners. The application is tabled again to seek neighbor waivers.

5. July 5, 2006: DRC formally votes to disapprove the application. (Day 65 since submission).

6. July 11, 2006: HOA sends a formal written denial to the Petitioners. (Day 71 since submission).

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Findings of Fact and Conclusions of Law

Substantive Merits

The ALJ found that the HOA’s substantive reasons for denial were largely valid. The court noted:

• The Petitioners failed to consult neighbors or demonstrate how the gate enhanced the value of the community as a whole, as required by Section 11.2.

• The HOA’s requirement for a “compelling reason” to approve novel structures was not explicitly in the CC&Rs but aligned with the goal of maintaining uniformity.

The Decisive Procedural Error

Despite the validity of the HOA’s concerns, the ALJ ruled that Section 11.4 is absolute.

• The DRC admitted they did not provide a written decision within 45 days.

• The HOA’s argument that the application was “incomplete” (and thus the clock hadn’t started) was rejected because the HOA never informed the Petitioners in writing that the application was considered incomplete.

• The CC&Rs do not allow the DRC to hold an application in abeyance indefinitely; they must either approve it, deny it on the merits, or deny it for incompleteness within the 45-day window.

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Final Order

The Administrative Law Judge issued the following orders:

1. Application Approval: The Respondent (HOA) must deem the application for the private gate approved due to the expiration of the 45-day limit.

2. Financial Reimbursement: The HOA must pay the Petitioners a total of $1,100.00 to reimburse their filing fees within 40 days of the order.

3. Legal Fees: Petitioners’ request for attorney’s fees was denied, as administrative proceedings do not qualify as an “action” under the relevant Arizona statutes (A.R.S. §§ 33-1807(H) or 12-341.01).

4. Future Precedent: The ALJ noted that this “deemed approved” status, resulting from a procedural error, should not prevent the DRC from denying similar applications in the future under Section 11.7, provided they follow proper timelines.

Case Study: Hedden and Ryan vs. Eagle Mountain Community Association

This study guide examines the administrative law proceedings between homeowners Steven Hedden and Paul Ryan and the Eagle Mountain Community Association regarding architectural approvals and the enforcement of Covenants, Conditions, and Restrictions (CC&Rs).

Part I: Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences based on the provided administrative law judge decision.

1. What was the central issue being adjudicated in this case?

2. According to Section 11.2 of the CC&Rs, what is the primary purpose of the Design Review Committee (DRC)?

3. What is the significance of the “45-day rule” outlined in Section 11.4 of the CC&Rs?

4. What specific safety concerns did the Petitioners provide as a rationale for installing the electronic gate?

5. On what grounds did the neighbors of Lots 14 and 15 object to the proposed gate installation?

6. How did the Respondent distinguish the Petitioners’ proposed gate from existing secondary gates in the community?

7. What did the Petitioners argue regarding the economic impact of the proposed gate?

8. Why did the DRC claim it took more than 70 days to reach a formal decision on the application?

9. Despite finding that the Petitioners failed to prove the gate enhanced community value, why did the Administrative Law Judge rule in their favor?

10. What was the final ruling regarding the payment of attorney’s fees and filing fees?

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Part II: Answer Key

1. What was the central issue being adjudicated in this case? The case addressed whether the Eagle Mountain Community Association (HOA) acted appropriately when it denied a request by homeowners Steven Hedden and Paul Ryan to install a private electronic gate at the entrance of their shared driveway. The Petitioners alleged that the HOA violated specific sections of the community’s CC&Rs during the review and denial process.

2. According to Section 11.2 of the CC&Rs, what is the primary purpose of the Design Review Committee (DRC)? The DRC’s purpose is to maintain uniform architectural and landscaping standards throughout the Eagle Mountain development. By doing so, the committee aims to enhance both the aesthetic and economic value of the community.

3. What is the significance of the “45-day rule” outlined in Section 11.4 of the CC&Rs? Section 11.4 mandates that the DRC must furnish a written decision within 45 calendar days after a complete application is submitted. If the committee fails to provide a written response within this timeframe, the application is automatically “deemed approved.”

4. What specific safety concerns did the Petitioners provide as a rationale for installing the electronic gate? The Petitioners expressed concern for their children and grandchildren playing in the driveway, as the driveway’s crest prevents drivers from seeing the area from the cul-de-sac. They also noted that unauthorized drivers frequently use the private driveway to turn around or make cellular phone calls due to the high elevation.

5. On what grounds did the neighbors of Lots 14 and 15 object to the proposed gate installation? Neighbors opposed the gate based on concerns regarding noise and pollution. Specifically, they feared that vehicles waiting for the electronic gate to open would back up and idle in the common-area cul-de-sac.

6. How did the Respondent distinguish the Petitioners’ proposed gate from existing secondary gates in the community? The HOA argued that existing secondary gates are located on common areas at the entrances to entire subdivisions, whereas the Petitioners’ request was for a private gate on private land. Furthermore, the HOA noted that several other custom home subdivisions in the community, such as Mira Vista, function without secondary gates.

7. What did the Petitioners argue regarding the economic impact of the proposed gate? Petitioner Paul Ryan, a real estate appraiser, testified that a private gate increases privacy and safety, which directly correlates to property value. He estimated that the gate would add approximately 3% to the value of the homes, amounting to an increase of $50,000 for his home and $70,000 for Mr. Hedden’s home.

8. Why did the DRC claim it took more than 70 days to reach a formal decision on the application? The DRC claimed the delay was intended to be “lenient” toward the homeowners by giving them extra time to obtain written waivers from their neighbors. The committee argued that it wanted to perform due diligence on a novel request that would set a community-wide precedent.

9. Despite finding that the Petitioners failed to prove the gate enhanced community value, why did the Administrative Law Judge rule in their favor? The judge ruled that the HOA’s failure to adhere to the procedural requirements of Section 11.4 was the deciding factor. Because the DRC did not issue a written disapproval within 45 days, the application was “deemed approved” by operation of the CC&Rs, regardless of the merits of the gate itself.

10. What was the final ruling regarding the payment of attorney’s fees and filing fees? The judge denied the request for attorney’s fees because an administrative proceeding is not considered an “action” under the relevant Arizona statutes. However, the HOA was ordered to reimburse the Petitioners for their filing fees, totaling $1,100.00.

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Part III: Essay Questions

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

1. Procedural Rigidity vs. Discretionary Power: Analyze the tension between the DRC’s “broad discretionary powers” granted in Section 11.4 and the strict 45-day notification deadline. How does this case demonstrate the potential consequences when a governing body prioritizes deliberations over procedural deadlines?

2. The Definition of Community Value: Section 11.2 of the CC&Rs focuses on enhancing the “aesthetic and economic value” of the community. Evaluate the arguments made by both the Petitioners and the Respondent regarding whether a private gate fulfills or contradicts this mandate.

3. The Role of Neighborhood Consensus: The HOA Board and the DRC placed significant weight on neighbor objections and the lack of written “waivers.” Discuss the extent to which a homeowner’s association should allow neighbor sentiment to influence architectural decisions not explicitly forbidden by the CC&Rs.

4. Custom vs. Tract Home Dynamics: The source context highlights differences in the values, sizes, and architectural rules for custom versus tract homes within Eagle Mountain. Discuss how these distinctions influenced the Petitioners’ expectations and the HOA’s concerns regarding precedent.

5. Contractual Nature of CC&Rs: The Administrative Law Judge noted that by accepting a deed, homeowners enter a “contractual relationship” with the HOA. Explain how the principles of contract interpretation, such as giving words their “ordinary meaning,” dictated the outcome of this specific legal dispute.

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Part IV: Glossary of Key Terms

Definition

A.R.S.

Arizona Revised Statutes; the codified laws of the state of Arizona used to govern administrative and civil proceedings.

Administrative Law Judge (ALJ)

An official who presides over hearings and renders decisions regarding disputes involving government agencies or specific statutory petitions.

Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and limitations for property use within a common interest development.

Common Area

Land or amenities within a development (such as cul-de-sacs or subdivision entrances) owned collectively by the HOA rather than individual homeowners.

Custom Lot

A plot of land within a development designated for a unique, owner-designed home, typically associated with higher property values than tract homes.

Deemed Approved

A legal status where an application is granted automatic approval because the governing body failed to act or respond within a contractually or legally mandated timeframe.

Design Review Committee (DRC)

A specific body within an HOA responsible for reviewing architectural plans to ensure they meet community standards.

Master-Planned Community

A large-scale residential development that is pre-designed with specific subdivisions, amenities, and uniform architectural guidelines.

Precedent

An action or decision that serves as a guide or justification for subsequent cases; in this context, the HOA feared private gates would lead to widespread requests.

Tract Home

A type of housing where multiple similar houses are built on a single tract of land by a developer, often at a lower price point than custom homes.

Waiver

In the context of this case, a written statement from neighbors indicating they do not object to a proposed architectural change.

The 45-Day Rule: How a Ticking Clock Won a Homeowner’s Battle Against Their HOA

In the world of master-planned communities, the tension between individual expression and architectural “uniformity” is a constant battleground. But in the case of Steven Hedden and Paul Ryan vs. Eagle Mountain Community Association, the conflict wasn’t just about aesthetics—it was about a 300-foot shared driveway and a ticking clock that the HOA board simply forgot to watch.

Petitioners Hedden and Ryan owned two adjacent custom homes in the Aerie Cliffs subdivision, valued between $1.6 million and $2.2 million. Their homes sat at the end of a private drive so long and steep that the houses were invisible from the cul-de-sac. Seeking to stop unwanted traffic from using their driveway as a turnaround point and to ensure the safety of their children and grandchildren, they applied for a private electronic gate.

The HOA board fought them every step of the way, citing “community standards” and neighbor objections. However, as an investigative consultant in the HOA space, I see this case as a masterclass in how administrative disarray can strip a board of its power. You can win against an HOA even if they have a valid reason to say “no”—if you catch them sleeping on the procedural requirements of their own governing documents.

The “Compelling Reason” Trap: When Boards Invent Their Own Power

One of the most common “ultra vires” moves—acting beyond one’s legal authority—occurs when an HOA board or Design Review Committee (DRC) invents a standard that doesn’t exist in the CC&Rs. In this case, the Eagle Mountain DRC and Board demanded that the homeowners provide a “compelling reason” for the gate, defined as “something abnormal” about the property.

This was a hurdle designed to give the board maximum gatekeeping power. However, when the case reached the Office of Administrative Hearings, Administrative Law Judge Diane Mihalsky saw right through it.

Homeowners should take note: Boards often use “unwritten rules” to maintain control where the CC&Rs are silent. If your HOA is demanding a “compelling reason” for your modification, they may be stepping outside their legal jurisdiction.

The “Deemed Approved” Clause: The 71-Day Self-Inflicted Wound

The central “smoking gun” in this case wasn’t the design of the gate, but the calendar. Section 11.4 of the Eagle Mountain CC&Rs contains a “deemed approved” clause—a common but frequently ignored provision that acts as a guillotine for slow-moving boards.

The homeowners submitted their application on May 1, 2006. The HOA spent the next two months in a state of internal confusion, shuffling the application between the DRC and the Board. They claimed they were being “lenient” by keeping the application open while the homeowners sought neighbor waivers. But the clock doesn’t stop for “lenience.”

By the time the HOA issued a formal denial on July 11, 71 days had passed. Because the HOA failed to act within the 45-day window, the merits of the gate—whether it caused an “aesthetic detraction” or not—became legally irrelevant. The clock had already ruled.

A Community Divided: Custom Estates vs. Tract Home Standards

This case highlights the friction inherent in mixed-product communities. Eagle Mountain contains 440 tract homes and 140 custom lots spread across subdivisions like Solitude Canyon, Crimson Canyon, and the Estates.

The petitioners argued that “uniformity” (required by Section 11.2) should be measured against other custom lots. They pointed out that almost every other custom lot in the community was “double-gated.” The HOA counter-argued by pointing to the Mira Vista subdivision, which also featured high-value custom homes but remained ungated.

This creates a “uniformity paradox.” The homeowners estimated the gate would add $50,000 to $70,000 in value to their properties. The HOA, perhaps looking at the community through the lens of its more modest tract homes, saw only a “precedent” they were afraid to set.

The “Confidential” Neighbor Strategy Backfires

In an attempt to bolster their denial, the HOA Board cited objections from five specific lots—12, 6, 8, 9, and 39—claiming neighbors feared “noise and pollution” from cars waiting at the gate. However, in a move that reeks of administrative opaqueness, the board refused to identify these neighbors to the petitioners at the time, claiming the identities were “confidential” to avoid feuds.

This lack of transparency is a high-risk gamble. The petitioners couldn’t address concerns they weren’t allowed to see. When an HOA hides behind “confidential” objections while the 45-day procedural clock is running, they lose the ability to use those objections as a defense once the deadline passes.

Administrative Disarray: “Poor Choice of Words” and Reflective Signs

The most damning evidence of the HOA’s failure came from their own internal records. Richard Kloster, Vice President of the Board and DRC member, admitted during testimony that the meeting minutes were often paraphrased and, in one instance, contained a “poor choice of words” regarding whether the homeowners were actually told their application was incomplete (Finding of Fact #24).

Furthermore, the board’s “alternative” to a security gate for these $2 million properties was nothing short of insulting: they recommended “Reflective signs” as a solution for trespassing (Finding of Fact #29). This total lack of understanding of the homeowners’ investment only underscored the board’s arbitrary stance.

The legal nail in the coffin, however, was Conclusion of Law #9 and #10. The judge noted that while the HOA could have disapproved the application for being “incomplete,” they failed to do so in writing within the 45-day window.

Conclusion: The Price of Accountability

Steven Hedden and Paul Ryan won the right to build their gate not because they proved it was an aesthetic masterpiece, but because their HOA failed to follow its own rulebook. The HOA’s desire to “perform due diligence” and “be fair” was actually a cover for administrative lethargy.

This victory cost the homeowners an $1,100 filing fee—a small price to pay for holding a board’s feet to the fire. It serves as a warning to every HOA board in the country: If you expect homeowners to follow the CC&Rs, you must be prepared to follow the clock.

Is your HOA board following the very rules they use to restrict you, or are they hiding behind “compelling reasons” and “confidential” complaints? In the battle between community aesthetics and procedural deadlines, the clock is often the only judge that truly matters.

Case Participants

Petitioner Side

  • Steven Hedden (petitioner)
    Classic Stellar Homes
    Owner of custom lot 15; Executive Vice President of Classic Stellar Homes
  • Paul Ryan (petitioner)
    Owner of custom lot 14; real estate appraiser
  • Andrew D. Lynch (petitioner attorney)
    The Lynch Law Firm, LLC

Respondent Side

  • Beth Mulcahy (respondent attorney)
    Mulcahy Law Firm, PC
  • Richard V. Kloster (board member)
    Eagle Mountain Community Association
    Vice President of Board; DRC member; witness
  • Burt Fischer (board member)
    Eagle Mountain Community Association
    President of Board; witness
  • Elaine Anghel (property manager)
    Eagle Mountain Community Association
    General Manager

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Robert Barger (agency director)
    Department of Fire, Building and Life Safety
    Director receiving copy of decision
  • Joyce Kesterman (agency staff)
    Department of Fire, Building and Life Safety
    Receiving copy of decision

Ryan, Paul -v- Eagle Mountain Community Association

Posted on by

Case Summary

Case ID 07F-H067010-BFS and 07F-H067011-BFS
Agency Department of Fire, Building and Life Safety
Tribunal Office of Administrative Hearings
Decision Date 2007-02-14
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge granted the petition, ruling that the Design Review Committee's failure to issue a written decision within 45 days of the application submission required the application to be deemed approved under CC&Rs § 11.4. The HOA was ordered to approve the gate and refund the petitioners' filing fees.
Filing Fees Refunded $1,100.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Steven Hedden Counsel Andrew D. Lynch
Respondent Eagle Mountain Community Association Counsel Beth Mulcahy

Alleged Violations

CC&Rs § 11.4

Outcome Summary

The Administrative Law Judge granted the petition, ruling that the Design Review Committee's failure to issue a written decision within 45 days of the application submission required the application to be deemed approved under CC&Rs § 11.4. The HOA was ordered to approve the gate and refund the petitioners' filing fees.

Why this result: The Respondent failed to comply with the strict 45-day deadline in the CC&Rs to issue a written decision or explicitly deem the application incomplete in writing.

Key Issues & Findings

Failure to issue timely decision on architectural application

Petitioners submitted an application for a private electronic gate. The HOA Design Review Committee tabled the application and failed to issue a written decision within the 45-day timeframe mandated by the CC&Rs, resulting in a 'deemed approved' status.

Orders: Respondent is ordered to deem approved the application for the private gate at the end of Petitioners' shared driveway and reimburse $1,100.00 in filing fees.

Filing fee: $1,100.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&Rs § 11.2
  • CC&Rs § 11.4
  • A.R.S. § 41-2198.01(B)

Video Overview

Audio Overview

Decision Documents

07F-H067011-BFS Decision – 162264.pdf

Uploaded 2026-04-24T04:43:40 (191.5 KB)

Administrative Law Judge Decision: Hedden and Ryan v. Eagle Mountain Community Association

Executive Summary

This document synthesizes the findings and legal conclusions from the consolidated administrative hearing between Petitioners Steven Hedden and Paul Ryan and the Eagle Mountain Community Association (the HOA). The central dispute concerned the HOA’s denial of the Petitioners’ application to install an electronic gate at the entrance of their shared private driveway.

While the Administrative Law Judge (ALJ) found that the Petitioners failed to prove the gate would enhance the community’s overall aesthetic or economic value, the HOA was ultimately ordered to approve the application. This decision rested on a procedural failure: the HOA’s Design Review Committee (DRC) violated Article 11, Section 11.4 of the Covenants, Conditions, and Restrictions (CC&Rs) by failing to provide a written decision within the mandated 45-day window. Consequently, the application was “deemed approved” by operation of law.

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Case Overview and Community Context

The dispute took place within the Eagle Mountain Community, a master-planned development in Fountain Hills consisting of 580 homes (140 custom and 440 tract homes).

Property Specifications

• Subdivision: Aerie Cliffs, which contains 17 tract homes and three custom homes.

• The Lots: Petitioners own Lots 14 and 15, which are custom homes sharing an approximately 300-foot-long driveway off a cul-de-sac.

• Geography: The driveway traverses a small hill, rendering the homes invisible from the cul-de-sac and vice versa.

Governance Framework

The community is governed by a Declaration of CC&Rs recorded in 1995. Architectural and landscaping standards are overseen by the Design Review Committee (DRC), which has the authority to approve or disapprove proposals to maintain community uniformity and value.

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The Dispute: Proposed Private Electronic Gate

On May 1, 2006, the Petitioners submitted an application for a “Driveway Renovation” to install a 22-foot-wide electronic gate at the entrance of their shared driveway.

Arguments for Approval (Petitioners)

• Security and Trespassing: Petitioners reported issues with unauthorized vehicles using the long driveway to turn around or to gain better cellular reception at the crest of the hill.

• Safety: Concerns were raised regarding children playing on the driveway, as visibility is obstructed by the hill.

• Property Value: Petitioners, one of whom is a master appraiser, estimated the gate would add 3% to their home values (approximately $50,000 to $70,000).

• Precedent for Custom Homes: Petitioners argued that nearly all other custom homes in Eagle Mountain are “double-gated” (accessed through a secondary subdivision gate), whereas Aerie Cliffs lacks such a feature.

Arguments for Denial (Respondent HOA)

• Lack of Precedent: No other home in the 580-unit community has a private electronic gate on a driveway; all existing secondary gates are located on common areas at subdivision entrances.

• Neighbor Opposition: Several neighbors objected to the gate, citing concerns over noise, pollution, and traffic backups in the cul-de-sac.

• Adequate Security: The HOA contended that the two main 24-hour manned gates for the entire community provided sufficient security.

• Aesthetics: The HOA argued the gate was an “esthetic detraction” and that no “compelling reason” (such as a unique property abnormality) existed to justify the installation.

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Procedural Timeline and Delays

A critical factor in the ruling was the timeline of the DRC’s review process, which exceeded the 45-day limit established in the CC&Rs.

May 1, 2006

Petitioners submit the architectural application.

May 10, 2006

DRC tables the application and refers it to the HOA Board.

May 17, 2006

HOA Board reviews the request and refers it back to the DRC.

May 18, 2006

General Manager informs Petitioners approval is “highly unlikely.”

June 14, 2006

DRC meets with Petitioners; application is tabled again to seek neighbor waivers.

July 5, 2006

DRC formally votes to disapprove the application.

July 11, 2006

Formal written denial is sent to the Petitioners (71 days after submission).

July 26, 2006

HOA Board denies the Petitioners’ appeal.

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Legal Analysis and Conclusions of Law

Interpretation of the CC&Rs

The ALJ examined two primary sections of the CC&Rs to determine the outcome:

1. Section 11.2 (Purpose): The DRC’s role is to maintain uniformity and enhance aesthetic/economic value. The ALJ concluded that the Petitioners failed to show the gate would enhance the value of the community as a whole, rather than just their own properties. Petitioners also failed to consult neighbors, which contradicted the goal of community enhancement.

2. Section 11.4 (Operation/Authority): This section contains a strict procedural requirement: “If a Design Review Committee fails to furnish a written decision within 45 calendar days after a complete application has been submitted… the application… shall be deemed approved.”

The “Compelling Reason” Standard

The HOA argued that Petitioners needed a “compelling reason” for the gate. The ALJ found that the CC&Rs contain no such requirement. While the HOA has broad discretionary power, they cannot impose standards not supported by the language of the restrictive covenants.

The Procedural Default

The HOA admitted that the review process took over 70 days. The HOA’s defense was that they were being “lenient” by holding the application open to allow Petitioners to gather neighbor support. However, the ALJ ruled that the CC&Rs do not allow the DRC to hold an application in abeyance indefinitely. If the DRC deemed the application incomplete, it was required to disapprove it in writing within the 45-day window.

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Final Order

The Administrative Law Judge ruled in favor of the Petitioners based solely on the procedural violation of Section 11.4.

• Application Approval: The HOA is ordered to deem the application for the private electronic gate approved.

• Reimbursement of Fees: The Respondent HOA must reimburse each Petitioner for their $550.00 filing fee, totaling $1,100.00.

• Attorneys’ Fees: The request for attorneys’ fees was denied, as administrative proceedings do not qualify as “actions” under the relevant Arizona statutes (A.R.S. §§ 33-1807(H) or 12-341.01).

• Precedent: The ALJ noted that this “deemed approved” status, resulting from a procedural error, does not prevent the DRC from disapproving similar future applications on their merits, provided they adhere to the 45-day timeline (pursuant to Section 11.7).

Study Guide: Hedden and Ryan vs. Eagle Mountain Community Association

This study guide provides a comprehensive review of the administrative law case between homeowners Steven Hedden and Paul Ryan and the Eagle Mountain Community Association. It focuses on the application of Covenants, Conditions, and Restrictions (CC&Rs) and the procedural requirements of homeowner association (HOA) governance.

Understanding the Dispute: Short-Answer Quiz

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

1. What was the core request submitted by Steven Hedden and Paul Ryan to the Design Review Committee (DRC)?

2. According to Section 11.4 of the CC&Rs, what is the consequence if the DRC fails to provide a written decision within 45 days?

3. How did the DRC justify its use of the “compelling reason” standard when evaluating the Petitioners’ application?

4. What was the specific physical justification provided by the Petitioners for needing a gate on their shared driveway?

5. Why did the HOA Board of Directors initially object to the placement of the electronic gate?

6. What distinction did the source make between the locations of existing secondary gates in Eagle Mountain versus the gate proposed by the Petitioners?

7. How did the DRC view the potential approval of a private gate in terms of future community standards?

8. What was the Administrative Law Judge’s (ALJ) finding regarding the DRC’s claim that the application was “incomplete”?

9. Why were the Petitioners’ requests for attorney’s fees denied despite their victory in the case?

10. What was the final order issued by the Administrative Law Judge regarding the gate application and filing fees?

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Answer Key

1. The Petitioners requested approval to install a private electronic gate at the entrance of their shared driveway, which served two custom homes in the Aerie Cliffs subdivision. They intended the gate to match the aesthetic of existing gates in the Crimson Canyon development while complying with all safety and utility requirements.

2. Section 11.4 states that if the DRC fails to furnish a written decision within 45 calendar days after a complete application is submitted, the application is “deemed approved.” This clause serves as a procedural deadline to ensure the committee acts timely on homeowner proposals.

3. The DRC argued that a “compelling reason,” defined as something “abnormal” about a property, was necessary for granting applications for novel or unusual requests that might set a community precedent. However, the ALJ noted that the CC&Rs do not actually contain a legal requirement for a “compelling reason” to approve a departure from original plans.

4. The Petitioners cited safety concerns, noting that their 300-foot driveway goes over a hill, making it impossible to see children playing from the cul-de-sac. They also reported that strangers frequently used the driveway to turn around or to seek better cellular phone reception, creating trespassing and security issues.

5. The HOA Board objected primarily because several neighbors in the cul-de-sac expressed opposition to the gate, citing concerns over noise and vehicle idling. Additionally, the Board felt there was no “compelling reason” for the installation, as the community already had two manned security gates.

6. The evidence showed that all other secondary gates in Eagle Mountain were constructed on common areas at the entrances to entire subdivisions. In contrast, the Petitioners proposed a private gate on a shared driveway located on private land for the exclusive use of two specific lots.

7. The DRC was concerned that approving a private gate would set a precedent, potentially leading to a proliferation of private gates throughout the community. They believed this would deviate from the existing architectural uniformity where no other private automatic gates existed on individual driveways.

8. The ALJ found that while the DRC claimed the application was incomplete because neighbor “waivers” were missing, the committee never informed the Petitioners of this in writing. Furthermore, the DRC eventually voted to deny the application on its merits on July 5, 2006, undermining the argument that the application was too incomplete to act upon.

9. The ALJ ruled that an administrative proceeding does not qualify as an “action” under Arizona statutes that allow for the awarding of attorney’s fees. Therefore, while the Petitioners prevailed on the merits of the case, they were legally ineligible to recover their legal costs.

10. The ALJ ordered the Respondent HOA to deem the gate application approved because they failed to meet the 45-day written response deadline. Additionally, the HOA was ordered to reimburse the Petitioners for their filing fees, totaling $1,100.00.

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Essay Questions

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

1. Procedural vs. Substantive Compliance: Discuss how the “deemed approved” status in Section 11.4 functioned as a “trap” for the HOA. Even if the DRC had valid substantive reasons for denial (such as neighbor opposition or aesthetic uniformity), how did their procedural delays invalidate their decision?

2. The Interpretation of “Uniformity”: Analyze the Petitioners’ argument that the gate would maintain uniformity because other custom homes in Eagle Mountain are “double gated.” Contrast this with the HOA’s argument that uniformity meant no private gates on individual driveways.

3. The Rights of the Individual vs. the Community: Using the testimony regarding neighbor objections and “confidentiality,” evaluate the DRC’s duty to balance the desires of an individual lot owner with the concerns of the surrounding neighbors.

4. The Role of Developer Precedent: Explore the testimony of Mr. Hedden regarding Classic Stellar Homes and why certain subdivisions (like Aerie Cliffs) were not originally gated. How did the developer’s original intent influence the HOA’s later refusal to allow private gates?

5. Evidence of Value: Compare and contrast the Petitioners’ claims regarding the economic value added by the gate (approximately 3% or 50,000–70,000) with the DRC’s purpose under Section 11.2 to “enhance the aesthetic and economic value” of the community as a whole.

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Glossary of Key Terms

Definition

Aerie Cliffs

A subdivision within Eagle Mountain consisting of seventeen tract homes and three custom homes, where the Petitioners’ properties are located.

A.R.S. § 41-2198.01(B)

The Arizona Revised Statute under which the Petitioners filed their Petitions for Relief to the Department of Fire, Building & Life Safety.

Declaration of Covenants, Conditions, and Restrictions; the legal document that outlines the rules and architectural standards for the community.

Custom Home

Generally larger, more expensive homes (in this context, valued between $1.6M and $2.2M) that often have different DRC approval rules than tract homes.

Deemed Approved

A legal status where an application is automatically granted because the governing body (DRC) failed to issue a decision within the contractually mandated timeframe.

Design Review Committee (DRC)

The body responsible for maintaining architectural and landscaping standards and reviewing homeowner applications for property modifications.

Double Gated

A term used to describe homes that require passing through both a primary community gate and a secondary subdivision gate.

Precedent

A decision or action that serves as a guide or justification for subsequent cases; the HOA feared approving one gate would require them to approve others.

Tract Home

Standardized homes built in large numbers by a developer (in this context, typically smaller and valued lower than custom homes).

Waiver (Neighbor)

A written statement from potentially affected neighbors indicating they do not object to a proposed architectural change.

When Bureaucracy Backfires: 4 Lessons from a Shared Driveway Showdown

1. The High-Stakes Gatekeeping of Eagle Mountain

Eagle Mountain, a premier master-planned community in Fountain Hills, Arizona, is a study in architectural prestige. With 580 residences—ranging from tract homes to multi-million dollar custom estates—the community’s aesthetic integrity is guarded by a Design Review Committee (DRC) and a Board of Directors. For homeowners Steven Hedden and Paul Ryan, the residents of two custom homes on a shared 300-foot driveway in the Aerie Cliffs subdivision, a private electronic gate was a logical upgrade for security and privacy.

However, their request triggered a classic administrative standoff. The HOA viewed the gate as a threat to community uniformity, while the homeowners viewed it as an essential component of their property’s “custom” status. As a Senior Legal Analyst, I see this case not merely as a dispute over wrought iron and motors, but as a masterclass in how fiduciary negligence and a lack of procedural due process can strip a board of its discretionary power. In this multi-million dollar dispute, the final verdict didn’t hinge on the gate’s design, but on a simple, ticking clock.

2. The 71-Day Failure: The “Deemed Approved” Trap

The most impactful takeaway from the Eagle Mountain dispute is the absolute supremacy of procedural deadlines over aesthetic preferences. Under the community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs), the DRC is not merely encouraged to be prompt; they are legally bound by a “deemed approved” clause.

Section 11.4 of the CC&Rs states:

Hedden and Ryan submitted their application on May 1, 2006. The DRC and Board engaged in a series of internal referrals, “tabling” the matter to seek neighbor input and debating the “precedent” a gate might set. By the time a formal written denial was issued on July 11, 2006, 71 days had elapsed.

By overshooting their deadline by 26 days, the HOA fell victim to administrative estoppel. Strategically, the Board’s attempt to be “lenient” by holding the application open was their undoing. In community governance, a board must understand that process must always precede politeness. If an application is incomplete or controversial, the Board should issue a formal denial “without prejudice” to stop the clock, rather than tabling the motion into a legal forfeit.

3. The Myth of the “Compelling Reason”

During the review, the DRC applied a standard that was nowhere to be found in the CC&Rs: the “compelling reason” requirement. The Board testified that for a novel request like a private gate, they required “something abnormal about the property” to justify approval.

The Administrative Law Judge (ALJ) identified this as a critical error. The HOA had essentially invented an arbitrary standard, attempting to enforce “Board culture” as if it were codified law. For governance strategists, this is a glaring red flag. When a board applies unwritten rules, they invite litigation.

Strategic Advice for Boards: Conduct regular “document audits.” If your Board requires “compelling reasons” or “abnormal circumstances” for certain approvals, these standards must be formally adopted as Supplemental Design Guidelines. Without codification, these requirements are legally flimsiness and unenforceable in a challenge.

4. Uniformity vs. Economic Value: The “Custom” Conflict

The HOA’s primary defense was rooted in Section 11.2, which tasks the DRC with maintaining “uniformity” to protect the community’s aesthetic. They argued that because no other private driveway in the 580-home community had an automatic gate, approving one would be a “slippery slope.”

The homeowners countered by highlighting the specific geography of Eagle Mountain. As owners of high-end custom homes, they pointed out that they were surrounded by other custom subdivisions—specifically Crimson Canyon, Solitude Canyon, and the Estates—where “double-gating” (a secondary gate beyond the main community entrance) was the standard. Petitioner Paul Ryan, a master real estate appraiser, argued the gate would add $50,000 to $70,000 in market value.

The conflict here is between rigid uniformity and the protection of economic value. While the ALJ noted the petitioners failed to prove the gate benefited the entire community, the point became moot. The HOA’s failure to act within the 45-day window meant they lost the right to even argue the merits of uniformity.

5. The Anonymity Trap: Why Hidden Objections Paralyze Progress

The HOA attempted to justify its delay by citing “affected neighbors.” The Board claimed five neighbors (specifically from Lots 12, 6, 8, 9, and 39) opposed the gate due to concerns over noise and traffic. However, the Board refused to identify these neighbors to the petitioners to avoid “inciting feuds.”

This lack of transparency created a procedural deadlock. The DRC asked the petitioners to seek “waivers” from neighbors whose identities they were simultaneously concealing. This is the “Anonymity Trap.” By shielding the neighbors, the Board prevented the petitioners from addressing the specific objections (noise and pollution), which led the DRC to further delay their decision. That very delay—intended to be “fair” to the objecting neighbors—triggered the 45-day approval clause, effectively silencing those neighbors’ concerns forever.

Conclusion: The Cost of a Missed Deadline

The ALJ’s order was absolute: the HOA was forced to deem the gate application approved and reimburse the homeowners for $1,100 in filing fees. The Board spent months debating the definition of “uniformity” and the fears of neighbors, only to lose the case on a clerical failure.

However, there is a silver lining for the HOA. Under CC&R Section 11.7 (the Waiver clause), the ALJ noted that this specific “deemed approved” victory does not create a binding precedent for the rest of the community. The HOA preserved its right to deny gates to other homeowners in the future—provided they actually watch the clock next time.

In the world of community law, the lesson is clear: it is not enough for a board to be right in its aesthetics; it must be disciplined in its administration.

Does your community’s board have the administrative discipline to survive the “ticking clock” hidden within your own governing documents?

Case Participants

Petitioner Side

  • Steven Hedden (Petitioner)
    Classic Stellar Homes
    Owner of Lot 15; Executive Vice President of Classic Stellar Homes
  • Paul Ryan (Petitioner)
    Owner of Lot 14; Real estate appraiser
  • Andrew D. Lynch (attorney)
    The Lynch Law Firm, LLC

Respondent Side

  • Beth Mulcahy (attorney)
    Mulcahy Law Firm, PC
  • Richard V. Kloster (board member)
    Eagle Mountain Community Association
    Vice President of HOA Board; DRC member; Witness
  • Burt Fischer (board member)
    Eagle Mountain Community Association
    President of HOA Board; Witness
  • Elaine Anghel (General Manager)
    Eagle Mountain Community Association

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Robert Barger (Director)
    Department of Fire Building and Life Safety
    Recipient of order
  • Joyce Kesterman (agency staff)
    Department of Fire Building and Life Safety
    Recipient of order

Ketchum, Scott R. -v- Sam Marcos Manor Homeowners Association

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Case Summary

Case ID 07F-H067005-BFS
Agency Department of Fire, Building, and Life Safety
Tribunal OAH
Decision Date 2007-01-30
Administrative Law Judge Diane Mihalsky
Outcome The ALJ granted the petition, finding that the HOA's refusal to exercise discretion to consider the play structure application (unless lowered to 6 feet) was arbitrary and capricious, as neither the CC&Rs nor Architectural Guidelines contained an absolute prohibition on structures exceeding wall height. The HOA was ordered to process the application properly.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Scott R. Ketchum Counsel —
Respondent San Marcos Manor Homeowners Association Counsel Kristen L. Rosenbeck

Alleged Violations

CC&Rs Section 3.1, Section 7.7; Architectural Guidelines

Outcome Summary

The ALJ granted the petition, finding that the HOA's refusal to exercise discretion to consider the play structure application (unless lowered to 6 feet) was arbitrary and capricious, as neither the CC&Rs nor Architectural Guidelines contained an absolute prohibition on structures exceeding wall height. The HOA was ordered to process the application properly.

Key Issues & Findings

Arbitrary denial of architectural approval for play structure

The Homeowner installed a 13.5' play structure. The HOA denied approval and refused to exercise discretion to consider the application, citing a 6' wall height limit not explicitly contained in the CC&Rs or Guidelines as an absolute prohibition.

Orders: Respondent is ordered to exercise its discretion under the CC&Rs and Architectural Guidelines to consider Petitioner's request for approval; Respondent must refund the filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&Rs Section 1.14
  • CC&Rs Section 3.1
  • CC&Rs Section 7.7
  • Architectural Guidelines (Feb 2001 and April 2006)

Video Overview

Audio Overview

Decision Documents

07F-H067005-BFS Decision – 160975.pdf

Uploaded 2026-04-30T08:08:33 (276.6 KB)

Administrative Law Judge Decision: Ketchum v. San Marcos Manor Homeowners Association

Executive Summary

This briefing document summarizes the administrative law proceedings and final decision in the matter of Scott R. Ketchum v. San Marcos Manor Homeowners Association (No. 07F-H067005-BFS). The central conflict involved the HOA’s denial of a 13.5-foot-high backyard play structure and the subsequent imposition of escalating fines.

The Administrative Law Judge (ALJ) determined that while the petitioner was bound by the community’s Covenants, Conditions, and Restrictions (CC&Rs) and required to seek approval for the structure, the HOA acted in an arbitrary and capricious manner. The HOA’s Architectural Committee and Board refused to exercise their discretion, effectively enforcing a categorical height prohibition that did not exist in the governing documents. Consequently, the ALJ ordered the HOA to reconsider the petitioner’s request using proper discretion and to reimburse the petitioner’s filing fees.

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1. Legal and Regulatory Framework

The dispute was governed by the community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) and subsequent Architectural Guidelines.

1.1 Key CC&R Provisions

• Section 1.14 (Improvements): Defines “Improvement” broadly to include buildings, fences, walls, and “all other structures.”

• Section 1.24 (Visibility): Defines “Visible from Neighboring Property” as an object visible to a person six feet tall standing on neighboring property at an elevation no greater than the base of the object.

• Section 3.1 & 3.2: Establishes the Architectural Committee’s authority to adopt rules and standards. It grants the Board the final decision on appeals.

• Section 7.7: Prohibits any improvement or alteration that changes the exterior appearance of a property without prior written approval from the Architectural Committee.

• Section 13.10: Stipulates that by accepting a deed, owners are bound by all provisions, restrictions, and rules of the Association.

1.2 Architectural Guidelines (2001 vs. 2006)

The guidelines evolved during the period of dispute, specifically regarding rear yard improvements:

Feature

February 2001 Guidelines

April 2006 Guidelines

Approval Requirement

Not required for items under 6 feet.

Required for items exceeding wall height.

Playground Equipment

Specifically listed as an example of an item under 6 feet not requiring approval.

Removed from the list of examples under wall height.

General Principle

Discretion of homeowner unless it impacts adjacent property.

Committee approval required for anything exceeding wall height.

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2. Chronology of the Dispute

The conflict began shortly after Scott R. Ketchum purchased his residence in April 2005.

• November 2005: The petitioner installed a “Rainbow Play System” in his backyard. The structure measured 17 feet long, 14.5 feet deep, and 13.5 feet high.

• December 2005: The HOA notified the petitioner that the playset was an unapproved architectural change.

• January – February 2006: The petitioner formally requested approval. The Architectural Committee denied the request, stating that “structures cannot be higher than wall height” (6 feet).

• April – May 2006: The petitioner appealed to the Board, citing that no absolute prohibition on height existed in the CC&Rs. The Board denied the appeal, maintaining the wall-height requirement.

• June 2006: The HOA began a formal fining process. The petitioner offered to add tree screening, but the HOA continued enforcement.

• August 2006: The HOA offered a compromise to allow the structure if it were lowered to within 18 inches of the wall height. The petitioner refused.

• October 2006: The petitioner filed a petition for a hearing with the Arizona Department of Fire, Building, and Life Safety.

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3. HOA Fine Policy and Accrued Costs

The HOA enforced a “Fine Policy Resolution” adopted in April 2006. The escalating fine schedule for the play structure was as follows:

• Initial Notices: Courtesy and Second notices (warnings).

• Third Notice: $25.00 fine.

• Fourth Notice: $50.00 fine.

• Continuing Violations: $100.00 assessed every seven days.

By the time of the hearing on January 11, 2007, the total financial impact claimed by the HOA included:

• Accrued Fines: $2,161.04.

• Attorney’s Fees: $2,651.43.

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4. Evidence and Testimony

4.1 Petitioner’s Arguments

• Oral Assurances: The petitioner testified that the former Community Manager, Dodi Gorski, told him the HOA did not care what was in the backyard as long as neighbors approved.

• Neighbor Support: The petitioner provided letters from neighbors stating the playset did not obstruct their views and was acceptable to them.

• Expert Testimony: Larry Paprocki, an HOA expert, testified that the HOA cannot categorically prohibit improvements higher than 6 feet without amending the CC&Rs. He argued that the absence of written standards for height meant the HOA was creating unwritten rules “as the situation arises.”

4.2 Respondent’s Arguments

• Consistency: The HOA provided records showing they had consistently denied play structure requests exceeding 6 feet for other members since 2000.

• Aesthetics: Photos showed the 13.5-foot structure was more than twice the height of the perimeter fence and was visible from multiple vantage points, featuring redwood and colored canvas that contrasted with the stucco and beige tones of the community.

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5. Conclusions of Law and Final Order

5.1 Judicial Findings

The ALJ reached the following legal conclusions:

1. Contractual Obligation: The petitioner was legally bound by the CC&Rs and was required to seek approval for the structure as it constituted an “improvement.”

2. Unreasonable Reliance: The petitioner’s claim of oral approval from the former manager was deemed unreasonable as it contradicted the plain language of the CC&Rs requiring written approval.

3. Arbitrary and Capricious Conduct: While the HOA had the right to review the structure, its refusal to consider any structure over 6 feet was a failure to exercise discretion. The ALJ noted that neither the CC&Rs nor the Guidelines “absolutely prohibited improvements higher than 6’.”

4. Improper Compromise: The HOA’s later offer to allow a height within 18 inches of the wall was not supported by any specific provision in the CC&Rs or Guidelines.

5.2 The Order

The ALJ issued the following mandates:

• Granting of Petition: The HOA was ordered to exercise its discretion and properly consider the petitioner’s request for approval based on factors such as style, color, and compatibility, rather than an arbitrary height limit.

• Reimbursement: The HOA was ordered to pay the petitioner his filing fee.

• Denial of Fines and Fees: The HOA’s request for accrued fines and attorney’s fees was denied. The ALJ ruled that an administrative proceeding does not constitute an “action” that allows for the awarding of attorney’s fees under Arizona law.

Case Study Analysis: Ketchum v. San Marcos Manor Homeowners Association

This study guide provides a comprehensive review of the administrative law case Scott R. Ketchum v. San Marcos Manor Homeowners Association (No. 07F-H067005-BFS). It examines the legal standards, contractual obligations, and procedural disputes involving architectural control within a master-planned community.

Short-Answer Quiz

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

1. How do the CC&Rs define an “Improvement” in the context of San Marcos Manor?

2. What is the specific legal definition of “Visible from Neighboring Property” according to Section 1.24 of the CC&Rs?

3. What were the specific dimensions of the “Rainbow Play System” that Scott Ketchum sought to have approved?

4. What was the basis for the Architectural Committee’s denial of Ketchum’s play structure in January 2006?

5. According to the April 2006 Fine Policy Resolution, what are the steps and monetary penalties for a continuing violation?

6. Why did the Administrative Law Judge (ALJ) determine that Ketchum’s reliance on Dodi Gorski’s alleged oral assurances was not reasonable?

7. What evidence did the HOA provide to demonstrate it had consistently enforced a height restriction on play structures in the past?

8. On what grounds did the ALJ find the HOA Board’s refusal to exercise discretion “arbitrary and capricious”?

9. Why was the HOA’s request for attorney’s fees denied by the Administrative Law Judge?

10. What was the final Order issued by the Administrative Law Judge regarding the play structure?

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Answer Key

1. How do the CC&Rs define an “Improvement” in the context of San Marcos Manor? According to Section 1.14, an “Improvement” includes buildings, roads, driveways, parking areas, fences, walls, rocks, hedges, plantings, and all other structures or landscaping of every type and kind. This broad definition encompasses the play structure at the center of the dispute.

2. What is the specific legal definition of “Visible from Neighboring Property” according to Section 1.24 of the CC&Rs? It means an object is or would be visible to a person six feet tall standing on any part of a neighboring property. This visibility is determined from an elevation no greater than the elevation of the base of the object being viewed.

3. What were the specific dimensions of the “Rainbow Play System” that Scott Ketchum sought to have approved? The schematic diagram provided by Ketchum showed the play system was 17 feet long and 14.5 feet deep. Most significantly, the structure reached a height of 13.5 feet, more than double the height of the six-foot perimeter wall.

4. What was the basis for the Architectural Committee’s denial of Ketchum’s play structure in January 2006? The Committee denied the request because the structure was visible over the perimeter wall. They stated that the Association consistently held to a standard where structures could not be higher than the wall height, and the play structure would need to be modified to meet this requirement.

5. According to the April 2006 Fine Policy Resolution, what are the steps and monetary penalties for a continuing violation? The policy begins with a Courtesy Notice, followed by a Second Notice with a warning, and a Third Notice with a $25 fine. If the violation continues, a Fourth Notice carries a $50 fine, followed by $100 fines assessed every seven days until the violation is resolved.

6. Why did the Administrative Law Judge (ALJ) determine that Ketchum’s reliance on Dodi Gorski’s alleged oral assurances was not reasonable? The ALJ ruled that any oral approval would have contradicted the plain language of the CC&Rs and Architectural Guidelines requiring written submission. Furthermore, such oral assurances were inconsistent with the established course of dealing between Ketchum and the HOA regarding previous architectural approvals.

7. What evidence did the HOA provide to demonstrate it had consistently enforced a height restriction on play structures in the past? The HOA admitted records of three previous requests (Smolkavski, Hack, and Burns) for play sets exceeding six feet, all of which were denied or required modifications. In the Burns case, the HOA even employed legal counsel to demand the removal of an unapproved structure.

8. On what grounds did the ALJ find the HOA Board’s refusal to exercise discretion “arbitrary and capricious”? The ALJ found that neither the CC&Rs nor the Guidelines absolutely prohibited structures higher than six feet; they merely required approval for them. Because the Board refused to even consider the application unless the structure was lowered to a height that required no approval at all, they failed to actually exercise the discretion granted to them.

9. Why was the HOA’s request for attorney’s fees denied by the Administrative Law Judge? The ALJ determined that the HOA was not the prevailing party and that an administrative proceeding does not constitute an “action” under Arizona law for the purpose of awarding attorney’s fees. Additionally, the HOA had not filed a petition for affirmative relief or paid the necessary filing fees to pursue such a claim.

10. What was the final Order issued by the Administrative Law Judge regarding the play structure? The ALJ granted Ketchum’s petition and ordered the HOA to exercise its discretion to properly consider the request for approval based on factors like style and compatibility. The HOA was also ordered to reimburse Ketchum for his administrative filing fee, while all other requests for relief were denied.

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Essay Questions

1. Discretion vs. Prohibition: Analyze the distinction the Administrative Law Judge made between an HOA’s right to require approval for a structure and an HOA’s categorical prohibition of that structure. How did the Board’s “wall-height” standard conflict with the discretionary language of the CC&Rs?

2. Contractual Obligations in Master-Planned Communities: Discuss the legal weight of CC&Rs as a contract between a homeowner and an Association. Using the Ketchum case, explain how the acceptance of a deed binds an owner to these restrictions and what limits exist on the Association’s power to enforce them.

3. The Role of Procedural Fairness: Examine the HOA’s fine and notification process. To what extent did the HOA follow its own “Fine Policy Resolution,” and how did the timeline of these notices impact the legal standing of both parties during the hearing?

4. Architectural Guidelines Evolution: Compare and contrast the February 2001 Architectural Guidelines with the April 2006 revision. Discuss how the removal of “Playground equipment” as an example of an item not requiring approval (if under six feet) influenced the arguments regarding notice and standards.

5. Estoppel and Agency: Evaluate the argument of “estoppel” regarding the oral statements made by the Community Manager. Why is it difficult for a homeowner to claim they relied on oral advice when written CC&Rs and Guidelines are in place?

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Glossary of Key Terms

• Administrative Law Judge (ALJ): A professional presiding officer who hears evidence and makes decisions in disputes involving government agencies or specific statutory petitions.

• Arbitrary and Capricious: A legal standard used to describe a decision made without adequate consideration of the facts, or a failure to exercise honest judgment or discretion.

• Architectural Committee: A body established by the HOA Board to review and approve or deny changes to the exterior appearance of properties within the community.

• Covenants, Conditions, and Restrictions (CC&Rs): A recorded legal document that sets out the rules and restrictions for a planned community, which are binding on all property owners.

• Declarant: The developer or entity that originally established the community and recorded the CC&Rs.

• Estoppel: A legal principle that prevents a party from arguing something or asserting a right that contradicts what they previously said or agreed to by law.

• Improvement: Broadly defined in this case to include any building, structure, wall, or landscaping that alters the exterior appearance of a property.

• Preponderance of the Evidence: The burden of proof in civil and administrative cases, requiring that a fact is “more probably true than not.”

• Remand: To send a case or a specific issue back to a lower tribunal or committee (in this case, the Architectural Committee) for further action.

• Visible from Neighboring Property: A standard of visibility based on a six-foot-tall person standing at a neighboring property’s elevation.| Item | Height/Standard | Status | | :— | :— | :— | | Perimeter Wall | 6 Feet | Baseline for approval | | Ketchum Play System | 13.5 Feet | Denied/Remanded | | Items under 6 feet | < 6 Feet | No approval required | | HOA Proposed Compromise | Within 18 inches of wall | Refused by Petitioner |

Beyond the Backyard Battle: 5 Surprising Lessons from a $4,000 Swing Set Dispute

The HOA Nightmare You Never Expected

Imagine the excitement of a young family moving into a new home in a master-planned community. With three children ages five to nine, Scott Ketchum and his wife did what many parents do: they invested in a high-quality Rainbow Play System for their backyard. Built of natural redwood and designed for a lifetime of play, the 13.5-foot structure was meant to be a family sanctuary. Instead, it became the centerpiece of a multi-year “David vs. Goliath” legal war against the San Marcos Manor Homeowners Association.

As a legal journalist covering residential governance, I’ve seen many HOAs overreach, but Scott Ketchum vs. San Marcos Manor HOA is a masterclass in how an entrenched Board can turn a minor architectural detail into a high-stakes financial battle. What started as a “Friendly Reminder” ended in an Administrative Law Judge (ALJ) ruling that exposed the limits of HOA power.

The Danger of “The Manager Said It Was Fine”

One of the most common traps for homeowners is relying on the verbal word of community management. Mr. Ketchum testified that he consulted the former manager, Dodi Gorski, in October 2005. According to Ketchum, she gave him a classic “green light,” stating the association didn’t care what was in the backyard as long as the neighbors approved.

The trouble started on December 28, 2005, when the HOA sent a violation notice for the “unapproved” structure. While Ketchum felt he had permission, he was fighting against the ironclad text of Section 7.7 of the CC&Rs, which requires written approval before any structure is “commenced, erected, or maintained.” The ALJ eventually ruled that relying on hearsay was “not reasonable,” as oral assurances cannot override the written law of the community.

The “Wall Height” Myth and the Goliath Mentality

The HOA’s primary weapon was the “Wall Height Myth.” The Board argued that because the play system was taller than the 6-foot perimeter wall, it was automatically prohibited under the “Visible from Neighboring Property” definition (Section 1.24).

However, a Legal Expert looking at the evolution of the rules sees a tightening of the noose. The 2001 Architectural Guidelines (Finding 4) specifically listed “playground equipment” as an example of items under 6 feet not requiring approval. By the April 2006 revision (Finding 5), the Board had scrubbed that example. This subtle shift highlighted a Board determined to enforce a blanket ban that wasn’t actually in the written rules.

“Requires Approval” vs. “Prohibited” The guidelines only stated that items over 6 feet require approval—not that they are banned. Ketchum wasn’t the first victim of this rigid interpretation; the record shows the Board had previously used this “wall height” logic to deny homeowners like the Smolkavskis, the Hacks, and the Burnses. This wasn’t just about one swing set; it was about a Board enforcing an unwritten rule to maintain a “clean” skyline at all costs.

When Enforcement Becomes “Arbitrary and Capricious”

The “smoking gun” in this case was the Board’s refusal to actually exercise the discretion they claimed to have. Internal emails revealed the “Goliath” mentality: Board member Elliott Shapero admitted that while backyards were generally out of their jurisdiction, they had to enforce the play-structure ban “as we have in the past,” despite it being “against our guidelines.”

The irony was peak bureaucracy: the Board repeatedly told Ketchum they would only consider his application if he lowered the structure to 6 feet. As the ALJ pointed out in Conclusion of Law #8, if the structure were 6 feet tall, Ketchum wouldn’t have needed the Board’s approval in the first place. By demanding he “undo” the height that triggered their review, the Board effectively refused to perform the very review the CC&Rs required.

The Math of a Play Structure: A Financial David vs. Goliath

HOA disputes can become a financial black hole with terrifying speed. By the time this case reached a hearing, the “fine clock” had turned a backyard toy into a $4,800 liability. Here is the breakdown of the potential costs Ketchum faced:

• Initial Fines (3rd and 4th Notices): $75.00

• Escalating Weekly Fines ($100/week): $2,086.04

• Total Accrued Fines: $2,161.04

• HOA Attorney’s Fees: $2,651.43

• Total Financial Liability: $4,812.47

In a massive win for the “little guy,” the ALJ denied the HOA’s claim to collect these fees and fines. Because the Board failed to follow proper procedures and acted arbitrarily, they lost their right to the $4,800 payday. This is a crucial lesson: the “Goliath” doesn’t always get to collect the bill for its own legal overreach.

The “Remand” Reality Check and the Power of Expertise

To win this battle, Ketchum brought in professional firepower: expert witness Larry Paprocki, a community management veteran. Paprocki testified that an HOA cannot categorically prohibit structures that the CC&Rs merely require them to “review.” His expertise helped prove that the Board was acting outside of industry standards.

Despite the victory, Ketchum faced the “Remand Reality Check.” In administrative law, winning doesn’t always mean a permanent “yes.” The ALJ issued a remand, which is essentially a “fair second chance.” The court ordered the HOA to go back and actually do its job: review the application based on design, color, and compatibility, rather than just pointing at a 6-foot wall and saying “no.”

Conclusion: Who Rules the Backyard?

The Ketchum case is a stark reminder that an HOA is not a kingdom; it is a governed entity bound by the specific text of its own rules. While the Board may want a perfectly uniform horizon, they cannot invent prohibitions that do not exist in the CC&Rs.

For homeowners, the lessons are clear: Get it in writing, know your guidelines better than the Board does, and don’t be afraid to call out “arbitrary” enforcement. In the ongoing battle between community aesthetics and the right of a family to enjoy their own property, the law requires more than just a 6-foot rule—it requires actual fairness. In the end, we must ask: where should the line be drawn between a clean skyline and a child’s right to play?

Case Participants

Petitioner Side

  • Scott R. Ketchum (petitioner)
    Homeowner
    Appeared on his own behalf
  • Krista Kay (homeowner)
    Petitioner's wife
  • Eric Rel (witness)
    Neighbor
    Provided letter supporting Petitioner
  • Larry Paprocki (expert witness)
    Purported expert on HOAs

Respondent Side

  • Kristen L. Rosenbeck (HOA attorney)
    Mulcahy Law Firm, P.C.
  • Dodi Gorski (property manager)
    San Marcos Manor HOA
    Former Community Manager
  • John Wahman (property manager)
    Planned Development Services
    Replaced Ms. Gorski; Witness for HOA
  • Luci Crackau (committee member)
    Architectural Committee
  • Elliott Shapero (committee member)
    Architectural Committee
  • Bob J. McCullough (attorney)
    Former attorney for HOA (2003)

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Robert Barger (director)
    Department of Fire Building and Life Safety
    Agency Director listed on distribution
  • Joyce Kesterman (agency staff)
    Department of Fire Building and Life Safety
    Listed on distribution

Other Participants

  • Kevin Smolkavski (homeowner)
    Mentioned in evidence regarding past architectural requests
  • Jennifer Smolkavski (homeowner)
    Mentioned in evidence regarding past architectural requests
  • Thomas Hack (homeowner)
    Mentioned in evidence regarding past architectural requests
  • Michael Burns (homeowner)
    Mentioned in evidence regarding past architectural requests
  • Caroline Burns (homeowner)
    Mentioned in evidence regarding past architectural requests