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Joyce H Monsanto vs. Four Seasons at the Manor Homeowners Association

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

Case Summary

Case ID 19F-H1919053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-11-18
Administrative Law Judge Diane Mihalsky
Outcome The ALJ denied the petition, concluding that the HOA's architectural guideline limiting homeowners to one flagpole per lot, while permitting the display of both the U.S. flag and a military flag (Marine Corps flag) on that single pole, constitutes a reasonable rule under A.R.S. § 33-1808(B). The ALJ also found the Board complied with the 45-day requirement for a written appeal decision under CC&R § 7.9 by memorializing the denial in the draft meeting minutes posted by December 4, 2018,,.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joyce H Monsanto Counsel —
Respondent Four Seasons at the Manor Homeowners Association Counsel Mark K. Sahl, Esq.

Alleged Violations

A.R.S. § 33-1808; CC&R § 7.9

Outcome Summary

The ALJ denied the petition, concluding that the HOA's architectural guideline limiting homeowners to one flagpole per lot, while permitting the display of both the U.S. flag and a military flag (Marine Corps flag) on that single pole, constitutes a reasonable rule under A.R.S. § 33-1808(B). The ALJ also found the Board complied with the 45-day requirement for a written appeal decision under CC&R § 7.9 by memorializing the denial in the draft meeting minutes posted by December 4, 2018,,.

Why this result: The Petitioner failed to meet her burden of proof on both statutory and CC&R violations,.

Key Issues & Findings

HOA's denial of application to install two flagpoles for US and military flags, and alleged failure to follow CC&R appeal process.

Petitioner challenged the HOA's denial of her request to install two flagpoles, arguing the restriction violated A.R.S. § 33-1808 (flag statute) and that the Board failed to provide a written decision on her appeal within 45 days as required by CC&R § 7.9, which she argued meant the request was deemed approved. The ALJ found the single flagpole restriction reasonable under A.R.S. § 33-1808(B) since both flags could be flown from one pole, and determined the Board satisfied the CC&R § 7.9 requirement by posting the decision in the meeting minutes within 45 days,.

Orders: Petitioner's petition is denied, as she failed to establish that the Respondent's Board should not have denied her application under A.R.S. § 33-1808 or CC&R § 7. The Board can properly find Petitioner in violation of Architectural Guidelines and order her to remove one of her two flagpoles.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1808
  • CC&R § 7.9
  • A.R.S. § 33-1803
  • A.R.S. § 32-2199(B)

Analytics Highlights

Topics: Flag display, Architectural Guidelines, CC&Rs, Statutory compliance, Planned Communities Act, Rehearing
Additional Citations:

  • A.R.S. § 33-1808
  • CC&R § 7.9
  • A.R.S. § 33-1803
  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • CC&R § 7

Video Overview

Audio Overview

Decision Documents

19F-H1919053-REL-RHG Decision – 749213.pdf

Uploaded 2026-01-23T17:29:16 (163.6 KB)

19F-H1919053-REL-RHG Decision – 753595.pdf

Uploaded 2026-01-23T17:29:19 (163.3 KB)

Briefing Document: Monsanto v. Four Seasons at the Manor HOA

Executive Summary

This document synthesizes the findings and legal reasoning from the Amended Administrative Law Judge Decision in the case of Joyce H. Monsanto versus the Four Seasons at the Manor Homeowners Association (HOA). The central conflict revolves around the HOA’s denial of Ms. Monsanto’s request to install two separate flagpoles on her home to display the United States flag and the United States Marine Corps flag. The petitioner alleged this denial violated Arizona state law and the HOA’s own governing documents.

The Administrative Law Judge (ALJ) ultimately denied the petitioner’s claim, ruling in favor of the HOA. The decision established two critical points: first, that the HOA’s rule limiting homeowners to a single flagpole is a “reasonable” regulation on the “placement and manner of display” explicitly permitted under Arizona statute A.R.S. § 33-1808(B), and does not constitute a prohibition of flag display. Second, the HOA was found to have complied with its own appeal process as outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The ALJ concluded that an oral denial at a board meeting, later documented in publicly posted meeting minutes, satisfied the CC&R’s requirement to “render its written decision” within a 45-day timeframe. The ruling affirms an HOA’s authority to enforce uniform aesthetic standards, provided they are reasonable and applied according to the association’s governing documents.

Case Background and Procedural History

The case was brought before the Arizona Office of Administrative Hearings (OAH) following a petition filed by homeowner Joyce H. Monsanto (“Petitioner”) against her HOA, Four Seasons at the Manor Homeowners Association (“Respondent”).

• Initial Petition: On March 6, 2019, the Petitioner filed a petition with the Arizona Department of Real Estate, alleging the HOA violated state law (A.R.S. § 33-1803) and its CC&Rs (§ 7.9) by refusing to approve her request for two flagpoles.

• First Hearing: An evidentiary hearing was held on May 30, 2019, after which the ALJ found that the Petitioner had not proven any violation by the HOA.

• Rehearing: The Commissioner of the Department of Real Estate granted the Petitioner’s request for a rehearing on August 22, 2019. This rehearing took place on October 21, 2019.

• Amended Decision: On November 18, 2019, ALJ Diane Mihalsky issued an Amended Administrative Law Judge Decision, again denying the Petitioner’s petition and affirming the previous findings. The amendment was issued to correct a typographical error and clarify the parties’ appeal rights.

The Core Dispute: A Request for Two Flagpoles

The petitioner, whose husband and two sons have long careers in the U.S. Marines and Coast Guard, sought to display both the U.S. flag and the U.S. Marine Corps flag on her home.

• The Application: On August 31, 2018, she submitted a Design Review Application to install two 6-foot-long flagpoles on the exterior wall of her house, flanking her front door.

• The Rationale: The Petitioner stated her desire for two separate poles was for aesthetic reasons, believing the display would look better. She also expressed concern that a single, larger flagpole installed in her front yard would obstruct the view from her front window.

• The Denial: On September 22, 2018, the HOA’s Architectural Committee issued a written Notice of Disapproval, citing the Architectural Guidelines which permit only one flagpole per lot.

• The Appeal: On October 1, 2018, the Petitioner submitted a written appeal to the HOA Board, arguing the denial was unreasonable, that the guidelines were not uniformly enforced, and that the board could grant a waiver under CC&R § 7.6.

Governing Rules and Statutes

The case decision rested on the interpretation of Arizona state law and the HOA’s specific governing documents.

Arizona Revised Statute § 33-1808

This statute governs the right of homeowners to display certain flags.

• Protection of Display: Subsection A states that an association “shall not prohibit the outdoor… display” of the American flag or a military flag, among others.

• Right to Regulate: Subsection B grants associations the authority to “adopt reasonable rules and regulations regarding the placement and manner of display.” It explicitly allows rules that “regulate the location and size of flagpoles,” “limit the member to displaying no more than two flags at once,” and limit flagpole height, while not prohibiting their installation.

HOA Architectural Guidelines

The community’s rules regarding flagpoles evolved but consistently maintained a key restriction.

• Original Guideline (May 24, 2016): “Poles must not exceed 12’ in height, and only one flagpole is permitted per Lot.”

• Amended Guideline (November 8, 2018): The board increased the maximum pole height to 20′ and added rules for nighttime illumination and inclement weather, but explicitly “did not change the limit of one flagpole per lot.”

HOA CC&Rs (Covenants, Conditions, and Restrictions)

The procedural requirements for architectural review and appeals were central to the Petitioner’s claim.

• Section 7.8 (Board Approval): Pertaining to initial applications, this section requires the Board to provide the owner with a “written response within sixty (60) days,” otherwise the request is deemed approved.

• Section 7.9 (Appeal): Pertaining to appeals, this section requires the Board to consult with the Architectural Committee and “render its written decision” within 45 days. A failure by the Board to render a decision in this period “shall be deemed approval.” This section does not contain the same explicit language as § 7.8 requiring the response be provided to the owner.

Analysis of the Appeal Process and Conflicting Testimonies

A significant portion of the dispute centered on the events of the November 8, 2018, HOA Board meeting, where the Petitioner’s appeal was to be considered. The accounts of what transpired at this meeting were contradictory.

Petitioner’s Testimony (Joyce H. Monsanto)

Respondent’s Testimony (Anthony Nunziato, Board President)

Consultation

The board did not consult the Architectural Committee.

The board consulted with the Architectural Committee before the meeting.

Decision

The board did not consider or make any decision on her appeal.

The board considered the appeal and made a decision.

Notification

She was never told her appeal was denied at the meeting.

He was certain the board verbally informed the Petitioner that her appeal was denied at the meeting.

On December 4, 2018, draft minutes from the November 8 meeting were posted on the HOA’s website. The Petitioner acknowledged seeing them. These minutes included the following entry:

“[Petitioner’s] last request was for a waiver that would allow her to have two flagpoles on her property (one to fly the American flag and the other to fly the Marine flag). The Board rejected this request since our CC&Rs allow for the flying of both flags on a single flagpole.”

The Petitioner argued that these publicly posted draft minutes, which were not sent directly to her, did not constitute a valid written denial of her appeal under the CC&Rs.

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision methodically rejected each of the Petitioner’s claims, relying on witness credibility, statutory interpretation, and contract construction principles.

Credibility Assessment

The ALJ made a clear determination on the conflicting testimonies regarding the November 8 meeting.

• Mr. Nunziato’s testimony that the board made a decision and informed the Petitioner was found to be “credible and supported by the minutes of the meeting.”

• The Petitioner’s testimony that the board made no decision on her appeal was deemed “incredible.”

Ruling on A.R.S. § 33-1808 (State Flag Law)

The ALJ concluded that the HOA’s one-flagpole rule did not violate state law.

• The rule was found to be a “reasonable rule or regulation under A.R.S. § 33-1808(B).”

• Because the Architectural Guidelines allow for flying two flags from a single flagpole up to 20′ long, the HOA was not prohibiting the display of flags, merely regulating the manner.

• The ALJ characterized the core issue as the “Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons, not Respondent’s unreasonableness or lack of patriotism.”

Ruling on CC&R § 7.9 (Appeal Process)

The ALJ found that the HOA had followed the procedure required by its own CC&Rs.

• Consultation: Based on Mr. Nunziato’s credible testimony, the board fulfilled its duty to consult with the Architectural Committee.

• “Render a Decision”: The board “rendered a decision on her appeal at the November 8, 2018 board meeting” when it orally reached a decision.

• “Written Decision”: The board created a “writing memorializing its decision” by documenting it in the meeting minutes. Because the Petitioner saw these minutes on December 4, 2018, this action occurred within the 45-day window following her October 1, 2018 appeal.

• No Delivery Requirement: The ALJ applied the “negative implication cannon of contract construction.” By comparing CC&R § 7.9 (appeals) with § 7.8 (initial applications), the judge noted that § 7.9 lacks the explicit requirement to provide the written decision to the owner. Therefore, posting the minutes was sufficient, and the Petitioner’s request was not “deemed approved.”

Final Order

Based on these findings, the ALJ issued a final, binding order.

IT IS ORDERED that the Petitioners’ petition is denied because she has not established that the Respondent’s Board should not have denied her application to install two flagpoles on her property.

The decision concludes with a notice informing the parties that the order is binding and that any appeal must be filed with the superior court within 35 days from the date of service.

Study Guide: Monsanto v. Four Seasons at the Manor HOA

This study guide provides a detailed review of the legal case Joyce H. Monsanto v. Four Seasons at the Manor Homeowners Association, Case No. 19F-H1919053-REL-RHG, as detailed in the Amended Administrative Law Judge Decision dated November 18, 2019. The guide includes a short-answer quiz, a corresponding answer key, suggested essay questions, and a comprehensive glossary of terms to facilitate a thorough understanding of the case’s facts, arguments, and legal conclusions.

Short-Answer Quiz

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

1. Who are the Petitioner and the Respondent in this case, and what is their relationship?

2. What specific action did the Petitioner request from the Respondent that initiated this dispute?

3. On what grounds did the Respondent’s Architectural Committee initially deny the Petitioner’s request on September 22, 2018?

4. Identify the key Arizona statute cited in the case and explain its two main provisions regarding flag displays.

5. What was the Petitioner’s primary argument regarding the Respondent’s handling of her appeal under CC&R § 7.9?

6. According to the testimony of Board President Tony Nunziato, how did the Board address the Petitioner’s appeal at the November 8, 2018 meeting?

7. What documentary evidence did the Respondent use to support the claim that a decision on the appeal was made and written down within the required timeframe?

8. Why did the Administrative Law Judge (ALJ) find the Respondent’s one-flagpole rule to be legally permissible?

9. What is the legal standard of proof required for the Petitioner in this case, and did she meet it according to the ALJ?

10. What was the final order issued by the Administrative Law Judge in this case and its practical consequence for the Petitioner?

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Answer Key

1. The Petitioner is Joyce H. Monsanto, a homeowner. The Respondent is the Four Seasons at the Manor Homeowners Association (HOA). Ms. Monsanto is a member of the Respondent HOA because she owns a house within its development in Sun City, Arizona.

2. The Petitioner submitted a Design Review Application to install two 6-foot-long flagpoles on the exterior wall of her house. She intended to fly the United States flag from one pole and the United States Marine Corps flag from the other.

3. The Architectural Committee denied the request because the community’s Architectural Guidelines only permitted one flagpole per lot. The written Notice of Disapproval explicitly stated this rule as the reason for the denial.

4. The key statute is A.R.S. § 33-1808. Its first provision, § 33-1808(A), prohibits an HOA from banning the display of the American flag and various military flags. The second provision, § 33-1808(B), allows an HOA to adopt reasonable rules regulating the placement, size, and number of flagpoles, explicitly permitting a limit of one flagpole per property.

5. The Petitioner argued that the Board violated CC&R § 7.9 because it failed to provide her with a formal written decision denying her appeal within the 45-day period. She contended that because she never received a dedicated letter, the request should have been “deemed approved” as stipulated in the CC&R for failure to render a timely decision.

6. Tony Nunziato testified that the Board did consult with the Architectural Committee regarding the appeal before the meeting. He stated with certainty that at the November 8, 2018 meeting, the Board considered the appeal and verbally informed Ms. Monsanto that her request for a waiver was denied.

7. The Respondent presented the draft minutes from the November 8, 2018 Board meeting, which were posted on the HOA’s website on December 4, 2018. These minutes explicitly stated that the Board rejected the Petitioner’s request for a waiver to have two flagpoles, fulfilling the requirement to have a written record of the decision within 45 days of her October 1 appeal.

8. The ALJ found the rule permissible because A.R.S. § 33-1808(B) explicitly grants HOAs the authority to “adopt reasonable rules and regulations” which may “regulate the location and size of flagpoles” and “shall not prohibit the installation of a flagpole.” Since the HOA’s guidelines allowed for one flagpole up to 20 feet long, capable of flying two flags, the judge concluded the rule was reasonable under the statute.

9. The required standard of proof was a “preponderance of the evidence,” meaning the Petitioner had to convince the judge that her contention was more probably true than not. The ALJ concluded that the Petitioner did not meet this burden of proof to establish that the Respondent violated any statute or its own CC&Rs.

10. The final order denied the Petitioner’s petition. The practical consequence is that the HOA’s denial of her application for two flagpoles was upheld, and the Board could therefore properly find her in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.

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Suggested Essay Questions

1. Analyze the conflict between A.R.S. § 33-1808(A), which protects a homeowner’s right to display military flags, and § 33-1808(B), which grants HOAs regulatory power. How did the Administrative Law Judge balance these two provisions to reach a conclusion in this case?

2. Discuss the concept of “burden of proof” as it applied to the Petitioner. Detail the specific claims made by Joyce Monsanto and explain why, according to the legal decision, she failed to establish them by a “preponderance of the evidence.”

3. Examine the procedural dispute surrounding CC&R § 7.9. Contrast the Petitioner’s interpretation of a “written decision” with the interpretation ultimately adopted by the Administrative Law Judge, referencing the role of the verbal notification and the meeting minutes.

4. Evaluate the role of testimony and credibility in this administrative hearing. Compare and contrast the testimony provided by Petitioner Joyce Monsanto and Respondent’s Board President Tony Nunziato regarding the events of the November 8, 2018 board meeting, and explain why the judge found Mr. Nunziato’s account more credible.

5. Based on the facts presented, construct an argument that the HOA’s actions, while legally permissible according to the judge, were inconsistent with the patriotic values of its community, which includes many retired military members. Conversely, construct an argument defending the Board’s decision as a necessary and fair application of rules essential for maintaining community standards.

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Glossary of Key Terms

Definition in Context

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact, and issues legal decisions. In this case, Diane Mihalsky served as the ALJ for the Office of Administrative Hearings.

A.R.S. § 33-1808

An Arizona Revised Statute that governs the display of flags in planned communities. It forbids HOAs from prohibiting certain flags (like the U.S. and military flags) but permits them to establish reasonable rules regarding the number, size, and location of flagpoles.

Architectural Committee

A committee established by the HOA’s CC&Rs responsible for reviewing and approving or disapproving homeowners’ applications for external modifications to their property, such as installing flagpoles.

Architectural Guidelines

The specific rules adopted by the HOA that set forth requirements for property modifications. In this case, the guidelines limited each lot to one flagpole, with a maximum height of 20 feet.

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. The Petitioner, Joyce Monsanto, bore the burden of proof to show the HOA had violated the law or its own rules.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that create the rules for a planned community. The Petitioner alleged the Respondent violated CC&R § 7.9, which outlines the appeal process for disapproved architectural applications.

Declarant

The original developer of a planned community who establishes the initial CC&Rs. In this case, K. Hovnanian was the Declarant for Four Seasons at the Manor.

Homeowners’ Association (HOA)

The governing organization in a planned community responsible for enforcing the CC&Rs and managing common areas. The Respondent, Four Seasons at the Manor Homeowners Association, is an HOA.

Negative Implication

A principle of legal interpretation which holds that the explicit inclusion of one thing implies the intentional exclusion of another. The ALJ used this to argue that because CC&R § 7.9 (appeals) does not specify that a written decision must be sent to the owner, unlike CC&R § 7.8 (initial applications), that requirement should not be read into the appeal rule.

Office of Administrative Hearings (OAH)

An independent Arizona state agency that conducts evidentiary hearings for other state agencies, providing an impartial forum to resolve disputes.

Petitioner

The party who initiates a legal action by filing a petition. In this case, Joyce H. Monsanto is the Petitioner.

Preponderance of the Evidence

The evidentiary standard required in this civil case. It is defined as proof that convinces the trier of fact (the judge) that a contention is “more probably true than not.”

Respondent

The party against whom a petition is filed. In this case, the Four Seasons at the Manor Homeowners Association is the Respondent.

Restrictive Covenant

A legally enforceable rule within the CC&Rs that limits what a homeowner can do with their property. The rule limiting homes to one flagpole is an example of a restrictive covenant.

Waiver

The act of intentionally relinquishing a known right or claim. The Petitioner argued that the HOA board could, and should, have waived the one-flagpole rule for her under CC&R § 7.6.

HOA vs. Military Family: 4 Lessons from a Legal Battle Over a Flagpole

For Joyce Monsanto, a member of a dedicated military family, displaying her patriotism was a matter of pride. Her husband served 25 years in the Marines, and her two sons have spent decades in the Marines and the Coast Guard. Naturally, she wanted to fly both the flag of the United States and the flag of the U.S. Marine Corps at her Arizona home. But when she submitted her plan to her Homeowners Association (HOA), she was met with a firm “no.”

The conflict wasn’t about the flags themselves. The Four Seasons at the Manor HOA had no issue with her displaying both. The dispute centered on how she wanted to display them. It was a disagreement over her vision for a symmetrical, two-pole display versus the HOA’s “one flagpole per lot” rule. This architectural dispute escalated from a simple request into a formal administrative hearing.

Ms. Monsanto’s fight reveals several surprising truths about the power of HOA rules and the specific language written into state law. Her case ultimately failed on two fronts—a substantive challenge to the rule itself, and a procedural challenge to how the HOA handled her appeal. Here’s what every homeowner can learn from each.

1. Your Right to Fly the Flag Has Limits—And They’re Written into Law.

Many homeowners believe the right to fly the American flag is unconditional. However, the legal reality is more nuanced. While Arizona law (A.R.S. § 33-1808) prevents an HOA from outright prohibiting the display of U.S. or military flags, it explicitly allows the association to create “reasonable rules and regulations” for their placement and manner of display.

The statute is specific about what these rules can cover. An HOA can legally regulate the size and location of flagpoles and can limit a homeowner to displaying no more than two flags at once. In this case, the HOA’s architectural guidelines permitted two flags, but only on a single flagpole. The Administrative Law Judge found this “one flagpole per lot” rule was a “reasonable” regulation and therefore perfectly legal. To underscore that the HOA’s stance was not about a lack of patriotism, the judge noted testimony that the HOA president himself “placed 140 small flags on his property” for Memorial Day. The issue was about the uniform enforcement of an architectural rule, not the patriotic display itself.

2. Your Personal Taste Is No Match for the Community Rulebook.

During the hearing, Ms. Monsanto acknowledged that she could fly both of her flags from a single pole as the HOA rules allowed. Her reason for wanting two poles was a matter of personal preference. She testified that she “wanted to install two flagpoles for aesthetic reasons” and also felt that a single pole placed in the middle of her lot would block the view from her front window.

The judge was unmoved by this line of reasoning. In the final decision, the response was direct and unambiguous:

Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons, not Respondent’s unreasonableness or lack of patriotism.

This is a foundational principle of community association law: homeowners trade a degree of personal autonomy for the perceived benefits of uniform standards and predictable property values. The judge’s decision simply reaffirms that bargain. In the world of planned communities, the established rulebook will almost always outweigh an individual’s personal taste.

3. In HOA Law, the Appeal Isn’t a Re-do—It’s a Different Process.

One of Ms. Monsanto’s key arguments was procedural. She believed her appeal should have been automatically approved because the HOA failed to provide a written decision within the 45-day deadline stipulated in its own rules (CC&R § 7.9). This is where the judge identified a subtle but crucial legal distinction buried in the HOA’s governing documents.

The HOA’s CC&Rs had two different sections for architectural requests:

• CC&R § 7.8 (Initial Requests): This section explicitly required the Board to “inform the submitting party of the final decision” with a “written response.”

• CC&R § 7.9 (Appeals): This section, however, only required the Board to “render its written decision” within 45 days.

That small difference in wording—”written response” versus “written decision”—was the linchpin of her procedural case. The judge ruled that for an appeal, the HOA was not required to send a personal letter or direct notice to Ms. Monsanto. It only had to create a written record of its decision within the timeframe.

4. A Post on an HOA Website Can Count as an Official “Written Decision.”

The final surprise came down to what constitutes a “written decision” and how the deadline was met. Ms. Monsanto was waiting for a formal letter informing her that her appeal had been denied. She never received one. Her appeal was filed on October 1, 2018, starting a 45-day clock.

The judge found the HOA satisfied its obligation in a two-step process:

1. The Decision: The Board verbally denied her appeal during its public meeting on November 8, 2018. This action, which occurred 38 days after her appeal, fulfilled the requirement to “render its decision” within the 45-day period.

2. The Writing: That decision was then recorded in the draft meeting minutes, which were posted on the Board’s website on December 4, 2018. Ms. Monsanto acknowledged seeing the posted minutes.

The judge ruled that these online minutes satisfied the separate legal requirement for a “writing memorializing its decision.” Even though they weren’t sent directly to her, the publicly posted minutes served as the official record of the timely denial of her appeal, closing the final door on her argument for automatic approval.

Conclusion: Before You Plant Your Flag, Read the Fine Print

Joyce Monsanto’s case is a cautionary tale on two levels. First, it shows that even cherished rights like displaying the flag are subject to reasonable, neutrally-applied community rules. Second, and more critically, it demonstrates that procedural arguments live and die by the most precise definitions in the governing documents. A single word can be the difference between winning an appeal and being ordered to take your flagpole down.

This case came down to the difference between a “written response” and a “written decision”—do you know what the fine print says about your rights in your community?

Case Participants

Petitioner Side

  • Joyce H Monsanto (petitioner)
    Appeared on her own behalf

Respondent Side

  • Mark K. Sahl (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Anthony Nunziato (board member)
    Four Seasons at the Manor Homeowners Association
    President of the Board of Directors; also referred to as 'Tony'
  • Annette McCraw (property manager)
    Community Manager/Trestle Management (implied)
    Sent Notice of Disapproval on behalf of Respondent
  • Marc Vasquez (HOA representative)
    Addressed Petitioner's claim regarding violation letters at the Board meeting

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

David & Brenda Norman v. Rancho Del Lago Community Association

Posted on by

Case Summary

Case ID 19F-H1919051-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-28
Administrative Law Judge Diane Mihalsky
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner David and Brenda Norman Counsel —
Respondent Rancho Del Lago Community Association Counsel Ashley N. Moscarello

Alleged Violations

CC&Rs § 3.11(D)(1) / Common Project Guidelines § 3.11(D)(1)

Outcome Summary

The Administrative Law Judge dismissed the petition filed by David and Brenda Norman against Rancho Del Lago Community Association, finding that the Department of Real Estate did not have jurisdiction to hear the dispute, as it was essentially a conflict between neighboring owners (Petitioners and Hendersons) regarding a wall.

Why this result: The Department lacked jurisdiction over the dispute among or between owners, per A.R.S. § 32-2199.01(A)(1).

Key Issues & Findings

Alleged violation by HOA approving a block wall built by neighbors (Hendersons)

Petitioners alleged that Respondent HOA violated CC&Rs § 3.11(D)(1) by approving a block wall built by their next-door neighbors, the Hendersons, and requested the Department require the Hendersons to permit Petitioners to connect to the wall or require the Hendersons to tear the wall down.

Orders: The petition was dismissed because the Department lacked jurisdiction to hear a dispute primarily among or between owners to which the association is not a party, pursuant to A.R.S. § 32-2199.01(A)(1).

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199.01(A)(1)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Analytics Highlights

Topics: Jurisdiction, HOA Governance, Architectural Review Committee (ARC), Party Wall, Neighbor Dispute, CC&Rs
Additional Citations:

  • A.R.S. § 32-2199.01(A)(1)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

19F-H1919051-REL Decision – 737050.pdf

Uploaded 2026-04-24T11:19:28 (40.9 KB)

19F-H1919051-REL Decision – 710478.pdf

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19F-H1919051-REL Decision – 711115.pdf

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Case Briefing: Norman v. Rancho Del Lago Community Association

Executive Summary

This briefing document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 19F-H1919051-REL, involving homeowners David and Brenda Norman (Petitioners) and the Rancho Del Lago Community Association (Respondent). The core of the dispute centers on the Petitioners’ allegation that the Respondent’s Architectural Review Committee (ARC) violated community guidelines by approving a wall built by the Petitioners’ neighbors, the Hendersons.

The Petitioners claimed the Henderson’s wall, constructed 6 inches inside the property line, created a situation where any wall they might build on their property would be a “closely parallel wall,” which is prohibited by the community’s Common Project Guidelines § 3.11(D)(1). They requested that the Respondent either force the Hendersons to allow the Petitioners to connect to their wall, effectively making it a shared “party wall,” or compel the Hendersons to demolish it.

The Administrative Law Judge dismissed the petition entirely. The primary legal basis for the dismissal was a lack of jurisdiction; under Arizona statute A.R.S. § 32-2199.01(A)(1), the Arizona Department of Real Estate cannot hear disputes solely between homeowners in which the association is not a party. The judge concluded this was fundamentally a neighbor-versus-neighbor conflict. Furthermore, the judge characterized the wall the Petitioners sought to build as an “archetypical spite fence” and noted that the Petitioners had failed to prove the Respondent had violated any community documents.

Case Overview

Parties and Key Entities

Name/Entity

Description

Petitioners

David and Brenda Norman

Homeowners in the Rancho Del Lago Community.

Respondent

Rancho Del Lago Community Association

The homeowners’ association (HOA) for the community.

Neighbors

The Hendersons

The Petitioners’ next-door neighbors who built the disputed wall.

Management Co.

Management Solutions

The company managing the Respondent HOA.

Witness (Respondent)

Spencer Brod

Employee of Management Solutions overseeing the Respondent’s affairs.

Administrative Law Judge

Diane Mihalsky

Presiding judge from the Office of Administrative Hearings.

Regulating Body

Arizona Department of Real Estate

State agency authorized to hear certain HOA disputes.

Adjudicating Body

Office of Administrative Hearings

Independent state agency that conducted the evidentiary hearing.

Procedural Details

Detail

Information

Case Number

19F-H1919051-REL

Petition Filed

On or about February 28, 2019

Hearing Date

May 8, 2019

Amended Decision Date

May 28, 2019

Timeline of Key Events

• December 2003: The Respondent’s ARC adopts the Common Project Guidelines, which govern all exterior improvements.

• March 8, 2017: The Hendersons submit an Architectural Variance Request (AVR) to extend the common wall between their property and the Petitioners’. Mrs. Norman signs the request, giving consent. The ARC approves this request.

• April 27, 2017: The Hendersons submit a new AVR to build a wall extension 6 inches inside their property line, making it a private wall rather than a shared party wall. The record suggests Mrs. Norman may have rescinded her earlier approval for the common wall.

• May 10, 2017: The ARC approves the Hendersons’ request to build the wall 6 inches inside their property line.

• September 5, 2017: The Petitioners submit an AVR to build an 11-foot wide concrete driveway. The ARC denies the request.

• Post-September 5, 2017: Despite the denial, the Petitioners construct the 11-foot wide driveway and are subsequently issued a Notice of Violation by the Respondent.

• September 7, 2017: The Petitioners submit an AVR to build a wall extension on their property, positioned at least 3 feet away from the Hendersons’ wall.

• October 13, 2017: The ARC approves the Petitioners’ wall extension request.

• Post-October 13, 2017: The Petitioners decide not to build the approved wall, stating their contractor advised them against “giving up” the 3 feet of property that would lie between the two walls.

• By November 2017: The Hendersons’ wall appears to have been constructed.

• February 28, 2019: The Petitioners file a petition with the Arizona Department of Real Estate, alleging the Respondent violated community rules.

• March 27, 2019: The Petitioners file a new AVR to build a wall directly on the property line. This request did not include the Hendersons’ required consent and was still pending at the time of the hearing.

Governing Documents and Key Provisions

The dispute and subsequent legal decision referenced several specific articles from the community’s Covenants, Conditions, and Restrictions (CC&Rs) and the Common Project Guidelines.

Document

Provision

Description

Article I § (p)

Defines “Party Walls” built on a property line, establishing equal right of use, joint responsibility for maintenance and repair, and a process for the Board to resolve disputes over construction or cost-sharing.

Article II § 2(a)

Requires prior written approval from the ARC for any improvements that alter the exterior appearance of a property.

Article XII § 1

Establishes the ARC, noting that its decisions are “sole, absolute and final on all matters submitted to it.”

Common Project Guidelines

Section 3.11(D)(1)

States that “Closely parallel walls shall be disapproved.” The term “closely parallel” is not defined in the guidelines. This provision was the central focus of the Petitioners’ complaint.

Common Project Guidelines

Section 4.21

Grants the ARC the right “to waive, vary, or otherwise modify any of the standards or procedures set forth herein at its discretion, for good cause shown.”

Summary of Testimony and Evidence

Testimony of Brenda Norman (Petitioner)

• Motivation for Wall: Stated that she and her husband are in law enforcement and want to enclose their side yard to protect utility meters from potential vandalism.

• Reason for Not Building Approved Wall: Explained that their contractor advised them it was “crazy to give up the 3’ of property” that would be inaccessible between their proposed wall and the Hendersons’ wall.

• Relationship with Neighbors: Acknowledged that the Petitioners “do not get along very well with the Hendersons” and therefore never asked for their consent for a wall on the property line.

• Belief Regarding Parallel Walls: Believes that if she submitted a plan for a wall just inside her property line, it would be denied under the “close parallel wall” rule.

• Requested Action: Opined that the Respondent should force the Hendersons to tear down their wall because it is not uniformly 6 inches from the property line.

Testimony of Spencer Brod (for Respondent)

• HOA Policy: Testified that the HOA “never gets involved in disputes between neighbors” and that it is the homeowner’s responsibility to obtain neighbor consent for common wall projects.

• Party vs. Private Walls: Explained that neighbor consent is required only for “party walls” on the property line due to shared maintenance liability. The Hendersons’ wall was approved because it was on their own property and therefore not a party wall.

• Enforcement and Inspection: Admitted that the Hendersons’ wall may not be uniformly 6 inches from the line but stated the Respondent has no one to perform a “thorough inspection” and had not sent a violation letter.

• “Closely Parallel Walls” Interpretation: Testified that while the term is undefined, the ARC’s approval of the Petitioners’ plan for a wall 3 feet away indicates that “closely parallel” means a distance of less than 3 feet.

• Petitioners’ Unauthorized Construction: Confirmed that the Respondent sent the Petitioners a Notice of Violation for building a driveway that the ARC had explicitly denied.

Administrative Law Judge’s Conclusions of Law

The judge’s decision was based on a detailed analysis of the evidence, governing documents, and relevant state law.

1. Jurisdictional Failure: The primary reason for dismissal was a lack of jurisdiction. The judge cited A.R.S. § 32-2199.01(A)(1), which explicitly states, “The department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.” The judge determined this was a quintessential neighbor dispute, not a dispute with the HOA.

2. Failure to Meet Burden of Proof: The Petitioners bore the burden of proving by a “preponderance of the evidence” that the Respondent violated its own rules. The judge found they failed to do so.

3. Characterization as a “Spite Fence”: The decision describes the wall the Petitioners wish to build as an “archetypical spite fence between neighbors who cannot agree to mutually work for the improvement of their adjacent properties.”

4. HOA’s Limited Role: The judge affirmed that neither the CC&Rs nor the Common Project Guidelines compel the HOA to mediate or resolve disputes between neighbors by taking a side.

5. Distinction of Wall Types: The analysis distinguished between a party wall on a property line, which requires neighbor consent, and a private wall built entirely on one owner’s property, which does not. The Hendersons’ wall was approved as the latter.

6. Hypothetical Outcome: A concluding footnote in the decision states that even if the Department had jurisdiction, the Petitioners had not established that Guideline 3.11(D)(1) would authorize or require the Respondent to grant the relief they requested.

Final Order

IT IS ORDERED that the petition filed by David and Brenda Norman against the Respondent, Rancho Del Lago Community Association, is dismissed. The dismissal is based on the finding that the Arizona Department of Real Estate does not have jurisdiction to hear their dispute with the Hendersons.

Study Guide: Norman v. Rancho Del Lago Community Association

This guide is designed to review the administrative legal case between homeowners David and Brenda Norman and their homeowners’ association, the Rancho Del Lago Community Association, concerning a dispute over a neighbor’s wall.

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Short-Answer Quiz

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

1. What was the central violation of the homeowners’ association rules alleged by the Petitioners in their February 28, 2019, petition?

2. Identify the three main groups of individuals or entities involved in the dispute: the Petitioners, the Respondent, and the neighbors.

3. According to the Respondent’s CC&Rs, what is a “Party Wall” and what primary responsibility does it create for adjacent homeowners?

4. Describe the two separate wall-related Architectural Variance Requests (AVRs) submitted by the Hendersons in March and April of 2017.

5. Why did the Architectural Review Committee (ARC) initially deny the Petitioners’ request to build a new driveway, and what was the outcome of this denial?

6. What is the role of the “Declarant” within the Rancho Del Lago Community Association, and what influence do they hold over the board and the ARC?

7. The ARC approved a wall proposal for the Petitioners on October 13, 2017. Why did the Petitioners choose not to build this approved wall?

8. According to the CC&Rs, what is the ultimate authority of the Architectural Review Committee (ARC) in rendering its decisions?

9. On what legal grounds did the Administrative Law Judge ultimately dismiss the Petitioners’ case?

10. Who bore the “burden of proof” in this hearing, and what does this legal standard require?

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Quiz Answer Key

1. The Petitioners alleged that the Respondent (the homeowners’ association) violated Section 3.11(D)(1) of the Common Project Guidelines. This section states that “closely parallel walls shall be disapproved,” and the Petitioners argued that the association violated this rule by approving the wall built by their neighbors, the Hendersons.

2. The Petitioners were homeowners David and Brenda Norman. The Respondent was the Rancho Del Lago Community Association. The neighbors, who were central to the dispute but not a party to the case, were the Hendersons.

3. A “Party Wall” is a wall situated on the property line between two or more contiguous lots. It creates a shared right of use and a joint obligation for all adjoining owners to rebuild and repair the wall at their shared expense.

4. The Hendersons first submitted an AVR on March 8, 2017, to extend the existing common party wall, for which Mrs. Norman gave consent. On April 27, 2017, they submitted a different AVR to build a new wall located entirely on their property, 6 inches inside the property line, which did not require the Normans’ consent.

5. The ARC denied the Petitioners’ September 5, 2017, request for an 11-foot wide driveway because a driveway already existed on the opposite side of the house where the garage was located. Despite the denial, the Petitioners built the driveway anyway, which resulted in the Respondent issuing them a Notice of Violation.

6. The “Declarant” is the original developer that built the subdivision. At the time of the hearing, the Respondent association was still under the control of the Declarant, who appointed all three directors of the board and was also a member of the Architectural Review Committee (ARC).

7. The Petitioners did not build the approved wall because the plan required it to be built at least 3 feet inside their property line to avoid being a party wall. Their contractor advised them they would be “crazy to give up the 3’ of property” that would lie between their new wall and the Hendersons’ wall.

8. According to Article XII, § 1 of the CC&Rs, “the decision of the [ARC] shall be sole, absolute and final on all matters submitted to it pursuant to this Declaration and/or the Design Guidelines.”

9. The judge dismissed the case due to a lack of jurisdiction. According to Arizona statute A.R.S. § 32-2199.01(A)(1), the Arizona Department of Real Estate does not have jurisdiction to hear disputes between owners to which the association is not a party. The judge framed the issue as a private dispute between the Normans and the Hendersons.

10. The Petitioners (the Normans) bore the burden of proof to establish that the Respondent violated the community rules. This standard, known as a “preponderance of the evidence,” requires presenting evidence that is more convincing and more likely true than not.

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Essay Questions

Instructions: The following questions are designed to test a deeper, more analytical understanding of the case. Formulate a comprehensive response to each prompt, citing specific facts and rules from the case documents to support your arguments.

1. Analyze the concept of a “Party Wall” versus a privately-owned wall within the context of this case. How did the distinction between these two types of walls become the central point of contention and influence the decisions made by the Hendersons, the Normans, and the ARC?

2. Discuss the powers and limitations of the Rancho Del Lago Community Association’s Architectural Review Committee (ARC) as outlined in the CC&Rs and Common Project Guidelines. How did the ARC’s discretionary authority, particularly under Section 4.21 of the guidelines, impact the events of this dispute?

3. Trace the timeline of Architectural Variance Requests (AVRs) submitted by both the Normans and the Hendersons. Evaluate how the sequence of approvals, denials, and unbuilt projects contributed to the escalation of the dispute and ultimately led to the legal hearing.

4. Explain the legal reasoning behind the Administrative Law Judge’s final decision. Why was the concept of “jurisdiction” more critical to the outcome than the merits of the Normans’ claim regarding “closely parallel walls”? Refer to the specific Arizona Revised Statute (A.R.S.) cited in the decision.

5. The judge described the potential wall the Petitioners wish to build as an “archetypical spite fence.” Based on the testimony and evidence presented in the case, argue for or against this characterization.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Diane Mihalsky, who presides over hearings at the Office of Administrative Hearings and renders decisions on disputes involving state agencies.

Architectural Review Committee (ARC)

A committee established by the Declarant and governed by the CC&Rs, responsible for reviewing and approving or denying any proposed improvements that alter the exterior appearance of properties within the community. Its decisions are described as “sole, absolute and final.”

Architectural Variance Request (AVR)

The formal application submitted by a homeowner to the ARC to request approval for an exterior improvement or modification to their property.

Arizona Department of Real Estate (the Department)

The state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations regarding violations of community documents.

CC&Rs (Covenants, Conditions, and Restrictions)

The legal documents that establish the rules, regulations, and obligations for homeowners within a planned community like Rancho Del Lago.

Closely Parallel Walls

A term from Section 3.11(D)(1) of the Common Project Guidelines that are to be disapproved. The term is not explicitly defined, but testimony suggests a wall 3 feet from another would be approved, making the threshold for “close” less than that.

Common Project Guidelines

A set of rules adopted by the ARC in December 2003 that govern all exterior improvements and provide standards for the Design Review Process. These guidelines supplement the CC&Rs.

Declarant

The original developer that built the subdivision. In this case, the Declarant still controlled the association’s Board of Directors and the ARC.

Jurisdiction

The legal authority of a court or agency to hear and decide a case. The petition was dismissed because the Department was found to lack jurisdiction over disputes solely between homeowners.

Office of Administrative Hearings

An independent state agency in Arizona where evidentiary hearings, like the one in this case, are conducted by an Administrative Law Judge.

Party Wall

As defined in the CC&Rs, a wall on the property line between contiguous lots. Owners have equal rights to use it and share joint financial responsibility for its repair and maintenance.

Petitioners

The party that initiates a legal action or petition. In this case, homeowners David and Brenda Norman.

Preponderance of the Evidence

The standard of proof required in this civil administrative hearing. It means the evidence presented must be sufficient to convince the judge that a claim is more probably true than not.

Respondent

The party against whom a petition is filed. In this case, the Rancho Del Lago Community Association.

Restrictive Covenant

A provision in a deed or community document (like a CC&R) that limits the use of the property. Arizona law holds that unambiguous restrictive covenants are enforced to give effect to the intent of the parties.

The Six-Inch Wall That Ignited a Legal Battle: 4 Shocking Lessons from a Brutal HOA War

1.0 Introduction: The Neighbor Next Door

Living next to someone is a universal experience, and it’s remarkable how quickly a small disagreement over a fence or a property line can spiral into a full-blown conflict. For two families in an Arizona HOA, what started as a plan for a backyard wall ended in a formal administrative law hearing, providing a stark case study in property law, association rules, and human nature.

This dispute, involving homeowners David and Brenda Norman and their neighbors, the Hendersons, dissects four critical lessons that challenge common assumptions about homeowner rights and association duties. Their story is a powerful cautionary tale about property lines, HOA authority, and the high cost of a neighborhood war.

2.0 Takeaway 1: The Six-Inch Difference That Changes Everything

1. A Wall on the Property Line Isn’t the Same as a Wall Near It

In property law, inches are everything. The community’s Covenants, Conditions, and Restrictions (CC&Rs) defined a “Party Wall” as a structure sitting directly on the property line between two lots. By this definition, these walls are a shared responsibility, requiring mutual consent from both homeowners for construction and shared costs for maintenance.

This distinction became the pivot on which the entire case turned. Initially, the Hendersons submitted plans to build a shared Party Wall, and the Normans gave their required consent. But then the plan changed. The Hendersons withdrew that request and submitted a new one: to build a wall located just six inches inside their own property line. The record doesn’t state definitively why the Hendersons changed their plan, though testimony suggested the Normans may have rescinded their initial consent.

This was a masterstroke of procedural navigation; by sacrificing a mere six inches of their yard, the Hendersons effectively bought the legal right to build without their neighbors’ consent, turning a potential year-long dispute into a matter of a simple ARC approval. By moving the structure entirely onto their own lot, it was no longer a “Party Wall” but their private property. While the Hendersons had successfully navigated the HOA’s rules, the Normans’ next step was to try and force the HOA to intervene directly—a move that would expose a common misunderstanding about the limits of an association’s power.

3.0 Takeaway 2: Your HOA Isn’t the Neighborhood Referee

2. The HOA’s Power to Intervene Has Surprising Limits

A common assumption among homeowners is that the HOA must mediate any and all disputes between residents. This case proves that assumption is fundamentally incorrect.

When the conflict escalated, the HOA’s position was unwavering. Spencer Brod, an employee of the association’s management company, testified that the association “never gets involved in disputes between neighbors.” Its role is to enforce community rules as they relate to the association, not to take sides in personal conflicts between homeowners.

The Administrative Law Judge presiding over the case reinforced this legal reality, citing Arizona law to clarify the limits of both the HOA’s and the state’s jurisdiction. The judge’s finding was unequivocal:

Neither the CC&Rs nor the Common Project Guidelines require Respondent [the HOA] to mediate or resolve a dispute between neighbors by taking one side or the other. A.R.S. § 32-2199.01(A)(1) provides that ‘[t]he department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.’

This finding is a crucial lesson: while an HOA enforces its governing documents, it is not a neighborhood court and cannot be compelled to referee personal disagreements.

4.0 Takeaway 3: You Can’t Demand a Neighbor Play by the Rules If You Don’t

3. Coming to the Table with Clean Hands Matters

The case contained a powerful element of irony that proved fatal to the Normans’ petition. The judge’s official Findings of Fact reveal that while demanding the HOA enforce its rules against the Hendersons, the Normans had a significant compliance issue of their own.

In September 2017, the Normans submitted a request to build an 11-foot wide concrete driveway “to provide a solid walking surface because Mrs. Norman was disabled and had difficulty walking.” While the motivation was sympathetic, the Architectural Review Committee (ARC) denied the request. Despite the denial, the Normans built the driveway anyway and were subsequently issued a Notice of Violation by the HOA.

Critically, the Normans’ own rule-breaking occurred after the Hendersons’ wall was approved. In the very midst of their dispute, while formulating a case against their neighbors, they chose to defy the ARC themselves. This is a classic illustration of the “unclean hands” doctrine. In any legal or administrative forum, one’s credibility is paramount. The Normans were asking the HOA to be a strict enforcer of rules they themselves had flagrantly violated, a position that is almost always untenable.

5.0 Takeaway 4: When a Judge Calls It a “Spite Fence”

4. The Court May Look Past the Rules and See Your Intent

Even in a hearing focused on the technicalities of CC&Rs, the underlying human motivations of the conflict did not go unnoticed. The HOA’s ARC had previously approved a plan for the Normans to build their own wall, provided it was located three feet inside their property line. They refused. Brenda Norman testified that their contractor told them they were “crazy to give up the 3’ of property.” Mrs. Norman also argued that a wall on her property would be denied as a prohibited “closely parallel wall,” but this claim was directly contradicted by the ARC’s own actions—they had already approved her wall at the three-foot distance.

The judge’s “spite fence” comment wasn’t just an observation; it was the legal culmination of the Normans’ entire pattern of behavior. Their refusal to accept an approved wall on their own property (losing 3 feet) while demanding their neighbor tear down a wall built on theirs (losing 0 feet) painted a clear picture of animosity, not a genuine need for property protection. The judge saw through the legal arguments to the core of the issue:

The wall that Petitioners testified that they must build to protect their property appears to be an archetypical spite fence between neighbors who cannot agree to mutually work for the improvement of their adjacent properties.

A “spite fence” is a legal term for a structure erected with malicious intent, where the primary purpose is not to improve one’s own property but to annoy, inconvenience, or harm a neighbor. The judge’s use of this term was a powerful signal that, in the court’s view, the dispute was no longer about property rights, but about personal animus.

6.0 Conclusion: A Wall Is a Wall, But a Neighbor Is Forever

This case is a cautionary tale written in concrete and legal filings. It shows how a dispute over six inches of soil can metastasize, fueled by a misunderstanding of HOA rules and an unwillingness to compromise, ultimately costing both parties time, money, and peace of mind. From the critical importance of a few inches of land to the defined limits of an HOA’s authority, the details matter.

Ultimately, the story of the Normans and the Hendersons serves as a powerful reminder that navigating HOA living requires a clear-eyed understanding of the actual rules, not just a sense of what seems “fair.” It leaves us with a critical question to consider.

When it comes to our homes and neighbors, is it more important to be right, or to find a way to live in peace?

Case Participants

Petitioner Side

  • David Norman (petitioner)
    Appeared telephonically on own behalf
  • Brenda Norman (petitioner)
    Testified on Petitioners' behalf

Respondent Side

  • Ashley N. Moscarello (HOA attorney)
    Goodman Law Group
    Represented Rancho Del Lago Community Association
  • Spencer Brod (property manager/witness)
    Management Solutions
    Employee of Respondent's management company; testified

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Felicia Del Sol (administrative staff)
    Transmitted decision electronically

Other Participants

  • Anthony Henderson (homeowner/neighbor)
    Next-door neighbor who built the wall in dispute
  • Mabel Gummere (property manager predecessor)
    Predecessor to Spencer Brod

Patricia Wiercinski vs. Long Meadow Ranch East Property Owners

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Case Summary

Case ID 19F-H1918028-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-01
Administrative Law Judge Diane Mihalsky
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Patricia Wiercinski Counsel —
Respondent Long Meadow Ranch East Property Owners Association, Inc. Counsel Ashley N. Moscarello, Esq.

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The ALJ denied and dismissed the petition, finding that Petitioner failed to establish that the Respondent HOA violated A.R.S. § 33-1805(A). The documents requested (an email string among Board members) were informal communications and were not considered official records of the association because the Board never took formal action on the incident.

Why this result: The Petitioner failed to meet the burden of proof that the Board created or possessed any official documents related to the incident that they failed to produce, as the emails were deemed private, informal communications rather than official records.

Key Issues & Findings

Failure to produce association records (un-redacted email string)

Petitioner alleged Respondent violated A.R.S. § 33-1805 by failing to produce official documents, specifically an un-redacted email string among Board members concerning an incident where Petitioner's husband allegedly harassed potential property buyers.

Orders: Petition dismissed because the documents sought (un-redacted emails) were informal communications, not official records of the association required to be produced under A.R.S. § 33-1805(A).

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1804(E)(4)

Analytics Highlights

Topics: homeowner records request, association records, informal communications, board quorum, records disclosure
Additional Citations:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1804(E)(4)
  • A.R.S. § 32-2199(B)

Video Overview

Audio Overview

Decision Documents

19F-H1918028-REL Decision – 705044.pdf

Uploaded 2026-04-28T10:45:33 (136.8 KB)

19F-H1918028-REL Decision – 684134.pdf

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19F-H1918028-REL Decision – 705044.pdf

Uploaded 2026-04-24T11:17:32 (136.8 KB)

19F-H1918028-REL Decision – 684134.pdf

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19F-H1918028-REL Decision – 684134.pdf

Uploaded 2026-01-23T17:27:32 (149.9 KB)

Legal Dispute Briefing: Wiercinski v. Long Meadow Ranch East POA

Executive Summary

This document provides a comprehensive analysis of the legal dispute between homeowner Patricia Wiercinski and the Long Meadow Ranch East Property Owners Association, Inc. (the “Respondent” or “HOA”). The case, adjudicated by the Arizona Office of Administrative Hearings, centered on the HOA’s alleged failure to produce official records in violation of Arizona statute A.R.S. § 33-1805. The dispute originated from a June 19, 2017 incident where Wiercinski’s husband, Wayne Coates, allegedly confronted and verbally abused potential buyers of a neighboring property, causing them to withdraw their interest.

The core of the legal challenge involved an email exchange among HOA board members discussing the incident. Wiercinski’s petition, filed on October 18, 2018, demanded access to what she believed were official HOA documents related to this event. The case proceeded through an initial hearing on January 10, 2019, and a subsequent rehearing on April 22, 2019, both overseen by Administrative Law Judge Diane Mihalsky.

In both hearings, the Judge ruled decisively in favor of the HOA. The central finding was that the private email communications among board members did not constitute an “official record of the association.” Therefore, the HOA had no statutory obligation to produce them or provide an un-redacted version. The judge upheld the HOA’s decision to redact the names of the potential buyers and their agent, citing credible testimony regarding Mr. Coates’ history of “threatening and bullying neighbors” as a reasonable justification for protecting those individuals from potential harassment. Both of Wiercinski’s petitions were ultimately denied and dismissed.

Case Overview and Parties Involved

The dispute was formally adjudicated within the jurisdiction of the Arizona Department of Real Estate and referred to the Office of Administrative Hearings for evidentiary proceedings.

• Case Number: 19F-H1918028-REL

• Initial Hearing Date: January 10, 2019

• Rehearing Date: April 22, 2019

• Presiding Judge: Administrative Law Judge Diane Mihalsky

Key Individuals and Entities

Name/Entity

Patricia Wiercinski

Petitioner; homeowner and member of the HOA.

Wayne Coates

Petitioner’s husband; central figure in the June 19, 2017 incident.

Long Meadow Ranch East POA, Inc.

Respondent; the Homeowners’ Association (“HOA”).

Michael “Mike” Olson

President of the Respondent’s Board of Directors.

Gregg Arthur

Director on the Respondent’s Board and a realtor.

Joe Zielinski

Director on the Respondent’s Board.

Kathy Andrews

Community Manager for the Respondent, employed by HOAMCO.

John Allen

HOA member and owner of the lot being sold.

Ashley N. Moscarello, Esq. (Goodman Law Group)

Legal representative for the Respondent.

Diane Mihalsky

Administrative Law Judge, Office of Administrative Hearings.

The Core Incident of June 19, 2017

The legal dispute stemmed from an encounter on June 19, 2017, involving Wayne Coates and a family considering the purchase of a vacant lot on Puntenney Rd., located across the street from the Wiercinski/Coates residence.

According to an email from the prospective buyers, Mr. Coates confronted them, their son, and their architect as they were viewing the property.

• Coates’ Alleged Actions: He “came out of his house and was belligerent and cursing at them,” claiming “nothing was for sale around here.” The potential buyer described him as “verbally abusive and extremely confrontational,” making “rude remarks while cussing” and displaying “extreme aggressive behavior.”

• Impact on the Sale: The confrontation directly caused the potential buyers to withdraw their offer. In their correspondence, they stated:

• Broader Concerns: The incident was seen by some as detrimental to the entire community. Board Director Gregg Arthur noted, “Wayne thru his actions appears to have interfered with and destroyed a property sale. We need to meet and take action on this matter as it will have a broad and chilling effect amongst the realtor community (effecting us all) not to mention the property owners.”

The Initial Hearing and Decision (January 2019)

The initial hearing focused on whether the HOA had withheld official records of its deliberations or decisions regarding the June 19, 2017 incident.

Petitioner’s Position

Patricia Wiercinski argued that the HOA violated A.R.S. § 33-1805 by failing to produce documents. Her key assertions were:

• Because an email about the incident was sent to a quorum of the Board, the matter constituted official business.

• The Board was legally required to make a formal motion and arrive at a documented decision, even if that decision was to take no action.

• She had never received any such documentation, such as minutes from an executive session or an open meeting.

• She pointed to a Board resolution regarding the electronic storage of documents as evidence that such records must exist.

Respondent’s Position

The HOA, represented by Ashley N. Moscarello, denied any violation. Their defense included:

• The email chain was an informal communication among neighbors and Board members on their personal email servers, not an official HOA record.

• No member had ever requested the Board take official action on the matter.

• The email string was provided voluntarily to the Petitioner.

• The names of the potential buyers and their real estate agent were redacted specifically because “Mr. Coates had a history of bullying and intimidating people.”

• The Board never formally discussed the incident, held a meeting, voted, or took any official action.

• The Community Manager, Kathy Andrews, testified that no official records (agendas, resolutions, minutes, etc.) pertaining to the incident existed.

Outcome and Rationale

The Administrative Law Judge denied the petition. The key conclusions of law were:

• The burden of proof was on the Petitioner to show a violation occurred.

• The simple fact that a quorum of Board members discussed a topic in private emails “does not make it official Board business,” especially when no action is taken.

• Forcing volunteer board members to formally document every informal discussion would be an “unnecessary and burdensome requirement.”

• Because the Petitioner did not establish that any official documents regarding the incident existed, the petition was dismissed.

The Rehearing and Final Decision (May 2019)

Wiercinski requested and was granted a rehearing, alleging “misconduct by the judge.” In this second hearing, she significantly altered her legal argument.

Petitioner’s Evolved Position

Wiercinski abandoned her claim that the Board was required to create a formal record of inaction. Instead, her new theory was:

• The email string itself, having been voluntarily produced by the HOA, must be considered an “official record of the association.”

• As an official record, A.R.S. § 33-1805 required the HOA to produce a complete, un-redacted copy.

• She argued that she and Mr. Coates had a right to know the identities of those who had accused him of belligerence.

Respondent’s Defense

The HOA’s defense remained consistent:

• The redaction of names was a necessary and reasonable measure to protect the individuals from potential harassment by Mr. Coates.

• The incident was a personal dispute between neighbors and did not violate any of the HOA’s governing documents (CC&Rs, bylaws), placing it outside the Board’s enforcement authority.

• Kathy Andrews again testified that the email was not part of the association’s archived business records, as the Board took no official action.

Final Outcome and Rationale

The Judge once again dismissed the petition. The final ruling reinforced the initial decision and provided further clarity:

• The email string was definitively not a “record of the association.”

• Because it was not an official record, A.R.S. § 33-1805 did not compel the HOA to provide an un-redacted version.

• The Judge explicitly validated the HOA’s motive for the redactions, stating that the Board President’s fear that “Mr. Coates would harass the real estate agent and potential purchaser… does not appear unreasonable.”

Key Evidence and Testimony

The email communications provided the primary evidentiary basis for the case.

Incriminating Email Content

Several emails from June 20, 2017, highlighted the severity of the incident and concerns about Wayne Coates:

• From Real Estate Agent to Potential Buyer: “He [John Allen] knows this person, Wayne Coates, and said he has been an issue in the neighborhood before. He has contacted Hoamco and is seeking legal [counsel] to stop this menace.”

• From Director Joe Zielinski to the Board: “The YCSO [Yavapai County Sheriff’s Office] may file charges against Wayne for disorderly conduct/harassment… given Wayne’s arrest record and prison term and criminal history. … I don’t believe Wayne (and Patricia’s) aggressive and disruptive behavior will stop.”

• From Director Gregg Arthur to the Board: “I was hoping that this would not be a situation we would have to encounter with Wayne Coates and Patricia however here it is on our door step.”

Definition of “Official Records”

Testimony from Community Manager Kathy Andrews was crucial in establishing the distinction between official and unofficial communications. She defined official records as including:

• Governing documents and architectural guidelines.

• Board and general meeting minutes.

• Expenditures, receipts, contracts, and financials.

• Anything submitted to the Board for official action.

She confirmed that because the Board took no action on the June 19, 2017 incident, the related emails were not included in Respondent’s archived records.

Wiercinski v. Long Meadow Ranch East POA: A Case Study

This study guide provides a comprehensive overview of the administrative case of Patricia Wiercinski versus the Long Meadow Ranch East Property Owners Association, Inc. The case revolves around a homeowner’s request for association records and the legal definition of what constitutes an official document that a homeowners’ association is required to produce under Arizona law. The material is drawn from two Administrative Law Judge Decisions, dated January 22, 2019, and May 1, 2019.

Key Parties and Individuals

Role / Title

Affiliation

Patricia Wiercinski

Petitioner

Homeowner, Member of Respondent

Wayne Coates

Petitioner’s Husband

Homeowner

Long Meadow Ranch East POA, Inc.

Respondent

Homeowners’ Association (HOA)

Diane Mihalsky

Administrative Law Judge (ALJ)

Office of Administrative Hearings

Ashley N. Moscarello, Esq.

Legal Counsel for Respondent

Goodman Law Group

Michael “Mike” Olson

President of the Board

Respondent (HOA)

Gregg Arthur

Director on the Board

Respondent (HOA)

Kathy Andrews

Community Manager

HOAMCO (Respondent’s management company)

John Allen

Property Owner / HOA Member

Long Meadow Ranch East

Joe Zielinski

Director on the Board

Respondent (HOA)

Jim Robertson

Director on the Board

Respondent (HOA)

Tom Reid

Director on the Board

Respondent (HOA)

Boris Biloskirka

Former Board Member

Respondent (HOA)

Timeline of Key Events

June 19, 2017

An incident occurs where Wayne Coates allegedly acts belligerently toward potential buyers of John Allen’s property.

June 20, 2017

An email exchange regarding the incident occurs between John Allen, his realtor, and members of the HOA Board.

October 18, 2018

Patricia Wiercinski files a petition with the Arizona Department of Real Estate, alleging the HOA violated A.R.S. § 33-1805.

January 10, 2019

The initial evidentiary hearing is held before Administrative Law Judge Diane Mihalsky.

January 22, 2019

The ALJ issues a decision denying Wiercinski’s petition.

Post-Jan 22, 2019

Wiercinski requests a rehearing, alleging misconduct by the judge. The request is granted.

April 22, 2019

The rehearing is held.

May 1, 2019

The ALJ issues a final decision, again dismissing Wiercinski’s petition.

The Core Dispute: The June 19, 2017 Incident

On June 19, 2017, potential buyers, along with their builder, architect, and son, were viewing a lot for sale owned by John Allen on Puntenney Rd. The lot was across the street from the home of Patricia Wiercinski and Wayne Coates. An elderly man, later identified as Wayne Coates, came out of the house and was allegedly “belligerent and cursing” at the group, telling them nothing was for sale and they should not be snooping around. The potential buyers described the individual as “verbally abusive and extremely confrontational,” displaying “extreme aggressive behavior.” As a result of this encounter, the potential buyers decided to remove the lot from their list of considerations, stating they were seeking a “quiet, peaceful, and neighborly place to retire. Not a place with hostility and confrontation.”

This incident prompted John Allen to contact his realtor and members of the HOA Board, seeking action to prevent such behavior from interfering with future property sales.

The Legal Proceedings

Petitioner’s Argument: Patricia Wiercinski alleged that the HOA (Respondent) violated A.R.S. § 33-1805 by failing to produce documents related to its deliberations, decisions, and actions regarding the June 19, 2017 incident. Her core arguments were:

• The email about the incident was sent to a quorum of the Board, making it official business.

• The Board was required to make a formal motion and decision, even if it decided to take no action against her husband.

• She never received documents showing the Board addressed the incident in an executive session or open meeting.

• She did not receive a map referenced in one of the emails or a letter mentioned by board member Joe Zielninski in a video.

• An HOA resolution to electronically store all association business documents meant the requested records must exist.

Respondent’s Argument: The HOA denied violating any statute. Its defense was based on the following points:

• The Board never took any official action against Wiercinski or Coates as a result of the incident.

• The email string was an informal communication among Board Directors on their personal servers and was not kept as an official record. It was provided to Wiercinski voluntarily.

• The names of the potential purchasers and real estate agent were redacted from the emails because Wayne Coates has a known history of “threatening and bullying neighbors and others.”

• No official discussion or vote on the incident ever occurred in an executive session or general meeting.

ALJ’s Decision (January 22, 2019): The Administrative Law Judge denied the petition. The decision concluded that Wiercinski did not meet her burden of proof to establish that any official documents regarding the incident existed that the Respondent failed to produce. The judge reasoned that the mere fact a quorum of Board members informally discusses a topic in private emails does not make it official Board business, especially when no action is taken.

Reason for Rehearing: Wiercinski requested a rehearing, alleging misconduct by the judge. The Commissioner of the Department of Real Estate granted the request without noting any specific misconduct or stating why it should have changed the result.

Petitioner’s Changed Argument: At the rehearing, Wiercinski changed her theory of the case. She no longer argued that the Board failed to produce a record of a formal decision. Instead, she argued that:

• The email string itself was an official record of the association’s business.

• A.R.S. § 33-1805 therefore required the HOA to produce a fully un-redacted copy of the emails.

• She and Mr. Coates had a right to know the names of the individuals accusing Mr. Coates of belligerence.

Respondent’s Rebuttal: The HOA maintained its position:

• The email string was not an official record because the Board never took any action on the matter. The incident did not violate any of the HOA’s CC&Rs, bylaws, or anything else it was empowered to enforce.

• Community Manager Kathy Andrews testified that official records include governing documents, minutes, and items submitted to the Board for action. Since the Board took no action, the email was not included in the association’s archived records.

• The names were redacted because of Mr. Coates’s history of intimidation, and the Board president feared he would harass the individuals involved.

ALJ’s Final Decision (May 1, 2019): The petition was dismissed again. The ALJ reaffirmed that the email string was not a “record of the association.” Therefore, A.R.S. § 33-1805(A) did not require the Respondent to provide an un-redacted version to the Petitioner. The judge also noted that the fear of harassment by Mr. Coates, which prompted the redactions, “does not appear unreasonable.”

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

1. What specific event on June 19, 2017, initiated the legal dispute?

2. What Arizona statute did Patricia Wiercinski claim the HOA violated, and what does that statute generally require?

3. Why did the HOA state it redacted names from the email chain it provided to Wiercinski?

4. In the initial hearing, what did Wiercinski argue the HOA Board was required to do even if it decided to take no action on the incident?

5. How did Wiercinski’s primary legal argument change between the first hearing and the rehearing?

6. Who is Kathy Andrews, and what was her testimony regarding the HOA’s official records?

7. Did the HOA Board ever hold a formal meeting or take an official vote regarding the incident involving Wayne Coates?

8. According to the ALJ, does an informal email discussion among a quorum of board members automatically constitute “official Board business”?

9. What was the final ruling in the case after the rehearing?

10. What reason did HOA President Mike Olson give for the Board not taking official action on the June 19, 2017 incident?

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Answer Key

1. The event was an alleged confrontation where Wayne Coates was belligerent and verbally abusive toward potential buyers who were viewing a property for sale across the street from his home. This encounter caused the buyers to lose interest in the property.

2. Wiercinski claimed the HOA violated A.R.S. § 33-1805. This statute requires that all financial and other records of a homeowners’ association be made reasonably available for examination by any member.

3. The HOA stated it redacted the names of the potential purchasers and their real estate agent due to Wayne Coates’s history of “threatening and bullying neighbors and others.” Board President Mike Olson testified he feared Mr. Coates would harass the individuals if their identities were revealed.

4. In the initial hearing, Wiercinski argued that the Board was required to make a formal motion and arrive at a formal, documented decision even if it decided it was not going to take any action against her husband.

5. In the rehearing, Wiercinski’s argument shifted from claiming the HOA failed to produce a record of a decision to arguing the email string itself was an official record. She then demanded that the HOA provide a fully un-redacted version of this email string.

6. Kathy Andrews is the community manager for the HOA, employed by the management company Hoamco. She testified that the association’s official records include items like governing documents, meeting minutes, and anything submitted to the Board for action, and that the email was not an official record because the Board took no action.

7. No. Testimony from multiple witnesses, including Mike Olson and Gregg Arthur, confirmed that the Board never discussed the incident at an executive meeting or general membership meeting and never voted or took any official action as a result of the incident.

8. No. The ALJ’s decision states that the mere fact a quorum of Board members discusses a topic does not make it official Board business, especially if they do not take any action to make it so.

9. The final ruling was that the Petitioner’s petition was dismissed. The ALJ found that the email string was not an official record of the association, so the HOA was not required by law to provide an un-redacted version.

10. Mike Olson testified that the Board never voted to take any action because the alleged incident did not violate the Respondent’s CC&Rs, bylaws, or anything else that the HOA was authorized or empowered to enforce.

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Essay Questions

1. Analyze the distinction made by the Administrative Law Judge between informal discussions among board members and “official Board business.” How did this distinction shape the outcome of both hearings?

2. Discuss the evolution of Patricia Wiercinski’s legal strategy from the initial hearing to the rehearing. Was the change in argument effective, and why or why not?

3. Examine the roles of A.R.S. § 33-1805 and A.R.S. § 33-1804 in this case. Explain how the Petitioner and Respondent interpreted these statutes differently and how the Administrative Law Judge ultimately applied them.

4. Based on the testimony of Mike Olson and Kathy Andrews, describe the HOA’s official position on record-keeping and its justification for not treating the email string as an official document.

5. Evaluate the Respondent’s decision to redact the names of non-members from the email string. What reasons were given for this action, and how did the Administrative Law Judge view this justification in the final ruling?

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Glossary

• Administrative Law Judge (ALJ): The impartial judge who presides over administrative hearings, hears evidence, and makes legal decisions. In this case, the ALJ was Diane Mihalsky.

• A.R.S. § 33-1805(A): An Arizona Revised Statute cited in the case which provides that “all financial and other records of the association shall be made reasonably available for examination by any member.”

• A.R.S. § 33-1804(E)(4): An Arizona Revised Statute cited in the case which provides that any quorum of the board of directors that meets informally to discuss association business must comply with open meeting and notice provisions.

• Homeowners’ Association (HOA): An organization in a subdivision, planned community, or condominium building that makes and enforces rules for the properties and its residents. In this case, the Long Meadow Ranch East Property Owners Association, Inc.

• Petitioner: The party who files a petition to initiate a legal proceeding. In this case, Patricia Wiercinski.

• Preponderance of the Evidence: The standard of proof required in this administrative hearing. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with the “most convincing force.”

• Quorum: The minimum number of members of a deliberative assembly (such as a board of directors) necessary to conduct the business of that group. The petitioner argued that because a quorum of the board was included on the emails, the discussion constituted official business.

• Respondent: The party against whom a petition is filed. In this case, the Long Meadow Ranch East Property Owners Association, Inc.

4 Shocking Lessons from an HOA Lawsuit About a “Nightmare Neighbor”

Introduction: Behind the Closed Doors of the HOA Board

Many people live in communities governed by a Homeowners’ Association (HOA), navigating the rules and paying the dues as part of modern suburban life. But what happens when a serious dispute between neighbors erupts? What if one resident’s behavior is so aggressive that it costs another the sale of their property? A real-life administrative law case from Prescott, Arizona, provides a rare and fascinating look into the messy reality of HOA governance. The lawsuit, filed by a homeowner against her HOA for allegedly withholding records, reveals surprising truths about what constitutes “official business” and the real-world limits of an HOA’s power.

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1. Not All HOA Talk is “Official Business”—Even When the Whole Board Is In on It.

The case centered on a dramatic incident. A homeowner’s husband, Wayne Coates, was accused of being “belligerent and cursing” at potential buyers viewing a lot across the street, causing them to back out of the sale. The distressed property seller, John Allen, emailed an HOA board member, Gregg Arthur, who then forwarded the complaint to the entire board. The petitioner, Mr. Coates’ wife, argued that this email chain was an official HOA record.

Her argument rested on a profound misunderstanding of board governance that many residents likely share: she claimed the board was legally required to make a motion and arrive at a formal decision even if it decided to do nothing. The administrative law judge firmly rejected this idea. The emails were deemed informal, private communications, not official records.

The judge clarified that “official business” is triggered when a board moves toward a formal decision or action that would bind the association, such as spending funds, issuing a violation, or changing a rule. These emails were purely informational and investigatory, never reaching that threshold. This distinction is a cornerstone of volunteer board governance, as it protects boards from being paralyzed by procedure. The judge’s decision powerfully refutes the notion that boards must formally document every issue they choose not to pursue:

the mere fact that a quorum of Board members may discuss a topic does not make it official Board business, especially if they do not end up taking any action to make a matter board business. Any other result would impose an unnecessary and burdensome requirement on volunteers who are not compensated for their time who are may be neighbors and who may also be friends, in addition to being Board members.

2. A Neighbor’s Behavior Can Kill a Property Sale, and Your HOA Might Be Powerless.

The impact of Mr. Coates’ alleged actions was immediate and severe. The potential buyers, seeking a peaceful retirement, were so shaken by the confrontation that they explicitly withdrew their interest in the property.

An email from the potential buyer, submitted as evidence, vividly illustrates the direct financial consequence of the neighbor’s behavior:

In closing when we returned one thing that stands out is would we want to live next to this type of behavior of [a] neighbor? The answer is no, this lot was one that we had in our top 2 Lots as a consideration for purchase but due to the volatile potential of this man, we have decided at this point to remove it from our list.

Despite the clear harm to a member, the HOA concluded it could not intervene. According to testimony, Community Manager Kathy Andrews explained that the HOA had “no authority to become involved in a personal dispute between neighbors.” Further, Board President Mike Olson testified that the incident did not violate any specific CC&Rs or bylaws the board was empowered to enforce. This highlights a counter-intuitive reality for many homeowners: not all bad neighbor behavior falls under an HOA’s jurisdiction, even when it negatively affects property sales. However, while the HOA was powerless, the situation was not a dead end for the seller, who court records show did eventually sell his lot to someone else.

3. Transparency Has Limits, Especially When a Resident Is Seen as a Threat.

The petitioner demanded an un-redacted copy of the emails, wanting to know exactly who was accusing her husband. The HOA refused, redacting the names of the potential buyers and their real estate agent.

The reason, according to sworn testimony from HOA President Mike Olson, was that Mr. Coates had a “history of threatening and bullying neighbors and others.” This case highlights the inherent tension between a member’s right to information and the board’s fiduciary duty to protect individuals from harm. While members have a right to access official records, that right is not absolute.

The judge validated the board’s exercise of its duty of care, finding its rationale for the redactions to be sound. In a moment of legal irony, the judge noted that the board’s fear was reasonable, “especially given Mr. Coates’ role in causing Petitioner to prosecute this petition at the original hearing and rehearing.” In effect, the petitioner’s own aggressive pursuit of the case in court helped to legally justify the board’s initial decision to protect identities from her husband.

4. Suing Your HOA Can Put Your Own Dirty Laundry on Display.

Perhaps the greatest irony of the lawsuit is what it ultimately accomplished. In her quest to obtain what she believed were improperly withheld documents, the petitioner’s legal action placed deeply unflattering information about her husband directly into the public record for anyone to see.

Emails submitted as evidence contained damaging statements, including an email from board member Joe Zielinski that is now a permanent part of the court file. It contained severe allegations that went far beyond the initial incident.

The YCSO [Yavapai County Sheriff’s Office] may file charges against Wayne for disorderly conduct/harassment, based on what happened to Mr. Allan and the others in attendance, given Wayne’s arrest record and prison term and criminal history. . . . I don’t believe Wayne (and Patricia’s) aggressive and disruptive behavior will stop.

This serves as a powerful “be careful what you wish for” lesson in HOA litigation. The lawsuit, intended to hold the HOA accountable, permanently enshrined the allegations about her husband’s “arrest record and prison term” in the public court record—the very opposite of the privacy and vindication the petitioner was likely seeking.

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Conclusion: The Fine Line Between Community and Controversy

This case peels back the curtain on the complex world of volunteer-run HOAs. It demonstrates that the line between an informal discussion among neighbors and official, actionable HOA business is finer and more consequential than most residents assume. It shows that an HOA’s power has clear limits and that a board’s duty to protect individuals can sometimes override demands for total transparency. It makes you wonder: when you see a problem in your neighborhood, is it truly the HOA’s business to solve, or is it a personal dispute between neighbors?

Case Participants

Petitioner Side

  • Patricia Wiercinski (petitioner)
    Appeared on her own behalf
  • Wayne Coates (petitioner's husband)
    Central figure in the June 19, 2017 incident

Respondent Side

  • Ashley N. Moscarello (HOA attorney)
    Goodman Law Group
    Represented Respondent
  • Michael Olson (board president, witness)
    President of Respondent's board; testified at hearing and rehearing
  • Gregg Arthur (board director, witness)
    Director on Respondent's board; testified at hearing
  • Kathy Andrews (property manager, witness)
    HOAMCO
    Respondent's community manager; employed by HOAMCO; testified at hearing and rehearing
  • John Allen (member/complainant)
    Owner trying to sell property across the street from Petitioner; member of Respondent
  • Jim Robertson (board director)
    Director on Respondent's board
  • Joe Zielinski (board director, witness)
    Director on Respondent's board; mentioned conversation with YCSO deputy
  • Tom Reid (board director)
    Director on Respondent's board
  • Boris Biloskirka (former board member)
    Recipient of emails; identified as a former Board member
  • Josh (compliance officer)
    Referenced in emails regarding compliance inspections

Neutral Parties

  • Diane Mihalsky (ALJ)
    Administrative Law Judge
  • Shelia Polk (head prosecutor)
    Head of the office Joe Zielinski sought to contact regarding Wayne Coates
  • YCSO’s deputy (deputy)
    Yavapai County Sheriff’s Office
    Conversed with Joe Zielinski regarding the incident
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Commissioner of the Arizona Department of Real Estate
  • Felicia Del Sol (administrative staff)
    Transmitted decision electronically

John A Sellers vs. Rancho Madera Condominium Association

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

CC&Rs § 3.10

Outcome Summary

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

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

Key Issues & Findings

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

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

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

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

19F-H1918010-REL Decision – 706533.pdf

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

19F-H1918010-REL Decision – 707530.pdf

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

19F-H1918010-REL Decision – 667122.pdf

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

19F-H1918010-REL Decision – 678371.pdf

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

19F-H1918010-REL Decision – 667122.pdf

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

19F-H1918010-REL Decision – 678371.pdf

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

Briefing Document: Sellers vs. Rancho Madera Condominium Association

Executive Summary

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

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

Case Chronology and Procedural History

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

Details

Aug 23, 2018

Petition Filed

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

Oct 23, 2018

Hearing Vacated

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

Nov 5 & Dec 12, 2018

Initial Hearing

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

Dec 26, 2018

Initial Decision

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

Feb 1, 2019

Rehearing Requested

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

Feb 22, 2019

Rehearing Granted

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

Apr 15, 2019

Rehearing Held

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

May 7, 2019

Post-Hearing Filing Stricken

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

May 10, 2019

Final Decision on Rehearing

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

Core Dispute Analysis

Petitioner’s Position and Allegations

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

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

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

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

Respondent’s Position and Actions

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

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

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

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

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

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

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

Key CC&R Provisions and Legal Interpretation

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

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

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

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

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

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

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

Judicial Findings and Rulings

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

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

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

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

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

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

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

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

Notable Evidence

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

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

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

Short-Answer Quiz

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

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

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

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

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

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

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

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

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

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

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

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Answer Key

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

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

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

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

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

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

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

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

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

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

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Suggested Essay Questions

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

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

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

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

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

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, takes evidence, and makes legal decisions and orders. In this case, Diane Mihalsky and Tammy L. Eigenheer served as ALJs.

Covenants, Conditions, and Restrictions (CC&Rs)

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

Drainage Easement

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

Drainage Easement Area

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

Drainage Improvements

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

Office of Administrative Hearings (OAH)

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

Petitioner

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

Preponderance of the Evidence

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

Rehearing

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

Respondent

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

The Department

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

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

The Anatomy of a Neighborhood War

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Outside Conflicts Can Cast a Long Shadow

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

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

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

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

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

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

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

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

A Cautionary Tale for Any Homeowner

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

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

Case Participants

Petitioner Side

  • John A Sellers (petitioner)

Respondent Side

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

Neutral Parties

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

Other Participants

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

John Shields vs. Will Rogers Equestrian Ranch

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Case Summary

Case ID 17F-H1717034-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2018-02-26
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John L. Shields Counsel —
Respondent Will Rogers Equestrian Ranch Counsel Maria R. Kupillas

Alleged Violations

CC&R § 6.2(A)

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove the HOA violated its CC&Rs by approving the wall extension, as the HOA’s approval duties were limited to aesthetic considerations under CC&R § 7.2 and did not extend to enforcing or ensuring adjoining owner approval required by CC&R § 6.2(A).

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent erroneously approved the proposal, as Respondent's duties under CC&R § 7.2 did not require considering adjoining neighbor approval specified in CC&R § 6.2(A).

Key Issues & Findings

Alleged violation of CC&Rs by HOA improperly approving a neighbor's block wall extension without adjoining owner's approval.

Petitioner alleged that the Respondent HOA violated CC&R § 6.2(A) by approving a neighbor's block wall extension that served as a party wall because Petitioner, the adjoining owner, had not approved the wall. Respondent argued their approval duties under CC&R § 7.2 only concerned aesthetics, not ensuring neighbor approval.

Orders: The petition is dismissed and no action is required of Respondent.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199.01
  • CC&R § 6.2(A)
  • CC&R § 7.2

Analytics Highlights

Topics: HOA, CC&R, Architectural Control Committee, Fence, Party Wall, Rehearing, Burden of Proof
Additional Citations:

  • A.R.S. § 32-2199.01
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

17F-H1717034-REL Decision – 619560.pdf

Uploaded 2026-04-24T11:05:20 (90.8 KB)

17F-H1717034-REL Decision – 592935.pdf

Uploaded 2026-04-24T11:05:24 (115.2 KB)

Briefing Document: Analysis of Administrative Law Judge Decision in Shields v. Will Rogers Equestrian Ranch

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Decision in Case No. 17F-H1717034-REL-RHG, dated February 26, 2018. The central issue was a petition filed by homeowner John L. Shields against the Will Rogers Equestrian Ranch Homeowners’ Association (HOA), alleging the HOA improperly approved a wall extension built by his neighbor, Joe Johnson, without Mr. Shields’ required consent.

The petition was ultimately dismissed. The Administrative Law Judge (ALJ) concluded that the petitioner, Mr. Shields, failed to establish by a preponderance of the evidence that the HOA had violated its Covenants, Conditions, and Restrictions (CC&Rs). The decision rests on a critical distinction between the responsibilities of a homeowner and the responsibilities of the HOA under separate articles of the CC&Rs. The ALJ determined that the obligation to secure an adjoining neighbor’s approval for a wall alteration (under CC&R § 6.2) falls exclusively on the homeowner undertaking the project. In contrast, the HOA’s duty (under CC&R § 7.2) is limited to an aesthetic review of the proposed alteration, which it conducted appropriately. The HOA had no legal obligation to enforce or verify neighbor-to-neighbor approval.

I. Case Overview

Case Name

John L. Shields (Petitioner) vs. Will Rogers Equestrian Ranch (Respondent)

Case Number

17F-H1717034-REL-RHG

Jurisdiction

Office of Administrative Hearings, Phoenix, Arizona

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Date of Decision

February 26, 2018

Core Dispute

The petitioner alleged the HOA violated CC&R § 6.2(A) by approving a neighbor’s approximately 5’ x 6’ block wall extension without the petitioner’s consent.

Final Outcome

The petition was dismissed, with no action required of the respondent HOA.

II. Petitioner’s Claim and Arguments

John L. Shields, a homeowner at 20431 E. Bronco Drive within the Will Rogers Equestrian Ranch development, filed a petition against the HOA concerning a wall extension built by his next-door neighbor, Joe Johnson.

• Core Allegation: After vacillating on the specifics of his complaint during the hearing, Mr. Shields firmly asserted that his single issue was that the HOA improperly approved Mr. Johnson’s proposal to build a block wall extension and move his gate forward.

• Basis of Claim: The petitioner argued that under CC&R § 6.2, the HOA should have withheld its approval because Mr. Johnson had not demonstrated that he had first obtained Mr. Shields’ approval for the wall extension between their properties.

• Evidence and Testimony: Mr. Shields denied ever having approved the wall. He submitted a photograph he had taken from his front porch and testified that the block wall extension “was an eyesore.”

III. Respondent’s Position and Evidence

The Will Rogers Equestrian Ranch HOA, represented by board president Kristi Hancock, denied all complaint items and argued its actions were consistent with the governing CC&Rs.

• Basis of Approval: The HOA contended that its approval was based solely on the criteria outlined in CC&R § 7.2. The board, acting as the Architectural Control Committee, reviewed Mr. Johnson’s proposal for its aesthetic qualities and consistency with other properties in the development.

• Aesthetic Review: Ms. Hancock testified that the board inspected other wall extensions and gates and found Mr. Johnson’s proposal to be “aesthetically pleasing and consistent with the other properties.”

• Neighbor Consent Issue: The HOA acknowledged its awareness of Mr. Shields’ objection to the wall after it was built. However, Ms. Hancock testified that the board’s understanding of whether Mr. Shields had approved the wall before construction was unclear. She stated that “at least four witnesses had stated that they heard Petitioner either actually approve of or fail to state an objection to the block wall extension while, in Petitioner’s presence, Mr. Johnson discussed having the block wall extension built.”

• Separation of Duties: The HOA’s position was that its duty under § 7.2 was distinct from the homeowner’s duty under § 6.2. The HOA was not responsible for obtaining or verifying neighbor approval.

IV. Chronology of Key Events

1. October 13, 2016 (approx.): Mr. Johnson has the block wall extension built without first obtaining approval from the HOA’s board or committee.

2. October 16, 2016 (approx.): Mr. Shields expresses his disapproval of the newly built wall to Mr. and Mrs. Johnson.

3. November 2, 2016 (approx.): Mr. Johnson retroactively submits his proposal for the wall extension and a plan to move his gate forward to the Architectural Control Committee for approval.

4. November 2016: The HOA’s newly elected board meets as the Committee and verbally approves Mr. Johnson’s wall but advises him that “he will need to seek neighboring property owner’s approval.”

5. January 2017: The board formally approves Mr. Johnson’s proposal for the wall extension and gate move.

6. May 3, 2017 (approx.): Mr. Shields files a single-issue petition with the Arizona Department of Real Estate.

7. September 27, 2017: An initial hearing is held, and Administrative Law Judge Diane Mihalsky dismisses the petition.

8. December 5, 2017: The Real Estate Commissioner grants Mr. Shields’ request for a rehearing based on his claims of legal errors and judicial misconduct.

9. February 5, 2018: A rehearing is held before Administrative Law Judge Tammy L. Eigenheer.

V. Analysis of Covenants, Conditions, and Restrictions (CC&Rs)

The judge’s decision hinged on the distinct and separate functions of two key CC&R sections.

This section governs alterations to shared fences and walls.

Such Party Walls and Fences shall not be altered, or changed in design, color, material or construction from the original installation made by the Developer without [the] approval of the adjoining Owner(s), if any, and the [Architectural Control] Committee.

• Interpretation: The ALJ interpreted this section as creating two separate approval requirements for the homeowner making the alteration: one from the adjoining owner and one from the Committee. It does not obligate the Committee to enforce the adjoining owner’s approval.

This section defines the scope and limits of the Architectural Control Committee’s power.

No . . . fences . . . shall be commenced [or] erected . . . until the plans and specifications showing the same shall have been submitted to and approved by the Committee. Approval shall not be unreasonably withheld. However, the Committee shall have the right to refuse to approve any Alteration which is not suitable or desirable in their opinion for aesthetic or other reasons…

• Interpretation: The ALJ found that this section limits the Committee’s review to specific criteria, including aesthetics, harmony with surroundings, and effect on neighboring property. It explicitly states that approval “shall not be unreasonably withheld” and does not require the Committee to verify compliance with other CC&Rs or city ordinances.

VI. Judge’s Conclusions of Law and Rationale for Dismissal

The ALJ’s decision to dismiss the petition was based on a clear legal interpretation of the CC&Rs and the petitioner’s failure to meet the burden of proof.

• Distinct and Separate Obligations: The core of the ruling is that the CC&Rs create parallel but separate responsibilities.

1. Homeowner’s Responsibility: The duty to obtain an adjoining neighbor’s approval for a shared wall alteration under § 6.2(A) rests solely with the homeowner performing the work (Mr. Johnson).

2. HOA’s Responsibility: The HOA’s duty under § 7.2 is limited to reviewing the project on its aesthetic merits and consistency within the community.

• Key Legal Finding: The decision explicitly states the separation of these duties:

• Scope of HOA Review: The ALJ affirmed that the HOA’s scope of review was properly limited.

• Failure to Meet Burden of Proof: Because the HOA acted within the authority and limitations defined by CC&R § 7.2, the petitioner failed to prove by a preponderance of the evidence that the HOA had violated its governing documents.

• Other Responsibilities: The decision also noted that the responsibility for ensuring compliance with City of Queen Creek ordinances (related to the gate move) ultimately rested with Mr. Johnson, not the HOA.

VII. Final Order

Based on the findings of fact and conclusions of law, the Administrative Law Judge ordered that the petition be dismissed.

• No action is required of the Respondent, Will Rogers Equestrian Ranch HOA.

• The decision, issued as a result of a rehearing, is binding on the parties.

• Any appeal must be filed with the superior court within thirty-five days from the date the order was served.

Study Guide: Shields v. Will Rogers Equestrian Ranch

This guide provides a comprehensive review of the Administrative Law Judge Decision in case number 17F-H1717034-REL-RHG, involving John L. Shields and the Will Rogers Equestrian Ranch homeowners’ association. It includes a short-answer quiz to test factual recall, an answer key for verification, essay questions for deeper analysis, and a glossary of key terms as defined and used within the context of the legal decision.

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the provided legal decision.

1. Who are the Petitioner and the Respondent in this case, and what is their relationship?

2. What was the specific, single-issue claim that the Petitioner, John L. Shields, filed with the Arizona Department of Real Estate on May 3, 2017?

3. What is a “party wall” according to CC&R § 6.2(A), and what specific approval is required to alter one?

4. What was the timeline of the wall extension’s construction and Mr. Johnson’s subsequent submission for approval to the Committee?

5. On what grounds did the Respondent’s board, acting as the Architectural Control Committee, approve Mr. Johnson’s proposal?

6. What was the Petitioner’s central argument for why the Respondent should not have approved Mr. Johnson’s proposal?

7. Why was a rehearing granted after the initial hearing on September 27, 2017?

8. What contradictory evidence did the Respondent’s board consider regarding whether the Petitioner had approved the wall extension before it was built?

9. What is the “preponderance of the evidence” standard, and who bore the burden of proof in this case?

10. What was the final recommended order from Administrative Law Judge Tammy L. Eigenheer, and what was the core legal reasoning for this decision?

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Answer Key

1. The Petitioner is John L. Shields, who owns a home at 20431 E. Bronco Drive. The Respondent is the Will Rogers Equestrian Ranch, a homeowners’ association in Queen Creek, Arizona. Mr. Shields is a member of the Respondent association.

2. The Petitioner alleged that the Respondent violated § 6.2(A) of its Covenants, Conditions, and Restrictions (CC&Rs). The violation claim was based on the Respondent approving a common block wall extension built by his neighbor, Joe Johnson, without the Petitioner’s required approval.

3. According to CC&R § 6.2(A), a “party wall” is a fence constructed upon the back of a lot. To alter or change the design, color, material, or construction of such a wall, approval is required from both the adjoining owner(s) and the Architectural Control Committee.

4. Mr. Johnson had the wall extension built on or about October 13, 2016, without prior approval. He subsequently submitted his proposal to the Committee for approval on or about November 2, 2016.

5. The board approved the proposal based on the criteria in CC&R § 7.2, which required it to consider if the alteration was aesthetically pleasing and harmonious with its surroundings. The board inspected other extensions in the development and found Mr. Johnson’s proposal to be consistent with them.

6. The Petitioner argued that the Respondent’s approval was improper because Mr. Johnson had not demonstrated that he had first obtained the Petitioner’s approval for the block wall extension, which is a stated requirement in CC&R § 6.2.

7. A rehearing was granted by Commissioner Judy Lowe on December 5, 2017. The Petitioner requested it based on claims of errors in the admission or rejection of evidence, other errors of law, and alleged misconduct by the initial Administrative Law Judge that deprived him of a fair hearing.

8. The board knew the Petitioner objected to the wall after it was built. However, the board was also aware of at least four witnesses who stated they heard the Petitioner either actually approve of the extension or fail to object while Mr. Johnson discussed building it in his presence.

9. “Preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. In this case, the Petitioner, John L. Shields, bore the burden of proof to establish his claim by this standard.

10. The judge ordered that the petition be dismissed and that no action was required of the Respondent. The reasoning was that under CC&R § 6.2(A), the responsibility to get an adjoining neighbor’s approval lies with the property owner (Mr. Johnson), not the Respondent, and CC&R § 7.2 only required the Respondent to consider aesthetic factors, which it did.

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Essay Questions

Instructions: The following questions are designed to provoke deeper analysis of the case. Formulate a comprehensive response to each, structuring your answer in a standard essay format.

1. Analyze the distinct responsibilities assigned to the homeowner (Mr. Johnson) and the homeowners’ association (Respondent) by CC&R § 6.2(A) and § 7.2. How did the separation of these duties form the crux of the Administrative Law Judge’s final decision?

2. Discuss the legal standard of “preponderance of the evidence” as it is defined in the decision. Explain why the evidence presented by the Petitioner, including his testimony and photograph of the wall, failed to meet this burden of proof against the Respondent.

3. Examine the role and limitations of the Architectural Control Committee as described in CC&R § 7.2. In your analysis, consider what the committee is required to evaluate, what it is explicitly not responsible for, and the provision that its approval “shall not be unreasonably withheld.”

4. Trace the procedural history of this case, from the initial petition filing to the final order after the rehearing. What does this progression reveal about the administrative hearing process and the grounds upon which a rehearing can be granted?

5. Although the petition was dismissed, the facts indicate that Mr. Johnson built the wall extension before receiving any approval and that the City of Queen Creek later found his plan to move the gate violated city codes. Argue whether the Respondent (the HOA) bears any ethical, if not legal, responsibility in a situation where its approval process is disconnected from neighbor consent and municipal law compliance.

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Glossary of Key Terms

Definition in Context

Administrative Law Judge (ALJ)

An official, in this case Tammy L. Eigenheer, from the Office of Administrative Hearings who presides over evidentiary hearings and issues decisions on matters referred by state agencies like the Department of Real Estate.

Architectural Control Committee (“the Committee”)

A body within the homeowners’ association, in this case comprised of the board members, responsible for reviewing and approving or denying proposed alterations to properties, such as fences, based on aesthetic and other specified criteria.

A.R.S. § 32-2199.01

The Arizona Revised Statute that permits an owner in a planned community to file a petition with the Department of Real Estate concerning violations of community documents.

Burden of Proof

The obligation of a party in a legal case to provide evidence that proves its claim. In this case, the Petitioner bore the burden to prove his claim by a “preponderance of the evidence.”

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set forth the rules for a planned community. This case centers on the interpretation of § 6.2(A) and § 7.2 of the Will Rogers Equestrian Ranch CC&Rs.

Homeowners’ Association (HOA)

An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents. The Respondent, Will Rogers Equestrian Ranch, is an HOA.

Party Wall

As defined in CC&R § 6.2(A), a fence constructed upon the back of any lot that is shared between adjoining properties. Alterations require approval from the adjoining owner and the Committee.

Petitioner

The party who initiates a legal action or petition. In this case, John L. Shields, a homeowner and member of the Respondent association.

Preponderance of the Evidence

The standard of proof required in this civil administrative hearing. It is defined as evidence that is more convincing and has superior weight, making it more probable that a contention is true than not.

Rehearing

A second hearing of a case, granted in this instance because the Petitioner claimed there were errors of law and misconduct by the judge in the first proceeding that deprived him of a fair hearing.

Respondent

The party against whom a petition is filed. In this case, the Will Rogers Equestrian Ranch homeowners’ association.

4 Surprising Lessons From a Homeowner’s Lawsuit Against His HOA

It’s a scenario many homeowners can imagine: a neighbor erects a new wall along the property line without your consent. Your first instinct is to escalate the issue to your Homeowners’ Association (HOA), assuming it’s their job to enforce the community’s rules. This common assumption—that the HOA is the ultimate authority responsible for mediating all disputes between neighbors—is powerful, but is it always correct?

A real-life administrative court case, Shields v. Will Rogers Equestrian Ranch, provides a valuable case study in the delineation of duties within a planned community, revealing that the answer can be a surprising “no.” This case offers critical insights into the true roles and responsibilities of an HOA. Here are the top four counter-intuitive takeaways from this legal decision that every homeowner should understand.

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1. Your HOA Isn’t a Referee for Neighbor-to-Neighbor Agreements

Mr. Shields sued his HOA because it approved a neighbor’s wall extension that he, the adjoining owner, had not approved. He believed this violated the community’s Covenants, Conditions, and Restrictions (CC&Rs), specifically § 6.2(A), which requires approval from the adjoining owner for such changes.

The Administrative Law Judge, however, found the HOA had no legal duty to enforce this particular rule. The responsibility to secure the neighbor’s approval fell solely on the property owner making the change, not the HOA. The judge’s finding on this point was direct and unambiguous:

CC&R § 6.2(A) required that the property owner, Mr. Johnson, obtain the adjoining property owner’s, Petitioner’s, approval before he built the block wall extension. Respondent [the HOA] had no obligation under CC&R § 6.2(A) to obtain or ensure Petitioner approved the block wall extension.

This ruling clarifies that an HOA’s role is not that of a quasi-judicial body for resolving all private disputes; its enforcement powers are limited to the specific duties enumerated in its governing documents. CC&R § 6.2(A) effectively creates a private right of action between neighbors, which the HOA is not a party to. The HOA’s role is to enforce rules that obligate the homeowner to the association, not necessarily to other homeowners.

2. The Architectural Committee’s Job Is Narrower Than You Think

In its defense, the HOA’s board, acting as the Architectural Control Committee, argued that its review was based on a different rule entirely: CC&R § 7.2. The judge agreed, highlighting the Committee’s very narrow scope of responsibility.

According to the case findings, the Committee’s only legal obligation was to determine if the proposed wall was “aesthetically pleasing and consistent” with other properties in the development. Its review under § 7.2 did not require it to confirm whether the neighbor had obtained Mr. Shields’ approval as mandated by the separate rule. This legal structure isolates the two duties, and the homeowner’s error was conflating them. The HOA’s limited aesthetic review reinforces the conclusion from our first lesson: it is not responsible for policing the separate neighbor-approval requirement. An architectural green light is often purely about community harmony, not a verification of compliance with every other covenant.

3. Building First and Asking Permission Later Creates Confusion

The sequence of events in this case was disorderly, which ultimately clouded the legal issues. From the outset, the petitioner himself “vacillated on whether his issue with Respondent was that it improperly approved Mr. Johnson’s proposal… or that it failed to enforce the requirement that Mr. Johnson had to obtain Petitioner’s approval,” foreshadowing the difficulty in proving a specific violation.

The timeline further illustrates the breakdown in process:

• October 13, 2016: The neighbor, Mr. Johnson, built the wall extension before seeking any approval.

• October 16, 2016: Mr. Shields expressed his disapproval directly to the neighbor.

• November 2, 2016: The neighbor submitted his proposal to the HOA for approval—weeks after the wall was already built.

• November 2016: The HOA Board verbally approved the wall but astutely “advised him that ‘he will need to seek neighboring property owner’s approval.’”

This retroactive process, combined with a dispute clouded by conflicting testimony—four witnesses claimed they heard Mr. Shields either approve of the wall or fail to object—muddied the waters, making it impossible for the petitioner to meet his burden of proof regarding the HOA’s actions. The messiness of the facts directly contributed to the legal failure.

4. The Burden of Proof Rests Entirely on You

In a legal dispute with an HOA, the “burden of proof” falls on the petitioner. Mr. Shields had to establish his case by a “preponderance of the evidence,” which the court defines simply as “such proof as convinces the trier of fact that the contention is more probably true than not.”

Crucially, he had to prove that the HOA specifically violated a statute or a rule within the CC&Rs. It wasn’t enough to demonstrate that his neighbor violated a rule or that the situation felt unjust. He had to prove the HOA failed to perform a duty for which it was explicitly responsible.

The judge ultimately dismissed the petition because Mr. Shields could not meet this burden. He failed to prove the HOA had a duty to deny the application based on his lack of approval. A subjective sense of unfairness is insufficient to meet the legal standard; a petitioner must prove a direct breach of a specified duty by the association.

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Conclusion: Know Your Rules, Not Just Your Rights

The overarching lesson from the Shields case is that CC&Rs are a legal contract with a precise, and sometimes non-obvious, allocation of responsibilities among the homeowner, their neighbors, and the association itself. The HOA is not an all-powerful enforcer but an organization with a defined, and sometimes surprisingly limited, set of duties. Homeowners, in turn, have their own responsibilities—including, at times, enforcing certain rights directly with their neighbors.

Before escalating your next neighborhood issue, have you read the fine print to see who is truly responsible for what?

Case Participants

Petitioner Side

  • John Shields (petitioner)

Respondent Side

  • Maria R. Kupillas (HOA attorney)
    Law Offices of Farley Choate & Bergin
    Represented Respondent Will Rogers Equestrian Ranch
  • Joe Johnson (neighbor/member)
    Lot owner who built the wall extension; Husband of Sandy Johnson
  • Sandy Johnson (neighbor/witness)
    Wife of Joe Johnson; next-door neighbor to Petitioner; testified in initial hearing
  • Dean Kabanuk (board member/witness)
    Will Rogers Equestrian Ranch Board
    Respondent’s board president; testified in initial hearing
  • Kristi Hancock (board member/witness)
    Will Rogers Equestrian Ranch Board
    Attorney; served as VP (Nov 2016-Nov 2017) and President (since Nov 2017); testified in both hearings
  • Brenda Campbell (property manager/witness)
    Will Rogers Equestrian Ranch
    Respondent’s community manager; testified in initial hearing
  • A.J. Denardo (witness)
    Lives near Petitioner; testified in initial hearing regarding Petitioner's tacit approval

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
    Issued the initial Administrative Law Judge Decision (October 11, 2017)
  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Issued the Administrative Law Judge Decision following rehearing (February 26, 2018)
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
    Granted Petitioner's request for rehearing; decision transmitted to Commissioner
  • Felicia Del Sol (OAH staff)
    Office of Administrative Hearings
    Transmitted the rehearing decision

Paul Gounder vs. Royal Riviera Condominium Association

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Case Summary

Case ID 17F-H1716002-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2017-06-12
Administrative Law Judge Suzanne Marwil
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Paul Gounder Counsel —
Respondent Royal Riviera Condominium Association Counsel Mark Kristopher Sahl

Alleged Violations

A.R.S. § 33-1250(C)(2)

Outcome Summary

The Administrative Law Judge found Respondent violated A.R.S. § 33-1250(C)(2) by using two substantively different ballots during the 2016 board election,. Respondent was ordered to reimburse the Petitioner’s $500.00 filing fee,. The Administrative Law Judge concluded Respondent did not violate A.R.S. § 33-1250(C)(4),.

Why this result: Petitioner failed to prove violation of A.R.S. § 33-1250(C)(4), which specifies timing requirements for ballots; the ALJ noted that a meeting ballot did not need to contain a received-by date or be mailed seven days in advance if it had been substantively the same as the compliant absentee ballot,,,.

Key Issues & Findings

Ballot must provide an opportunity to vote for or against each proposed action.

The use of two substantively different ballots in the March 2016 election violated A.R.S. § 33-1250(C)(2) because members who did not attend the meeting were unaware of an additional candidate (Eric Thompson) listed on the meeting ballot, thereby denying those members the opportunity to vote for or against each proposed action contained in the meeting ballot,. This finding does not require ballots to be identical, but substantive changes must be presented to all members,,.

Orders: Petitioner's Petition was granted, and Respondent was ordered to reimburse Petitioner's filing fee of $500.00,. No other relief was available.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1250(C)(2)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092.08

Analytics Highlights

Topics: HOA, Condominium, Board Election, Absentee Ballot, Statutory Violation, Filing Fee Reimbursement
Additional Citations:

  • A.R.S. § 33-1250(C)(2)
  • A.R.S. § 33-1250(C)(4)
  • A.R.S. § 33-1250(C)
  • A.R.S. § 41-2198.01
  • Article VII CC&Rs

Video Overview

Audio Overview

Decision Documents

17F-H1716002-REL Decision – 564851.pdf

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17F-H1716002-REL Decision – 567887.pdf

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17F-H1716002-REL Decision – 575055.pdf

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17F-H1716002-REL Decision – 523915.pdf

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Briefing Document: Gounder v. Royal Riviera Condominium Association

Executive Summary

This briefing document synthesizes the key events, arguments, and legal conclusions from the administrative case of Paul Gounder versus the Royal Riviera Condominium Association (Case No. 17F-H1716002-REL-RHG). The central issue revolved around the Association’s use of two substantively different ballots for its March 14, 2016, board member election.

The Petitioner, Paul Gounder, alleged that the use of a separate mail-in ballot and an in-person meeting ballot, which contained different candidate lists, violated Arizona statute A.R.S. § 33-1250(C)(2). Specifically, the ballot distributed at the meeting included the name of a seventh candidate, Eric Thompson, who was not listed on the mail-in ballot, thereby denying absentee voters the opportunity to vote for all candidates.

After an initial hearing resulted in a recommended dismissal, a rehearing was granted. Administrative Law Judge (ALJ) Suzanne Marwil ultimately concluded that the Association’s actions constituted a statutory violation. The Judge found that because members voting by mail were not informed of Mr. Thompson’s candidacy, they were denied their right to vote “for or against each proposed action.” The Respondent’s argument that the matter was moot due to a subsequent election was rejected.

The Department of Real Estate adopted the ALJ’s decision, issuing a Final Order on June 12, 2017. The Order granted the petition and required the Royal Riviera Condominium Association to reimburse Mr. Gounder’s $500.00 filing fee. The ruling establishes that while election ballots are not required to be identical, any substantive changes must be presented to all members to ensure an equal opportunity to vote.

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I. Case Overview and Background

This matter was brought before the Arizona Department of Real Estate and the Office of Administrative Hearings.

• Petitioner: Paul Gounder, a condominium owner and member of the Association.

• Respondent: Royal Riviera Condominium Association, a homeowners’ association for a development of approximately 32 condominiums.

• Initial Petition: Filed on or about June 23, 2016.

• Core Allegation: The Association violated A.R.S. § 33-1250(C)(2) and its own CC&Rs by using two substantively different ballots to elect Board members at its March 14, 2016, annual meeting.

II. Procedural History

1. Initial Hearing (October 17, 2016): A hearing was held before Administrative Law Judge Diane Mihalsky.

2. Recommended Dismissal (October 18, 2016): Judge Mihalsky recommended the petition be dismissed, concluding:

3. Rehearing Granted (February 17, 2017): The Petitioner requested a rehearing, which the Department of Real Estate granted. The Department’s order specifically requested a review of A.R.S. § 33-1250, with a focus on subsection (C)(4).

4. Rehearing (May 17, 2017): A rehearing was held before Administrative Law Judge Suzanne Marwil. At this hearing, the Respondent raised a procedural question regarding the correct statutory subsection for review, leading to a temporary order holding the record open until May 24, 2017, for clarification.

5. ALJ Decision (June 2, 2017): Judge Marwil issued a decision finding that the Respondent had committed a statutory violation.

6. Final Order (June 12, 2017): The Commissioner of the Department of Real Estate, Judy Lowe, accepted the ALJ’s decision and issued a Final Order making the decision binding.

III. The Core Dispute: The Two-Ballot System

The parties stipulated that two different ballots were used for the March 14, 2016, board election, which had seven open positions. The key differences are outlined below.

Feature

Mail Ballot (Absentee)

Meeting Ballot (In-Person)

“Mail Ballot”

“Ballot”

Candidates Listed

Six names

Seven names (added Eric Thompson)

Write-in Option

Included a blank line for a write-in candidate

No space provided for write-in candidates

Distribution

Distributed at least seven days before the meeting

Handed out to members attending the meeting

Return Deadline

Specified the date by which it had to be returned

Did not specify when it needed to be returned

IV. Arguments of the Parties

A. Petitioner’s Position (Paul Gounder)

• Violation of A.R.S. § 33-1250(C)(2): The addition of Eric Thompson’s name to the meeting ballot deprived members who voted by mail of their right “to vote for or against each proposed action,” as they had no opportunity to vote for Mr. Thompson.

• Violation of A.R.S. § 33-1250(C)(4): The meeting ballot violated this subsection because it was not mailed to all members at least seven days in advance of the meeting and did not provide a date by which it had to be received to be counted.

B. Respondent’s Position (Royal Riviera Condominium Association)

• No Violation: The statutes do not explicitly require the use of identical ballots for an election.

• Common Practice: It is a common practice for homeowners’ associations to use a different absentee ballot and meeting ballot.

• Mootness: The issue is moot because the Association had already held another election in 2017 and seated a new board, which included the Petitioner’s wife as a member.

V. Administrative Law Judge’s Findings and Conclusions

In her June 2, 2017 decision, ALJ Suzanne Marwil made the following key legal conclusions:

The ALJ found that the Association’s use of two substantively different ballots did violate this statute.

• Reasoning: Members who did not attend the meeting in person were not notified of Mr. Thompson’s willingness to run for the board. As a result, “these members did not have the opportunity to vote for him and hence were denied their right to vote for or against each proposed action contained in the meeting ballot.”

• Clarification: The ruling explicitly states that this finding does not impose a requirement that all ballots must be identical; however, it establishes that “substantive changes to ballots must be presented to all members.”

The ALJ concluded that no violation of this subsection occurred.

• Reasoning: The Petitioner conceded that the absentee ballot itself complied with the statutory requirements (e.g., being mailed seven days in advance with a return-by date). The judge reasoned that a meeting ballot handed out in person would not need to contain this information if it were “substantively the same as the absentee ballot.” The legal problem arose not from a failure to mail the second ballot, but from the substantive difference between the two.

The ALJ determined that the matter was not rendered moot by the 2017 election and the seating of a new board. The Judge affirmed that the tribunal “can and does find that Respondent committed a statutory violation in the course of holding its 2016 election.”

VI. Final Order and Outcome

• ALJ Recommended Order (June 2, 2017):

◦ The Petitioner’s petition should be granted.

◦ The Respondent must reimburse the Petitioner’s filing fee.

◦ No other relief was available to the Petitioner.

• Department of Real Estate Final Order (June 12, 2017):

◦ The Commissioner of the Department of Real Estate accepted and adopted the ALJ’s decision.

◦ The Order is a final administrative action, effective immediately.

◦ The Royal Riviera Condominium Association was ordered to reimburse the Petitioner’s filing fee of $500.00 within thirty (30) days.

◦ The parties were notified that the Order could be appealed via a complaint for judicial review.

Study Guide: Gounder v. Royal Riviera Condominium Association

This study guide provides a comprehensive review of the administrative case Paul Gounder v. Royal Riviera Condominium Association, Case No. 17F-H1716002-REL-RHG. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms based on the provided legal documents.

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Short-Answer Quiz

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

1. What was the central allegation made by the Petitioner, Paul Gounder, in his initial petition?

2. Describe the two different ballots used by the Royal Riviera Condominium Association for its March 14, 2016, board election.

3. What were the two primary legal arguments made by the Respondent, Royal Riviera Condominium Association, to defend its actions?

4. What was the initial outcome of the hearing held on October 17, 2016, before Administrative Law Judge Diane Mihalsky?

5. What was Administrative Law Judge Suzanne Marwil’s final conclusion regarding the alleged violation of A.R.S. § 33-1250(C)(2)?

6. How did Judge Marwil explain her finding that A.R.S. § 33-1250(C)(4), which deals with ballot delivery timelines, was not violated?

7. How did the Respondent argue that the case was moot, and why did Judge Marwil reject this argument?

8. According to the Final Order issued by the Commissioner of the Department of Real Estate, what specific relief was granted to the Petitioner?

9. What is the standard of proof in this matter, and which party has the burden of proof?

10. What specific action did the Department of Real Estate request be reviewed when it granted the request for a rehearing?

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Answer Key

1. The Petitioner, Paul Gounder, alleged that the Respondent violated A.R.S. § 33-1250(C)(2) and its own CC&Rs. The violation occurred by using two substantively different ballots for the election of Board members at the annual meeting on March 14, 2016.

2. The first ballot was an absentee “Mail Ballot” with six candidate names and a blank line for a write-in. The second ballot, handed out at the meeting, was titled “Ballot” and included the names of seven candidates (adding Eric Thompson) but had no space for a write-in candidate.

3. The Respondent argued that it committed no violation because the statutes do not explicitly require the use of identical ballots and that using different absentee and meeting ballots is common practice. It also maintained that the matter was moot because a new election had already occurred in 2017.

4. Following the initial hearing, Judge Diane Mihalsky recommended the dismissal of the Petition on October 18, 2016. She concluded that no statute or bylaw prevented the Respondent from adding the names of willing members to the ballot used at the annual election.

5. Judge Suzanne Marwil found that the use of two substantively different ballots did violate A.R.S. § 33-1250(C)(2). Because members voting by mail were not informed of Eric Thompson’s candidacy, they were denied their right to vote for or against each proposed action.

6. Judge Marwil concluded A.R.S. § 33-1250(C)(4) was not violated because the absentee ballot itself complied with the statute’s requirements for delivery timelines. She reasoned that a meeting ballot would not need to meet these requirements if it were substantively the same as the compliant absentee ballot; the problem arose only because the ballots were different.

7. The Respondent argued the case was moot because a new board had been seated in a 2017 election. Judge Marwil rejected this, stating that the fact a new board is seated does not prevent an Administrative Law Judge from finding that a statutory violation occurred in a past election.

8. The Final Order, issued by Commissioner Judy Lowe on June 12, 2017, granted the Petitioner’s petition. It ordered the Respondent to reimburse the Petitioner’s filing fee of $500.00 within thirty (30) days.

9. The standard of proof is a “preponderance of the evidence,” as stated in A.A.C. R2-19-119(A). Pursuant to A.A.C. R2-19-119(B), the Petitioner has the burden of proof in the matter.

10. In its February 17, 2017, Order Granting Request for Rehearing, the Department of Real Estate specifically requested a review of A.R.S. § 33-1250, and in particular, A.R.S. § 33-1250(C)(4).

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Suggested Essay Questions

Instructions: The following questions are designed for longer, essay-style responses to test a deeper understanding of the case. Answers are not provided.

1. Analyze the legal distinction Judge Marwil makes between ballots being “identical” versus “substantively different.” How did this distinction become the central point upon which her decision on A.R.S. § 33-1250(C)(2) turned?

2. Trace the procedural history of this case, from the filing of the initial petition to the issuance of the Final Order. Discuss the role and decisions of each key actor, including Petitioner Gounder, Respondent Royal Riviera, ALJ Mihalsky, ALJ Marwil, and Commissioner Lowe.

3. Evaluate the legal arguments presented by the Respondent. Why was the argument about “common practice” for homeowners’ associations ultimately unpersuasive, and why did the “mootness” doctrine not apply?

4. Discuss the significance of the specific provisions within A.R.S. § 33-1250(C). How do subsections (C)(2) and (C)(4) work together to ensure fair voting rights for all members of a condominium association, including those who vote by absentee ballot?

5. Examine the relationship between the Arizona Department of Real Estate and the Office of Administrative Hearings as demonstrated in this case. How do they interact to adjudicate disputes between homeowners and their associations?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, hears evidence, and makes legal findings and recommendations. In this case, Diane Mihalsky and Suzanne Marwil served as ALJs.

A.R.S. (Arizona Revised Statutes)

The codified collection of laws for the state of Arizona. This case centered on the interpretation of A.R.S. § 33-1250.

Arizona Department of Real Estate (the Department)

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona. It granted the rehearing and accepted the final ALJ decision.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set up the rules for a planned community or condominium. The Petitioner alleged the Respondent violated Article VII of its CC&Rs.

Final Order

The concluding and binding decision in an administrative case. In this matter, the Final Order was issued by the Commissioner of the Department of Real Estate on June 12, 2017, accepting the ALJ’s decision.

A legal term for a matter that is no longer in controversy or has become irrelevant. The Respondent unsuccessfully argued the case was moot because a subsequent election had been held.

Office of Administrative Hearings (OAH)

An independent state agency that conducts administrative hearings for other state agencies. The Department of Real Estate referred this case to the OAH for a hearing.

Petitioner

The party who files a petition initiating a legal or administrative action. In this case, the Petitioner was Paul Gounder.

Preponderance of the Evidence

The standard of proof required in this administrative hearing. It means the party with the burden of proof must convince the judge that there is a greater than 50% chance that their claim is true.

Rehearing

A second hearing of a case to review the decision made in the first hearing. The Petitioner requested and was granted a rehearing after the initial recommendation to dismiss his petition.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the Royal Riviera Condominium Association.

Your HOA’s Election Rules Might Be Unfair. This Court Case Explains Why.

Introduction: The Devil in the Details

Living in a community governed by a Homeowners’ Association (HOA) often means navigating a complex web of rules, regulations, and procedures. While most are designed to maintain property values and community standards, the enforcement of these rules can sometimes feel arbitrary. But what happens when the very process for electing the board that enforces those rules is flawed?

A fascinating legal challenge demonstrates that even a single, seemingly minor discrepancy in an HOA election can have significant consequences. But the victory was anything but certain. In the case of Paul Gounder versus the Royal Riviera Condominium Association, the homeowner’s initial petition was actually recommended for dismissal by the first judge. It was only through persistence—requesting a rehearing—that the homeowner ultimately prevailed. This case serves as a powerful real-world example of why procedural fairness in community governance is not just important—it’s legally required—and reveals several surprising lessons for any homeowner who values a fair and transparent election process.

Takeaway 1: “Common Practice” Isn’t a Legal Defense

When challenged on its election procedures, the Royal Riviera Condominium Association’s defense was simple: it was merely following “common practice.” The board argued that many HOAs use a different absentee and in-person ballot, so they had done nothing wrong. However, the Administrative Law Judge disregarded this argument entirely, focusing instead on the explicit requirements of Arizona statute A.R.S. § 33-1250(C)(2). This decision provides a crucial lesson for all homeowners: an association’s internal habits or traditions do not override clear legal statutes. If a state law or the community’s own governing documents dictate a specific procedure, the HOA must follow it, regardless of what other associations might be doing. This empowers homeowners by showing that the law, not just internal tradition, is the ultimate authority governing their association’s actions.

Takeaway 2: A “Small” Change Can Invalidate an Election

The dispute in the March 14, 2016 election centered on two different ballots used for the same board election. The mail-in ballot, sent to members voting absentee, listed six names and included a blank line for a write-in candidate. The in-person ballot, distributed to members at the meeting, listed seven names—adding candidate Eric Thompson—and provided no space for write-ins. This difference was not seen as a minor error but as a “substantive” change that fundamentally altered the election. The judge reasoned that members who voted by mail “did not have the opportunity to vote for him and hence were denied their right to vote for or against each proposed action contained in the meeting ballot.”

The judge made a critical distinction about what constitutes a fair process, clarifying that the issue wasn’t about perfection, but equality of opportunity.

Finding this violation does not impose a requirement that ballots be identical; it simply states that substantive changes to ballots must be presented to all members.

This point is not about minor cosmetic differences like fonts or paper color. It’s about ensuring every single voting member has the exact same set of choices. Adding or removing a candidate on one version of a ballot creates two different elections, disenfranchising one group of voters. This ruling affirms that a fair election requires that all members have an equal opportunity to vote on all candidates and measures.

Takeaway 3: Accountability Matters, Even After the Fact

The association attempted to have the case dismissed by arguing that the issue was “moot.” Because a new election had already been held in 2017 and a new board was in place, the HOA claimed the flawed 2016 election no longer mattered. The Administrative Law Judge explicitly rejected this argument. The decision stated that “the fact that a new board is currently seated does not render the matter moot as the Administrative Law Judge can and does find that Respondent committed a statutory violation in the course of holding its 2016 election.” The final order granted the homeowner’s petition and required the Royal Riviera Condominium Association to reimburse his $500.00 filing fee. This is an impactful takeaway for any homeowner who feels it’s too late to act. It demonstrates that an HOA can be held legally accountable for past procedural violations, establishing an important precedent for the community and putting the board on notice for future conduct.

Conclusion: Knowledge is Power

The case of Gounder v. Royal Riviera Condominium Association is a powerful reminder that procedural fairness, strict adherence to legal statutes, and the vigilance of individual homeowners are essential checks on the power of an HOA board. The core lesson is clear: seemingly small details in an election process can have major legal consequences. Homeowners who take the time to understand the specific laws and bylaws governing their community can successfully challenge their associations. But this case also teaches a deeper lesson about perseverance. Faced with an initial recommendation for dismissal, the homeowner could have given up. Instead, he challenged the ruling and won on rehearing, proving that knowledge combined with conviction is a powerful force for ensuring the principles of fairness and equality are upheld.

Does your own community’s voting process ensure every member has an equal voice, and would it stand up to this kind of scrutiny?

Case Participants

Petitioner Side

  • Paul Gounder (petitioner)
  • Frederick C. Zehm (witness)
    Royal Riviera Condominium Association member
    Testified for Petitioner
  • Marlys Kleck (witness)
    Royal Riviera Condominium Association member
    Testified for Petitioner

Respondent Side

  • Mark Kristopher Sahl (HOA attorney)
    Carpenter Hazlewood Delgado & Bolen PLC
  • Dan Peterson (property manager)
    Owner of Respondent's management company

Neutral Parties

  • Diane Mihalsky (ALJ)
    Presided over initial hearing
  • Suzanne Marwil (ALJ)
    Presided over rehearing
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
  • Abby Hansen (ADRE staff/HOA Coordinator)
    Arizona Department of Real Estate
    Also listed as AHansen
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • jmarshall (ADRE staff)
    Arizona Department of Real Estate
  • ncano (ADRE staff)
    Arizona Department of Real Estate
  • M. Aguirre (staff)
    Transmitted order

Other Participants

  • Eric Thompson (member/candidate)
    Candidate added to meeting ballot
  • Al DeFalco (member/candidate)
    Nominated from the floor

Kristi Hillebrand vs. Camelback Garden Farms Homeowners Association

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Case Summary

Case ID 16F-H1616009-BFS
Agency —
Tribunal —
Decision Date 2016-09-30
Administrative Law Judge DM
Outcome Petition is dismissed
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Kristi Hillebrand Counsel Mark J. Bainbridge, Esq. (The Bainbridge Law Firm, LLC)
Respondent Camelback Garden Farms Homeowners Association Counsel Mark E. Lines, Esq. (Shaw & Lines, LLC)

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

16F-H1616009-BFS Decision – 520854.pdf

Uploaded 2026-04-24T10:58:00 (188.6 KB)

16F-H1616009-BFS Decision – 528135.pdf

Uploaded 2026-04-24T10:58:05 (63.2 KB)

Briefing Document: Hillebrand v. Camelback Garden Farms Homeowners Association

Executive Summary

On September 30, 2016, Administrative Law Judge (ALJ) Diane Mihalsky issued a decision in the matter of Kristi Hillebrand v. Camelback Garden Farms Homeowners Association. The Petitioner, Kristi Hillebrand, alleged that the Respondent (the HOA) violated various Covenants, Conditions, and Restrictions (CC&Rs), bylaws, and Arizona statutes. The allegations focused on four primary areas: election procedures, open meeting law compliance, records requests, and RV parking enforcement.

The ALJ recommended the dismissal of all claims. The decision established that the Petitioner failed to meet the burden of proof—a preponderance of the evidence—to show that the HOA's actions violated governing documents or state law. Specifically, the ALJ found that the HOA's interpretation of election procedures was reasonable, its meeting notice practices were consistent with statutory requirements, and it had fulfilled its obligations regarding document disclosure. This decision was certified as the final agency action by the Department of Fire, Building and Life Safety on November 10, 2016.

Case Overview and Procedural History

Parties Involved
  • Petitioner: Kristi Hillebrand, a homeowner and member of the Association.
  • Respondent: Camelback Garden Farms Homeowners Association, a nonprofit association representing 65 single-family homes in Litchfield Park, Arizona.
Procedural Timeline
  1. March 21, 2016: Hillebrand filed a petition with the Arizona Department of Building, Fire and Life Safety (DBFLS).
  2. December 1, 2015: Prior to this petition, a settlement was reached in Maricopa County Superior Court Case No. CV2014-011316, resolving claims regarding RV parking carports.
  3. July 25, 2016: The ALJ dismissed Hillebrand’s claim regarding RV parking enforcement because the issue had been resolved by the prior settlement.
  4. July 29 & September 26, 2016: Formal hearings were conducted.
  5. September 30, 2016: ALJ issued the recommendation for dismissal.
  6. November 10, 2016: The decision was certified as final after no action was taken by the DBFLS to modify or reject it.

Analysis of Key Themes

1. Election Procedures and Write-in Candidacy

The Petitioner contested the February 20, 2016, annual meeting, specifically the Board’s refusal to allow her to be nominated from the floor or run as a write-in candidate.

  • Board Action: The Board president, Aaron Chournos, denied the request, citing statutory requirements for advance notice of candidates.
  • Legal Conclusion: The ALJ noted that no statute, CC&R, or bylaw specifically addresses write-in ballots or floor nominations. The Board’s interpretation—that advance notice of matters to be decided (including candidate names) is required—was deemed "not unreasonable."
  • Quorum Dispute: The Petitioner argued a lack of quorum (requiring one-third of 65 lots, or 22 members). The ALJ found that 23 lots were represented, satisfying the requirement, and that Petitioner failed to prove ballots were invalid.
2. Open Meeting Law Compliance

The Petitioner alleged that the Board held meetings without proper notice to the membership on three dates in early 2016.

  • Executive Sessions: The January 9, 2016, meeting was determined to be an executive session held to review candidate applications. A.R.S. § 33-1804 permits closed sessions for personal or financial information about members.
  • Notice Practices: Witnesses for the Respondent testified that notices were emailed and posted on a community board.
  • Statutory Protection: Per A.R.S. § 33-1804(B), the failure of any specific member to receive actual notice does not invalidate actions taken at a meeting, provided reasonable notice procedures are in place.
3. Records Disclosure and Transparency

The Petitioner claimed the Association withheld responsive documents, specifically QuickBooks spreadsheets and ballot-related envelopes/emails.

  • Respondent's Defense: Dr. Neil Stafford testified that all responsive, existing records were provided.
  • QuickBooks and Privacy: The ALJ found no evidence that a QuickBooks spreadsheet of dues existed after the treasurer's resignation. Furthermore, A.R.S. § 33-1805(B)(4) exempts personal financial records of individual members from disclosure.
  • Sign-in Sheets: While Petitioner noted "pd" (paid) notations on sign-in sheets, the ALJ ruled that even if delinquent members had voted, it would not have voided the election results under the Association’s governing documents.

Governing Statutory Framework

The following Arizona Revised Statutes (A.R.S.) were central to the ALJ's legal conclusions:

Statute Focus Area Key Provision
A.R.S. § 33-1804 Open Meetings Meetings must be open; executive sessions are allowed for legal advice, litigation, or personal member information.
A.R.S. § 33-1805 Records Access Financial and other records must be available within 10 business days, excluding privileged or personal information.
A.R.S. § 33-1812 Voting Outlines procedures for absentee ballots and establishes that they count toward a quorum.
A.R.S. § 10-3304 Corporate Power Validity of corporate action cannot be challenged solely on the ground that the corporation lacked power to act.
A.R.S. § 41-1092.07 Burden of Proof The Petitioner bears the burden to establish violations by a preponderance of the evidence.

Important Quotes with Context

On the Nature of Board Governance

"Respondent is a nonprofit corporation. Respondent’s board members are unpaid volunteers who may have full-time jobs and families and do not have the benefit of a professional property manager to help them manage Respondent’s affairs."

  • Context: The ALJ highlighted the volunteer nature of the Board to contextualize their management of Association affairs and the application of A.R.S. § 10-3304.
On Legal Standards and Past Practices

"[Board members] are not bound by alleged past practices or policies of past boards that have never been reduced to writing and formally adopted."

  • Context: This was used to dismiss the Petitioner's arguments regarding how elections were handled in the past (e.g., via show of hands) versus the formal procedures used in 2016.
On the Definition of "Preponderance of the Evidence"

"A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not… superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other."

  • Context: The ALJ used this definition to explain why the Petitioner's claims failed; the evidence presented did not sufficiently outweigh the Respondent's defenses.

Actionable Insights for Planned Communities

  1. Formalize Election Rules: To avoid disputes regarding floor nominations or write-in candidates, associations should ensure their bylaws or written policies explicitly state the requirements for candidacy and the cutoff dates for applications.
  2. Maintain Clear Notice Procedures: While A.R.S. § 33-1804 protects the validity of meetings if notice is sent but not received, associations should maintain consistent records of how and when notices are posted (e.g., email logs and photos of community boards).
  3. Distinguish Executive Sessions: Boards should clearly identify the statutory basis for moving into an executive session (such as personnel or financial privacy) to defend against claims of violating open meeting laws.
  4. Record Retention and Privacy: Associations must balance the duty to provide records with the duty to protect member privacy. Financial ledgers containing individual member data are generally exempt from production.
  5. Adhere to Written Documents: Board actions must be grounded in the "unequivocal language" of statutes, CC&Rs, and bylaws rather than informal historical practices.

Legal Analysis and Study Guide: Hillebrand v. Camelback Garden Farms Homeowners Association

This study guide provides a comprehensive overview of the administrative law case Kristi Hillebrand v. Camelback Garden Farms Homeowners Association (No. 16F-H1616009-BFS/REL). It explores the application of Arizona Revised Statutes (A.R.S.) regarding homeowners' associations (HOAs), election procedures, open meeting laws, and records requests.

1. Case Overview and Procedural History

Parties and Background
  • Petitioner: Kristi Hillebrand, a member and homeowner within the Camelback Garden Farms planned community.
  • Respondent: Camelback Garden Farms Homeowners Association, a nonprofit association representing 65 lots in Litchfield Park, Arizona.
  • Presiding Official: Administrative Law Judge (ALJ) Diane Mihalsky.
The Dispute

On March 21, 2016, the Petitioner filed a petition with the Department of Building, Fire and Life Safety (later handled by the Department of Real Estate) alleging that the Respondent violated its Covenants, Conditions, and Restrictions (CC&Rs), bylaws, and Arizona statutes. The allegations focused on:

  1. Improper election procedures at the February 20, 2016 annual meeting.
  2. Violations of Arizona’s open meeting laws.
  3. Failure to provide all responsive documents to a records request.
  4. Failure to enforce RV parking restrictions (this claim was dismissed due to a prior settlement).
Legal Outcome

The ALJ issued a decision on September 30, 2016, dismissing the petition. This decision was certified as the final administrative decision on November 10, 2016, after no action was taken by the Department of Fire Building and Life Safety to modify or reject it.

2. Key Legal Concepts and Governing Statutes

Arizona Revised Statutes (A.R.S.)

The case relies heavily on the following statutory provisions:

Statute Focus Area Key Provisions
§ 33-1804 Open Meetings Meetings must be open to all members; notice must be hand-delivered or mailed 10–50 days in advance; specifies five criteria for closed "executive" sessions.
§ 33-1805 Records Requests Financial and other records must be available for examination within 10 business days; specifies exemptions for privileged or personal information.
§ 33-1812 Voting/Quorum Prohibits proxies after declarant control; requires absentee ballots; stipulates that absentee ballots count toward establishing a quorum.
§ 41-2198.01 Administrative Jurisdiction Authorizes the Department to receive and decide petitions regarding violations of community documents or statutes.
Quorum and Voting Requirements
  • Quorum: Under the Respondent’s bylaws, one-third of the votes entitled to be cast (22 out of 65 lots) constitutes a quorum.
  • Voting Rights: Every lot is entitled to one vote.
  • Elections: Bylaws require five board members with two-year staggered terms, with a minimum of three members.

3. Detailed Findings of Fact

The February 2016 Election
  • Nomination Process: Respondent issued a call for candidates in December 2015 with a deadline of January 8, 2016. Petitioner did not apply by the deadline.
  • The Floor Nomination Issue: At the meeting, Petitioner attempted to be nominated from the floor. The Board President denied this, citing Arizona law requiring advance notice of candidate names.
  • Quorum Verification: 23 lots were represented at the meeting (either in person or by ballot). This exceeded the 22-lot requirement for a one-third quorum.
  • The Results: Alice Thomas and Becky Bernal were elected to two-year terms. Melissa Cruz was appointed to fill a one-year vacancy.
Open Meeting Allegations
  • January 9, 2016 Meeting: This was ruled a valid "executive" meeting because it involved discussing the personal and financial qualifications of board applicants.
  • Notice Procedures: The Board testified to noticing meetings via email and community board postings. Under A.R.S. § 33-1804(B), the failure of a specific member to receive notice does not invalidate actions taken at the meeting.
Records Request Dispute
  • Petitioner sought QuickBooks spreadsheets and email/envelope records related to ballots.
  • The ALJ found that Respondent had produced all responsive documents in its possession. Furthermore, financial records of individual members are exempt from disclosure under A.R.S. § 33-1805(B)(4).

4. Short-Answer Practice Quiz

Q1: What is the "preponderance of the evidence" standard as defined in this case? A: It is proof that convinces the trier of fact that a contention is "more probably true than not," or evidence that has the "most convincing force."

Q2: Under what circumstances may a portion of an HOA meeting be closed to members? A: Under A.R.S. § 33-1804(A), meetings may be closed for: (1) Legal advice, (2) Pending or contemplated litigation, (3) Personal/health/financial information of an individual, (4) [Not explicitly detailed in text but implied], and (5) Discussion of a member's appeal of a violation (unless the member requests an open session).

Q3: Does the failure of a member to receive a meeting notice invalidate the actions taken at that meeting? A: No. According to A.R.S. § 33-1804(B), the validity of actions is not affected by a member's failure to receive actual notice.

Q4: How many days does an association have to fulfill a request to examine records? A: Ten business days, per A.R.S. § 33-1805(A).

Q5: Why was the Petitioner’s claim regarding RV parking restrictions dismissed before the hearing? A: The claim was dismissed because the matter had already been resolved through a prior settlement agreement in Maricopa County Superior Court (Case No. CV2014-011316).

5. Essay Prompts for Deeper Exploration

  1. Statutory Interpretation vs. Written Policy: Analyze the ALJ's conclusion that board members are bound by "unequivocal language of applicable statutes" but not by "alleged past practices or policies… that have never been reduced to writing." How does this principle protect or harm the interests of individual homeowners?
  2. The Limits of Transparency: Compare the requirements of A.R.S. § 33-1804 (Open Meetings) and § 33-1805 (Records). Discuss the balance the law attempts to strike between a member's right to information and the privacy/legal interests of the Association and its individual members.
  3. Procedural Validity in Elections: Evaluate the Board President's decision to deny floor nominations and write-in candidates based on his interpretation of "advance notice." Given that the ALJ found this interpretation "not unreasonable," discuss the implications for democratic participation within small HOAs that lack professional management.

6. Glossary of Important Terms

  • Absentee Ballot: A ballot cast by a member who is not physically present at a meeting; under A.R.S. § 33-1812, these count toward a quorum.
  • CC&Rs (Covenants, Conditions, and Restrictions): The governing documents that dictate the rules and limitations of a planned community.
  • Declarant Control: The period during which the developer of a community maintains control over the HOA; once this period ends, certain rules (like the prohibition of proxies) take effect.
  • Executive Session: A closed portion of a board meeting reserved for sensitive matters such as legal advice or personnel issues.
  • Preponderance of the Evidence: The burden of proof in civil and administrative cases, requiring that a claim be more likely true than not.
  • Proxy: The authorization for one person to act or vote on behalf of another. (Note: A.R.S. § 33-1812 prohibits voting by proxy in HOAs after declarant control ends).
  • Quorum: The minimum number of members or votes that must be present (in person or by absentee ballot) for the proceedings of a meeting to be valid.
  • With Prejudice: A legal term meaning a claim is dismissed permanently and cannot be refiled (as seen in the Petitioner's previous settlement regarding RV parking).

HOA Governance on Trial: Key Lessons from the Hillebrand vs. Camelback Garden Farms Dispute

Managing a planned community is rarely just about landscaping and aesthetics; it is a high-stakes legal balancing act governed by strict statutory requirements and community bylaws. When transparency fails or expectations clash, the result is often a costly administrative battle. The case of Kristi Hillebrand vs. Camelback Garden Farms Homeowners Association (No. 16F-H1616009-BFS/REL) provides a definitive case study in the limits of homeowner challenges and the necessity of sticking to the written word of the law.

This article dissects the Administrative Law Judge’s (ALJ) decision to extract critical lessons for boards and members alike regarding election integrity, open meeting protocols, and the boundaries of records access.

The Core Allegations: What Started the Dispute?

In March 2016, Petitioner Kristi Hillebrand filed a formal complaint against the Camelback Garden Farms Homeowners Association (HOA), alleging that the Board had systematically sidelined members and ignored governance standards. Her petition focused on four primary areas:

  • Improper Election Procedures: Claiming the HOA unlawfully barred her from being nominated from the floor or running as a write-in candidate during the February 2016 annual meeting.
  • Open Meeting Law Violations: Alleging the Board held multiple "secret" or un-noticed meetings in early 2016.
  • Records Access Failures: Claiming the HOA withheld responsive financial documents, specifically QuickBooks ledgers.
  • Enforcement Inconsistency: A claim regarding RV parking restrictions. This was summarily dismissed because the issue had been resolved in a prior 2015 settlement—a high-stakes dispute where Hillebrand was previously ordered to pay $35,000 in attorney fees to her neighbors.

Under Arizona law, the Petitioner bore the burden of proof. To prevail, she had to establish these violations by a preponderance of the evidence, proving her claims were more likely true than not.

The Election Controversy: Floor Nominations and Quorum

The friction began in December 2015, when the HOA issued a "Call for Candidates." Petitioner Hillebrand admitted she failed to respond by the January 8 deadline because she was "busy planning a party for over 100 guests." This unforced error set the stage for the conflict at the February 20, 2016, annual meeting.

When Hillebrand attempted to be nominated from the floor, Board President Aaron Chournos denied the request, citing the need for advance notice. The ALJ upheld this decision, noting that no statute or bylaw required the Association to allow floor nominations or write-in candidates once the official ballots had been distributed.

The Petitioner also challenged the election's validity on quorum grounds, claiming only 19 valid ballots were cast (falling short of the 22 required for a one-third quorum of the 65 lots). However, the Board provided evidence of higher engagement. Board member Dr. Neil Stafford and Secretary Kathy Loscheider helped establish a record showing that Alice Thomas and Becky Bernal received 28 votes each, while Melissa Cruz received 27. The ALJ found Hillebrand’s tally of 19 insufficient to overturn the official record.

Election Dispute Summary
Topic Petitioner’s Argument ALJ’s Legal Conclusion
Nominations Members must be allowed floor nominations and write-in options. No statute or bylaw requires these; the Board’s "advance notice" requirement was a reasonable interpretation.
Quorum Only 19 valid ballots were cast, meaning no quorum (22 required) was met. Petitioner failed to prove a violation; the official tally recorded 27–28 votes per candidate.
Voter Eligibility Only members current on dues should vote, per past board practices. CC&Rs did not require dues to be current for voting; unwritten "past practices" are not legally binding.

Transparency and the Open Meeting Law

Transparency disputes often stem from a misunderstanding of A.R.S. § 33-1804. Hillebrand alleged "un-noticed" meetings occurred on January 9, February 27, and March 5, 2016. The ALJ’s ruling clarified the distinction between open and closed sessions:

  • The January 9 Meeting: This was a lawful Executive Session. The Board met privately to review the "personal and financial qualifications" of the three candidate applicants. Arizona law specifically allows private sessions for such personal information.
  • The February 27 Discussion: Evidence suggested this was an informal discussion regarding a structure for members (the Hardys) rather than a formal, noticed meeting.
  • The March 5 Meeting: While Hillebrand and others (including former treasurer Louise Vaccaro) testified they did not receive notice, the HOA successfully demonstrated that it followed its standard procedure of posting notices on the community board and sending emails.

Legal Standard: A.R.S. § 33-1804(B) **The failure of an individual member to receive actual notice of a meeting does not invalidate the actions taken at that meeting, provided the association followed reasonable notice procedures prescribed by law or the bylaws.**

Access to Association Records: What is Protected?

Hillebrand sought access to QuickBooks spreadsheets, specifically looking for a ledger identifying which members were delinquent on their dues. The HOA provided ballots and sign-in sheets but withheld the digital spreadsheets.

The ALJ ruled that the HOA was within its rights for two critical reasons. First, under A.R.S. § 33-1805(B)(4), an association is permitted to withhold records relating to the personal or financial information of individual members. A ledger showing delinquency is a protected financial record. Second, Dr. Stafford testified that the HOA produced all responsive documents in its possession; the law does not require a board to create a new spreadsheet or report if one does not already exist.

Essential Takeaways for Homeowners and Boards

  1. Governing Documents Overrule "Tradition": Boards are bound by the written CC&Rs and bylaws, not "the way things have always been done." Former treasurer Louise Vaccaro testified to an unwritten policy of banning delinquent voters, but because this wasn't in the CC&Rs, it was legally unenforceable.
  2. Executive Sessions are Shielded: Boards have the legal right to meet privately for specific matters: legal advice, pending litigation, and personal/financial discussions regarding members or employees.
  3. Deadlines Matter: A homeowner’s personal schedule (e.g., party planning) does not waive statutory or association deadlines. Missing a "Call for Candidates" deadline effectively ends a member's chance to appear on the ballot.
  4. Privacy is Not Optional: Financial data of individual homeowners is protected. Boards should be cautious not to over-share delinquency lists, and members must realize they are not entitled to their neighbors' private financial standing.

Conclusion: Final Verdict and Future Outlook

The Administrative Law Judge ultimately dismissed the petition in its entirety, finding no evidence that the Camelback Garden Farms HOA violated statutes or its own governing documents. This decision was certified as the final administrative order on November 10, 2016.

While this case was originally handled through the Department of Fire Building and Life Safety, jurisdiction over such HOA disputes has since shifted to the Arizona Department of Real Estate.

The lasting lesson of Hillebrand is that governance is a matter of strict adherence to written text. For boards, the best defense against litigation is a clear paper trail of meeting notices and a rigid commitment to the CC&Rs. For homeowners, the case serves as a reminder that the burden of proof is a high bar, and "past practices" are no substitute for recorded bylaws.

Case Participants

Petitioner Side

  • Kristi Hillebrand (Petitioner)
    Camelback Garden Farms Homeowners Association
    Association member and property owner
  • Mark J. Bainbridge (Attorney)
    The Bainbridge Law Firm, LLC
    Legal counsel for Petitioner
  • Louise Vaccaro (Witness)
    Camelback Garden Farms Homeowners Association
    Former board member who resigned January 7, 2016
  • Greg Josey (Witness)
    Camelback Garden Farms Homeowners Association
    Association member
  • Mary Ellen Kunz (Witness)
    Camelback Garden Farms Homeowners Association
    Association member

Respondent Side

  • Mark E. Lines (Attorney)
    Shaw & Lines, LLC
    Legal counsel for Respondent
  • Neil Stafford (Witness)
    Camelback Garden Farms Homeowners Association
    Board member since 2014
  • Kathy Loscheider (Witness)
    Camelback Garden Farms Homeowners Association
    Former board secretary
  • Aaron Chournos (Former Board President)
    Camelback Garden Farms Homeowners Association
    Resigned from board after moving out of subdivision
  • Daniel Shuler (Board Member)
    Camelback Garden Farms Homeowners Association
  • Alice Thomas (Elected Board Member)
    Camelback Garden Farms Homeowners Association
    Elected to a two-year term at the February 20, 2016 meeting
  • Becky Bernal (Elected Board Member)
    Camelback Garden Farms Homeowners Association
    Elected to a two-year term at the February 20, 2016 meeting
  • Melissa Cruz (Appointed Board Member)
    Camelback Garden Farms Homeowners Association
    Appointed to fill the remaining 1-year term of Louise Vaccaro

Neutral Parties

  • Diane Mihalsky (Administrative Law Judge)
    Office of Administrative Hearings
    Presiding judge who issued the decision
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Louis Dettorre (Deputy Commissioner)
    Arizona Department of Real Estate
  • Greg Hanchett (Interim Director)
    Office of Administrative Hearings
    Certified the final administrative decision
  • Rosella J. Rodriguez (Staff)
    Office of Administrative Hearings
    Processed decision communications