The Administrative Law Judge denied the petition, concluding that the HOA acted in accordance with its governing documents (CC&Rs § 4.1) by imposing uniform assessments. The CC&Rs did not provide an exception for reduced assessments based on an owner's choice of landscaping (rock yard) or refusal of HOA maintenance services.
Why this result: Petitioner failed to meet the burden of proof that the Respondent violated its CC&Rs, as CC&R § 4.1 requires uniform assessment and no provision requires or allows Respondent to assess Petitioner less due to his rock yard and refusal of maintenance.
Key Issues & Findings
HOA Assessment Uniformity Requirement
Petitioner, who had rock landscaping and refused HOA maintenance, alleged the HOA violated CC&Rs by assessing him uniform dues, arguing he should pay less since HOA expenditures on lawn maintenance were substantial and primarily benefited neighbors with grass yards.
Orders: Petitioner's petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
CC&Rs § 4.1
CC&Rs § 5.1(a)
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
Powell v. Washburn, 211 Ariz. 553
Vazanno v. Superior Court, 74 Ariz. 369
Analytics Highlights
Topics: HOA Assessment, Uniform Dues, CC&R Enforcement, Landscaping Maintenance
Additional Citations:
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)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Briefing Document: Stoltenberg v. Rancho Del Oro Homeowners Association
Executive Summary
This document synthesizes the findings from the Administrative Law Judge Decision in case number 19F-H1918038-REL, concerning a dispute between homeowner Michael Stoltenberg and the Rancho Del Oro Homeowners Association (HOA). The core conflict centered on Mr. Stoltenberg’s claim that he should pay lower HOA assessments because his property has rock landscaping, while his neighbors have grass yards requiring more costly maintenance by the HOA.
The Administrative Law Judge ultimately denied the petition. The decision rested on an unambiguous interpretation of the HOA’s Covenants, Conditions, and Restrictions (CC&Rs). The Judge found that the CC&Rs explicitly obligate the HOA to maintain landscaping on all individual lots and, crucially, require assessments to be uniform for all members to cover these “common expenses.” The petitioner’s argument for a reduced assessment was unsupported by any provision in the governing documents. Furthermore, evidence showed that Mr. Stoltenberg had actively refused the HOA access to his property to install a community irrigation system and to perform the very landscaping maintenance that is a central component of the assessments.
Case Overview
• Case Number: 19F-H1918038-REL
• Parties Involved:
◦ Petitioner: Michael Stoltenberg, a homeowner at 11777 E. Calle Gaudi, Rancho Del Oro.
◦ Respondent: Rancho Del Oro Homeowners Association (HOA).
• Hearing Date: March 19, 2019
• Presiding Judge: Diane Mihalsky, Administrative Law Judge
• Core Allegation: On December 29, 2018, the Petitioner filed a petition alleging the HOA violated multiple sections of its CC&Rs (§§ 1.8, 1.9, 2.1, 3.1, 4.1, 4.2, 4.3, 5.1, and 14.2) by levying the same assessment fees on his property as on neighboring properties with grass lawns.
Petitioner’s Position and Evidence (Michael Stoltenberg)
The Petitioner’s case was built on the argument of fairness, contending that his assessment should be lower because his property does not utilize the HOA’s most expensive landscaping services.
• Primary Argument: It is inequitable for the HOA to charge him the same amount as neighbors with grass yards, given that his front yard is rock and does not receive the same level of maintenance.
• Financial Evidence: The Petitioner testified that in 2016, the HOA spent $54,000 on lawn maintenance and landscaping, which constituted 39% of its total budget.
• Refusal of Services: The Petitioner acknowledged that he refused to allow the HOA access to his property for two key purposes:
1. To install irrigation pipes connecting his lot to a new community well.
2. To perform any landscape maintenance on his front yard.
• Justification for Refusal: The Petitioner accused the HOA of previously killing his trees during maintenance activities and stated that he now undertakes all maintenance of his own yard.
Respondent’s Position and Evidence (Rancho Del Oro HOA)
The HOA’s defense was grounded in its adherence to the plain language of its governing documents, arguing that its actions were not only permissible but mandated by the CC&Rs.
• Primary Argument: The HOA is legally bound by its CC&Rs to levy uniform assessments on all members and is simultaneously obligated to maintain the landscaping on every individual lot.
• Key Testimony (Diana Crites, Property Manager):
◦ CC&R § 5.1(a) explicitly requires the HOA to maintain the yards of its members.
◦ CC&R § 4.1 requires all owners to be assessed uniformly, without regard to the type of landscaping they have chosen or whether they permit the HOA to perform its maintenance duties.
◦ The Petitioner’s property is one of eight constructed by a different developer, who did not originally install grass or an irrigation system.
◦ The HOA has since drilled a community well to address water costs and has offered to remove rock and install grass for these properties, an offer the Petitioner could accept.
• Supporting Evidence (Letter from Dawn Simpson, former bookkeeper):
◦ A 2013 HOA project was initiated to install a community well for landscaping and to connect all homes, including the Petitioner’s.
◦ The letter details an incident where the Petitioner “became very heated with [the] contractor” and “declared that no one was to enter his yard for any purpose.”
◦ This action directly halted all construction to connect his property to the irrigation system and ceased all landscaping services provided by the HOA.
Analysis of Governing Documents (CC&Rs)
The judge’s decision centered on the clear, unambiguous language of specific articles within the CC&Rs. The petitioner failed to identify any language that would permit or require a non-uniform assessment.
CC&R Section
Key Language
Implication & Ruling
Article IV, Section 4.1
Assessments “shall be used for the… common benefit… of the Owners” and “shall constitute common expenses for which the apartment owners shall be severally liable in proportion to their respective common interests.”
This establishes the principle of uniform, shared liability for common expenses, regardless of an individual owner’s specific use of a particular service.
Article V, Section 5.1(a)
“The Association shall maintain… landscaping… It shall also include maintenance of the landscaping on individual Lots outside of structures.”
This article imposes a direct obligation on the HOA to maintain all members’ landscaping, not merely an optional service.
Legal Conclusions and Final Order
• Burden of Proof: The decision established that the Petitioner, Mr. Stoltenberg, held the burden to prove by a “preponderance of the evidence” that the HOA had violated its CC&Rs.
• Interpretation of Covenants: In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties. The judge found the CC&Rs to be unambiguous, requiring a holistic interpretation. The documents clearly mandate that the HOA must maintain all yards and must assess all members equally to fund that maintenance.
• Final Ruling: The Petitioner did not meet his burden of proof. He failed to point to any provision within the CC&Rs that “allows, much less requires, Respondent to assess Petitioner less because he has a rock yard and will not allow Respondent to maintain his yard.”
• Order: The petition was denied. The HOA’s practice of charging uniform assessments was upheld as compliant with its governing documents.
Study Guide – 19F-H1918038-REL
Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association
This guide is designed to review the key facts, legal arguments, and conclusions presented in the Administrative Law Judge Decision for case number 19F-H1918038-REL, Michael Stoltenberg v. Rancho Del Oro Homeowners Association.
Short-Answer Quiz Questions
Answer the following questions in 2-3 complete sentences, based on the information provided in the case document.
1. Who are the primary parties involved in this case, and what are their respective roles?
2. What was the central allegation in the petition filed by Michael Stoltenberg with the Arizona Department of Real Estate?
3. According to the Petitioner’s testimony, what was the financial basis for his claim of unfair assessment?
4. Describe the history of the water and irrigation system issue at the Petitioner’s property prior to 2013, as detailed in Dawn Simpson’s letter.
5. What action did the Petitioner take during the 2013 well construction project, and what were the consequences of this action?
6. According to Article V, Section 5.1(a) of the CC&Rs, what specific maintenance obligation does the homeowners’ association have regarding individual lots?
7. How did Diana Crites, the HOA’s property manager, justify the uniform assessment for all homeowners based on the CC&Rs?
8. What reason did Ms. Crites provide for why eight units, including the Petitioner’s, were originally landscaped with rock instead of grass?
9. What is the legal standard of proof required in this hearing, and on which party does the burden of proof rest?
10. What was the final order of the Administrative Law Judge, and what was the core legal reasoning for this decision?
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Answer Key
1. The primary parties are Michael Stoltenberg, the “Petitioner,” and the Rancho Del Oro Homeowners Association, the “Respondent.” Mr. Stoltenberg is a homeowner and member of the HOA who filed a complaint against the association. The Respondent is the governing HOA for the Rancho Del Oro community in Yuma, Arizona.
2. The Petitioner alleged that the Respondent violated multiple sections of its Covenants, Conditions, and Restrictions (CC&Rs). His central claim was that it was unfair for the HOA to charge him the same assessment fees as his neighbors because his property has rock landscaping, while his neighbors have grass yards that require more maintenance.
3. The financial basis for his claim was the HOA’s budget. The Petitioner testified that in 2016, the Respondent spent $54,000 on lawn maintenance and landscaping, which accounted for 39% of the total budget.
4. Prior to 2013, the Petitioner made several complaints that his home was not connected to the community water system. The HOA Board’s position was that the Petitioner knew his home was not connected to the system when he purchased it.
5. During the 2013 construction to install a well and connect all homes to an irrigation system, the Petitioner became “very heated” with the contractor. He declared that no one was to enter his yard for any purpose, which halted all construction in his backyard and all landscaping provided by the HOA for his front yard.
6. Section 5.1(a) of the CC&Rs states that the Association’s maintenance duties “shall also include maintenance of the landscaping on individual Lots outside of structures.” This obligates the HOA to maintain landscaping even on privately owned lots.
7. Diana Crites testified that CC&R Section 4.1 requires all owners to be assessed uniformly. She stated this uniformity applies regardless of the type of landscaping an owner has chosen or whether they permit the HOA onto their property to perform maintenance.
8. Ms. Crites testified that the eight units were built by a different developer after the original construction and were not equipped with an irrigation system or grass. She believed rock was used in the front yards of these lots due to the high cost of water, an issue later resolved by the installation of a community well.
9. The legal standard is “a preponderance of the evidence,” which means the evidence must be convincing enough to make the contention more probably true than not. The burden of proof to establish a CC&R violation rests on the Petitioner, Mr. Stoltenberg.
10. The Administrative Law Judge denied the Petitioner’s petition. The reasoning was that the Petitioner failed to bear his burden of proof because he could not point to any provision in the CC&Rs that allows or requires the HOA to assess him less than his neighbors based on his landscaping choice or his refusal to allow maintenance.
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Essay Questions
The following questions are designed for longer-form analysis. Formulate a detailed response for each, citing specific evidence and CC&R provisions from the case document.
1. Analyze the central conflict between the Petitioner’s concept of fairness and the Respondent’s interpretation of the CC&Rs. Use specific clauses from the CC&Rs (e.g., Articles IV and V) to support the analysis of each party’s position.
2. Discuss the significance of the “preponderance of the evidence” standard in this case. How did the evidence presented by both the Petitioner (e.g., budget figures) and the Respondent (e.g., witness testimony and CC&Rs) contribute to the judge’s final decision regarding this standard?
3. Trace the history of the water and irrigation issue at the Petitioner’s property, from his initial complaints to his refusal to allow construction access. How did these past events impact the central issue of the 2019 hearing?
4. Explain the legal principle that “restrictive covenants must be construed as a whole.” How did the Administrative Law Judge apply this principle by referencing both Section 4.1 (Assessments) and Section 5.1(a) (Maintenance) of the CC&Rs to reach her conclusion?
5. Evaluate the actions of the Petitioner, Mr. Stoltenberg. Based on the evidence presented, did his own actions—specifically, denying the HOA access to his property—undermine his legal argument for a reduced assessment? Explain your reasoning using facts from the hearing evidence.
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Glossary
Definition from Source Context
Administrative Law Judge (ALJ)
An official (Diane Mihalsky) who presides over hearings at the Office of Administrative Hearings, an independent state agency, and makes decisions in matters referred by state departments like the Arizona Department of Real Estate.
Assessments
Charges levied by the homeowners’ association on its members. According to CC&R § 4.1, they are used for promoting the recreation, health, safety, and welfare of owners, including property maintenance, and are to be proportioned to each owner’s respective common interests.
Burden of Proof
The obligation of a party in a legal case to establish their claim. In this matter, the Petitioner bears the burden of proof to establish that the Respondent violated its CC&Rs.
Common Area
Defined in CC&R § 1.8 as “those portions of the Project to which title is held by the Association for the common use and enjoyment of the Owners and excepting the individual units.”
Common Expenses
Defined in CC&R § 1.9 as the “actual and estimated expenses of operating the association,” including any reasonable reserves and all sums designated as Common Expense by project documents.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for a planned community that outline the rules, obligations, and rights of the homeowners and the homeowners’ association.
Easements
A right of use over the property of another. CC&R § 2.1 grants every owner a “non-exclusive easement and equitable right of use and enjoyment in, to, and throughout the Common Area.”
Homeowners’ Association (HOA)
The governing body for a planned community (Rancho Del Oro Homeowners Association) whose members are the property owners within that community. It is responsible for managing common areas and enforcing the CC&Rs.
Petitioner
The party who files a petition initiating a legal action. In this case, Michael Stoltenberg, a homeowner in Rancho Del Oro.
Preponderance of the Evidence
The evidentiary standard required to win the case. The source defines it 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” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Respondent
The party against whom a petition is filed. In this case, the Rancho Del Oro Homeowners Association.
Restrictive Covenant
A provision in a deed or community document that limits the use of the property. The source notes that in Arizona, an unambiguous restrictive covenant is enforced to give effect to the intent of the parties and must be construed as a whole.
Blog Post – 19F-H1918038-REL
He Sued His HOA Over an ‘Unfair’ Fee—The Reason He Lost Is a Warning for Every Homeowner
Introduction: The HOA Fee Frustration
For many homeowners, the monthly or annual bill from the Homeowners Association (HOA) can be a source of constant frustration. It’s easy to look at the line items—landscaping, pool maintenance, common area repairs—and wonder if you’re truly getting your money’s worth, especially when you feel you aren’t using a particular service.
This was exactly the position of Michael Stoltenberg, a homeowner in Arizona who believed he had an open-and-shut case to lower his HOA fees. His argument seemed logical, fair, and simple. But the ultimate ruling in his case, Stoltenberg v. Rancho Del Oro Homeowners Association, reveals some surprising and crucial truths about how HOA rules actually work and serves as a powerful lesson for every person living in a planned community.
Takeaway 1: You Pay for the Service, Even If You Actively Refuse It
Michael Stoltenberg’s argument was straightforward: his front yard was landscaped with rocks, while his neighbors had grass. He pointed out that in 2016, lawn maintenance accounted for a significant 39% of the HOA’s total budget. He argued it was fundamentally unfair for him to pay the same assessment as his neighbors when he wasn’t consuming this costly service.
His sense of unfairness was rooted in the history of the development. His home was one of eight built by a different developer than the rest of the community. Likely due to high water costs at the time, these eight lots were constructed without irrigation systems or grass. From the very beginning, his property was different. This context makes the crucial twist in the case all the more telling. In 2013, the HOA undertook a community-wide project to drill a new well and install an irrigation system, an effort designed to rectify the inconsistency and bring these outlier properties up to the community standard. When the construction reached Stoltenberg’s property, he refused the workers access.
Testimony from the HOA’s former bookkeeper laid this fact bare:
At this time, [Petitioner] declared that no one was to enter his yard for any purpose. This was also to include his front yard. This halted all construction that was currently in place in his back yard, and all landscaping being provided by the HOA for the front yard.
Legally, this transformed the situation. Stoltenberg’s complaint was no longer about a service he didn’t need, but about a service he actively rejected. This case establishes a critical principle: HOA assessments are tied to your property ownership and membership in the community, not your individual consumption of services. By refusing the service, Mr. Stoltenberg did not absolve himself of the cost associated with its availability to the community.
Takeaway 2: “Common Benefit” Isn’t the Same as “Your Personal Benefit”
The legal foundation for the HOA’s position rested in the language of its Covenants, Conditions, and Restrictions (CC&Rs). Specifically, Section 4.1 states that assessments are to be used for the “common benefit, and enjoyment of the Owners.”
In an HOA context, “common benefit” is a broad concept. It means that well-maintained landscaping throughout the entire neighborhood enhances curb appeal, creates a cohesive community aesthetic, and supports the property values of all residents. This includes Mr. Stoltenberg, whose home value is supported by the beautiful, uniform appearance of the neighborhood, regardless of whether his specific yard has grass. It’s the same reason a homeowner without children still pays for the upkeep of a community playground; the amenity benefits the community as a whole.
Further testimony reinforced this point. The HOA’s property manager stated that the association was still willing to remove the rock and install grass on his property, just as they had already done for two other homeowners in a similar situation. The benefit was available to him; he simply continued to refuse it.
Takeaway 3: The Rules Are a Package Deal, Not an A La Carte Menu
Ultimately, the Administrative Law Judge’s role was not to rule on a general sense of fairness but to enforce the community’s governing documents as written. When examined together, two key clauses in the CC&Rs created a contractual vise, leaving the judge with no other legal option. The two clauses created a perfect, inescapable loop.
• Section 5.1(a): This clause states the HOA has an obligation that “shall also include maintenance of the landscaping on individual Lots outside of structures.” The HOA wasn’t just permitted to do the work; it was contractually required to.
• Section 4.1: This clause, which also defines assessments as being for the “common benefit,” requires that they “shall constitute common expenses for which the apartment owners shall be severally liable in proportion to their respective common interests.”
The documents legally obligated the HOA to maintain all yards and to charge every owner the same proportional amount for doing so. The CC&Rs provided no mechanism for a homeowner to opt-out of a service and receive a corresponding discount. The judge’s final ruling was decisive, emphasizing the absolute nature of this contractual obligation:
Because Petitioner has not pointed to any CC&R that allows, much less requires, Respondent to assess Petitioner less because he has a rock yard and will not allow Respondent to maintain his yard, Petitioner has not borne his burden in this matter.
Conclusion: The Contract You Live In
The case of Michael Stoltenberg is a powerful reminder that an HOA’s CC&Rs are not just a set of neighborhood rules; they are restrictive covenants that run with the land. When you buy the property, you are irrevocably buying into the contract that governs it. These documents are designed to prioritize the uniform application of standards for the collective good, and they supersede an individual’s personal preferences or interpretation of what seems “fair.”
This case forces every potential buyer to ask a critical question: Are you simply purchasing a dwelling, or are you prepared to become a party to the binding legal contract that governs the entire community?
Case Participants
Petitioner Side
Michael Stoltenberg(Petitioner)
Respondent Side
Rancho Del Oro Homeowners Association(Respondent Entity) Entity, not human
The Administrative Law Judge denied the petition, concluding that the HOA acted in accordance with its governing documents (CC&Rs § 4.1) by imposing uniform assessments. The CC&Rs did not provide an exception for reduced assessments based on an owner's choice of landscaping (rock yard) or refusal of HOA maintenance services.
Why this result: Petitioner failed to meet the burden of proof that the Respondent violated its CC&Rs, as CC&R § 4.1 requires uniform assessment and no provision requires or allows Respondent to assess Petitioner less due to his rock yard and refusal of maintenance.
Key Issues & Findings
HOA Assessment Uniformity Requirement
Petitioner, who had rock landscaping and refused HOA maintenance, alleged the HOA violated CC&Rs by assessing him uniform dues, arguing he should pay less since HOA expenditures on lawn maintenance were substantial and primarily benefited neighbors with grass yards.
Orders: Petitioner's petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
CC&Rs § 4.1
CC&Rs § 5.1(a)
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
Powell v. Washburn, 211 Ariz. 553
Vazanno v. Superior Court, 74 Ariz. 369
Analytics Highlights
Topics: HOA Assessment, Uniform Dues, CC&R Enforcement, Landscaping Maintenance
Additional Citations:
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)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Briefing Document: Stoltenberg v. Rancho Del Oro Homeowners Association
Executive Summary
This document synthesizes the findings from the Administrative Law Judge Decision in case number 19F-H1918038-REL, concerning a dispute between homeowner Michael Stoltenberg and the Rancho Del Oro Homeowners Association (HOA). The core conflict centered on Mr. Stoltenberg’s claim that he should pay lower HOA assessments because his property has rock landscaping, while his neighbors have grass yards requiring more costly maintenance by the HOA.
The Administrative Law Judge ultimately denied the petition. The decision rested on an unambiguous interpretation of the HOA’s Covenants, Conditions, and Restrictions (CC&Rs). The Judge found that the CC&Rs explicitly obligate the HOA to maintain landscaping on all individual lots and, crucially, require assessments to be uniform for all members to cover these “common expenses.” The petitioner’s argument for a reduced assessment was unsupported by any provision in the governing documents. Furthermore, evidence showed that Mr. Stoltenberg had actively refused the HOA access to his property to install a community irrigation system and to perform the very landscaping maintenance that is a central component of the assessments.
Case Overview
• Case Number: 19F-H1918038-REL
• Parties Involved:
◦ Petitioner: Michael Stoltenberg, a homeowner at 11777 E. Calle Gaudi, Rancho Del Oro.
◦ Respondent: Rancho Del Oro Homeowners Association (HOA).
• Hearing Date: March 19, 2019
• Presiding Judge: Diane Mihalsky, Administrative Law Judge
• Core Allegation: On December 29, 2018, the Petitioner filed a petition alleging the HOA violated multiple sections of its CC&Rs (§§ 1.8, 1.9, 2.1, 3.1, 4.1, 4.2, 4.3, 5.1, and 14.2) by levying the same assessment fees on his property as on neighboring properties with grass lawns.
Petitioner’s Position and Evidence (Michael Stoltenberg)
The Petitioner’s case was built on the argument of fairness, contending that his assessment should be lower because his property does not utilize the HOA’s most expensive landscaping services.
• Primary Argument: It is inequitable for the HOA to charge him the same amount as neighbors with grass yards, given that his front yard is rock and does not receive the same level of maintenance.
• Financial Evidence: The Petitioner testified that in 2016, the HOA spent $54,000 on lawn maintenance and landscaping, which constituted 39% of its total budget.
• Refusal of Services: The Petitioner acknowledged that he refused to allow the HOA access to his property for two key purposes:
1. To install irrigation pipes connecting his lot to a new community well.
2. To perform any landscape maintenance on his front yard.
• Justification for Refusal: The Petitioner accused the HOA of previously killing his trees during maintenance activities and stated that he now undertakes all maintenance of his own yard.
Respondent’s Position and Evidence (Rancho Del Oro HOA)
The HOA’s defense was grounded in its adherence to the plain language of its governing documents, arguing that its actions were not only permissible but mandated by the CC&Rs.
• Primary Argument: The HOA is legally bound by its CC&Rs to levy uniform assessments on all members and is simultaneously obligated to maintain the landscaping on every individual lot.
• Key Testimony (Diana Crites, Property Manager):
◦ CC&R § 5.1(a) explicitly requires the HOA to maintain the yards of its members.
◦ CC&R § 4.1 requires all owners to be assessed uniformly, without regard to the type of landscaping they have chosen or whether they permit the HOA to perform its maintenance duties.
◦ The Petitioner’s property is one of eight constructed by a different developer, who did not originally install grass or an irrigation system.
◦ The HOA has since drilled a community well to address water costs and has offered to remove rock and install grass for these properties, an offer the Petitioner could accept.
• Supporting Evidence (Letter from Dawn Simpson, former bookkeeper):
◦ A 2013 HOA project was initiated to install a community well for landscaping and to connect all homes, including the Petitioner’s.
◦ The letter details an incident where the Petitioner “became very heated with [the] contractor” and “declared that no one was to enter his yard for any purpose.”
◦ This action directly halted all construction to connect his property to the irrigation system and ceased all landscaping services provided by the HOA.
Analysis of Governing Documents (CC&Rs)
The judge’s decision centered on the clear, unambiguous language of specific articles within the CC&Rs. The petitioner failed to identify any language that would permit or require a non-uniform assessment.
CC&R Section
Key Language
Implication & Ruling
Article IV, Section 4.1
Assessments “shall be used for the… common benefit… of the Owners” and “shall constitute common expenses for which the apartment owners shall be severally liable in proportion to their respective common interests.”
This establishes the principle of uniform, shared liability for common expenses, regardless of an individual owner’s specific use of a particular service.
Article V, Section 5.1(a)
“The Association shall maintain… landscaping… It shall also include maintenance of the landscaping on individual Lots outside of structures.”
This article imposes a direct obligation on the HOA to maintain all members’ landscaping, not merely an optional service.
Legal Conclusions and Final Order
• Burden of Proof: The decision established that the Petitioner, Mr. Stoltenberg, held the burden to prove by a “preponderance of the evidence” that the HOA had violated its CC&Rs.
• Interpretation of Covenants: In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties. The judge found the CC&Rs to be unambiguous, requiring a holistic interpretation. The documents clearly mandate that the HOA must maintain all yards and must assess all members equally to fund that maintenance.
• Final Ruling: The Petitioner did not meet his burden of proof. He failed to point to any provision within the CC&Rs that “allows, much less requires, Respondent to assess Petitioner less because he has a rock yard and will not allow Respondent to maintain his yard.”
• Order: The petition was denied. The HOA’s practice of charging uniform assessments was upheld as compliant with its governing documents.
Study Guide – 19F-H1918038-REL
Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association
This guide is designed to review the key facts, legal arguments, and conclusions presented in the Administrative Law Judge Decision for case number 19F-H1918038-REL, Michael Stoltenberg v. Rancho Del Oro Homeowners Association.
Short-Answer Quiz Questions
Answer the following questions in 2-3 complete sentences, based on the information provided in the case document.
1. Who are the primary parties involved in this case, and what are their respective roles?
2. What was the central allegation in the petition filed by Michael Stoltenberg with the Arizona Department of Real Estate?
3. According to the Petitioner’s testimony, what was the financial basis for his claim of unfair assessment?
4. Describe the history of the water and irrigation system issue at the Petitioner’s property prior to 2013, as detailed in Dawn Simpson’s letter.
5. What action did the Petitioner take during the 2013 well construction project, and what were the consequences of this action?
6. According to Article V, Section 5.1(a) of the CC&Rs, what specific maintenance obligation does the homeowners’ association have regarding individual lots?
7. How did Diana Crites, the HOA’s property manager, justify the uniform assessment for all homeowners based on the CC&Rs?
8. What reason did Ms. Crites provide for why eight units, including the Petitioner’s, were originally landscaped with rock instead of grass?
9. What is the legal standard of proof required in this hearing, and on which party does the burden of proof rest?
10. What was the final order of the Administrative Law Judge, and what was the core legal reasoning for this decision?
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Answer Key
1. The primary parties are Michael Stoltenberg, the “Petitioner,” and the Rancho Del Oro Homeowners Association, the “Respondent.” Mr. Stoltenberg is a homeowner and member of the HOA who filed a complaint against the association. The Respondent is the governing HOA for the Rancho Del Oro community in Yuma, Arizona.
2. The Petitioner alleged that the Respondent violated multiple sections of its Covenants, Conditions, and Restrictions (CC&Rs). His central claim was that it was unfair for the HOA to charge him the same assessment fees as his neighbors because his property has rock landscaping, while his neighbors have grass yards that require more maintenance.
3. The financial basis for his claim was the HOA’s budget. The Petitioner testified that in 2016, the Respondent spent $54,000 on lawn maintenance and landscaping, which accounted for 39% of the total budget.
4. Prior to 2013, the Petitioner made several complaints that his home was not connected to the community water system. The HOA Board’s position was that the Petitioner knew his home was not connected to the system when he purchased it.
5. During the 2013 construction to install a well and connect all homes to an irrigation system, the Petitioner became “very heated” with the contractor. He declared that no one was to enter his yard for any purpose, which halted all construction in his backyard and all landscaping provided by the HOA for his front yard.
6. Section 5.1(a) of the CC&Rs states that the Association’s maintenance duties “shall also include maintenance of the landscaping on individual Lots outside of structures.” This obligates the HOA to maintain landscaping even on privately owned lots.
7. Diana Crites testified that CC&R Section 4.1 requires all owners to be assessed uniformly. She stated this uniformity applies regardless of the type of landscaping an owner has chosen or whether they permit the HOA onto their property to perform maintenance.
8. Ms. Crites testified that the eight units were built by a different developer after the original construction and were not equipped with an irrigation system or grass. She believed rock was used in the front yards of these lots due to the high cost of water, an issue later resolved by the installation of a community well.
9. The legal standard is “a preponderance of the evidence,” which means the evidence must be convincing enough to make the contention more probably true than not. The burden of proof to establish a CC&R violation rests on the Petitioner, Mr. Stoltenberg.
10. The Administrative Law Judge denied the Petitioner’s petition. The reasoning was that the Petitioner failed to bear his burden of proof because he could not point to any provision in the CC&Rs that allows or requires the HOA to assess him less than his neighbors based on his landscaping choice or his refusal to allow maintenance.
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Essay Questions
The following questions are designed for longer-form analysis. Formulate a detailed response for each, citing specific evidence and CC&R provisions from the case document.
1. Analyze the central conflict between the Petitioner’s concept of fairness and the Respondent’s interpretation of the CC&Rs. Use specific clauses from the CC&Rs (e.g., Articles IV and V) to support the analysis of each party’s position.
2. Discuss the significance of the “preponderance of the evidence” standard in this case. How did the evidence presented by both the Petitioner (e.g., budget figures) and the Respondent (e.g., witness testimony and CC&Rs) contribute to the judge’s final decision regarding this standard?
3. Trace the history of the water and irrigation issue at the Petitioner’s property, from his initial complaints to his refusal to allow construction access. How did these past events impact the central issue of the 2019 hearing?
4. Explain the legal principle that “restrictive covenants must be construed as a whole.” How did the Administrative Law Judge apply this principle by referencing both Section 4.1 (Assessments) and Section 5.1(a) (Maintenance) of the CC&Rs to reach her conclusion?
5. Evaluate the actions of the Petitioner, Mr. Stoltenberg. Based on the evidence presented, did his own actions—specifically, denying the HOA access to his property—undermine his legal argument for a reduced assessment? Explain your reasoning using facts from the hearing evidence.
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Glossary
Definition from Source Context
Administrative Law Judge (ALJ)
An official (Diane Mihalsky) who presides over hearings at the Office of Administrative Hearings, an independent state agency, and makes decisions in matters referred by state departments like the Arizona Department of Real Estate.
Assessments
Charges levied by the homeowners’ association on its members. According to CC&R § 4.1, they are used for promoting the recreation, health, safety, and welfare of owners, including property maintenance, and are to be proportioned to each owner’s respective common interests.
Burden of Proof
The obligation of a party in a legal case to establish their claim. In this matter, the Petitioner bears the burden of proof to establish that the Respondent violated its CC&Rs.
Common Area
Defined in CC&R § 1.8 as “those portions of the Project to which title is held by the Association for the common use and enjoyment of the Owners and excepting the individual units.”
Common Expenses
Defined in CC&R § 1.9 as the “actual and estimated expenses of operating the association,” including any reasonable reserves and all sums designated as Common Expense by project documents.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for a planned community that outline the rules, obligations, and rights of the homeowners and the homeowners’ association.
Easements
A right of use over the property of another. CC&R § 2.1 grants every owner a “non-exclusive easement and equitable right of use and enjoyment in, to, and throughout the Common Area.”
Homeowners’ Association (HOA)
The governing body for a planned community (Rancho Del Oro Homeowners Association) whose members are the property owners within that community. It is responsible for managing common areas and enforcing the CC&Rs.
Petitioner
The party who files a petition initiating a legal action. In this case, Michael Stoltenberg, a homeowner in Rancho Del Oro.
Preponderance of the Evidence
The evidentiary standard required to win the case. The source defines it 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” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Respondent
The party against whom a petition is filed. In this case, the Rancho Del Oro Homeowners Association.
Restrictive Covenant
A provision in a deed or community document that limits the use of the property. The source notes that in Arizona, an unambiguous restrictive covenant is enforced to give effect to the intent of the parties and must be construed as a whole.
Blog Post – 19F-H1918038-REL
He Sued His HOA Over an ‘Unfair’ Fee—The Reason He Lost Is a Warning for Every Homeowner
Introduction: The HOA Fee Frustration
For many homeowners, the monthly or annual bill from the Homeowners Association (HOA) can be a source of constant frustration. It’s easy to look at the line items—landscaping, pool maintenance, common area repairs—and wonder if you’re truly getting your money’s worth, especially when you feel you aren’t using a particular service.
This was exactly the position of Michael Stoltenberg, a homeowner in Arizona who believed he had an open-and-shut case to lower his HOA fees. His argument seemed logical, fair, and simple. But the ultimate ruling in his case, Stoltenberg v. Rancho Del Oro Homeowners Association, reveals some surprising and crucial truths about how HOA rules actually work and serves as a powerful lesson for every person living in a planned community.
Takeaway 1: You Pay for the Service, Even If You Actively Refuse It
Michael Stoltenberg’s argument was straightforward: his front yard was landscaped with rocks, while his neighbors had grass. He pointed out that in 2016, lawn maintenance accounted for a significant 39% of the HOA’s total budget. He argued it was fundamentally unfair for him to pay the same assessment as his neighbors when he wasn’t consuming this costly service.
His sense of unfairness was rooted in the history of the development. His home was one of eight built by a different developer than the rest of the community. Likely due to high water costs at the time, these eight lots were constructed without irrigation systems or grass. From the very beginning, his property was different. This context makes the crucial twist in the case all the more telling. In 2013, the HOA undertook a community-wide project to drill a new well and install an irrigation system, an effort designed to rectify the inconsistency and bring these outlier properties up to the community standard. When the construction reached Stoltenberg’s property, he refused the workers access.
Testimony from the HOA’s former bookkeeper laid this fact bare:
At this time, [Petitioner] declared that no one was to enter his yard for any purpose. This was also to include his front yard. This halted all construction that was currently in place in his back yard, and all landscaping being provided by the HOA for the front yard.
Legally, this transformed the situation. Stoltenberg’s complaint was no longer about a service he didn’t need, but about a service he actively rejected. This case establishes a critical principle: HOA assessments are tied to your property ownership and membership in the community, not your individual consumption of services. By refusing the service, Mr. Stoltenberg did not absolve himself of the cost associated with its availability to the community.
Takeaway 2: “Common Benefit” Isn’t the Same as “Your Personal Benefit”
The legal foundation for the HOA’s position rested in the language of its Covenants, Conditions, and Restrictions (CC&Rs). Specifically, Section 4.1 states that assessments are to be used for the “common benefit, and enjoyment of the Owners.”
In an HOA context, “common benefit” is a broad concept. It means that well-maintained landscaping throughout the entire neighborhood enhances curb appeal, creates a cohesive community aesthetic, and supports the property values of all residents. This includes Mr. Stoltenberg, whose home value is supported by the beautiful, uniform appearance of the neighborhood, regardless of whether his specific yard has grass. It’s the same reason a homeowner without children still pays for the upkeep of a community playground; the amenity benefits the community as a whole.
Further testimony reinforced this point. The HOA’s property manager stated that the association was still willing to remove the rock and install grass on his property, just as they had already done for two other homeowners in a similar situation. The benefit was available to him; he simply continued to refuse it.
Takeaway 3: The Rules Are a Package Deal, Not an A La Carte Menu
Ultimately, the Administrative Law Judge’s role was not to rule on a general sense of fairness but to enforce the community’s governing documents as written. When examined together, two key clauses in the CC&Rs created a contractual vise, leaving the judge with no other legal option. The two clauses created a perfect, inescapable loop.
• Section 5.1(a): This clause states the HOA has an obligation that “shall also include maintenance of the landscaping on individual Lots outside of structures.” The HOA wasn’t just permitted to do the work; it was contractually required to.
• Section 4.1: This clause, which also defines assessments as being for the “common benefit,” requires that they “shall constitute common expenses for which the apartment owners shall be severally liable in proportion to their respective common interests.”
The documents legally obligated the HOA to maintain all yards and to charge every owner the same proportional amount for doing so. The CC&Rs provided no mechanism for a homeowner to opt-out of a service and receive a corresponding discount. The judge’s final ruling was decisive, emphasizing the absolute nature of this contractual obligation:
Because Petitioner has not pointed to any CC&R that allows, much less requires, Respondent to assess Petitioner less because he has a rock yard and will not allow Respondent to maintain his yard, Petitioner has not borne his burden in this matter.
Conclusion: The Contract You Live In
The case of Michael Stoltenberg is a powerful reminder that an HOA’s CC&Rs are not just a set of neighborhood rules; they are restrictive covenants that run with the land. When you buy the property, you are irrevocably buying into the contract that governs it. These documents are designed to prioritize the uniform application of standards for the collective good, and they supersede an individual’s personal preferences or interpretation of what seems “fair.”
This case forces every potential buyer to ask a critical question: Are you simply purchasing a dwelling, or are you prepared to become a party to the binding legal contract that governs the entire community?
Case Participants
Petitioner Side
Michael Stoltenberg(Petitioner)
Respondent Side
Rancho Del Oro Homeowners Association(Respondent Entity) Entity, not human
The Ridge at Diamante del Lago Homeowners Association, Inc.
Counsel
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Alleged Violations
A.R.S. § 33-1805(A)
Outcome Summary
Petitioner established that Respondent violated A.R.S. § 33-1805(A) by failing to provide access to requested association records within the statutory ten-day period. The petition was granted and Respondent was ordered to reimburse the $500.00 filing fee.
Key Issues & Findings
Failure to provide timely access to association financial records
Petitioner filed a single-issue petition alleging Respondent violated CC&Rs § 4.8 and A.R.S. § 33-1805 by refusing to make available association records or to produce a receipt identifying a contractor and the amount paid for a cinderblock wall built by the community’s clubhouse.
Orders: The petition was granted because Respondent violated A.R.S. § 33-1805(A) by failing to provide access to records within ten days of Petitioner’s September 12, 2018 request. Respondent was ordered to reimburse the $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1805(A)
CC&R § 4.8
Analytics Highlights
Topics: HOA Records, Record Inspection, Timely Disclosure, Statutory Violation, Filing Fee Reimbursement
Additional Citations:
A.R.S. § 33-1805(A)
CC&R § 4.8
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)
Video Overview
Audio Overview
Decision Documents
19F-H1918034-REL Decision – 692859.pdf
Uploaded 2026-01-23T17:28:04 (151.9 KB)
Briefing Doc – 19F-H1918034-REL
Briefing Document: Curtin v. The Ridge at Diamante del Lago HOA
Executive Summary
This briefing document analyzes the Administrative Law Judge (ALJ) Decision in case number 19F-H1918034-REL, a dispute between homeowner Linda Curtin and The Ridge at Diamante del Lago Homeowners Association, Inc. (HOA). The central conflict arose from the HOA’s failure to provide financial records related to a small construction project within the timeframe mandated by Arizona law.
The petitioner, Ms. Curtin, alleged that the HOA violated its own Covenants, Conditions, and Restrictions (CC&Rs) and Arizona Revised Statutes (A.R.S.) § 33-1805 by not producing an invoice for a $1,000 cinderblock wall project at the community clubhouse. While the HOA did eventually provide the requested records, the ALJ found that it failed to do so within the legally required ten-day period following Ms. Curtin’s formal written request on September 12, 2018.
Consequently, the ALJ granted the petition in favor of Ms. Curtin, ruling that the HOA was in violation of A.R.S. § 33-1805(A). The HOA was ordered to reimburse Ms. Curtin for her $500 petition filing fee. However, the ALJ dismissed all of the petitioner’s ancillary complaints, including suspicions of forgery, concerns about the contractor’s licensing status, and other issues of HOA governance, deeming them either unsubstantiated or outside the narrow scope of the single-issue petition. The ruling underscores the strict procedural compliance required of HOAs regarding member record requests while limiting the scope of such legal challenges to the specific violations alleged.
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I. Case Overview
• Case Number: 19F-H1918034-REL
• Forum: Arizona Office of Administrative Hearings
• Petitioner: Linda Curtin (“Complainant”), a homeowner and HOA member.
• Respondent: The Ridge at Diamante del Lago Homeowners Association, Inc. (“HOA”), represented by Community Manager Tracy Schofield.
• Administrative Law Judge: Diane Mihalsky
• Core Allegation: The HOA violated its governing documents and state law by failing to make association records available to a member upon request. Specifically, the petitioner sought a receipt and contractor details for a cinderblock wall built at the community clubhouse.
II. Governing Rules and Statutes
The case centered on the interpretation and enforcement of the HOA’s internal rules and a specific Arizona statute governing planned communities.
Rule/Statute
Key Provision
CC&R § 4.8
Requires the HOA Board to keep “true and correct records of account in accordance with generally accepted accounting principles” and to make such books and records available for inspection by all owners upon request during normal business hours.
A.R.S. § 33-1805(A)
Mandates that all financial and other association records be made “reasonably available for examination” by any member. The statute explicitly requires the association to fulfill a request for examination within ten business days. A similar ten-day deadline applies for providing copies of records.
The respondent did not claim any legal privilege under A.R.S. § 33-1805(B) that would permit it to withhold the requested documents.
III. Chronology of the Dispute
The conflict unfolded over several months, beginning with an informal inquiry and escalating to a formal legal petition.
• August 1, 2018: Petitioner Linda Curtin first emails Community Manager Tracy Schofield for a contractor recommendation.
• August 2 – September 11, 2018: In a subsequent email exchange, Ms. Curtin asks who built the garbage can walls at the clubhouse. Ms. Schofield provides the name “Roberto” but is unable to provide a contact number, stating that the Board’s Treasurer, Jim Mackiewicz, had arranged the work. The petitioner later characterized this exchange as “evasive.”
• September 12, 2018: Ms. Curtin sends a formal written letter requesting “a copy of the invoice submitted to The Ridge HOA” for the wall construction. This action officially started the ten-day clock under A.R.S. § 33-1805(A).
• September 24, 2018: Ms. Schofield responds, stating that she does not have the invoices at her office as records are retained “in the community.” She provides a printout of payments made to contractor Gualberto Castro, which includes a $1,000 check dated November 1, 2017, for “Block work – clubhouse.”
• November 5, 2018: Ms. Curtin requests that the invoice be brought to that day’s HOA board meeting. The document is not provided.
• November 28, 2018: After making an additional 15 phone calls regarding related meeting minutes without a satisfactory response, Ms. Curtin files a single-issue petition with the Arizona Department of Real Estate.
• December 10, 2018: The HOA files its answer, claiming the issue has been resolved. On the same day, Ms. Schofield emails the contractor’s invoice to Ms. Curtin. The invoice, from ValleyWide Custom Painting Inc. and dated November 2, 2017, details the $1,000 job.
• December 11, 2018: Ms. Curtin requests additional documents, including a copy of the cashed check and the Architectural Control Committee (ACC) application for the project. Ms. Schofield is reported to have stated that ACC approval was not applicable to work on common areas.
• Post-December 11, 2018: Ms. Schofield eventually provides a copy of the cancelled check for $1,000 made payable to Mr. Castro.
• February 20, 2019: An evidentiary hearing is held before the ALJ.
IV. Analysis of Evidence and Arguments
A. Petitioner’s Position
Ms. Curtin’s case was built on the initial failure to produce records and expanded to include broader suspicions about the HOA’s conduct.
• Primary Claim: The HOA violated state law by failing to fulfill her September 12, 2018 request for records within the ten-day statutory period.
• Suspicions about Documentation: The petitioner expressed dissatisfaction with the documents eventually provided. She opined that the November 2, 2017 receipt “appeared to have two different kinds of handwriting and might be a forgery.” She also pointed to the fact that the check for payment was dated one day before the invoice date.
• Ancillary Governance Concerns: Ms. Curtin raised several issues beyond the scope of her petition, including:
◦ The contractor, Mr. Castro, was not licensed as required by the Registrar of Contractors.
◦ The Board meeting minutes did not show authorization for the $1,000 expenditure.
◦ The HOA’s ACC approval process was not followed for the wall.
◦ A separate, unrelated $125,000 pool remodel project was approved improperly (this was refuted by Ms. Schofield’s testimony that it required a membership vote).
B. Respondent’s Position
The HOA, through Ms. Schofield, acknowledged the delay but argued it had ultimately complied and faced logistical constraints.
• Eventual Compliance: The HOA’s primary defense was that it eventually provided all the documents in its possession related to the expenditure, thereby resolving the complaint.
• Logistical Challenges: Ms. Schofield testified that she is an off-site community manager for numerous associations and does not keep records in her office. She stated that the HOA’s records are stored “in the community” at a separate depository.
• Commitment to Future Compliance: Ms. Schofield testified that for any future requests, she would schedule a time for the petitioner to review records at the depository within the ten-day window.
• Communication: Ms. Schofield maintained that she “communicated with Petitioner on every issue” and provided what information she had available.
V. Administrative Law Judge’s Decision and Rationale
The ALJ’s decision was narrowly focused on the statutory violation, setting aside the petitioner’s other grievances.
A. Conclusions of Law
1. Violation Confirmed: The judge concluded that the petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). The HOA “acknowledged that it did not provide the documents or provide access to Petitioner to view the documents within ten days of Petitioner’s September 12, 2018 request.”
2. Scope of Relief Limited: The ALJ determined that the statute only requires that records be kept and made available in a timely manner. The law “has not authorized the Department… that HOAs produce records that satisfy all of a members’ stated concerns.”
3. Ancillary Claims Dismissed: The judge explicitly rejected the petitioner’s broader concerns, stating: “Petitioner’s concern with ‘transparency’ and dissatisfaction and suspicions about the records that were eventually provided do not entitle her to any additional relief in this forum.” The forgery claim was dismissed for lack of evidence, as Ms. Curtin did not present the opinion of a handwriting expert. The issues related to contractor licensing and internal HOA procedures were deemed outside the jurisdiction of the hearing for an HOA petition.
B. Recommended Order
Based on the findings, the ALJ issued a two-part order:
1. Petition Granted: The petition was granted on the grounds that Ms. Curtin had proven the HOA violated A.R.S. § 33-1805(A).
2. Reimbursement of Filing Fee: The HOA was ordered to reimburse the petitioner the $500.00 she paid to file the single-issue petition.
The order, issued on March 5, 2019, was declared binding on both parties unless a request for rehearing was filed within 30 days.
Study Guide – 19F-H1918034-REL
Study Guide: Curtin v. The Ridge at Diamante del Lago Homeowners Association, Inc.
This guide provides a detailed review of the Administrative Law Judge Decision in case number 19F-H1918034-REL, involving Petitioner Linda Curtin and Respondent The Ridge at Diamante del Lago Homeowners Association, Inc. It includes a quiz with an answer key to test comprehension, a set of essay questions for deeper analysis, and a glossary of key terms.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, based exclusively on the information provided in the case document.
1. Who are the primary parties involved in this case and what are their respective roles?
2. What was the central allegation in the single-issue petition filed by Linda Curtin on November 28, 2018?
3. Which specific Arizona Revised Statute and CC&R section did the Petitioner claim the Respondent violated?
4. How did the HOA, through its community manager, initially attempt to resolve the records request that led to the petition?
5. What additional documents did Ms. Curtin request after receiving the contractor’s invoice on December 10, 2018?
6. What were Ms. Curtin’s specific suspicions and complaints regarding the quality and validity of the documents she eventually received?
7. What was Community Manager Tracy Schofield’s testimony regarding her role and the location of the association’s records?
8. According to the “Conclusions of Law,” what is the primary requirement of A.R.S. § 33-1805(A) regarding member requests for records?
9. On what specific point did the Administrative Law Judge find that the Respondent had violated the statute?
10. What was the final Recommended Order issued by the Administrative Law Judge in this case?
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Answer Key
1. The primary parties are Linda Curtin, the Petitioner and a homeowner, and The Ridge at Diamante del Lago Homeowners Association, Inc., the Respondent. Tracy Schofield appeared for the HOA as its Community Manager, and Diane Mihalsky served as the Administrative Law Judge.
2. The central allegation was that the HOA violated its own rules and state law by refusing to make association records available. Specifically, Ms. Curtin sought a receipt identifying the contractor and the amount paid for a cinderblock wall built by the community clubhouse.
3. The Petitioner claimed the Respondent violated CC&R § 4.8, concerning the keeping and availability of accounting records, and A.R.S. § 33-1805, which governs the examination of association records by members.
4. On September 24, 2018, Ms. Schofield responded to Ms. Curtin’s written request by stating she did not have invoices at her office. She did, however, provide a printout of payments made to the contractor, Gaulberto Castro, which included a $1,000.00 payment for “Block work – clubhouse.”
5. After receiving the invoice, Ms. Curtin requested a copy of the cashed check (front and back), the payee’s mailing address, and the completed Architectural Control Committee Application for the project, including the contractor’s address, license number, and insurance company.
6. Ms. Curtin complained that the contractor, Mr. Castro, was not licensed and that the job did not meet the exemption requirements for the Registrar of Contractors. She also opined that the receipt from November 2, 2017, appeared to be a forgery with two different kinds of handwriting.
7. Ms. Schofield testified that she is not an onsite manager, works for numerous associations, and does not keep any association records in her office. She stated that for future requests, she would schedule a time for Ms. Curtin to view the records at the Respondent’s records depository.
8. The primary requirement of A.R.S. § 33-1805(A) is that all financial and other records of an association must be made reasonably available for examination by any member. The statute mandates that the association has ten business days to fulfill a request for examination or to provide copies.
9. The Judge found that the Respondent violated A.R.S. § 33-1805(A) because, while it eventually provided all documents in its possession, it failed to provide the documents or access to them within the statutorily required ten-day period following Ms. Curtin’s September 12, 2018 request.
10. The Judge ordered that the Petitioner’s petition be granted because she established the violation of A.R.S. § 33-1805(A). The Judge further ordered that the Respondent reimburse Ms. Curtin the $500.00 she paid to file her single-issue petition.
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Essay Questions
Instructions: The following questions are designed to encourage a deeper analysis of the case. Formulate comprehensive responses using only the evidence and legal reasoning presented in the source document.
1. Analyze the timeline of communication between Linda Curtin and Tracy Schofield, from the initial informal inquiry on August 1, 2018, to the formal petition. How did the nature of the requests and the quality of the responses contribute to the escalation of the dispute?
2. Discuss the legal standard of “preponderance of the evidence” as it is defined and applied in this case. Explain how the Administrative Law Judge used this standard to find the Respondent in violation of the ten-day rule while simultaneously dismissing the Petitioner’s other concerns about transparency and forgery.
3. The Petitioner raised several issues during the hearing that were not part of her original single-issue petition, such as the contractor’s licensing status, the lack of Board meeting minutes authorizing the project, and a proposed $125,000 pool remodel. Why did the Administrative Law Judge deem these points irrelevant to the final decision?
4. Evaluate the responsibilities of a Homeowners Association regarding record-keeping and member access as outlined in CC&R § 4.8 and A.R.S. § 33-1805(A). Based on the testimony and evidence, describe the specific procedural failures of The Ridge at Diamante del Lago HOA in this matter.
5. The Judge’s decision explicitly states that the Petitioner’s “dissatisfaction and suspicions about the records that were eventually provided do not entitle her to any additional relief in this forum.” Explore the distinction the ruling makes between a procedural violation (timeliness of access) and the substantive content or perceived legitimacy of the records themselves.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings. In this case, Diane Mihalsky of the Office of Administrative Hearings served as the ALJ.
A.R.S. § 33-1805
An Arizona Revised Statute requiring that all financial and other records of a homeowners association be made reasonably available for examination by any member within ten business days of a request.
Complainant
An alternative term used in the document to refer to the Petitioner, Linda Curtin.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents that create and define the rules for a planned community. In this case, CC&R § 4.8, which deals with accounting records, was cited.
Department (The)
Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide petitions for hearings from HOA members and HOAs.
Evidentiary Hearing
A formal proceeding where evidence is presented and testimony is given before an administrative law judge to resolve a factual dispute. The hearing in this case took place on February 20, 2019.
Homeowners’ Association (HOA)
An organization in a planned community that creates and enforces rules for the properties and its members. The Respondent is The Ridge at Diamante del Lago Homeowners Association, Inc.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona that conducts evidentiary hearings for other state agencies, such as the Department of Real Estate.
Petitioner
The party who files a petition initiating a legal action. In this case, the Petitioner is Linda Curtin, a homeowner and member of the Respondent HOA.
Preponderance of the Evidence
The standard of proof required in this case, defined as evidence that is more convincing and has greater weight, inclining an impartial mind to one side of the issue rather than the other. The Petitioner bears this burden of proof.
Respondent
The party against whom a petition is filed. In this case, the Respondent is The Ridge at Diamante del Lago Homeowners Association, Inc.
Restrictive Covenants
Legal obligations imposed in a deed upon the buyer of real estate. The document notes that if unambiguous, they are enforced to give effect to the intent of the parties.
Case Participants
Petitioner Side
Linda Curtin(petitioner) Also referred to as 'Complainant'; testified on her own behalf
Respondent Side
Tracy Schofield(community manager) The Ridge at Diamante del Lago Homeowners Association Appeared for Respondent and testified as Community Manager
Jim Mackiewicz(board member) The Ridge at Diamante del Lago Homeowners Association Board Treasurer
Mitch Kellogg(statutory agent) The Ridge at Diamante del Lago Homeowners Association, Inc.
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
Gualberto Castro(contractor) Gualberto Stucco & Repairs Contractor involved in the disputed work
Felicia Del Sol(administrative staff) Transmitted decision electronically
The Ridge at Diamante del Lago Homeowners Association, Inc.
Counsel
—
Alleged Violations
A.R.S. § 33-1805(A)
Outcome Summary
Petitioner established that Respondent violated A.R.S. § 33-1805(A) by failing to provide access to requested association records within the statutory ten-day period. The petition was granted and Respondent was ordered to reimburse the $500.00 filing fee.
Key Issues & Findings
Failure to provide timely access to association financial records
Petitioner filed a single-issue petition alleging Respondent violated CC&Rs § 4.8 and A.R.S. § 33-1805 by refusing to make available association records or to produce a receipt identifying a contractor and the amount paid for a cinderblock wall built by the community’s clubhouse.
Orders: The petition was granted because Respondent violated A.R.S. § 33-1805(A) by failing to provide access to records within ten days of Petitioner’s September 12, 2018 request. Respondent was ordered to reimburse the $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1805(A)
CC&R § 4.8
Analytics Highlights
Topics: HOA Records, Record Inspection, Timely Disclosure, Statutory Violation, Filing Fee Reimbursement
Additional Citations:
A.R.S. § 33-1805(A)
CC&R § 4.8
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)
Video Overview
Audio Overview
Decision Documents
19F-H1918034-REL Decision – 692859.pdf
Uploaded 2025-10-09T03:33:53 (151.9 KB)
Briefing Doc – 19F-H1918034-REL
Briefing Document: Curtin v. The Ridge at Diamante del Lago HOA
Executive Summary
This briefing document analyzes the Administrative Law Judge (ALJ) Decision in case number 19F-H1918034-REL, a dispute between homeowner Linda Curtin and The Ridge at Diamante del Lago Homeowners Association, Inc. (HOA). The central conflict arose from the HOA’s failure to provide financial records related to a small construction project within the timeframe mandated by Arizona law.
The petitioner, Ms. Curtin, alleged that the HOA violated its own Covenants, Conditions, and Restrictions (CC&Rs) and Arizona Revised Statutes (A.R.S.) § 33-1805 by not producing an invoice for a $1,000 cinderblock wall project at the community clubhouse. While the HOA did eventually provide the requested records, the ALJ found that it failed to do so within the legally required ten-day period following Ms. Curtin’s formal written request on September 12, 2018.
Consequently, the ALJ granted the petition in favor of Ms. Curtin, ruling that the HOA was in violation of A.R.S. § 33-1805(A). The HOA was ordered to reimburse Ms. Curtin for her $500 petition filing fee. However, the ALJ dismissed all of the petitioner’s ancillary complaints, including suspicions of forgery, concerns about the contractor’s licensing status, and other issues of HOA governance, deeming them either unsubstantiated or outside the narrow scope of the single-issue petition. The ruling underscores the strict procedural compliance required of HOAs regarding member record requests while limiting the scope of such legal challenges to the specific violations alleged.
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I. Case Overview
• Case Number: 19F-H1918034-REL
• Forum: Arizona Office of Administrative Hearings
• Petitioner: Linda Curtin (“Complainant”), a homeowner and HOA member.
• Respondent: The Ridge at Diamante del Lago Homeowners Association, Inc. (“HOA”), represented by Community Manager Tracy Schofield.
• Administrative Law Judge: Diane Mihalsky
• Core Allegation: The HOA violated its governing documents and state law by failing to make association records available to a member upon request. Specifically, the petitioner sought a receipt and contractor details for a cinderblock wall built at the community clubhouse.
II. Governing Rules and Statutes
The case centered on the interpretation and enforcement of the HOA’s internal rules and a specific Arizona statute governing planned communities.
Rule/Statute
Key Provision
CC&R § 4.8
Requires the HOA Board to keep “true and correct records of account in accordance with generally accepted accounting principles” and to make such books and records available for inspection by all owners upon request during normal business hours.
A.R.S. § 33-1805(A)
Mandates that all financial and other association records be made “reasonably available for examination” by any member. The statute explicitly requires the association to fulfill a request for examination within ten business days. A similar ten-day deadline applies for providing copies of records.
The respondent did not claim any legal privilege under A.R.S. § 33-1805(B) that would permit it to withhold the requested documents.
III. Chronology of the Dispute
The conflict unfolded over several months, beginning with an informal inquiry and escalating to a formal legal petition.
• August 1, 2018: Petitioner Linda Curtin first emails Community Manager Tracy Schofield for a contractor recommendation.
• August 2 – September 11, 2018: In a subsequent email exchange, Ms. Curtin asks who built the garbage can walls at the clubhouse. Ms. Schofield provides the name “Roberto” but is unable to provide a contact number, stating that the Board’s Treasurer, Jim Mackiewicz, had arranged the work. The petitioner later characterized this exchange as “evasive.”
• September 12, 2018: Ms. Curtin sends a formal written letter requesting “a copy of the invoice submitted to The Ridge HOA” for the wall construction. This action officially started the ten-day clock under A.R.S. § 33-1805(A).
• September 24, 2018: Ms. Schofield responds, stating that she does not have the invoices at her office as records are retained “in the community.” She provides a printout of payments made to contractor Gualberto Castro, which includes a $1,000 check dated November 1, 2017, for “Block work – clubhouse.”
• November 5, 2018: Ms. Curtin requests that the invoice be brought to that day’s HOA board meeting. The document is not provided.
• November 28, 2018: After making an additional 15 phone calls regarding related meeting minutes without a satisfactory response, Ms. Curtin files a single-issue petition with the Arizona Department of Real Estate.
• December 10, 2018: The HOA files its answer, claiming the issue has been resolved. On the same day, Ms. Schofield emails the contractor’s invoice to Ms. Curtin. The invoice, from ValleyWide Custom Painting Inc. and dated November 2, 2017, details the $1,000 job.
• December 11, 2018: Ms. Curtin requests additional documents, including a copy of the cashed check and the Architectural Control Committee (ACC) application for the project. Ms. Schofield is reported to have stated that ACC approval was not applicable to work on common areas.
• Post-December 11, 2018: Ms. Schofield eventually provides a copy of the cancelled check for $1,000 made payable to Mr. Castro.
• February 20, 2019: An evidentiary hearing is held before the ALJ.
IV. Analysis of Evidence and Arguments
A. Petitioner’s Position
Ms. Curtin’s case was built on the initial failure to produce records and expanded to include broader suspicions about the HOA’s conduct.
• Primary Claim: The HOA violated state law by failing to fulfill her September 12, 2018 request for records within the ten-day statutory period.
• Suspicions about Documentation: The petitioner expressed dissatisfaction with the documents eventually provided. She opined that the November 2, 2017 receipt “appeared to have two different kinds of handwriting and might be a forgery.” She also pointed to the fact that the check for payment was dated one day before the invoice date.
• Ancillary Governance Concerns: Ms. Curtin raised several issues beyond the scope of her petition, including:
◦ The contractor, Mr. Castro, was not licensed as required by the Registrar of Contractors.
◦ The Board meeting minutes did not show authorization for the $1,000 expenditure.
◦ The HOA’s ACC approval process was not followed for the wall.
◦ A separate, unrelated $125,000 pool remodel project was approved improperly (this was refuted by Ms. Schofield’s testimony that it required a membership vote).
B. Respondent’s Position
The HOA, through Ms. Schofield, acknowledged the delay but argued it had ultimately complied and faced logistical constraints.
• Eventual Compliance: The HOA’s primary defense was that it eventually provided all the documents in its possession related to the expenditure, thereby resolving the complaint.
• Logistical Challenges: Ms. Schofield testified that she is an off-site community manager for numerous associations and does not keep records in her office. She stated that the HOA’s records are stored “in the community” at a separate depository.
• Commitment to Future Compliance: Ms. Schofield testified that for any future requests, she would schedule a time for the petitioner to review records at the depository within the ten-day window.
• Communication: Ms. Schofield maintained that she “communicated with Petitioner on every issue” and provided what information she had available.
V. Administrative Law Judge’s Decision and Rationale
The ALJ’s decision was narrowly focused on the statutory violation, setting aside the petitioner’s other grievances.
A. Conclusions of Law
1. Violation Confirmed: The judge concluded that the petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). The HOA “acknowledged that it did not provide the documents or provide access to Petitioner to view the documents within ten days of Petitioner’s September 12, 2018 request.”
2. Scope of Relief Limited: The ALJ determined that the statute only requires that records be kept and made available in a timely manner. The law “has not authorized the Department… that HOAs produce records that satisfy all of a members’ stated concerns.”
3. Ancillary Claims Dismissed: The judge explicitly rejected the petitioner’s broader concerns, stating: “Petitioner’s concern with ‘transparency’ and dissatisfaction and suspicions about the records that were eventually provided do not entitle her to any additional relief in this forum.” The forgery claim was dismissed for lack of evidence, as Ms. Curtin did not present the opinion of a handwriting expert. The issues related to contractor licensing and internal HOA procedures were deemed outside the jurisdiction of the hearing for an HOA petition.
B. Recommended Order
Based on the findings, the ALJ issued a two-part order:
1. Petition Granted: The petition was granted on the grounds that Ms. Curtin had proven the HOA violated A.R.S. § 33-1805(A).
2. Reimbursement of Filing Fee: The HOA was ordered to reimburse the petitioner the $500.00 she paid to file the single-issue petition.
The order, issued on March 5, 2019, was declared binding on both parties unless a request for rehearing was filed within 30 days.
Study Guide – 19F-H1918034-REL
Study Guide: Curtin v. The Ridge at Diamante del Lago Homeowners Association, Inc.
This guide provides a detailed review of the Administrative Law Judge Decision in case number 19F-H1918034-REL, involving Petitioner Linda Curtin and Respondent The Ridge at Diamante del Lago Homeowners Association, Inc. It includes a quiz with an answer key to test comprehension, a set of essay questions for deeper analysis, and a glossary of key terms.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, based exclusively on the information provided in the case document.
1. Who are the primary parties involved in this case and what are their respective roles?
2. What was the central allegation in the single-issue petition filed by Linda Curtin on November 28, 2018?
3. Which specific Arizona Revised Statute and CC&R section did the Petitioner claim the Respondent violated?
4. How did the HOA, through its community manager, initially attempt to resolve the records request that led to the petition?
5. What additional documents did Ms. Curtin request after receiving the contractor’s invoice on December 10, 2018?
6. What were Ms. Curtin’s specific suspicions and complaints regarding the quality and validity of the documents she eventually received?
7. What was Community Manager Tracy Schofield’s testimony regarding her role and the location of the association’s records?
8. According to the “Conclusions of Law,” what is the primary requirement of A.R.S. § 33-1805(A) regarding member requests for records?
9. On what specific point did the Administrative Law Judge find that the Respondent had violated the statute?
10. What was the final Recommended Order issued by the Administrative Law Judge in this case?
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Answer Key
1. The primary parties are Linda Curtin, the Petitioner and a homeowner, and The Ridge at Diamante del Lago Homeowners Association, Inc., the Respondent. Tracy Schofield appeared for the HOA as its Community Manager, and Diane Mihalsky served as the Administrative Law Judge.
2. The central allegation was that the HOA violated its own rules and state law by refusing to make association records available. Specifically, Ms. Curtin sought a receipt identifying the contractor and the amount paid for a cinderblock wall built by the community clubhouse.
3. The Petitioner claimed the Respondent violated CC&R § 4.8, concerning the keeping and availability of accounting records, and A.R.S. § 33-1805, which governs the examination of association records by members.
4. On September 24, 2018, Ms. Schofield responded to Ms. Curtin’s written request by stating she did not have invoices at her office. She did, however, provide a printout of payments made to the contractor, Gaulberto Castro, which included a $1,000.00 payment for “Block work – clubhouse.”
5. After receiving the invoice, Ms. Curtin requested a copy of the cashed check (front and back), the payee’s mailing address, and the completed Architectural Control Committee Application for the project, including the contractor’s address, license number, and insurance company.
6. Ms. Curtin complained that the contractor, Mr. Castro, was not licensed and that the job did not meet the exemption requirements for the Registrar of Contractors. She also opined that the receipt from November 2, 2017, appeared to be a forgery with two different kinds of handwriting.
7. Ms. Schofield testified that she is not an onsite manager, works for numerous associations, and does not keep any association records in her office. She stated that for future requests, she would schedule a time for Ms. Curtin to view the records at the Respondent’s records depository.
8. The primary requirement of A.R.S. § 33-1805(A) is that all financial and other records of an association must be made reasonably available for examination by any member. The statute mandates that the association has ten business days to fulfill a request for examination or to provide copies.
9. The Judge found that the Respondent violated A.R.S. § 33-1805(A) because, while it eventually provided all documents in its possession, it failed to provide the documents or access to them within the statutorily required ten-day period following Ms. Curtin’s September 12, 2018 request.
10. The Judge ordered that the Petitioner’s petition be granted because she established the violation of A.R.S. § 33-1805(A). The Judge further ordered that the Respondent reimburse Ms. Curtin the $500.00 she paid to file her single-issue petition.
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Essay Questions
Instructions: The following questions are designed to encourage a deeper analysis of the case. Formulate comprehensive responses using only the evidence and legal reasoning presented in the source document.
1. Analyze the timeline of communication between Linda Curtin and Tracy Schofield, from the initial informal inquiry on August 1, 2018, to the formal petition. How did the nature of the requests and the quality of the responses contribute to the escalation of the dispute?
2. Discuss the legal standard of “preponderance of the evidence” as it is defined and applied in this case. Explain how the Administrative Law Judge used this standard to find the Respondent in violation of the ten-day rule while simultaneously dismissing the Petitioner’s other concerns about transparency and forgery.
3. The Petitioner raised several issues during the hearing that were not part of her original single-issue petition, such as the contractor’s licensing status, the lack of Board meeting minutes authorizing the project, and a proposed $125,000 pool remodel. Why did the Administrative Law Judge deem these points irrelevant to the final decision?
4. Evaluate the responsibilities of a Homeowners Association regarding record-keeping and member access as outlined in CC&R § 4.8 and A.R.S. § 33-1805(A). Based on the testimony and evidence, describe the specific procedural failures of The Ridge at Diamante del Lago HOA in this matter.
5. The Judge’s decision explicitly states that the Petitioner’s “dissatisfaction and suspicions about the records that were eventually provided do not entitle her to any additional relief in this forum.” Explore the distinction the ruling makes between a procedural violation (timeliness of access) and the substantive content or perceived legitimacy of the records themselves.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings. In this case, Diane Mihalsky of the Office of Administrative Hearings served as the ALJ.
A.R.S. § 33-1805
An Arizona Revised Statute requiring that all financial and other records of a homeowners association be made reasonably available for examination by any member within ten business days of a request.
Complainant
An alternative term used in the document to refer to the Petitioner, Linda Curtin.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents that create and define the rules for a planned community. In this case, CC&R § 4.8, which deals with accounting records, was cited.
Department (The)
Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide petitions for hearings from HOA members and HOAs.
Evidentiary Hearing
A formal proceeding where evidence is presented and testimony is given before an administrative law judge to resolve a factual dispute. The hearing in this case took place on February 20, 2019.
Homeowners’ Association (HOA)
An organization in a planned community that creates and enforces rules for the properties and its members. The Respondent is The Ridge at Diamante del Lago Homeowners Association, Inc.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona that conducts evidentiary hearings for other state agencies, such as the Department of Real Estate.
Petitioner
The party who files a petition initiating a legal action. In this case, the Petitioner is Linda Curtin, a homeowner and member of the Respondent HOA.
Preponderance of the Evidence
The standard of proof required in this case, defined as evidence that is more convincing and has greater weight, inclining an impartial mind to one side of the issue rather than the other. The Petitioner bears this burden of proof.
Respondent
The party against whom a petition is filed. In this case, the Respondent is The Ridge at Diamante del Lago Homeowners Association, Inc.
Restrictive Covenants
Legal obligations imposed in a deed upon the buyer of real estate. The document notes that if unambiguous, they are enforced to give effect to the intent of the parties.
Case Participants
Petitioner Side
Linda Curtin(petitioner) Also referred to as 'Complainant'; testified on her own behalf
Respondent Side
Tracy Schofield(community manager) The Ridge at Diamante del Lago Homeowners Association Appeared for Respondent and testified as Community Manager
Jim Mackiewicz(board member) The Ridge at Diamante del Lago Homeowners Association Board Treasurer
Mitch Kellogg(statutory agent) The Ridge at Diamante del Lago Homeowners Association, Inc.
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
Gualberto Castro(contractor) Gualberto Stucco & Repairs Contractor involved in the disputed work
Felicia Del Sol(administrative staff) Transmitted decision electronically
The Administrative Law Judge denied the petition, finding that the HOA Board had the authority under the CC&Rs and related documents to remove non-Board ARC members and appoint itself to perform the functions of the ARC, thus validating its approval of the homeowner's detached garage application.
Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated CC&Rs §§ 3.2 or 7.7. The Board, having assumed the developer's rights, was authorized to remove and appoint ARC members.
Key Issues & Findings
Alleged violation of CC&Rs regarding ARC dissolution and architectural approval authority.
Petitioner alleged that the HOA Board violated CC&Rs §§ 3.2 and 7.7 by dissolving the ARC and then acting as the ARC to approve a modification (detached garage) for a homeowner.
Orders: Petitioner's petition was denied because he failed to establish that CC&Rs §§ 3.2 or 7.7 prohibited the Respondent HOA from replacing non-Board ARC members, appointing its own members to act as the ARC, or approving the detached garage application.
Administrative Law Judge Decision Briefing: Dwight vs. Whisper Mountain HOA
Executive Summary
This document summarizes the Administrative Law Judge (ALJ) decision in case number 19F-H1918027-REL, concerning a dispute between homeowner N. Wayne Dwight, Jr. (“Petitioner”) and the Whisper Mountain Homeowners Association (“Respondent”). The Petitioner alleged that the HOA Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by suspending the Architectural Review Committee (ARC) and subsequently approving a homeowner’s construction application.
The ALJ denied the petition in its entirety, finding that the HOA Board acted within its authority. The decision established that upon the departure of the original developer (the “Declarant”), the Board inherited the Declarant’s full rights and responsibilities, including the power to both appoint and remove members of the ARC. The Judge explicitly rejected the Petitioner’s argument that ARC members held lifetime appointments, deeming such an interpretation contrary to the democratic principles of HOA governance. Consequently, the Board’s decision to remove the non-Board ARC members and appoint itself to serve as the ARC was ruled a valid exercise of its powers, and its subsequent approval of the construction application was not a violation of the CC&Rs.
Case Overview
Entity
Petitioner
N. Wayne Dwight, Jr. (Homeowner and former ARC member)
Respondent
Whisper Mountain Homeowners Association (HOA)
Adjudicator
Administrative Law Judge Diane Mihalsky
Case Number
19F-H1918027-REL
Hearing Date
January 14, 2019
Decision Date
January 29, 2019
Core Allegation
The Petitioner alleged that the Respondent’s Board violated two sections of the CC&Rs:
1. § 7.7 (Improvements and Alterations): By approving a homeowner’s application to build a detached garage on September 19, 2018, without the approval of a properly constituted ARC.
2. § 3.2 (Appeal): By creating a situation where the body making an architectural decision (the Board acting as the ARC) is the same body that would hear an appeal of that decision, rendering the appeal process meaningless.
This was based on the Petitioner’s central claim that the Board’s action on August 6, 2018, to “dissolve” or “suspend” the ARC was a violation of the governing documents.
Key Factual Background & Timeline
• Prior to 2015: The developer, VIP Homes (“Declarant”), establishes the ARC as required by the CC&Rs.
• 2015: The Declarant turns over control of the HOA to the resident-elected Board of Directors.
• March 15, 2016: The Board adopts an ARC Charter, which explicitly states: “The right to appoint and remove all appointed [ARC] members at any time is hereby vested solely in the Board.” The Petitioner is appointed as one of three non-Board members to the ARC.
• 2017 or 2018: A proposed amendment to the CC&Rs to formally replace references to “Declarant” with “Board” or “Association” is not adopted by the general membership.
• July 17, 2018: The ARC meets to consider a detached garage application from homeowners Mark and Connie Wells. The meeting is contentious, with the Petitioner expressing doubts about the ARC’s authority to grant a variance from city setback requirements. The meeting adjourns abruptly after the applicant allegedly “verbally threatened the committee.”
• August 6, 2018: The HOA Board meets and passes a motion “to suspend the ARC committee for 60 days until guidelines/expectations are clarified.” The motion states that in the interim, the Board will review and approve all ARC submissions.
• August 24, 2018: The Board sends a letter to the non-Board ARC members, including the Petitioner, informing them of the 60-day suspension.
• September 17, 2018: The Board meets and approves a revised application from the Wells, which now aligns with City of Mesa code.
• September 19, 2018: The Board, formally acting as the ARC, reviews and approves the Wells’ revised application.
• October 22, 2018: The Petitioner files his complaint with the Arizona Department of Real Estate.
• November 19, 2018: The Board adopts a “Resolution Regarding the ARC” to clarify its position. The resolution states the Board had “(i) temporarily removed the current members of the [ARC] (via a suspension) and (ii) chose to act and serve as the current [ARC].” It also formally ratifies the approval of the Wells’ garage.
Central Arguments Presented
Petitioner’s Position (N. Wayne Dwight, Jr.)
• Limited Board Authority: The CC&Rs (§ 3.4) grant the Declarant the “sole right to appoint and remove” ARC members. After the Declarant’s departure, this section states that members “shall be appointed by the Board.” The Petitioner argued this only conferred the power to appoint, not to remove.
• Failed Amendment: The failure of the membership to amend the CC&Rs to explicitly grant the Board the Declarant’s powers proves that the Board does not possess the power of removal.
• Lifetime Appointments: The Petitioner argued that once appointed, ARC members could only be removed for specific cause (e.g., moving out of the community, incapacitation) and were otherwise entitled to serve for life.
• Improper ARC Suspension: The Board’s action to suspend the committee was a violation of the CC&Rs, as the Board lacked the authority to do so.
• Invalid Approval: Because the ARC was improperly suspended, the Board’s subsequent approval of the Wells’ application violated § 7.7, which requires ARC approval for all alterations.
• Meaningless Appeals: If the Board can act as the ARC, the appeal process outlined in § 3.2, which allows a homeowner to appeal an ARC decision to the Board, becomes an “exercise in futility.”
Respondent’s Position (Whisper Mountain HOA)
• Inherited Powers: Upon the Declarant’s departure, the Board assumed all of its rights and responsibilities under the CC&Rs, including the power to both appoint and remove ARC members.
• Authority from ARC Charter: The ARC Charter, adopted in 2016, explicitly grants the Board the sole right to remove ARC members at any time.
• Intent of the Board: The Board’s intent was not to abolish the ARC, but to address concerns about the committee’s conduct, including its “way of questioning applicants” and a need for more civility, fairness, and consistency.
• Clarification of “Suspension”: The use of the word “suspend” in communications by the management company (Mariposa Group) was “unfortunate and inaccurate.” The Board’s true action, clarified in its November 19 resolution, was to remove the non-Board members and appoint its own members to serve as the ARC.
• Valid Approval: The Board was legitimately acting as the ARC when it approved the Wells’ application; therefore, § 7.7 was not violated.
Administrative Law Judge’s Analysis and Conclusions
Interpretation of Governing Documents
The ALJ concluded that restrictive covenants must be construed as a whole and interpreted to give effect to the intent of the parties. The Judge found the Petitioner’s interpretation of the CC&Rs to be unpersuasive and ultimately harmful to the community.
• The Judge stated that the Petitioner’s interpretation “elevates non-elected members of ARC above elected Board members, abrogates any community control over ARC, and does not serve the underlying purposes of the CC&Rs.”
• This “unelected lifetime appointment” concept was found to be contrary to the “democratic principles underlying HOA law in Arizona.”
On the Board’s Authority
The ALJ affirmed the HOA’s authority to manage the ARC as it did.
• Assumption of Powers: The decision concludes that “When Declarant turned Respondent HOA over to its Board, the Board assumed all of Declarant’s rights and responsibilities under the CC&Rs and related documents.” This included the power to remove ARC members.
• ARC Charter: The Judge noted that the ARC Charter also “expressly provided that the Board had the power to remove as well as to appoint members of the ARC.”
• Legitimacy of Actions: The Board was found to have acted within its authority in August 2018 when it “removed the three non-Board members of the ARC and appointed itself to perform the functions of the ARC.”
On the Alleged Violations
Based on the finding that the Board acted within its authority, the ALJ concluded that no violations occurred.
• Conclusion on CC&R § 7.7 (ARC Approval): The petition failed on this point because the Board was legitimately acting as the ARC when it approved the Wells’ application in September 2018.
• Conclusion on CC&R § 3.2 (Appeals): The petition failed on this point because the CC&Rs do not prohibit Board members from acting as the ARC. While acknowledging that appealing a decision to the same body “may be an exercise in futility,” the Judge noted that under the CC&Rs, the Board is not required to hear appeals in any event.
Final Order and Implications
Order: The petition filed by N. Wayne Dwight, Jr. was denied. The Judge found he had not established that the HOA violated CC&Rs §§ 3.2 or 7.7.
Implications: This decision establishes a strong precedent for interpreting HOA governing documents in a manner that favors functional, democratic governance over literal interpretations that could lead to impractical or absurd outcomes. It affirms that an HOA Board generally inherits the full operational powers of the original developer unless explicitly restricted, and that a Board can act to reform or reconstitute committees to ensure they serve the community’s best interests.
Study Guide – 19F-H1918027-REL
Study Guide: Dwight v. Whisper Mountain Homeowners Association
This study guide provides a comprehensive review of the Administrative Law Judge Decision in the case of N. Wayne Dwight, Jr. vs. Whisper Mountain Homeowners Association (No. 19F-H1918027-REL). It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined within the context of the legal document.
Short-Answer Quiz
Answer each of the following questions in two to three sentences, drawing exclusively from the provided source document.
1. What were the two specific allegations made by the Petitioner, N. Wayne Dwight, Jr., in his petition filed on October 22, 2018?
2. Identify the key parties in this case and describe their respective roles or relationships to the dispute.
3. What was the purpose and outcome of the ARC meeting held on July 17, 2018, regarding the Wells’ property?
4. Explain the actions taken by the Respondent’s Board of Directors during its meeting on August 6, 2018, regarding the Architectural Review Committee (ARC).
5. What was the Petitioner’s interpretation of CC&R § 3.4 regarding the removal of ARC members, and what was the potential consequence of this interpretation as noted by the Administrative Law Judge?
6. According to the Respondent’s Board president, Greg Robert Wingert, what were the primary reasons for removing the non-Board members of the ARC?
7. Describe the role of the Mariposa Group LLC in this case and explain how its communications created confusion.
8. How did the Board clarify its actions and ratify its decisions in the November 19, 2018 Resolution?
9. What is the legal standard of proof the Petitioner was required to meet, and how is it defined in the case documents?
10. What was the final ruling of the Administrative Law Judge, and what was the core reasoning behind the decision regarding CC&Rs §§ 3.2 and 7.7?
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Answer Key
1. The Petitioner alleged that the Respondent’s Board violated Covenants, Conditions, and Restrictions (CC&Rs) §§ 3.2 and 7.7. The specific violations cited were the dissolution or suspension of the Architectural Review Committee (ARC) on August 6, 2018, and the subsequent approval of an application from two members to build a detached garage on September 19, 2018.
2. The key parties are N. Wayne Dwight, Jr. (the “Petitioner”), a property owner and former ARC member, and the Whisper Mountain Homeowners Association (the “Respondent”). The case also involves Greg Robert Wingert, the President of the Respondent’s Board, and Mark and Connie Wells, the homeowners who applied to build a detached garage. The dispute centers on the Respondent’s authority over the ARC, of which the Petitioner was a member.
3. The purpose of the July 17, 2018, meeting was for the ARC, including the Petitioner, to consider Mark and Connie Wells’ application for a detached garage. The meeting was abruptly adjourned after the applicant allegedly threatened the committee, and no formal vote was conducted at that time. However, a letter dated July 30, 2018, later informed the Wells that the ARC had approved their request.
4. At the August 6, 2018, meeting, the Board of Directors discussed the need for more consistency and guidelines for the ARC. Citing these reasons and safety concerns from a prior meeting, the Board passed a motion to “suspend the ARC committee for 60 days” and announced that in the interim, the Board itself would review and approve all ARC submissions.
5. The Petitioner argued that CC&R § 3.4 only allowed the Board to appoint, not remove, ARC members. He contended that once appointed, members could only be removed for cause and were otherwise entitled to serve for life. The Judge noted this interpretation would elevate unelected ARC members above the elected Board and abrogate community control.
6. Greg Robert Wingert testified that the Board removed the non-Board ARC members due to concerns about the “manner in which questioning was done in a public forum.” The Board’s intent was not to eliminate the ARC, but to continue the review process while making it more civil, fair, consistent, and transparent.
7. The Mariposa Group LLC was the Respondent’s management company. Its employees, such as Ed Ericksen, were responsible for drafting official communications like minutes and letters. These communications used inaccurate words like “suspend” and “dissolve” to describe the Board’s actions regarding the ARC, which Mr. Wingert testified was an “unfortunate and inaccurate” choice of words that did not reflect the Board’s true intent.
8. The November 19, 2018, Resolution clarified that the Board had removed the existing ARC members and appointed itself to act and serve as the ARC, as was its right under CC&R § 3.4. The resolution explicitly stated that the Board members were the current members of the ARC and ratified all prior architectural decisions made by the Board while serving in this capacity, including the approval of the garage on Lot 18.
9. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not, representing the greater weight of evidence that is sufficient to incline a fair and impartial mind to one side of the issue.
10. The Administrative Law Judge denied the Petitioner’s petition. The Judge concluded that the Board acted within its authority when it removed the non-Board ARC members and appointed itself to perform ARC functions, meaning it did not violate CC&R § 7.7 by approving the Wells’ application. The Judge also found no violation of CC&R § 3.2, noting that the CC&Rs do not prohibit Board members from acting as the ARC.
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Essay Questions
The following questions are designed for longer-form analysis. Formulate a comprehensive response based solely on the facts and legal interpretations presented in the source document.
1. Analyze the Administrative Law Judge’s interpretation of the CC&Rs, particularly § 3.4. How does this interpretation address the transfer of power from the “Declarant” to the Board, and how does it counter the Petitioner’s argument for lifetime appointments?
2. Discuss the concept of an “appeal” as outlined in CC&R § 3.2. Evaluate the potential conflict of interest and the issue of futility raised when the Board of Directors also serves as the Architectural Review Committee.
3. Trace the timeline of events surrounding the Wells’ application for a detached garage. How did this specific application serve as the catalyst for the broader conflict between the Petitioner and the Respondent’s Board?
4. Examine the role of communication and language in this dispute. How did the specific wording used by the management company in official documents (e.g., “suspend”) differ from the Board’s stated intent, and how did this discrepancy fuel the conflict?
5. Based on the evidence presented, evaluate the argument that the Board’s actions were a necessary measure to ensure a “civil, fair, consistent, and transparent” architectural review process versus the argument that the Board overstepped its authority as defined by the CC&Rs.
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Glossary of Key Terms
Definition within the Source Context
Administrative Law Judge (ALJ)
An independent judicial officer (Diane Mihalsky) from the Office of Administrative Hearings tasked with conducting an evidentiary hearing and rendering a decision on the petition.
Architectural Review Committee (ARC)
A committee established to review and approve or deny any improvements, alterations, or other work that alters the exterior appearance of a property. Per the CC&Rs, its decisions are final unless appealed to the Board.
ARC Charter
A document adopted by the Respondent’s Board on March 15, 2016, which provided that the ARC would consist of up to four members appointed by the Board and that the Board vested itself with the sole right to appoint and remove all appointed ARC members at any time.
Board of Directors (Board)
The elected body that conducts the affairs of the Whisper Mountain Homeowners Association. The document presumes they are elected by members to specific terms.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for the Whisper Mountain planned community, recorded on September 7, 2016. They outline the rules for property use, the structure of the HOA, and the functions of bodies like the ARC.
Declarant
The original developer who built the planned community, identified as VIP Homes. The Declarant initially held the sole right to appoint and remove ARC members, a right that transferred to the Board after the developer was no longer involved.
Mariposa Group LLC
The management company employed by the Respondent HOA. Its employees, such as Douglas Egan and Ed Ericksen, were responsible for drafting official communications like meeting minutes and approval letters.
Office of Administrative Hearings (OAH)
An independent state agency to which the Department of Real Estate referred the petition for an evidentiary hearing.
Petitioner
N. Wayne Dwight, Jr., a property owner in the Whisper Mountain development and a former member of the ARC. He filed the petition alleging the HOA violated its CC&Rs.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win the case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The Whisper Mountain Homeowners Association (“HOA”), the governing body for the development. The Respondent was represented by its Board and legal counsel.
Blog Post – 19F-H1918027-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between a homeowner, N. Wayne Dwight, Jr. (Petitioner), and the Whisper Mountain Homeowners Association (Respondent). The Petitioner alleged that the HOA’s Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by dissolving or suspending the Architectural Review Committee (ARC) and subsequently approving an application for a detached garage. The decision details the background, evidence presented at the hearing, and the Administrative Law Judge’s (ALJ) findings and conclusions of law. Ultimately, the ALJ denied the petition, finding that the Board acted within its authority under the governing documents to remove non-Board ARC members and appoint itself to fulfill the ARC’s functions. The ALJ concluded that the Petitioner failed to prove the HOA violated the specified CC&Rs.
Based on 1 source
Case Participants
Petitioner Side
N. Wayne Dwight, Jr.(petitioner) Appeared on his own behalf; former ARC member; testified on his own behalf
Respondent Side
Troy B. Stratman(attorney) Stratman Law Firm, PLC Represented Whisper Mountain Homeowners Association
Greg Robert Wingert(board member/witness) Whisper Mountain Homeowners Association Board President; Chairman of the ARC; testified for Respondent
Pam Cohen(board member) Whisper Mountain Homeowners Association Seconded motions; identified as 'Pam' in meeting minutes
Ronna(board member) Whisper Mountain Homeowners Association Made motion to suspend ARC
Gary(board member) Whisper Mountain Homeowners Association
Douglas Egan(property manager) Mariposa Group LLC Sent approval letter for garage application
Ed Ericksen(property manager) Mariposa Community Manager; sent approval/clarification letters regarding Wells' request
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Felicia Del Sol(staff) Transmitted decision
Other Participants
Mark Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Connie Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Phil Hoyt(owner/member) Whisper Mountain development (Lot 16)
Andy Horn(owner/member) Whisper Mountain development (Lot 1)
Jason Komorowski(owner/member) Whisper Mountain development (Lot 51)
Connie Harrison(neighbor) Whisper Mountain development Mentioned regarding Lot 18 variance condition
Don Berry(owner/member) Whisper Mountain development (Lot 45)
The Administrative Law Judge denied the petition, finding that the HOA Board had the authority under the CC&Rs and related documents to remove non-Board ARC members and appoint itself to perform the functions of the ARC, thus validating its approval of the homeowner's detached garage application.
Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated CC&Rs §§ 3.2 or 7.7. The Board, having assumed the developer's rights, was authorized to remove and appoint ARC members.
Key Issues & Findings
Alleged violation of CC&Rs regarding ARC dissolution and architectural approval authority.
Petitioner alleged that the HOA Board violated CC&Rs §§ 3.2 and 7.7 by dissolving the ARC and then acting as the ARC to approve a modification (detached garage) for a homeowner.
Orders: Petitioner's petition was denied because he failed to establish that CC&Rs §§ 3.2 or 7.7 prohibited the Respondent HOA from replacing non-Board ARC members, appointing its own members to act as the ARC, or approving the detached garage application.
Administrative Law Judge Decision Briefing: Dwight vs. Whisper Mountain HOA
Executive Summary
This document summarizes the Administrative Law Judge (ALJ) decision in case number 19F-H1918027-REL, concerning a dispute between homeowner N. Wayne Dwight, Jr. (“Petitioner”) and the Whisper Mountain Homeowners Association (“Respondent”). The Petitioner alleged that the HOA Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by suspending the Architectural Review Committee (ARC) and subsequently approving a homeowner’s construction application.
The ALJ denied the petition in its entirety, finding that the HOA Board acted within its authority. The decision established that upon the departure of the original developer (the “Declarant”), the Board inherited the Declarant’s full rights and responsibilities, including the power to both appoint and remove members of the ARC. The Judge explicitly rejected the Petitioner’s argument that ARC members held lifetime appointments, deeming such an interpretation contrary to the democratic principles of HOA governance. Consequently, the Board’s decision to remove the non-Board ARC members and appoint itself to serve as the ARC was ruled a valid exercise of its powers, and its subsequent approval of the construction application was not a violation of the CC&Rs.
Case Overview
Entity
Petitioner
N. Wayne Dwight, Jr. (Homeowner and former ARC member)
Respondent
Whisper Mountain Homeowners Association (HOA)
Adjudicator
Administrative Law Judge Diane Mihalsky
Case Number
19F-H1918027-REL
Hearing Date
January 14, 2019
Decision Date
January 29, 2019
Core Allegation
The Petitioner alleged that the Respondent’s Board violated two sections of the CC&Rs:
1. § 7.7 (Improvements and Alterations): By approving a homeowner’s application to build a detached garage on September 19, 2018, without the approval of a properly constituted ARC.
2. § 3.2 (Appeal): By creating a situation where the body making an architectural decision (the Board acting as the ARC) is the same body that would hear an appeal of that decision, rendering the appeal process meaningless.
This was based on the Petitioner’s central claim that the Board’s action on August 6, 2018, to “dissolve” or “suspend” the ARC was a violation of the governing documents.
Key Factual Background & Timeline
• Prior to 2015: The developer, VIP Homes (“Declarant”), establishes the ARC as required by the CC&Rs.
• 2015: The Declarant turns over control of the HOA to the resident-elected Board of Directors.
• March 15, 2016: The Board adopts an ARC Charter, which explicitly states: “The right to appoint and remove all appointed [ARC] members at any time is hereby vested solely in the Board.” The Petitioner is appointed as one of three non-Board members to the ARC.
• 2017 or 2018: A proposed amendment to the CC&Rs to formally replace references to “Declarant” with “Board” or “Association” is not adopted by the general membership.
• July 17, 2018: The ARC meets to consider a detached garage application from homeowners Mark and Connie Wells. The meeting is contentious, with the Petitioner expressing doubts about the ARC’s authority to grant a variance from city setback requirements. The meeting adjourns abruptly after the applicant allegedly “verbally threatened the committee.”
• August 6, 2018: The HOA Board meets and passes a motion “to suspend the ARC committee for 60 days until guidelines/expectations are clarified.” The motion states that in the interim, the Board will review and approve all ARC submissions.
• August 24, 2018: The Board sends a letter to the non-Board ARC members, including the Petitioner, informing them of the 60-day suspension.
• September 17, 2018: The Board meets and approves a revised application from the Wells, which now aligns with City of Mesa code.
• September 19, 2018: The Board, formally acting as the ARC, reviews and approves the Wells’ revised application.
• October 22, 2018: The Petitioner files his complaint with the Arizona Department of Real Estate.
• November 19, 2018: The Board adopts a “Resolution Regarding the ARC” to clarify its position. The resolution states the Board had “(i) temporarily removed the current members of the [ARC] (via a suspension) and (ii) chose to act and serve as the current [ARC].” It also formally ratifies the approval of the Wells’ garage.
Central Arguments Presented
Petitioner’s Position (N. Wayne Dwight, Jr.)
• Limited Board Authority: The CC&Rs (§ 3.4) grant the Declarant the “sole right to appoint and remove” ARC members. After the Declarant’s departure, this section states that members “shall be appointed by the Board.” The Petitioner argued this only conferred the power to appoint, not to remove.
• Failed Amendment: The failure of the membership to amend the CC&Rs to explicitly grant the Board the Declarant’s powers proves that the Board does not possess the power of removal.
• Lifetime Appointments: The Petitioner argued that once appointed, ARC members could only be removed for specific cause (e.g., moving out of the community, incapacitation) and were otherwise entitled to serve for life.
• Improper ARC Suspension: The Board’s action to suspend the committee was a violation of the CC&Rs, as the Board lacked the authority to do so.
• Invalid Approval: Because the ARC was improperly suspended, the Board’s subsequent approval of the Wells’ application violated § 7.7, which requires ARC approval for all alterations.
• Meaningless Appeals: If the Board can act as the ARC, the appeal process outlined in § 3.2, which allows a homeowner to appeal an ARC decision to the Board, becomes an “exercise in futility.”
Respondent’s Position (Whisper Mountain HOA)
• Inherited Powers: Upon the Declarant’s departure, the Board assumed all of its rights and responsibilities under the CC&Rs, including the power to both appoint and remove ARC members.
• Authority from ARC Charter: The ARC Charter, adopted in 2016, explicitly grants the Board the sole right to remove ARC members at any time.
• Intent of the Board: The Board’s intent was not to abolish the ARC, but to address concerns about the committee’s conduct, including its “way of questioning applicants” and a need for more civility, fairness, and consistency.
• Clarification of “Suspension”: The use of the word “suspend” in communications by the management company (Mariposa Group) was “unfortunate and inaccurate.” The Board’s true action, clarified in its November 19 resolution, was to remove the non-Board members and appoint its own members to serve as the ARC.
• Valid Approval: The Board was legitimately acting as the ARC when it approved the Wells’ application; therefore, § 7.7 was not violated.
Administrative Law Judge’s Analysis and Conclusions
Interpretation of Governing Documents
The ALJ concluded that restrictive covenants must be construed as a whole and interpreted to give effect to the intent of the parties. The Judge found the Petitioner’s interpretation of the CC&Rs to be unpersuasive and ultimately harmful to the community.
• The Judge stated that the Petitioner’s interpretation “elevates non-elected members of ARC above elected Board members, abrogates any community control over ARC, and does not serve the underlying purposes of the CC&Rs.”
• This “unelected lifetime appointment” concept was found to be contrary to the “democratic principles underlying HOA law in Arizona.”
On the Board’s Authority
The ALJ affirmed the HOA’s authority to manage the ARC as it did.
• Assumption of Powers: The decision concludes that “When Declarant turned Respondent HOA over to its Board, the Board assumed all of Declarant’s rights and responsibilities under the CC&Rs and related documents.” This included the power to remove ARC members.
• ARC Charter: The Judge noted that the ARC Charter also “expressly provided that the Board had the power to remove as well as to appoint members of the ARC.”
• Legitimacy of Actions: The Board was found to have acted within its authority in August 2018 when it “removed the three non-Board members of the ARC and appointed itself to perform the functions of the ARC.”
On the Alleged Violations
Based on the finding that the Board acted within its authority, the ALJ concluded that no violations occurred.
• Conclusion on CC&R § 7.7 (ARC Approval): The petition failed on this point because the Board was legitimately acting as the ARC when it approved the Wells’ application in September 2018.
• Conclusion on CC&R § 3.2 (Appeals): The petition failed on this point because the CC&Rs do not prohibit Board members from acting as the ARC. While acknowledging that appealing a decision to the same body “may be an exercise in futility,” the Judge noted that under the CC&Rs, the Board is not required to hear appeals in any event.
Final Order and Implications
Order: The petition filed by N. Wayne Dwight, Jr. was denied. The Judge found he had not established that the HOA violated CC&Rs §§ 3.2 or 7.7.
Implications: This decision establishes a strong precedent for interpreting HOA governing documents in a manner that favors functional, democratic governance over literal interpretations that could lead to impractical or absurd outcomes. It affirms that an HOA Board generally inherits the full operational powers of the original developer unless explicitly restricted, and that a Board can act to reform or reconstitute committees to ensure they serve the community’s best interests.
Study Guide – 19F-H1918027-REL
Study Guide: Dwight v. Whisper Mountain Homeowners Association
This study guide provides a comprehensive review of the Administrative Law Judge Decision in the case of N. Wayne Dwight, Jr. vs. Whisper Mountain Homeowners Association (No. 19F-H1918027-REL). It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined within the context of the legal document.
Short-Answer Quiz
Answer each of the following questions in two to three sentences, drawing exclusively from the provided source document.
1. What were the two specific allegations made by the Petitioner, N. Wayne Dwight, Jr., in his petition filed on October 22, 2018?
2. Identify the key parties in this case and describe their respective roles or relationships to the dispute.
3. What was the purpose and outcome of the ARC meeting held on July 17, 2018, regarding the Wells’ property?
4. Explain the actions taken by the Respondent’s Board of Directors during its meeting on August 6, 2018, regarding the Architectural Review Committee (ARC).
5. What was the Petitioner’s interpretation of CC&R § 3.4 regarding the removal of ARC members, and what was the potential consequence of this interpretation as noted by the Administrative Law Judge?
6. According to the Respondent’s Board president, Greg Robert Wingert, what were the primary reasons for removing the non-Board members of the ARC?
7. Describe the role of the Mariposa Group LLC in this case and explain how its communications created confusion.
8. How did the Board clarify its actions and ratify its decisions in the November 19, 2018 Resolution?
9. What is the legal standard of proof the Petitioner was required to meet, and how is it defined in the case documents?
10. What was the final ruling of the Administrative Law Judge, and what was the core reasoning behind the decision regarding CC&Rs §§ 3.2 and 7.7?
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Answer Key
1. The Petitioner alleged that the Respondent’s Board violated Covenants, Conditions, and Restrictions (CC&Rs) §§ 3.2 and 7.7. The specific violations cited were the dissolution or suspension of the Architectural Review Committee (ARC) on August 6, 2018, and the subsequent approval of an application from two members to build a detached garage on September 19, 2018.
2. The key parties are N. Wayne Dwight, Jr. (the “Petitioner”), a property owner and former ARC member, and the Whisper Mountain Homeowners Association (the “Respondent”). The case also involves Greg Robert Wingert, the President of the Respondent’s Board, and Mark and Connie Wells, the homeowners who applied to build a detached garage. The dispute centers on the Respondent’s authority over the ARC, of which the Petitioner was a member.
3. The purpose of the July 17, 2018, meeting was for the ARC, including the Petitioner, to consider Mark and Connie Wells’ application for a detached garage. The meeting was abruptly adjourned after the applicant allegedly threatened the committee, and no formal vote was conducted at that time. However, a letter dated July 30, 2018, later informed the Wells that the ARC had approved their request.
4. At the August 6, 2018, meeting, the Board of Directors discussed the need for more consistency and guidelines for the ARC. Citing these reasons and safety concerns from a prior meeting, the Board passed a motion to “suspend the ARC committee for 60 days” and announced that in the interim, the Board itself would review and approve all ARC submissions.
5. The Petitioner argued that CC&R § 3.4 only allowed the Board to appoint, not remove, ARC members. He contended that once appointed, members could only be removed for cause and were otherwise entitled to serve for life. The Judge noted this interpretation would elevate unelected ARC members above the elected Board and abrogate community control.
6. Greg Robert Wingert testified that the Board removed the non-Board ARC members due to concerns about the “manner in which questioning was done in a public forum.” The Board’s intent was not to eliminate the ARC, but to continue the review process while making it more civil, fair, consistent, and transparent.
7. The Mariposa Group LLC was the Respondent’s management company. Its employees, such as Ed Ericksen, were responsible for drafting official communications like minutes and letters. These communications used inaccurate words like “suspend” and “dissolve” to describe the Board’s actions regarding the ARC, which Mr. Wingert testified was an “unfortunate and inaccurate” choice of words that did not reflect the Board’s true intent.
8. The November 19, 2018, Resolution clarified that the Board had removed the existing ARC members and appointed itself to act and serve as the ARC, as was its right under CC&R § 3.4. The resolution explicitly stated that the Board members were the current members of the ARC and ratified all prior architectural decisions made by the Board while serving in this capacity, including the approval of the garage on Lot 18.
9. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not, representing the greater weight of evidence that is sufficient to incline a fair and impartial mind to one side of the issue.
10. The Administrative Law Judge denied the Petitioner’s petition. The Judge concluded that the Board acted within its authority when it removed the non-Board ARC members and appointed itself to perform ARC functions, meaning it did not violate CC&R § 7.7 by approving the Wells’ application. The Judge also found no violation of CC&R § 3.2, noting that the CC&Rs do not prohibit Board members from acting as the ARC.
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Essay Questions
The following questions are designed for longer-form analysis. Formulate a comprehensive response based solely on the facts and legal interpretations presented in the source document.
1. Analyze the Administrative Law Judge’s interpretation of the CC&Rs, particularly § 3.4. How does this interpretation address the transfer of power from the “Declarant” to the Board, and how does it counter the Petitioner’s argument for lifetime appointments?
2. Discuss the concept of an “appeal” as outlined in CC&R § 3.2. Evaluate the potential conflict of interest and the issue of futility raised when the Board of Directors also serves as the Architectural Review Committee.
3. Trace the timeline of events surrounding the Wells’ application for a detached garage. How did this specific application serve as the catalyst for the broader conflict between the Petitioner and the Respondent’s Board?
4. Examine the role of communication and language in this dispute. How did the specific wording used by the management company in official documents (e.g., “suspend”) differ from the Board’s stated intent, and how did this discrepancy fuel the conflict?
5. Based on the evidence presented, evaluate the argument that the Board’s actions were a necessary measure to ensure a “civil, fair, consistent, and transparent” architectural review process versus the argument that the Board overstepped its authority as defined by the CC&Rs.
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Glossary of Key Terms
Definition within the Source Context
Administrative Law Judge (ALJ)
An independent judicial officer (Diane Mihalsky) from the Office of Administrative Hearings tasked with conducting an evidentiary hearing and rendering a decision on the petition.
Architectural Review Committee (ARC)
A committee established to review and approve or deny any improvements, alterations, or other work that alters the exterior appearance of a property. Per the CC&Rs, its decisions are final unless appealed to the Board.
ARC Charter
A document adopted by the Respondent’s Board on March 15, 2016, which provided that the ARC would consist of up to four members appointed by the Board and that the Board vested itself with the sole right to appoint and remove all appointed ARC members at any time.
Board of Directors (Board)
The elected body that conducts the affairs of the Whisper Mountain Homeowners Association. The document presumes they are elected by members to specific terms.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for the Whisper Mountain planned community, recorded on September 7, 2016. They outline the rules for property use, the structure of the HOA, and the functions of bodies like the ARC.
Declarant
The original developer who built the planned community, identified as VIP Homes. The Declarant initially held the sole right to appoint and remove ARC members, a right that transferred to the Board after the developer was no longer involved.
Mariposa Group LLC
The management company employed by the Respondent HOA. Its employees, such as Douglas Egan and Ed Ericksen, were responsible for drafting official communications like meeting minutes and approval letters.
Office of Administrative Hearings (OAH)
An independent state agency to which the Department of Real Estate referred the petition for an evidentiary hearing.
Petitioner
N. Wayne Dwight, Jr., a property owner in the Whisper Mountain development and a former member of the ARC. He filed the petition alleging the HOA violated its CC&Rs.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win the case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The Whisper Mountain Homeowners Association (“HOA”), the governing body for the development. The Respondent was represented by its Board and legal counsel.
Blog Post – 19F-H1918027-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between a homeowner, N. Wayne Dwight, Jr. (Petitioner), and the Whisper Mountain Homeowners Association (Respondent). The Petitioner alleged that the HOA’s Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by dissolving or suspending the Architectural Review Committee (ARC) and subsequently approving an application for a detached garage. The decision details the background, evidence presented at the hearing, and the Administrative Law Judge’s (ALJ) findings and conclusions of law. Ultimately, the ALJ denied the petition, finding that the Board acted within its authority under the governing documents to remove non-Board ARC members and appoint itself to fulfill the ARC’s functions. The ALJ concluded that the Petitioner failed to prove the HOA violated the specified CC&Rs.
Based on 1 source
Case Participants
Petitioner Side
N. Wayne Dwight, Jr.(petitioner) Appeared on his own behalf; former ARC member; testified on his own behalf
Respondent Side
Troy B. Stratman(attorney) Stratman Law Firm, PLC Represented Whisper Mountain Homeowners Association
Greg Robert Wingert(board member/witness) Whisper Mountain Homeowners Association Board President; Chairman of the ARC; testified for Respondent
Pam Cohen(board member) Whisper Mountain Homeowners Association Seconded motions; identified as 'Pam' in meeting minutes
Ronna(board member) Whisper Mountain Homeowners Association Made motion to suspend ARC
Gary(board member) Whisper Mountain Homeowners Association
Douglas Egan(property manager) Mariposa Group LLC Sent approval letter for garage application
Ed Ericksen(property manager) Mariposa Community Manager; sent approval/clarification letters regarding Wells' request
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Felicia Del Sol(staff) Transmitted decision
Other Participants
Mark Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Connie Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Phil Hoyt(owner/member) Whisper Mountain development (Lot 16)
Andy Horn(owner/member) Whisper Mountain development (Lot 1)
Jason Komorowski(owner/member) Whisper Mountain development (Lot 51)
Connie Harrison(neighbor) Whisper Mountain development Mentioned regarding Lot 18 variance condition
Don Berry(owner/member) Whisper Mountain development (Lot 45)
Long Meadow Ranch East Property Owners Association, Inc.
Counsel
Ashley N. Moscarello, Esq.
Alleged Violations
A.R.S. § 33-1805(A)
Outcome Summary
The Administrative Law Judge dismissed the petition upon rehearing, holding that the email chain discussing an incident involving the Petitioner's husband was an informal communication among Board members, not an official record of the association under A.R.S. § 33-1805(A), since the Board never took any formal action on the matter. Therefore, the HOA was not required to produce an un-redacted copy.
Why this result: The Petitioner failed to meet the burden of proof that the email string constituted 'financial and other records of the association' which Respondent was required to provide.
Key Issues & Findings
Failure to produce association records (un-redacted email string) upon member request
Petitioner alleged the HOA violated A.R.S. § 33-1805 by failing to produce an un-redacted copy of an email chain among Board members concerning an incident where Petitioner's husband allegedly harassed potential buyers, arguing the email constituted an official association record.
Orders: Petition denied and dismissed. The HOA did not violate A.R.S. § 33-1805(A) as the email string was determined not to be an official record of the association.
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.
Study Guide – 19F-H1918028-REL
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.
Blog Post – 19F-H1918028-REL
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
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 – 684134.pdf
Uploaded 2026-01-23T17:27:32 (149.9 KB)
Briefing Doc – 19F-H1918028-REL
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.
Study Guide – 19F-H1918028-REL
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.
Blog Post – 19F-H1918028-REL
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
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.
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
Video Overview
Audio Overview
Decision Documents
19F-H1918010-REL Decision – 667122.pdf
Uploaded 2025-10-09T03:33:27 (50.0 KB)
19F-H1918010-REL Decision – 678371.pdf
Uploaded 2025-10-09T03:33:27 (129.5 KB)
Briefing Doc – 19F-H1918010-REL
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 – 19F-H1918010-REL
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.
Blog Post – 19F-H1918010-REL
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
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.
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
Video Overview
Audio Overview
Decision Documents
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 Doc – 19F-H1918010-REL
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 – 19F-H1918010-REL
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.
Blog Post – 19F-H1918010-REL
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
