Tag Archives: DM

Peter Biondi, Jr. vs. Lakeshore at Andersen Springs Homeowners

Posted on by

Case Summary

Case ID 18F-H1818048-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-08-21
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge denied the homeowner's petition, finding that the HOA's remaining Director acted permissibly and reasonably upon legal advice in refusing to defend a previous legal action, as the initial Board decision to remove fellow directors was contrary to mandatory statutory procedures outlined in A.R.S. § 33-1243, which requires removal by unit owners, not by the board.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Peter Biondi, Jr. Counsel —
Respondent Lakeshore at Andersen Springs Homeowners Association Counsel Maria R. Kupillas

Alleged Violations

A.R.S. §§ 33-1242, 33-1243, Respondent’s Bylaw Article II, Section 3 and Article III, Sections 2 and 3, and Respondent’s CC&Rs Section 8.13

Outcome Summary

The Administrative Law Judge denied the homeowner's petition, finding that the HOA's remaining Director acted permissibly and reasonably upon legal advice in refusing to defend a previous legal action, as the initial Board decision to remove fellow directors was contrary to mandatory statutory procedures outlined in A.R.S. § 33-1243, which requires removal by unit owners, not by the board.

Why this result: The Board's previous action of removing directors was illegal under A.R.S. § 33-1243 because director removal must be performed by a member vote. Because the HOA lacked a legal defense to the directors' challenge, the current petition failed to prove a violation when the sole remaining Director chose not to incur unnecessary fees contesting an unwinnable case, which was permissive under A.R.S. § 33-1242.

Key Issues & Findings

Alleged failure of the sole remaining Director to defend a prior petition challenging the board's removal of two directors.

Petitioner alleged the HOA violated governing documents and statutes when the remaining Director chose not to contest a prior Department petition filed by two removed Directors, resulting in their reinstatement. The ALJ found that the initial removal of the Directors by fellow Directors was illegal under A.R.S. § 33-1243(B) and (H), which reserves removal power to members. Because the HOA lacked a good legal defense, the remaining Director's decision not to defend the prior petition, based on legal advice, was permissive under A.R.S. § 33-1242 and not a violation.

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1243
  • A.R.S. § 33-1242
  • A.R.S. § 32-2199(1)
  • A.R.S. § 33-1803

Analytics Highlights

Topics: Condominium, HOA Director Removal, Board Authority, Condo Bylaws
Additional Citations:

  • A.R.S. § 33-1243
  • A.R.S. § 33-1242
  • A.R.S. § 32-2199
  • A.R.S. § 33-1248
  • A.R.S. § 33-1803
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

18F-H1818048-REL Decision – 654904.pdf

Uploaded 2026-04-24T11:13:38 (155.5 KB)

18F-H1818048-REL Decision – 654904.pdf

Uploaded 2026-01-23T17:24:48 (155.5 KB)

Briefing Document: Analysis of Administrative Law Judge Decision in Biondi v. Lakeshore at Andersen Springs HOA

Executive Summary

This document synthesizes the findings of the Administrative Law Judge (ALJ) decision in Case No. 18F-H1818048-REL, where a petition filed by homeowner Peter Biondi, Jr. against the Lakeshore at Andersen Springs Homeowners Association (HOA) was denied. The central conflict revolved around the HOA Board’s removal of two directors, Jim Luzzis and Jerry Dubasquier, for alleged violations of the association’s leasing restrictions.

The ALJ’s decision rested on a critical point of law: the HOA Board acted improperly and in violation of Arizona state statute when it removed two of its own members. According to A.R.S. § 33-1243, the power to remove a board director is reserved exclusively for the association’s members (the unit owners) through a formal petition and vote, not for the Board of Directors itself.

Because the initial removal was legally invalid, the subsequent actions of the sole remaining director, Bonnie Henden, were deemed reasonable and permissible. Her decision not to defend the HOA against a petition from the improperly removed directors, a choice made upon the advice of three separate attorneys, was not a violation of her duties. The governing statute (A.R.S. § 33-1242) uses the permissive term “may” regarding the defense of litigation, and the ALJ concluded that no entity is required to mount a defense that is ill-advised and likely to fail. Consequently, Henden’s reinstatement of the directors was a logical correction of the Board’s unlawful action. The factual question of whether the directors had violated the leasing rules was considered secondary to this overriding procedural and statutory failure by the Board.

Case Background and Procedural History

The dispute originated from complaints by HOA members that two serving directors, Jim Luzzis and Jerry Dubasquier, were violating Section 8.13 of the Covenants, Conditions, and Restrictions (CC&Rs) by renting their units as short-term Vacation Rental By Owner (“VRBOs”).

1. Initial Board Action: The Board of Directors met to consider the complaints, concluded that Luzzis and Dubasquier had violated the CC&Rs, and gave them 14 days to remedy the violation by presenting compliant long-term rental agreements.

2. Removal of Directors: At a contentious executive session on January 4, 2018, the five other directors voted to remove or disqualify Luzzis and Dubasquier from the Board. Board member Bonnie Henden testified that she felt this action was a “vendetta” against the two directors for taking opposing positions on other issues.

3. Board Collapse: Following the removal, the Board structure disintegrated. The petitioner, Peter Biondi, Jr., and another director, Jeffrey Washburn, “decided to resign in order to restore calm in the community.” A third director was removed or resigned due to non-payment of assessments. By March or April 2018, this left Bonnie Henden as the sole remaining director.

4. Legal Challenge and Reinstatement: Luzzis and Dubasquier filed a petition with the Arizona Department of Real Estate to protest their removal. After consulting with three different attorneys, Henden chose not to file an answer on behalf of the HOA. The Department subsequently issued a decision in favor of Luzzis and Dubasquier. Following this outcome, Henden reinstated them to the Board to complete their elected terms and cancelled the planned election for their replacements.

5. Petitioner’s Complaint: On May 9, 2018, Peter Biondi, Jr. filed the current petition, alleging that Henden’s refusal to defend the HOA and her decision to reinstate the two directors constituted a violation of Arizona statutes (§§ 33-1242 and 33-1243), HOA Bylaws, and CC&Rs.

Central Legal Issues and Findings

The ALJ determined that the petitioner, Biondi, bore the burden of proof but that the operative facts of the case were not in dispute. The core of the case was not a factual determination but a legal one.

The Dispositive Question: Legality of Director Removal

The judge identified the central legal question as the primary determinant of the case’s outcome:

“…the dispositive issue is not the factual issue of whether Messrs. Luzzis and Dubasquier violated CC&R Section 8.13 by using their units as short-term VRBOs, but the legal issue of whether the other directors on Respondent’s Board properly removed them from the Board…”

The ruling established that the Board’s method of removal was the critical point of failure, rendering the underlying CC&R violation secondary.

Analysis of Arizona Revised Statutes (A.R.S.)

The decision was grounded in a de novo review of A.R.S. § 33-1243, which governs the powers and removal of a condominium association’s board of directors.

• A.R.S. § 33-1243(B): This subsection explicitly prohibits a board from acting on behalf of the association to “determine the qualifications, powers and duties or terms of office of board of directors members.” The ALJ found that the Board’s vote to disqualify Luzzis and Dubasquier was in direct violation of this provision.

• A.R.S. § 33-1243(H): This subsection establishes the exclusive procedure for removing a director, stating that its provisions apply “notwithstanding any provision of the declaration or bylaws to the contrary.” The statute mandates that removal can only be accomplished by:

1. A petition signed by a specified percentage or number of eligible unit owners (e.g., 25% or 100 votes, whichever is less, for an association of 1,000 or fewer members).

2. A majority vote of the unit owners at a special meeting called for this purpose within 30 days of receiving the petition.

The ALJ’s conclusion was unequivocal: “The referenced provisions of A.R.S. § 33-1243 specifically and unequivocally require that the members who elected a director must remove the director.” Because the Board failed to follow this statutory procedure, its removal of Luzzis and Dubasquier was legally invalid, and the HOA “lacked any good legal defense” to their subsequent petition.

The Legality of the Sole Director’s Actions

Based on the finding that the initial removal was unlawful, the ALJ assessed the actions taken by the sole remaining director, Bonnie Henden.

Decision Not to Defend the HOA

The petitioner argued Henden had a duty to defend the HOA against the petition from Luzzis and Dubasquier. The ALJ rejected this argument by citing A.R.S. § 33-1242(A)(4), which states an association “may… defend or intervene in litigation or administrative proceedings.”

The judge’s legal interpretation was that the word “may” indicates permissive intent, not a mandatory requirement. Henden was not statutorily obligated to contest the petition. Her decision was further supported by the legal advice she received from three attorneys, who advised that a defense would likely fail and result in unnecessary legal fees for the association. The ALJ affirmed this prudence, stating, “No statute requires a condominium association or a director to take an ill-advised act or to mount a defense of a previously taken ill-advised act that likely will fail on its merits.”

Reinstatement of Removed Directors

Henden’s decision to reinstate Luzzis and Dubasquier to the Board was found to be a direct and logical consequence of the legally improper removal. By reinstating them, she was correcting the Board’s previous unlawful action.

Relevant Governing Documents and Testimony

Document/Testimony

Key Provisions or Content

Relevance to Decision

A.R.S. § 33-1243

Prohibits boards from determining member qualifications and mandates that only unit owners can remove directors via a petition and vote.

This was the controlling statute that rendered the Board’s initial removal of Luzzis and Dubasquier unlawful.

A.R.S. § 33-1242

States an association “may” defend itself in litigation.

Provided the legal basis for Henden’s discretionary and permissible decision not to defend the HOA.

HOA CC&Rs Section 8.13

Prohibits leasing for “transient, hotel, club, timeshare or similar purposes” and requires all leases to be for a minimum of six months.

This section was the basis for the original complaint but was deemed not the dispositive issue in the case.

HOA Bylaws Article III

Governs director qualifications, number, and the filling of vacancies.

While relevant to Board governance, these bylaws were superseded by the conflicting and more specific state statute (A.R.S. § 33-1243).

Bonnie Henden Testimony

Stated the removal felt like a “vendetta” and that she consulted three attorneys before deciding not to defend the HOA.

Provided context for the internal Board conflict and established that her actions were taken after seeking extensive legal counsel.

Peter Biondi, Jr. Evidence

Submitted exhibits showing Luzzis and Dubasquier were continuing to advertise their units as VRBOs.

The evidence was acknowledged but deemed irrelevant to the central legal question of whether the Board had the authority to remove them.

Final Order and Conclusion

The Administrative Law Judge ordered that the petitioner’s petition be denied.

The final decision establishes a clear legal principle: a homeowners association’s Board of Directors does not have the authority to remove its own members in Arizona. That power is reserved for the unit owners through a specific statutory process. Any action taken by a board in contravention of this statute is legally invalid. Consequently, a director’s decision not to defend such an invalid action, especially when based on legal advice, is not a breach of duty but a prudent measure to avoid wasting association resources on a defense with no legal merit.

Study Guide: Biondi v. Lakeshore at Andersen Springs Homeowners Association

This guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 18F-H1818048-REL, concerning a dispute between a condominium owner and a homeowners association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found within the legal document.

——————————————————————————–

Short-Answer Quiz

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

1. Who were the Petitioner and the Respondent in this case, and what was their relationship?

2. What specific event prompted the Petitioner, Peter Biondi, Jr., to file a petition with the Arizona Department of Real Estate?

3. According to the Respondent’s CC&Rs (Section 8.13), what were the rules regarding the leasing of condominium units?

4. Why were Board Directors Jim Luzzis and Jerry Dubasquier initially removed from their positions by the other directors?

5. How did Bonnie Henden become the sole remaining member of the Respondent’s Board of Directors?

6. What was the “dispositive issue” that the Administrative Law Judge identified as central to the case?

7. According to Arizona Revised Statute (A.R.S.) § 33-1243(H), what is the proper procedure for removing a member of a condominium association’s board of directors?

8. Why did Ms. Henden choose not to defend the association against the petition filed by Messrs. Luzzis and Dubasquier?

9. What does the legal standard “preponderance of the evidence” mean, as defined in the decision?

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

——————————————————————————–

Answer Key

1. The Petitioner was Peter Biondi, Jr., who is a condominium owner and a member of the Lakeshore at Andersen Springs Homeowners Association. The Respondent was the Lakeshore at Andersen Springs Homeowners Association itself.

2. The Petitioner filed the petition because the Board’s sole remaining member, Bonnie Henden, refused to defend the association against a petition filed by two former directors. Instead of defending the board’s prior action, Ms. Henden reinstated the two directors who had been removed.

3. Section 8.13 of the CC&Rs stipulated that all leases must be for a minimum of six months and that units could not be leased for transient, hotel, or similar purposes. Owners were also limited to leasing their unit no more than two separate times in any 12-month period and had to provide a signed copy of the lease to the association.

4. Messrs. Luzzis and Dubasquier were removed after other Board members concluded they had violated CC&R Section 8.13 by renting their units as short-term Vacation Rentals By Owner (VRBOs). The removal occurred after they were given 14 days to remedy the violation and failed to do so to the Board’s satisfaction.

5. After the removal of Luzzis and Dubasquier, the Petitioner and another director resigned to “restore calm.” A third director was removed or resigned for failing to pay an assessment, which left Ms. Henden as the only director on the Board.

6. The dispositive issue was not the factual question of whether Luzzis and Dubasquier had violated the CC&Rs. Rather, it was the legal issue of whether the other directors had the authority to properly remove them from the Board in the first place.

7. A.R.S. § 33-1243(H) states that unit owners may remove a board member by a majority vote at a meeting. This process must be initiated by a petition signed by a specific percentage or number of the association’s members who are eligible to vote.

8. Ms. Henden consulted three different attorneys who advised her that the association would likely lose the case. Their legal advice was based on A.R.S. § 33-1243, which states that board members cannot remove other board members, and defending the improper removal would incur unnecessary legal fees.

9. “Preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. It is described as the greater weight of evidence that is sufficient to incline a fair and impartial mind to one side of an issue over the other.

10. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge concluded that the Board’s initial removal of the two directors was improper under state law and that Ms. Henden was not required to defend that ill-advised act.

——————————————————————————–

Essay Questions

The following questions are designed for longer-form analysis and synthesis of the case details. Answers are not provided.

1. Analyze the conflict between the authority granted to the Board in the Lakeshore at Andersen Springs Bylaws (Article III, Sections 2 & 3) and the limitations placed upon it by Arizona Revised Statute § 33-1243. Explain which document takes precedence in the matter of director removal and why, citing the reasoning used by the Administrative Law Judge.

2. Discuss the role and actions of Bonnie Henden after she became the sole remaining director. Evaluate her decision to reinstate Messrs. Luzzis and Dubasquier, considering the legal advice she received, her powers as the sole director, and the potential consequences for the homeowners association.

3. Trace the procedural history of this dispute, beginning with the initial complaints about VRBOs and culminating in the final Administrative Law Judge Decision. Identify the key actions, legal filings, and turning points for each party involved (Luzzis/Dubasquier, the Board, Peter Biondi, and Bonnie Henden).

4. The judge states that the case hinges on a legal issue, not a factual one. Explain the difference between the factual issue (the VRBO rentals) and the legal issue (the removal process) and detail how this distinction was fundamental to the case’s outcome.

5. Based on the statutes cited in the decision, outline the correct, legally compliant process that the members of the Lakeshore at Andersen Springs Homeowners Association should have followed if they wished to remove Messrs. Luzzis and Dubasquier from the Board of Directors. Contrast this with the actions the Board actually took.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, in this case Diane Mihalsky from the Office of Administrative Hearings.

A.R.S.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. The decision references several statutes from Title 33 concerning property and condominiums.

Bylaws

The rules and regulations adopted by an organization, such as a homeowners association, for its internal governance. In this case, they govern matters like annual meetings and the composition of the Board of Directors.

Abbreviation for Covenants, Conditions and Restrictions. These are legally binding rules recorded with the property deed that govern what homeowners can and cannot do with their property. Section 8.13 on leasing was a key CC&R in this case.

De Novo Review

A type of legal review where a court or administrative body decides the issues without reference to any legal conclusions or assumptions made by the previous party that heard the case. It is used for determining the construction and application of statutes.

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 associations.

Petitioner

The party who files a petition or brings an action in a legal proceeding. In this case, the Petitioner was Peter Biondi, Jr.

Preponderance of the Evidence

The standard of proof in most civil cases. It requires the party with the burden of proof (the Petitioner in this matter) to present evidence that is more convincing and more likely to be true than not.

Respondent

The party against whom a petition is filed or an appeal is brought. In this case, the Respondent was the Lakeshore at Andersen Springs Homeowners Association.

Abbreviation for Vacation Rental By Owner, referring to the practice of renting out properties on a short-term basis, similar to a hotel. This practice was alleged to be in violation of the association’s CC&Rs.

Study Guide: Biondi v. Lakeshore at Andersen Springs Homeowners Association

This guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 18F-H1818048-REL, concerning a dispute between a condominium owner and a homeowners association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found within the legal document.

——————————————————————————–

Short-Answer Quiz

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

1. Who were the Petitioner and the Respondent in this case, and what was their relationship?

2. What specific event prompted the Petitioner, Peter Biondi, Jr., to file a petition with the Arizona Department of Real Estate?

3. According to the Respondent’s CC&Rs (Section 8.13), what were the rules regarding the leasing of condominium units?

4. Why were Board Directors Jim Luzzis and Jerry Dubasquier initially removed from their positions by the other directors?

5. How did Bonnie Henden become the sole remaining member of the Respondent’s Board of Directors?

6. What was the “dispositive issue” that the Administrative Law Judge identified as central to the case?

7. According to Arizona Revised Statute (A.R.S.) § 33-1243(H), what is the proper procedure for removing a member of a condominium association’s board of directors?

8. Why did Ms. Henden choose not to defend the association against the petition filed by Messrs. Luzzis and Dubasquier?

9. What does the legal standard “preponderance of the evidence” mean, as defined in the decision?

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

——————————————————————————–

Answer Key

1. The Petitioner was Peter Biondi, Jr., who is a condominium owner and a member of the Lakeshore at Andersen Springs Homeowners Association. The Respondent was the Lakeshore at Andersen Springs Homeowners Association itself.

2. The Petitioner filed the petition because the Board’s sole remaining member, Bonnie Henden, refused to defend the association against a petition filed by two former directors. Instead of defending the board’s prior action, Ms. Henden reinstated the two directors who had been removed.

3. Section 8.13 of the CC&Rs stipulated that all leases must be for a minimum of six months and that units could not be leased for transient, hotel, or similar purposes. Owners were also limited to leasing their unit no more than two separate times in any 12-month period and had to provide a signed copy of the lease to the association.

4. Messrs. Luzzis and Dubasquier were removed after other Board members concluded they had violated CC&R Section 8.13 by renting their units as short-term Vacation Rentals By Owner (VRBOs). The removal occurred after they were given 14 days to remedy the violation and failed to do so to the Board’s satisfaction.

5. After the removal of Luzzis and Dubasquier, the Petitioner and another director resigned to “restore calm.” A third director was removed or resigned for failing to pay an assessment, which left Ms. Henden as the only director on the Board.

6. The dispositive issue was not the factual question of whether Luzzis and Dubasquier had violated the CC&Rs. Rather, it was the legal issue of whether the other directors had the authority to properly remove them from the Board in the first place.

7. A.R.S. § 33-1243(H) states that unit owners may remove a board member by a majority vote at a meeting. This process must be initiated by a petition signed by a specific percentage or number of the association’s members who are eligible to vote.

8. Ms. Henden consulted three different attorneys who advised her that the association would likely lose the case. Their legal advice was based on A.R.S. § 33-1243, which states that board members cannot remove other board members, and defending the improper removal would incur unnecessary legal fees.

9. “Preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. It is described as the greater weight of evidence that is sufficient to incline a fair and impartial mind to one side of an issue over the other.

10. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge concluded that the Board’s initial removal of the two directors was improper under state law and that Ms. Henden was not required to defend that ill-advised act.

——————————————————————————–

Essay Questions

The following questions are designed for longer-form analysis and synthesis of the case details. Answers are not provided.

1. Analyze the conflict between the authority granted to the Board in the Lakeshore at Andersen Springs Bylaws (Article III, Sections 2 & 3) and the limitations placed upon it by Arizona Revised Statute § 33-1243. Explain which document takes precedence in the matter of director removal and why, citing the reasoning used by the Administrative Law Judge.

2. Discuss the role and actions of Bonnie Henden after she became the sole remaining director. Evaluate her decision to reinstate Messrs. Luzzis and Dubasquier, considering the legal advice she received, her powers as the sole director, and the potential consequences for the homeowners association.

3. Trace the procedural history of this dispute, beginning with the initial complaints about VRBOs and culminating in the final Administrative Law Judge Decision. Identify the key actions, legal filings, and turning points for each party involved (Luzzis/Dubasquier, the Board, Peter Biondi, and Bonnie Henden).

4. The judge states that the case hinges on a legal issue, not a factual one. Explain the difference between the factual issue (the VRBO rentals) and the legal issue (the removal process) and detail how this distinction was fundamental to the case’s outcome.

5. Based on the statutes cited in the decision, outline the correct, legally compliant process that the members of the Lakeshore at Andersen Springs Homeowners Association should have followed if they wished to remove Messrs. Luzzis and Dubasquier from the Board of Directors. Contrast this with the actions the Board actually took.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, in this case Diane Mihalsky from the Office of Administrative Hearings.

A.R.S.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. The decision references several statutes from Title 33 concerning property and condominiums.

Bylaws

The rules and regulations adopted by an organization, such as a homeowners association, for its internal governance. In this case, they govern matters like annual meetings and the composition of the Board of Directors.

Abbreviation for Covenants, Conditions and Restrictions. These are legally binding rules recorded with the property deed that govern what homeowners can and cannot do with their property. Section 8.13 on leasing was a key CC&R in this case.

De Novo Review

A type of legal review where a court or administrative body decides the issues without reference to any legal conclusions or assumptions made by the previous party that heard the case. It is used for determining the construction and application of statutes.

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 associations.

Petitioner

The party who files a petition or brings an action in a legal proceeding. In this case, the Petitioner was Peter Biondi, Jr.

Preponderance of the Evidence

The standard of proof in most civil cases. It requires the party with the burden of proof (the Petitioner in this matter) to present evidence that is more convincing and more likely to be true than not.

Respondent

The party against whom a petition is filed or an appeal is brought. In this case, the Respondent was the Lakeshore at Andersen Springs Homeowners Association.

Abbreviation for Vacation Rental By Owner, referring to the practice of renting out properties on a short-term basis, similar to a hotel. This practice was alleged to be in violation of the association’s CC&Rs.

Case Participants

Petitioner Side

  • Peter Biondi, Jr. (petitioner)
    Appeared on his own behalf; also a unit owner and HOA member
  • Jeffrey Washburn (witness)
    Former Board member; presented testimony by Petitioner

Respondent Side

  • Maria R. Kupillas (HOA attorney)
    Law offices of Farley, Choate & Bergin
    Represented Respondent
  • Bonnie Henden (board member)
    Lakeshore at Andersen Springs Homeowners Association
    Sole remaining Director; presented testimony
  • Jim Luzzis (board member)
    Lakeshore at Andersen Springs Homeowners Association
    Director whose removal was overturned/reinstated
  • Jerry Dubasquier (board member)
    Lakeshore at Andersen Springs Homeowners Association
    Director whose removal was overturned/reinstated

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
    Recipient of transmission
  • Felicia Del Sol (Clerk)
    Transmitting agent
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission

Thomas J. Van Dan Elzen vs. Carter Ranch Homeowners Association

Posted on by

Case Summary

Case ID 18F-H1818042-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-06-25
Administrative Law Judge Diane Mihalsky
Outcome The ALJ granted the petitioner's request, finding that the HOA violated A.R.S. § 33-1813 by allowing the president to call a special meeting for board member recall without the required petition signed by homeowners. The HOA was ordered to reinstate the two removed board members and refund the petitioner's filing fee.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Thomas J. Van Dan Elzen Counsel —
Respondent Carter Ranch Homeowners Association Counsel Chad M. Gallacher, Esq.

Alleged Violations

A.R.S. § 33-1813

Outcome Summary

The ALJ granted the petitioner's request, finding that the HOA violated A.R.S. § 33-1813 by allowing the president to call a special meeting for board member recall without the required petition signed by homeowners. The HOA was ordered to reinstate the two removed board members and refund the petitioner's filing fee.

Key Issues & Findings

Removal of board member; special meeting

Petitioner alleged the HOA violated A.R.S. § 33-1813 when the president called a special meeting to recall three recently elected Board members, arguing that the statute requires a petition signed by homeowners. Respondent argued that A.R.S. § 33-1804 procedures could also be used. The ALJ ruled that A.R.S. § 33-1813, as the specific statute regarding removal, requires a petition.

Orders: Petitioner’s petition is granted. Respondent shall reinstate Board members Steve Brownell and Trish Brownell and reimburse the $500.00 single-issue filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1813
  • A.R.S. § 33-1804

Analytics Highlights

Topics: HOA, Board Removal, Recall Election, Statutory Interpretation, Petition Requirements
Additional Citations:

  • A.R.S. § 33-1813
  • A.R.S. § 33-1804

Related election workflow tool

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

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

18F-H1818042-REL Decision – 642530.pdf

Uploaded 2026-04-27T09:32:07 (142.9 KB)

18F-H1818042-REL Decision – 642530.pdf

Uploaded 2026-01-23T17:24:07 (142.9 KB)

Briefing Document: Van Dan Elzen v. Carter Ranch Homeowners Association (Case No. 18F-H1818042-REL)

Executive Summary

This document synthesizes the findings and decision in the case of Thomas J. Van Dan Elzen versus the Carter Ranch Homeowners Association (HOA), heard by the Arizona Office of Administrative Hearings. The central dispute concerned the legality of a special meeting called by the HOA Board President to recall three recently elected board members. The petitioner argued this action violated Arizona Revised Statute (A.R.S.) § 33-1813, which requires such a recall to be initiated by a petition from homeowners. The HOA contended that the president had the authority to call the meeting under the broader powers granted in A.R.S. § 33-1804.

The Administrative Law Judge concluded that when a specific statute and a general statute conflict, the specific statute controls. A.R.S. § 33-1813 specifically governs the removal of board members and mandates a homeowner petition process. Therefore, the president’s unilateral call for a recall election was improper. The judge granted the petitioner’s request, ordering the HOA to reinstate the two board members who were removed and to reimburse the petitioner’s $500.00 filing fee.

Background and Procedural History

The case involves a dispute within the Carter Ranch development, a 253-lot community in Coolidge, Arizona.

• Petitioner: Thomas J. Van Dan Elzen, a homeowner and member of the Carter Ranch HOA.

• Respondent: Carter Ranch Homeowners Association.

• Petition: On or about April 5, 2018, Van Dan Elzen filed a petition with the Arizona Department of Real Estate. He alleged the HOA violated A.R.S. § 33-1813 when its president, Lance Van Horne, called a special meeting to recall three newly elected board members.

• Hearing: The matter was referred to the Office of Administrative Hearings for an evidentiary hearing, which took place on June 20, 2018, before Administrative Law Judge Diane Mihalsky.

The Contested Elections

The dispute originated from a contentious board election process marked by accusations of misconduct, culminating in a recall election that was later found to be procedurally invalid.

March 20, 2018 Board Election

An initial annual meeting on February 20, 2018, failed to achieve the required quorum of 26 ballots. A second meeting was scheduled for March 20, 2018, for which eight candidates ran for five open board positions.

• Allegations of Misconduct: Prior to the meeting, Community Manager Mary Chaira received reports that three candidates—Roxanne Gould, Steve Brownell, and Trish Brownell—were going door-to-door “disseminating allegedly false information about Respondent’s finances, and harvesting ballots.”

• Meeting Conduct: At the March 20 meeting, a quorum of 47 homeowners was present. Board President Lance Van Horne addressed the allegations of false information. However, homeowners who may have filled out ballots based on this information were not permitted to withdraw them. The meeting was described by Ms. Chaira as “unruly and stressful.”

The election results for the top six candidates were as follows:

Candidate

Number of Votes

Outcome

Roxanne Gould

Elected

Steve Brownell

Elected

Trish Brownell

Elected

Lance Van Horne

Elected

Steve F.

Tie for 5th position

Tie for 5th position

April 24, 2018 Recall Election

Believing the March 20 election outcome was “compromised” by the alleged dissemination of false information and ballot harvesting, President Van Horne called a special meeting for April 24, 2018, to hold a recall election for the three newly elected members: Roxanne Gould, Steve Brownell, and Trish Brownell.

A quorum of 52 homeowners returned ballots for the recall. The results were:

Board Member

Votes for Recall

Votes against Recall

Outcome

Roxanne Gould

Remained on Board

Steve Brownell

Removed from Board

Trish Brownell

Removed from Board

Following the recall, other members were elected to fill the vacant board positions.

Central Legal Issue: Statutory Interpretation

The case presented a pure legal question of statutory interpretation, as the facts of what occurred were not in dispute. The core issue was which Arizona statute governs the process for recalling an HOA board member.

Competing Legal Positions

• Petitioner’s Argument: The recall election was invalid because it violated A.R.S. § 33-1813. This statute, titled “Removal of board member; special meeting,” explicitly states that a recall process is initiated upon the board’s receipt of a petition signed by a specified number or percentage of homeowners. The president’s unilateral action did not meet this requirement.

• Respondent’s Argument: The HOA argued that A.R.S. § 33-1813 was not the exclusive procedure. It claimed that the president could also call such a meeting under the authority of A.R.S. § 33-1804, a more general statute governing meetings, which states that “Special meetings of the members’ association may be called by the president.”

Statutory Analysis by the Court

The Administrative Law Judge highlighted the direct conflict between the two statutes on the subject of board member removal.

Feature

A.R.S. § 33-1813 (Specific Statute)

A.R.S. § 33-1804(B) (General Statute)

Meeting Initiation

By homeowner petition only.

By the president, a board majority, or homeowner petition.

Petition Requirement

For HOAs ≤ 1,000 members: petition signed by at least 100 members or 25% of votes, whichever is less.

Petition signed by at least 25% of votes (or lower if specified in bylaws).

Meeting Notice

Within 30 days after receipt of the petition.

Between 10 and 50 days in advance of the meeting.

The judge noted that A.R.S. § 33-1813 specifically overrides the petition requirements of A.R.S. § 33-1804(B), demonstrating legislative intent for it to be the controlling authority on this specific issue.

The Judge’s Legal Conclusion

The decision rested on the well-established legal principle that a specific statute governs over a general one when they are inconsistent. Citing case law, the judge reasoned:

“When provisions of a general statute are inconsistent with those of a special nature on the same subject, the special statute controls.”

Applying this canon of statutory construction, the judge concluded that A.R.S. § 33-1813 is the controlling authority for the removal of an HOA board member. Therefore, a valid recall process must be initiated by a homeowner petition as outlined in that statute. The president lacked the authority to call the April 24, 2018 recall meeting on his own initiative.

Final Order and Implications

Based on the legal conclusion that the Respondent violated A.R.S. § 33-1813, the Administrative Law Judge issued a recommended order with the following mandates:

1. Petition Granted: The petitioner’s petition is granted.

2. Board Member Reinstatement: The Carter Ranch HOA is required to reinstate Board members Steve Brownell and Trish Brownell.

3. Fee Reimbursement: The HOA must reimburse the petitioner, Thomas J. Van Dan Elzen, for his $500.00 single-issue filing fee.

This order is considered binding unless a party files a request for rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

Study Guide: Van Dan Elzen v. Carter Ranch Homeowners Association

This study guide provides a detailed review of the Administrative Law Judge Decision in case number 18F-H1818042-REL, Thomas J. Van Dan Elzen v. Carter Ranch Homeowners Association. It covers the key facts, legal arguments, and final ruling of the case.

Short-Answer Quiz

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

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

2. What specific action by the Carter Ranch Homeowners Association (HOA) prompted the Petitioner to file a complaint with the Arizona Department of Real Estate?

3. What were the allegations made against candidates Roxanne Gould, Steve Brownell, and Trish Brownell prior to the March 20, 2018 election?

4. State the vote counts for the top three candidates who were elected to the Board of Directors on March 20, 2018.

5. What was the reason given by the Board’s president, Lance Van Horne, for calling a special recall election for April 24, 2018?

6. What were the specific outcomes for each of the three board members facing recall in the April 24, 2018 election?

7. Which two Arizona Revised Statutes (A.R.S.) were at the center of the legal dispute, and what general topics do they cover?

8. What was the HOA’s primary legal argument for why its president was permitted to call the special recall meeting?

9. What legal principle of statutory construction did the Administrative Law Judge use to resolve the conflict between the two statutes?

10. What two things was the Respondent, Carter Ranch HOA, ordered to do in the final ruling?

——————————————————————————–

Quiz Answer Key

1. The primary parties were Thomas J. Van Dan Elzen, the Petitioner, who is a homeowner and member of the association, and the Carter Ranch Homeowners Association, the Respondent. The Petitioner initiated the legal action against the HOA.

2. The Petitioner filed the complaint because the HOA’s president called a special meeting to hold a vote on recalling three recently elected members of the Board of Directors. The Petitioner alleged this action violated A.R.S. § 33-1813, which requires such a recall to be initiated by a petition signed by homeowners.

3. Prior to the March election, reports were made that Roxanne Gould, Steve Brownell, and Trish Brownell were going door-to-door disseminating allegedly false information about the HOA’s finances. They were also accused of “harvesting ballots” from members based on this information.

4. The top three candidates elected on March 20, 2018, were Roxanne Gould with 30 votes, Steve Brownell with 26 votes, and Trish Brownell with 25 votes.

5. Board president Lance Van Horne called the special recall election because he felt the election’s outcome was compromised. He believed the dissemination of allegedly false information and the harvesting of votes by the Brownells and Ms. Gould had tainted the results.

6. In the April 24 recall election, Roxanne Gould survived the recall with 27 votes against to 25 for. Steve Brownell and Trish Brownell were both removed from the board, with 27 votes for their recall and 25 against.

7. The statutes at the center of the dispute were A.R.S. § 33-1813 and A.R.S. § 33-1804. A.R.S. § 33-1813 specifically covers the “Removal of board member; special meeting,” while A.R.S. § 33-1804 is a more general statute concerning “Open meetings.”

8. The HOA argued that A.R.S. § 33-1813 was not the only procedure for calling a recall meeting. It contended that the procedures in the more general statute, A.R.S. § 33-1804, which allows the president to call a special meeting, could also be used.

9. The judge applied the well-established common law principle that when a general statute and a specific statute on the same subject are in conflict, the specific statute controls. Therefore, the specific procedures for recall in A.R.S. § 33-1813 took precedence over the general meeting rules in A.R.S. § 33-1804.

10. The Carter Ranch HOA was ordered to reinstate the removed board members, Steve Brownell and Trish Brownell. The HOA was also ordered to reimburse the Petitioner for his $500.00 single-issue filing fee.

——————————————————————————–

Essay Questions

1. Trace the complete timeline of events described in the decision, beginning with the failed meeting on February 20, 2018, and concluding with the judge’s final order. For each key date, describe the event that occurred, the people involved, and the outcome of the event.

2. Analyze the conflicting interpretations of Arizona state law presented by the Petitioner and the Respondent. Explain which specific clauses of A.R.S. § 33-1813 and A.R.S. § 33-1804 each party relied upon to justify their position regarding the legality of the April 24, 2018 recall meeting.

3. The decision states that the case presents a “pure legal issue of statutory interpretation.” Explain what this means and how it affects the burden of proof. Describe in detail the canons of statutory construction cited by the judge and how she applied them to rule in favor of the Petitioner.

4. Discuss the role of the allegations of misconduct (disseminating false information and harvesting ballots) against the newly elected board members. How did these allegations act as a catalyst for the recall election, and what was their ultimate relevance (or lack thereof) to the final legal conclusion reached by the Administrative Law Judge?

5. Based on the judge’s “Conclusions of Law,” explain the definitive legal procedure for an HOA in Arizona, with 1,000 or fewer members, to initiate the removal of a board member. Detail the petition requirements, signature thresholds, and meeting notice timelines as established by the controlling statute, A.R.S. § 33-1813.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent official who presides over administrative hearings, hears evidence, and makes legal decisions, in this case, Diane Mihalsky from the Office of Administrative Hearings.

A.R.S.

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

Board of Directors

The governing body of the homeowners’ association, elected by the members.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this matter, the Petitioner bore the burden of proof to establish the violation.

De Novo Review

A type of review where a court or judge decides the issues without reference to any legal conclusion or assumption made by the previous party in the case. This was applied because the issue was a pure matter of statutory interpretation.

Department

Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions from HOA members.

Evidentiary Standard

The level of proof required to convince the trier of fact. In this case, the standard was a “preponderance of the evidence.”

Homeowners’ Association (HOA)

The organization that governs the Carter Ranch development, of which all lot owners are members.

Office of Administrative Hearings

An independent state agency in Arizona where evidentiary hearings, like the one in this case, are conducted.

Petitioner

The party who initiates a legal action by filing a petition. In this case, it was homeowner Thomas J. Van Dan Elzen.

Preponderance of the Evidence

The standard of proof in which the trier of fact is convinced that a contention is more probably true than not.

Quorum

The minimum number of members of an association that must be present at a meeting for the proceedings of that meeting to be valid. In the March 20 election, the quorum was 47 homeowners.

Recall Election

A special vote held to determine whether to remove an elected official (in this case, board members) from office before the end of their term.

Respondent

The party against whom a petition is filed. In this case, it was the Carter Ranch Homeowners Association.

Special Meeting

A meeting of an association’s members called for a specific purpose outside of the regularly scheduled annual meetings. The April 24 recall vote was a special meeting.

Statutory Construction

The process of interpreting and applying legislation. The judge used common-law canons of statutory construction to resolve the conflict between the two A.R.S. sections.

Majority Rules? Not in This HOA: How One Homeowner Overturned a Recall Election on a Technicality

The Unruly World of Neighborhood Politics

In the world of Homeowners Associations, a majority vote is typically the final word. But for the Carter Ranch HOA, a 27-to-25 recall vote meant to oust two board members became the start of a legal battle, not the end. This case reveals a crucial lesson in community governance: when a board president’s unilateral action clashes with statutory procedure, the will of the majority can be rendered completely irrelevant.

A Democratic Vote Can Be Completely Ignored

On April 24, 2018, the Carter Ranch HOA held a special recall election targeting three recently elected board members: Roxanne Gould, Steve Brownell, and Trish Brownell. A quorum of 52 homeowners participated, and the vote was a split decision. Roxanne Gould survived the recall attempt, with 27 votes against her removal and 25 for it. However, Steve and Trish Brownell were successfully voted off the board by a clear majority of 27 to 25.

The twist came later, in a judge’s chambers. Despite the democratic outcome, an Administrative Law Judge ordered the HOA to reinstate the Brownells. This counter-intuitive decision wasn’t the result of voter fraud or a miscount. The entire election was nullified because of a critical procedural error made by the HOA president before a single ballot was cast.

An HOA President Can’t Unilaterally Oust Board Members

The conflict began after a heated board election on March 20, 2018. The board president at the time, Lance Van Horne, felt the election’s outcome was “compromised.” He believed three newly elected members had won their seats by disseminating “allegedly false information” and “harvesting of votes.”

In response, Mr. Van Horne took decisive action. Believing he was correcting a wrong, he personally called for a special meeting to hold a recall election. This unilateral action became the sole basis for the legal challenge that followed. While the president’s concerns about election integrity were the catalyst for the drama, the court’s subsequent decision would demonstrate that his motives were entirely irrelevant. The only thing that mattered was the procedure he followed—or in this case, failed to follow.

The “Specific Beats General” Rule Is King

The HOA’s legal defense rested on a general statute, A.R.S. § 33-1804, which grants an association’s president the power to call special meetings for various purposes. They argued this general power included the authority to call a recall meeting.

However, the homeowner who challenged the recall pointed to a different, more specific law. A.R.S. § 33-1813 is a statute written exclusively for the purpose of removing board members. This specific law dictates that a recall process can only be initiated upon receipt of a petition signed by a required number of homeowners. The president cannot simply decide to do it alone.

The judge’s decision hinged on a foundational principle of legal interpretation. As cited in the final order:

“When provisions of a general statute are inconsistent with those of a special nature on the same subject, the special statute controls.”

Because the HOA president initiated the recall without first receiving the required petition from the homeowners, he failed to follow the specific procedure mandated by law. As a result, the entire recall election was declared invalid from the start.

One Homeowner Can Successfully Challenge an Entire HOA

This entire case was set in motion not by a group of disgruntled residents, but by a single individual. Homeowner Thomas J. Van Dan Elzen filed a “single-issue petition” with the state, challenging the validity of the president’s action. His understanding of the specific rules governing board member removal proved to be the key that unraveled the HOA’s actions.

The final court order was a complete victory for the petitioner:

• His petition was granted.

• The Carter Ranch HOA was ordered to reinstate the two removed board members, Steve and Trish Brownell.

• The HOA was also ordered to reimburse the petitioner for his $500.00 filing fee.

This outcome serves as an empowering example of how a single member, armed with knowledge of the governing documents and statutes, can hold an association’s leadership accountable and ensure that proper procedures are followed.

Conclusion: Rules, Not Rulers

The Carter Ranch case is a powerful illustration that in community governance, established process is not a technicality—it is the bedrock of legitimacy. The board’s failure to adhere to the specific statute for recalls (A.R.S. § 33-1813) created a fatal procedural flaw that no amount of good intention or majority support could cure. This serves as a stark reminder for all HOA boards: power is derived from the meticulous application of rules, not the perceived authority of rulers. Ignoring this principle doesn’t just invalidate an action; it exposes the association to legal challenges, financial penalties, and a loss of credibility with the community it governs. Do you know the specific rules that govern your own community?

Case Participants

Petitioner Side

  • Thomas J. Van Dan Elzen (petitioner)
    Appeared on his own behalf

Respondent Side

  • Chad M. Gallacher (attorney)
    Maxwell & Morgan, P.C.
    Represented Respondent
  • Mary Chaira (Community Manager)
    Witness for Respondent
  • Lance Van Horne (Board President)
    Called the special recall election which led to the petition,,

Neutral Parties

  • Diane Mihalsky (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Received decision
  • Felicia Del Sol (staff)
    Transmitted decision

Other Participants

  • Roxanne Gould (board member)
    Elected board member; subject of recall attempt,,
  • Steve Brownell (board member)
    Elected board member; removed by recall, reinstated by recommended order,,,
  • Trish Brownell (board member)
    Elected board member; removed by recall, reinstated by recommended order,,,
  • Steve F. (candidate)
    Candidate in board election
  • Dave (candidate)
    Candidate in board election

Debbie Westerman v. Bridgewood Townhomes

Posted on by

Case Summary

Case ID 18F-H1818028-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-04-26
Administrative Law Judge Diane Mihalsky
Outcome The ALJ denied the petition, concluding the Respondent HOA did not unreasonably deny the Petitioner's architectural request. The HOA's standard specification requiring 4” x 8” x 16” CMU blocks for courtyard walls was found to be reasonable for maintaining architectural continuity consistent with the original Al Beadle design of the community.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Debbie Westerman Counsel —
Respondent Bridgewood Nine 30 Property Owners Association, Inc. aka Bridgewood Townhomes Counsel Mark E. Lines and R. Patrick Whelan

Alleged Violations

CC&R § 5(G)

Outcome Summary

The ALJ denied the petition, concluding the Respondent HOA did not unreasonably deny the Petitioner's architectural request. The HOA's standard specification requiring 4” x 8” x 16” CMU blocks for courtyard walls was found to be reasonable for maintaining architectural continuity consistent with the original Al Beadle design of the community.

Why this result: Petitioner failed to prove that the HOA's denial was unreasonable or that the specified 4” x 8” x 16” CMU block was inferior to the 8” x 8” x 16” CMU block she requested, and compliance with the HOA's reasonable specifications was required.

Key Issues & Findings

Unreasonable denial of architectural request to build a courtyard wall

Petitioner alleged the HOA violated CC&R § 5(G) by unreasonably denying her request to construct a courtyard wall using 8” x 8” x 16” CMU blocks, which did not comply with the HOA's Wall Construction Specifications & Conditions requiring 4” x 8” x 16” CMU blocks.

Orders: Petition denied because Petitioner failed to establish that CC&R § 5(G) required the Respondent to approve her Architectural Request which did not comply with Respondent’s Wall Construction Specifications & Conditions.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • CC&R § 5(G)
  • CC&R § 7(B)
  • CC&R § 5(J)

Analytics Highlights

Topics: HOA, CC&R, Architectural Review, Wall Construction, CMU block, Architectural Standard
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)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Video Overview

Audio Overview

Decision Documents

18F-H1818028-REL Decision – 631265.pdf

Uploaded 2026-04-25T09:57:11 (161.6 KB)

18F-H1818028-REL Decision – 631265.pdf

Uploaded 2026-01-23T17:23:15 (161.6 KB)

Briefing Document: Westerman v. Bridgewood Townhomes HOA (Case No. 18F-H1818028-REL)

Executive Summary

This document synthesizes the findings and decision in the case of Debbie Westerman versus the Bridgewood Nine 30 Property Owners Association, Inc. (HOA). The central conflict involved the HOA’s denial of Ms. Westerman’s architectural request to construct a courtyard wall using 8” x 8” x 16” concrete masonry unit (CMU) blocks, which deviated from the association’s established standard of 4” x 8” x 16” CMU blocks.

The Administrative Law Judge (ALJ) ultimately denied the petitioner’s claim, ruling in favor of the HOA. The decision rested on the finding that the HOA’s architectural standards were reasonable and established to maintain the community’s original design integrity. The petitioner failed to meet the burden of proof required to show that the HOA’s denial was unreasonable or that the specified building materials were in any significant way inferior. The HOA successfully argued that its “Wall Construction Specifications & Conditions,” in place since 2005, were created to preserve the architectural continuity of the original “Al Beadle design” and have been consistently applied to numerous other homeowner projects.

1. Case Overview and Core Dispute

• Parties:

◦ Petitioner: Debbie Westerman, owner of condominium unit 31 in Bridgewood Townhomes.

◦ Respondent: Bridgewood Nine 30 Property Owners Association, Inc. (also known as Bridgewood Townhomes).

• Jurisdiction: The case was heard by the Arizona Office of Administrative Hearings following a petition filed with the Arizona Department of Real Estate on January 23, 2018.

• Core Allegation: The petitioner alleged that the HOA violated its Covenants, Conditions, and Restrictions (CC&Rs) § 5(G) by unreasonably denying her request to build a courtyard wall with 8” x 8” x 16” CMU blocks. The HOA’s established specification required the use of 4” x 8” x 16” CMU blocks.

2. Chronology of the Dispute

The key events leading to the administrative hearing occurred between October 2017 and January 2018.

Oct 25, 2017

Michael Brubaker, the HOA Board President, emailed the petitioner with the association’s “Wall Construction Specifications & Conditions.”

Oct 25, 2017

The petitioner submitted an Architectural Request to build a wall with 8″ x 8″ x 16″ CMU blocks, acknowledging the deviation from specifications.

Oct 25, 2017

Mr. Brubaker sent a follow-up email cautioning the petitioner not to pre-order non-conforming materials as her request was not yet approved.

Nov 29, 2017

Mr. Brubaker emailed the petitioner, acknowledging her request as “extraordinary” and stating the Board would need to meet to consider it.

Dec 28, 2017

The petitioner was formally notified of a Board meeting scheduled for January 2, 2018, to review her request.

Jan 2, 2018

The petitioner attended the Board meeting. The Board unanimously rejected her request because it was contrary to the established specifications and “the historical aspects of our compliance structure.” The Board noted its willingness to approve a compliant wall, but the petitioner “stated that she [was] unwilling to comply.”

Jan 8, 2018

The HOA’s attorney sent a letter to the petitioner summarizing the legal basis for the denial.

Jan 23, 2018

The petitioner filed her formal petition with the Arizona Department of Real Estate.

3. Petitioner’s Arguments and Evidence (Debbie Westerman)

The petitioner’s case was built on three main arguments: the superiority of her proposed materials, the inconsistency of community standards, and the questionable validity of the HOA’s rules.

• Material Superiority: The petitioner claimed her proposed 8” x 8” x 16” blocks were stronger, less expensive, and visually identical to the required blocks.

◦ Evidence: She testified that three different contractors advised her that the larger blocks would be cheaper due to needing fewer units and less mortar.

◦ Evidence: Her subcontractor, Richard Ross, testified that using twice as many blocks (as required by the 4″ specification) “doubles the chance of the wall failing.”

• Inconsistent Community Standards: The petitioner argued that the HOA did not enforce a uniform aesthetic, negating the need for strict adherence to the block size specification.

◦ Evidence: She submitted photographs (Exhibits A5, A6) of walls at units 34 and 38, owned by Board President Michael Brubaker, which she claimed were built with larger blocks visible through stucco.

◦ Evidence: She submitted a photograph (Exhibit A11) showing courtyard walls of different heights, although wall height was not the subject of her dispute.

• Questionable Rule Authenticity: At the hearing, the petitioner challenged the validity of the “Wall Construction Specifications & Conditions” document itself.

◦ Argument: She argued the document was not authentic because the HOA did not produce the official Board meeting minutes from 2005 when the rules were allegedly adopted. This challenge was raised for the first time at the hearing.

4. Respondent’s Arguments and Evidence (Bridgewood HOA)

The HOA’s defense was centered on its legal authority, the reasonableness of its established architectural standards, and the consistent enforcement of its rules.

• Adherence to Established Architectural Standards: The HOA’s primary defense was that its denial was based on a reasonable and long-standing architectural rule.

◦ Authority: The HOA cited CC&R § 5(J), which grants the Board the authority to adopt reasonable rules concerning the use of common elements. Rule 7(a) requires Board approval for any exterior alterations.

◦ Evidence: The HOA submitted the “Wall Construction Specifications & Conditions” (Exhibit 3), which Mr. Brubaker credibly testified was adopted by the Board on March 22, 2005.

◦ Purpose of the Rule: Mr. Brubaker stated the rule’s purpose was to ensure architectural continuity. An email to the petitioner (Exhibit 7) explained:

• Consistent Enforcement: The HOA demonstrated that the rule was not arbitrary but had been consistently applied.

◦ Evidence: Mr. Brubaker testified that since the program’s adoption, “twenty-nine homeowners have had applications approved and constructed courtyard walls to specification.” Four additional compliant applications were approved since the petitioner’s submission. A photograph of a recently completed, compliant wall (Ms. Warren’s) was submitted as Exhibit 16.

• Rebuttal of Petitioner’s Claims: The HOA directly countered the petitioner’s key arguments.

◦ On Inconsistency: Mr. Brubaker testified that the non-conforming walls at units 34 and 38 were constructed before 1980 by the original developer, prior to the HOA assuming control of the property (Exhibit 14).

◦ On Structural Integrity: The HOA submitted two technical bulletins from the National Concrete Masonry Association (Exhibits 19 and 20). These documents stated that 4″ high (“half-high”) units can be considered “structurally equivalent to their corresponding 8-in. (203-mm) high unit” as long as the cross-section is the same.

◦ On Cost: The HOA submitted a bid from J E Bowen Construction for $6,165.00 to build a compliant wall for the petitioner’s unit (Exhibit 17). It also noted that another homeowner’s recent compliant wall cost only $4,268.23 (Exhibit 15).

5. Administrative Law Judge’s Conclusions and Final Order

The Administrative Law Judge (ALJ) found comprehensively in favor of the Respondent (HOA), denying the Petitioner’s petition.

• Burden of Proof: The ALJ established that the petitioner bore the burden of proving her case by a “preponderance of the evidence” and failed to do so.

• Reasonableness of HOA Standards: The decision affirmed the HOA’s right to establish and enforce aesthetic standards.

• Validity of Specifications: The petitioner’s challenge to the authenticity of the HOA’s rules was dismissed. The ALJ found that she “did not establish that Respondent’s Wall Construction Specifications & Conditions was fraudulent or improperly adopted.”

• Materiality of Block Type: The ALJ concluded that the petitioner failed to prove her central claim that the larger blocks were superior.

• Aesthetic Impact: The ALJ determined that the petitioner’s proposed wall would violate the community’s aesthetic standards, noting that a wall using the larger blocks “would be noticeably different from walls that were constructed in compliance with the Wall Construction Specifications & Conditions and other Al Beadle design elements.”

Final Order: “IT IS ORDERED that Petitioners’ petition is denied because she has not established that CC&R § 5(G) required the Respondent to approve her Architectural Request to build a block wall around her patio that did not comply with Respondent’s Wall Construction Specifications & Conditions.”

The order, issued on April 26, 2018, is binding unless a rehearing is requested within 30 days of service.

Study Guide: Westerman v. Bridgewood Nine 30 Property Owners Association, Inc.

This study guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 18F-H1818028-REL, concerning a dispute between a homeowner and her homeowners’ association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case.

Short-Answer Quiz

Instructions: Answer the following ten questions in 2-3 sentences each, based on the information provided in the source document.

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

2. What specific action by the Respondent was the Petitioner challenging in her petition?

3. According to the Respondent, what was the primary purpose of the “Wall Construction Specifications & Conditions”?

4. What were the three main arguments the Petitioner presented in favor of using 8” x 8” x 16” CMU blocks instead of the specified size?

5. How did the Petitioner attempt to demonstrate that the Respondent’s enforcement of wall specifications was inconsistent?

6. What was the Respondent’s explanation for the non-conforming walls cited by the Petitioner?

7. What evidence did the Respondent present to counter the Petitioner’s claim that the specified 4” x 8” x 16” CMU blocks were structurally inferior?

8. Which party bore the “burden of proof” in this case, and what did that require them to establish?

9. On what date did the Respondent’s Board of Directors originally adopt the Wall Construction Specifications & Conditions?

10. What was the final ruling in this case, and what was the judge’s primary reason for the decision?

Answer Key

1. The primary parties were Debbie Westerman, the Petitioner, and the Bridgewood Nine 30 Property Owners Association, Inc., the Respondent. Ms. Westerman owns condominium unit 31 in the Bridgewood Townhomes development and is therefore a member of the Respondent homeowners’ association.

2. The Petitioner was challenging the Respondent’s denial of her Architectural Request to build a wall around her patio. Specifically, she alleged that the Respondent had unreasonably denied her request to use 8” x 8” x 16” concrete masonry unit (CMU) block, which violated the association’s Covenants, Conditions, and Restrictions (CC&Rs).

3. The “Wall Construction Specifications & Conditions” were developed to provide architectural continuity and standards for courtyard walls. They were intended to ensure that any new walls conformed to the original Al Beadle design represented by other structures on the property, such as the perimeter wall and pool enclosure.

4. The Petitioner argued that her proposed 8” x 8” x 16” CMU blocks were stronger, less expensive (requiring fewer blocks and less mortar), and looked the same as the specified blocks. This information was based on advice she received from three different contractors.

5. The Petitioner submitted photographs of courtyard walls at unit nos. 34 and 38, which she testified had larger blocks visible through stucco. She used these examples to argue that walls within the community were not consistent.

6. The Respondent’s Board president, Michael Brubaker, testified that the walls for units 34 and 38 were constructed before 1980. This was before the original developer turned the property over to the Respondent homeowners’ association, and therefore before the current specifications were in place.

7. The Respondent submitted two technical documents (TEK 5-15 and TEK 2-2B) from the National Concrete Masonry Association. These documents stated that 4-inch high (“half-high”) units are structurally equivalent to their corresponding 8-inch high counterparts, provided the face shell and web thicknesses are the same.

8. The Petitioner, Ms. Westerman, bore the burden of proof. This required her to establish by a “preponderance of the evidence” that the Respondent violated CC&R § 5(G) by unreasonably denying her request.

9. Michael Brubaker, the Respondent’s Board president, credibly testified that the Board adopted the Wall Construction Specifications & Conditions on March 22, 2005.

10. The final ruling was that the Petitioner’s petition was denied. The judge concluded that the Petitioner failed to establish that the Respondent’s Board acted unreasonably in denying her request, as the Board’s decision to maintain architectural consistency with the original Al Beadle design was reasonable.

Suggested Essay Questions

Instructions: The following questions are designed for longer, essay-style responses to test a deeper understanding of the case’s themes and legal principles. Do not provide answers.

1. Analyze the legal concept of a “restrictive covenant.” Using the CC&Rs from the Bridgewood Townhomes development as an example, explain how these covenants function to regulate property use and how they are interpreted and enforced in a legal dispute.

2. Evaluate the evidence presented by both the Petitioner and the Respondent regarding the structural integrity and cost of the different CMU block sizes. Discuss the quality of the evidence (e.g., expert testimony, technical documents, contractor bids) and explain which side made a more compelling argument on this point.

3. Discuss the role and authority of a homeowners’ association Board of Directors as demonstrated in this case. How did the Board use its authority under the CC&Rs to create and enforce the “Wall Construction Specifications & Conditions,” and what does the judge’s decision say about the reasonableness of its actions?

4. The concept of “architectural continuity” and preserving the original “Al Beadle design” was central to the Respondent’s argument. Explain the significance of this argument and analyze why the Administrative Law Judge found it to be a reasonable basis for denying the Petitioner’s request.

5. Trace the procedural history of this dispute, from the Petitioner’s initial Architectural Request in October 2017 through the Administrative Law Judge’s final decision. What do the steps taken by both parties reveal about the formal processes for dispute resolution within this planned community?

Glossary of Key Terms

Definition (as used in the source document)

Administrative Law Judge (ALJ)

An independent judge (Diane Mihalsky) who presides over administrative hearings at the Office of Administrative Hearings, an agency separate from the Department of Real Estate.

Architectural Request

A formal application submitted by a homeowner to the homeowners’ association for approval of any alterations or additions to the exterior of a unit.

Covenants, Conditions, and Restrictions. A set of rules recorded with the county that governs the rights and obligations of property owners within a planned community or condominium development.

Concrete Masonry Unit. A standard-size rectangular block used in construction. In this case, the dispute centered on two sizes: 4” x 8” x 16” and 8” x 8” x 16”.

Common Area

Areas within the development owned by the Homeowners’ Association in trust for the benefit and use of all lot owners.

Department

The Arizona Department of Real Estate, the state agency authorized to receive and decide petitions for hearings from members of homeowners’ associations.

Homeowners’ Association (HOA)

An organization in a subdivision, planned community, or condominium development that makes and enforces rules for the properties within its jurisdiction. In this case, the Bridgewood Nine 30 Property Owners Association, Inc.

Limited Common Elements

Areas, such as the patios or courtyards adjacent to individual units, that are part of the common area but are reserved for the exclusive use of a specific owner.

Petitioner

The party who files a petition initiating a legal action. In this case, the homeowner, Debbie Westerman.

Preponderance of the Evidence

The standard of proof required in this civil case. It is defined as evidence that has the most convincing force and 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 homeowners’ association, Bridgewood Nine 30 Property Owners Association, Inc.

Restrictive Covenant

A provision in a deed or CC&R that limits the use of the property. The judge notes that if unambiguous, these are enforced to give effect to the intent of the parties.

Subpoena Duces Tecum

A legal order requiring a person to appear and bring specified documents or evidence with them. The decision notes the Petitioner did not request one for the Board meeting minutes.

TEK 2-2B & TEK 5-15

Titles of technical publications from the National Concrete Masonry Association, submitted as evidence by the Respondent to demonstrate the structural equivalence of different-sized CMU blocks.

Why Your HOA Cares About Your Bricks: A Real-Life Legal Battle, Deconstructed

For many homeowners, the relationship with their Homeowners’ Association (HOA) is a source of quiet frustration. It often involves rules that seem arbitrary, overly specific, or just plain unreasonable. You want to make a practical improvement to your property, but the HOA’s governing documents stand in the way, citing regulations you never knew existed. This friction between individual desire and community standards is common, but rarely does it escalate into a formal legal dispute.

When it does, however, the results can be surprisingly illuminating. Such is the case of Debbie Westerman and the Bridgewood Townhomes HOA in Arizona. Their legal battle wasn’t over a major renovation or a loud party; it was about the specific size of concrete blocks for a new patio wall. On the surface, it seems like a minor disagreement. But a closer look at the administrative law judge’s decision reveals powerful, practical lessons for every homeowner about the hidden legal realities of community governance.

By deconstructing the judge’s final decision, we can uncover four critical lessons that reveal how HOAs wield power and how homeowners can protect themselves.

Takeaway 1: Aesthetic Vision Can Legally Outweigh Practicality

At the heart of the dispute was a simple disagreement over materials. The petitioner, Debbie Westerman, wanted to build her patio wall using 8″x8″x16″ concrete blocks. Her reasoning was entirely practical: a licensed contractor advised her that the larger blocks were “stronger, less expensive, and looks the same.” From a homeowner’s perspective, this seems like an open-and-shut case for approval.

The HOA, however, denied the request. Their position was based not on practicality, but on a specific design vision. The association’s rules, established back in 2005, explicitly required the use of 4″x8″x16″ blocks. The reason? To maintain “architectural continuity” with the property’s original “Al Beadle design.” This wasn’t a vague preference; it was a documented standard intended to conform new construction to the existing visual language of the community, as seen in the “property’s perimeter wall, the original block buildings, the pool area enclosure and buildings, the parking structures, and the walls around the parking areas.”

Ultimately, the judge sided with the HOA. The decision found that the association’s requirement was reasonable because it was aimed at keeping new construction consistent with “significant elements of Bridgewood Townhomes.” This is a crucial lesson: a homeowner’s logical arguments about cost, strength, and appearance can be legally superseded by a community’s well-documented commitment to a specific, even if less tangible, design aesthetic.

Takeaway 2: The Power is in the Paper Trail

The HOA’s entire case rested on the strength of a single key document: the “Wall Construction Specifications & Conditions.” This document, which the board officially adopted on March 22, 2005, clearly outlined the requirement for the 4-inch blocks.

Crucially, the petitioner only challenged the authenticity of this document for the first time during the hearing itself, arguing the HOA had not produced the original meeting minutes that adopted it. The judge deemed this last-minute challenge inadmissible. Why? Crucially, the judge noted that the homeowner had failed to use the proper legal procedures to demand the HOA produce those records ahead of time, making her challenge too little, too late. The HOA, meanwhile, demonstrated a long history of consistent enforcement. Before Ms. Westerman’s request, the association had already approved 29 other courtyard walls, all built according to the 2005 specifications.

This highlights a critical lesson: an HOA’s power is codified in its paper trail. The governing documents—from the Covenants, Conditions, and Restrictions (CC&Rs) down to specific board-adopted rules—carry immense legal weight.

Pro Tip: Your HOA’s governing documents are more than just the CC&Rs you received at closing. Formally request and review all board-adopted rules, architectural guidelines, and meeting minutes related to your planned project hiring a contractor or submitting an application.

Takeaway 3: The Burden of Proof Is on the Homeowner

Many people might assume that in a dispute, the powerful organization (the HOA) has the responsibility to prove its rules are fair and justified. The legal reality is often the exact opposite.

The judge’s decision explicitly stated that the “burden of proof” was on Ms. Westerman to establish that the HOA had acted unreasonably. It was not the HOA’s job to prove their rule was perfect; it was the homeowner’s job to prove the denial was improper. To meet this high legal standard, defined as a “preponderance of the evidence,” you need convincing proof.

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

This case provides a masterclass in what constitutes convincing proof. Ms. Westerman’s evidence that the 8-inch blocks were superior came from the testimony of her contractor’s unlicensed subcontractor. In sharp contrast, the HOA submitted two technical documents from the National Concrete Masonry Association—a neutral, expert authority—which demonstrated that the required 4-inch blocks are “structurally equivalent” to their 8-inch counterparts. The homeowner brought an opinion to a legal fight; the HOA brought expert documentation.

Actionable Advice: If you choose to challenge an HOA decision, understand that personal testimony and contractor opinions are often insufficient. To meet the ‘burden of proof,’ you must be prepared to counter the HOA’s documented rules with equally strong evidence, such as independent engineering reports, surveys, or expert testimony.

Takeaway 4: An HOA Rule Can Be a “Win-Win Program”

While it’s easy to view HOA rules as purely restrictive, the association’s board president, Michael Brubaker, offered a completely different perspective. He framed the wall policy not as a limitation, but as a benefit designed to increase the value and security of the entire community.

In an email to the petitioner, he explained the board’s original thinking behind allowing the walls in the first place, calling it a “win win program.”

A courtyard wall allowed homeowners to expand their homes with an exclusive-use courtyard space, enhance privacy, and improve security, which resulted in an increased individual property value that subsequently raised all property values. Additionally, the Association reduced costs by reducing the common area to be maintained. This is a win win program.

This viewpoint is bolstered by another critical fact: the HOA assumes maintenance responsibility for the walls after they are built. This reinforces the logic behind the rule. Uniformity isn’t just about aesthetics; it’s about the long-term, collective cost and labor of maintaining these structures, making a consistent standard a practical and financial concern for the entire association.

Conclusion: Beyond the Bricks

The dispute between Debbie Westerman and the Bridgewood Townhomes HOA was, on its face, about the size of concrete blocks. But the legal decision reveals a much deeper story about community living. It’s a story about how a shared aesthetic vision, when properly documented, can become legally enforceable. It’s a confirmation of the immense power of written rules and the critical importance of bringing credible evidence to a dispute. And it’s a reminder that the legal burden often falls on the individual to challenge the collective.

This case demonstrates that behind a seemingly petty disagreement lies a complex reality of legal precedent, established processes, and a community’s right to define and defend its character. The next time you encounter a seemingly arbitrary HOA rule, will you see it as a simple restriction, or will you look for the deeper story of community standards and legal precedent behind it?

Case Participants

Petitioner Side

  • Debbie Westerman (petitioner)
    Appeared on her own behalf
  • Kelly Zernich (witness)
    Petitioner's realtor
  • Richard Ross (witness)
    Petitioner's contractor's subcontractor

Respondent Side

  • Mark E. Lines (attorney)
    Shaw & Lines, LLC
  • R. Patrick Whelan (attorney)
    Shaw & Lines, LLC
  • Michael Brubaker (board member/witness)
    Respondent's Board president

Neutral Parties

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

Other Participants

  • Barb Warren (homeowner/applicant)
    Application approved by the Board (used for comparison)
  • Felicia Del Sol (unknown)
    Transmitted the decision electronically

Thomas J Stedronsky vs. Copper Canyon Ranches POA

Posted on by

Case Summary

Case ID 18F-H1817016-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-01-24
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge denied the Petitioner's petition entirely. The HOA did not violate CC&Rs regarding road maintenance or abuse its discretion in enforcement against Lot 77.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Thomas J Stedronsky Counsel —
Respondent Copper Canyon Ranches POA Counsel John S. Perlman, Esq.

Alleged Violations

CC&Rs Section III (d) and (m)
CC&Rs Section VI (6.02, 6.03, 6.04, 6.05)

Outcome Summary

The Administrative Law Judge denied the Petitioner's petition entirely. The HOA did not violate CC&Rs regarding road maintenance or abuse its discretion in enforcement against Lot 77.

Why this result: Petitioner failed to meet the burden of proof by a preponderance of the evidence to establish that the Respondent violated its planned community documents.

Key Issues & Findings

Whether the Respondent has maintained the roadway Sundance Lane properly

Petitioner alleged Respondent violated CC&Rs by failing to properly maintain Sundance Lane. Respondent countered that limited funds necessitated prioritizing roads for full-time residents, but Sundance Lane was accessible.

Orders: Complaint regarding road maintenance dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&Rs Section III
  • A.R.S. § 41-2198.01

Whether Respondent has taken appropriate action against the owner of lot 77 in as much as that property allegedly resembles a junk yard

Petitioner alleged Lot 77 violated CC&Rs due to excessive storage and inoperable vehicles. Respondent showed it monitors the property, has written letters, and the owner has previously complied with HOA and County cleanup efforts.

Orders: Complaint regarding enforcement against Lot 77 dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&Rs Section VI
  • A.R.S. § 41-2198.01

Video Overview

Audio Overview

Decision Documents

18F-H1817016-REL Decision – 613995.pdf

Uploaded 2026-05-01T21:11:09 (200.6 KB)

18F-H1817016-REL Decision – 613995.pdf

Uploaded 2026-01-23T17:22:06 (200.6 KB)

Briefing: Stedronsky v. Copper Canyon Ranches POA

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Decision in case number 18F-H1817016-REL, involving Petitioner Thomas J. Stedronsky and Respondent Copper Canyon Ranches Property Owners’ Association (POA). The Petitioner filed a two-issue petition alleging the POA violated its Covenants, Easements, Conditions and Restrictions (CC&Rs) by failing to properly maintain a roadway, Sundance Lane, and by failing to take appropriate action against a neighboring property, Lot 77, which allegedly resembled a junkyard.

The Administrative Law Judge (ALJ), Diane Mihalsky, denied the petition in its entirety. The decision found that the Petitioner failed to meet the burden of proof for both allegations. Regarding road maintenance, the ALJ concluded the POA acted within its reasonable discretion by prioritizing its limited funds ($35,000-$40,000 annually for 20 miles of roads) to maintain roadways used by the community’s approximately 35 full-time residents. Despite the poor condition of the northern section of Sundance Lane, the Petitioner’s lot remained accessible via a passenger car from the south.

Concerning Lot 77, the ALJ determined that the Petitioner did not establish a persistent violation of the CC&Rs. The evidence showed the POA had previously addressed complaints with the lot owner, who had been responsive. Furthermore, the alleged violations were largely located behind the required property buffer zone and were not easily visible from the Petitioner’s property without a telephoto lens. The decision suggests the Petitioner’s long-standing complaints were primarily motivated by his inability to sell his topographically challenging and undeveloped property.

Case Details

Case Information

Details

Case Number

18F-H1817016-REL

Petitioner

Thomas J. Stedronsky (Owner of Lot 76)

Respondent

Copper Canyon Ranches POA

Adjudicating Body

Office of Administrative Hearings, State of Arizona

Presiding Judge

Diane Mihalsky, Administrative Law Judge

Hearing Date

January 10, 2018

Decision Date

January 24, 2018

Final Order

The Petitioner’s petition was denied.

Core Issues

1. Whether the Respondent properly maintained the roadway Sundance Lane.
2. Whether the Respondent took appropriate action against the owner of Lot 77.

Detailed Analysis of Allegations

Allegation 1: Improper Roadway Maintenance of Sundance Lane

The Petitioner alleged that the POA failed to maintain Sundance Lane in accordance with the CC&Rs, particularly the northern section providing access to his Lot 76.

• Photographic Evidence: The Petitioner submitted photographs from September 2017 comparing well-maintained roads like Black Peak Parkway and Copper Hills Road with the poor condition of the northern portion of Sundance Lane near his property. These photos depicted the northern section as a “barely visible road running along the side of a steep hillside that is overgrown with vegetation and has a large number of large boulders.”

• Accessibility Issues: The Petitioner testified that in September 2017, he needed to rent a four-wheel drive truck to access his lot from the northeast via an unnamed road connecting to Sundance Lane.

• Plat Reference: The Petitioner submitted an undated and unsigned preliminary plat that stated “Roadbed 8” Native Gravel Fill Compacted to 95% Maximum Density,” but acknowledged this did not constitute an enforceable requirement for the POA.

• Admission of Access: The Petitioner acknowledged that his lot was usually accessible via passenger car from the southern end of Sundance Lane, where it connects with Black Peak Parkway.

• Testimony of Joe Wilson (POA President):

◦ Road Characteristics: Mr. Wilson described Sundance Lane as an “old two-track mining road from the 1940’s or 1950’s that has never been engineered that is too steep to be a perfect road.” He noted the northern part was rough but not impassable with four-wheel drive.

◦ Maintenance Schedule: The POA blades every roadway, including Sundance Lane, at least twice a year. Sundance Lane was bladed in September 2017 and December 2017. More intensive dozer work is sometimes performed on the worst roads.

◦ Prioritization of Resources: The POA board prioritizes maintenance on roads needed by the approximately 35 full-time residents to access their parcels. With an annual budget of only $35,000 to $40,000 to maintain 20 miles of roads, funds are used to better maintain the most traveled roadways.

◦ Financial Constraints: Blading all roads costs $15,000 to $20,000 per year. Paving all 20 miles would cost millions of dollars, requiring a prohibitive assessment of approximately $50,000 per parcel to raise just $1 million.

◦ Access Confirmation: Mr. Wilson testified that the resident of Lot 77 accesses his property from the south on Sundance Lane, and the Petitioner could access his lot from the south at any time. There are no residences that require access from the north side of Sundance Lane.

• Photographic Evidence: The POA submitted photos from December 2017 and January 9, 2018, showing Sundance Lane graded, passable, and cleared of vegetation following maintenance.

• Section III (d): Grants the POA authority to “Grade and maintain the roadways as needed, provide for proper drainage of roadways, install culverts where necessary.”

• Section III (m): Requires the POA to “maintain, care for, and otherwise manage the roadways…in as good condition (deterioration loss by damage due to environmental occurrences which cannot be reasonabl[y] avoided or insured against excepted)[.]”

• Section III (b): Authorizes acts “necessary, in the reasonable discretion of the Members, for the betterment of the Property and for the general benefit and welfare of the owners.”

Allegation 2: Failure to Enforce CC&Rs against Lot 77

The Petitioner alleged the POA failed to take appropriate action against the owner of neighboring Lot 77, Jerry Hamlin, for violations including inoperable vehicles and junk, creating a nuisance.

• Photographic Evidence: The Petitioner submitted photos of Lot 77 taken in September 2017, many with a telephoto lens. These photos showed multiple vehicles (some with hoods up), a backhoe, a trailer, and vehicle parts. Notations on the photos claimed vehicles were inoperable and had been sitting for years, though this was not apparent from the images themselves.

• Potential for Nuisance: The Petitioner testified to his belief that vehicles might be leaking oil and other fluids, potentially polluting the groundwater. He acknowledged he had no direct proof as he was unwilling to trespass.

• History of Complaints: The Petitioner acknowledged filing numerous complaints about Lot 77 with both the POA and Gila County over many years.

• Testimony of Joe Wilson (POA President):

◦ Enforcement Actions Taken: The POA has written letters to Mr. Hamlin in response to complaints, and Mr. Hamlin has removed vehicles and cleaned up the lot in the past.

◦ Owner’s Responsiveness: Mr. Hamlin has previously cooperated with the POA and Gila County. However, he expressed frustration with being “hassled” by the Petitioner’s continuing complaints after taking remedial action.

◦ Gila County Dismissal: A complaint filed by the Gila County Community Development Division against Mr. Hamlin was dismissed on November 6, 2013, after an inspector determined the property was “no longer in violation of Gila County Zoning Ordinances.”

◦ Condition of Vehicles: Mr. Hamlin stated to Mr. Wilson that all vehicles on the property were operable. Mr. Wilson noted that in rural areas, vehicle hoods are often left open to prevent vermin from nesting in the engine.

◦ Strategic Enforcement: The POA prefers not to take a “heavy hand” with Mr. Hamlin, as he is the “sort of man who would dig in his heels,” potentially leading to costly litigation that would deplete funds for road maintenance.

◦ Limited Enforcement Power: The POA’s primary enforcement mechanisms are writing letters and, after three failures to comply, liening the property.

• Photographic Evidence: The POA submitted recent photos showing the area was cleaner (a tire seen in the Petitioner’s photo had been removed) and that, from a distance without a telephoto lens, there were no apparent CC&R violations.

• 6.03 Storage: Allows up to 5% of a parcel for unenclosed storage, provided it is neat, orderly, and maintained at least 100 feet from the nearest property line.

• 6.04 Inoperable Vehicles and Equipment: Prohibits the repair or storage of more than one unregistered, inoperable motor vehicle within property boundaries.

• 6.05 Hazardous Materials and Nuisances: Prohibits storage of hazardous materials in a way that constitutes a fire hazard or nuisance.

Underlying Context: Petitioner’s Motivation and Property Challenges

The hearing evidence strongly suggests the Petitioner’s complaints were linked to his long-term inability to sell his unimproved 15-acre parcel, Lot 76.

• History of Complaints: The Petitioner sent numerous letters to the POA between 2012 and 2017, explicitly stating that the condition of Sundance Lane and the “junk on Lot 77” were preventing him from selling the property. A 2009 letter complained about the amount of the annual assessment due to his fixed income.

• POA’s Perspective: A September 27, 2017, letter from the POA to the Petitioner stated: “You have been complaining to the POA since 2009 about your inability to sell your property. … You sir are the only one blaming the POA and your neighbors for your inability to sell an undesirable property.”

• Property Characteristics: The Petitioner’s Lot 76 is located at the top of a steep, rocky hill. The POA President testified that it would be “difficult to build” on the lot, as it has “no level place on which to construct a building pad” and would require a “significant amount of bulldozer work.”

• Development Plans: While the Petitioner stated he would like to build a house, he had never planned construction dates or performed a percolation test. His proposed building site was located as close as possible to Lot 77’s garage.

Administrative Law Judge’s Conclusions and Final Order

The ALJ denied the petition, finding the Petitioner failed to prove his case by a preponderance of the evidence.

• Regarding Sundance Lane: The ALJ concluded that the POA did not abuse its discretion. Its decision to prioritize maintenance on roads used by full-time residents was deemed reasonable given its limited financial resources. The fact that Lot 76 remained accessible via passenger car from the southern end of Sundance Lane was a key factor.

• Regarding Lot 77: The ALJ concluded that the Petitioner failed to establish that there was more than one inoperable vehicle on Lot 77 or that other violations were more than a “transitory condition.” The decision notes that the POA monitors the lot and that the owner is “generally responsive.” Crucially, the ALJ found that the vehicles and storage on Lot 77 “occur behind the buffer zone and are not easily visible from Petitioner’s Lot 76 without binoculars or a telephoto lens.”

The Administrative Law Judge ordered that the Petitioner’s petition be denied. This order is binding on the parties unless a rehearing is granted.

Study Guide: Case No. 18F-H1817016-REL

This guide provides a detailed review of the Administrative Law Judge Decision in the case of Thomas J. Stedronsky (Petitioner) vs. Copper Canyon Ranches Property Owners’ Association (Respondent). It is designed to test and deepen understanding of the facts, arguments, and legal conclusions presented in the hearing.

Case Summary

The case involves a dispute between a property owner, Thomas J. Stedronsky, and the Copper Canyon Ranches Property Owners’ Association (POA). Mr. Stedronsky, who owns the unimproved Lot 76, filed a petition alleging the POA violated its Covenants, Easements, Conditions, and Restrictions (CC&Rs). The hearing, held before Administrative Law Judge Diane Mihalsky, focused on two primary issues: whether the POA properly maintained a roadway known as Sundance Lane, and whether the POA took appropriate action against the owner of the adjacent Lot 77, which was alleged to resemble a junkyard. The Judge ultimately denied the Petitioner’s petition on both counts.

Quiz: Short-Answer Questions

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

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

2. What were the two specific issues adjudicated at the January 10, 2018 hearing?

3. Describe the financial situation of the Copper Canyon Ranches POA as detailed in the hearing evidence.

4. What was the Petitioner’s specific complaint regarding the condition of Sundance Lane, and what evidence did he provide?

5. How did the Respondent, through its president Joe Wilson, defend its maintenance practices for Sundance Lane?

6. What were the Petitioner’s allegations against the owner of Lot 77, and what specific CC&R sections were potentially violated?

7. What actions had the Respondent and Gila County previously taken regarding complaints about Lot 77?

8. According to the legal conclusions, what is the standard of proof the Petitioner was required to meet, and did he succeed?

9. Why did the Administrative Law Judge conclude that the Respondent did not abuse its discretion in its road maintenance practices?

10. On what grounds was the Petitioner’s complaint regarding Lot 77 dismissed?

——————————————————————————–

Answer Key

1. The primary parties were Thomas J. Stedronsky, the “Petitioner,” and the Copper Canyon Ranches POA, the “Respondent.” The Petitioner owned Lot 76 in the development and filed the complaint, while the Respondent was the property owners’ association responsible for maintaining the community and enforcing its rules.

2. The two issues were: 1) Whether the Respondent had properly maintained the roadway known as Sundance Lane, and 2) Whether the Respondent had taken appropriate action against the owner of Lot 77, which the Petitioner alleged resembled a junkyard.

3. The POA receives between $35,000 and $40,000 annually from assessments of $250 per parcel. It costs the POA between $15,000 and $20,000 per year just to blade the 20 miles of roadways twice, with additional costs for culverts, backfill, and drainage ditches.

4. The Petitioner complained that the northern portion of Sundance Lane, which provides one access route to his Lot 76, was barely visible, overgrown, and required a four-wheel drive vehicle. He provided photographs taken in September 2017 showing this condition, contrasting them with photos of better-maintained roads in the development.

5. Joe Wilson testified that Sundance Lane is an old, steep mining road that is difficult to maintain perfectly. He stated that the POA blades every road, including Sundance Lane, at least twice a year and prioritizes maintenance on roads used by full-time residents due to limited funds. He also provided evidence that Lot 76 was always accessible from the southern portion of Sundance Lane.

6. The Petitioner alleged that Lot 77 was used for storage of inoperable vehicles and junk, resembling a junkyard. The relevant CC&Rs included Section 6.02 (Trash Removal), 6.03 (Storage), 6.04 (Inoperable Vehicles and Equipment), and 6.05 (Hazardous Materials and Nuisances).

7. In response to past complaints, the Respondent had written letters to the owner of Lot 77, Mr. Hamlin, who subsequently removed vehicles. Gila County also pursued a code enforcement action against Mr. Hamlin, which was dismissed in November 2013 after the property was determined to no longer be in violation of county ordinances.

8. The Petitioner bore the burden of proof to establish his claims by a “preponderance of the evidence.” This standard requires proof that a contention is more probably true than not. The Judge concluded that the Petitioner failed to meet this burden for either of his complaints.

9. The Judge concluded the Respondent did not abuse its discretion because it reasonably prioritized maintaining roads used by full-time residents given its limited financial resources. The decision noted that it would be an “absurdity” to expect perfect maintenance on all 20 miles of dirt roads and that the Petitioner’s lot remained accessible via the southern end of Sundance Lane.

10. The complaint was dismissed because the Petitioner failed to establish there was more than one inoperable vehicle on Lot 77 or that other issues were more than a transitory condition. The Judge found that the Respondent did monitor the lot, that the owner was generally responsive to requests, and that the items in question were behind the CC&R-required buffer zone and not easily visible from the Petitioner’s property.

——————————————————————————–

Essay Questions

Based on the source document, formulate a comprehensive response to the following prompts. Do not provide answers.

1. Analyze the concept of “reasonable discretion” as it applies to the Copper Canyon Ranches POA’s duties under the CC&Rs. How did the POA’s financial limitations and the physical characteristics of the development influence the Judge’s interpretation of this standard?

2. Evaluate the photographic evidence presented by both the Petitioner and the Respondent regarding the conditions of Sundance Lane and Lot 77. Discuss the strengths and weaknesses of each party’s visual evidence, including the use of different lenses and the timing of the photographs.

3. Discuss the challenges of enforcing CC&Rs in a large, rural community like Copper Canyon Ranches. Using the dispute over Lot 77 as a case study, explain the enforcement mechanisms available to the POA and the strategic reasons a board might choose not to pursue enforcement with a “heavy hand.”

4. Examine the legal standard of “preponderance of the evidence.” Explain how this burden of proof was applied to both of the Petitioner’s claims and detail the specific evidence (or lack thereof) that led the Judge to rule that the Petitioner had not met this standard.

5. Synthesize the evidence presented in the “Petitioner’s Efforts to Sell or Plans to Improve Lot 76” section. What does this evidence suggest about the Petitioner’s underlying motivations for filing the petition against the POA, and how did the Respondent use this history of complaints in its defense?

——————————————————————————–

Glossary of Key Terms

Definition within the Context of the Document

Administrative Law Judge (ALJ)

An official, in this case Diane Mihalsky, who presides over hearings at the Office of Administrative Hearings and makes decisions on petitions.

Burden of Proof

The obligation of a party (in this case, the Petitioner) to establish their claims by a preponderance of the evidence.

Covenants, Easements, Conditions, and Restrictions. These are the governing documents for the Copper Canyon Ranches community, stating they should be construed to protect the value and attractiveness of the property. They outline the POA’s powers and members’ obligations.

Copper Canyon Ranches

A rural development north of Globe, Arizona, consisting of 194 large, multi-acre parcels. It is the planned community governed by the Respondent POA.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona that conducts evidentiary hearings for petitions referred to it by other state bodies, such as the Department of Real Estate.

Petitioner

The party who filed the petition, Thomas J. Stedronsky. He is the owner of Lot 76 and a member of the Respondent association.

Preponderance of the Evidence

The standard of proof required in this case, defined as evidence that has the most convincing force and is sufficient to incline a fair mind to one side of an issue rather than the other.

Respondent

The party against whom the petition was filed, the Copper Canyon Ranches Property Owners’ Association (POA).

Roadways

Defined in the CC&Rs as all roads and rights-of-way that the Association owns or is obligated to maintain within the development.

Use Restrictions

A section (Section VI) of the CC&Rs that outlines rules for property owners regarding trash removal, storage of items, inoperable vehicles, and hazardous materials.

We Read a 14-Page HOA Lawsuit So You Don’t Have To. Here Are 4 Surprising Lessons.

Introduction: The Dream of a Rural Escape Meets Reality

For many homeowners, a letter from their Homeowners Association (HOA) or Property Owners’ Association (POA) is a source of instant frustration. It often feels like a one-sided relationship governed by arbitrary rules. But what happens when a homeowner decides they’ve had enough and takes their association to court?

The story of Thomas Stedronsky offers a fascinating glimpse into this exact scenario. In 2003, he purchased a 15-acre unimproved lot in a rugged, rural Arizona development called Copper Canyon Ranches, likely dreaming of a quiet escape. Crucially, he never built on the property and does not reside there. Over the years, that dream soured, leading him to sue his Property Owners’ Association over a “barely visible” road and a neighbor’s property that he claimed resembled a “junkyard.” The official court decision reveals several surprising and counter-intuitive lessons for any current or future homeowner.

——————————————————————————–

1. Your HOA Doesn’t Have to Be Perfect, Just “Reasonable”

One of Mr. Stedronsky’s core complaints was that Sundance Lane, the road leading to his remote lot, was in terrible condition. His photos showed a path that was overgrown, rocky, and barely visible. Meanwhile, he argued, other main roads in the development were wide and well-maintained. His argument was clear: the POA was failing in its duty. But the POA’s defense was grounded in the harsh realities of the terrain. The president testified that Sundance Lane wasn’t just any road; it was an “old two-track mining road from the 1940’s or 1950’s that has never been engineered that is too steep to be a perfect road.”

This historical context was bolstered by financial reality. The POA operated on a limited annual budget of only $35,000 to $40,000, which had to cover the maintenance of 20 miles of roadways. The board president testified that they made a strategic decision to prioritize maintenance on the roads used daily by the community’s approximately 35 full-time residents.

Ultimately, the judge ruled in favor of the POA. The court found that the association did not abuse its discretion. Prioritizing road maintenance based on usage and a limited budget was deemed a reasonable action. The key takeaway for homeowners is powerful: an HOA isn’t legally obligated to maintain every amenity to the same perfect standard, especially when faced with financial constraints. Their actions only need to be “reasonable.”

2. The “Rural Reality” Can Override Suburban Rules

Mr. Stedronsky’s second major complaint centered on his neighbor’s property, Lot 77, which he alleged was a junkyard filled with inoperable vehicles and clutter, violating the community’s Covenants, Conditions, and Restrictions (CC&Rs). To prove his point, he submitted photographic evidence taken with a telephoto lens. However, the credibility of his evidence was undermined when the court noted he had added his own notations to the photos—such as “All vehicles have been sitting for years”—which “were not apparent in the photograph.”

More importantly, the judge’s perspective was heavily influenced by the setting. In its final conclusion, the court officially determined that because Copper Canyon Ranches consists of large parcels in a remote area, “The CC&Rs also contemplate that parcel owners will have vehicles and other stored items on their parcels, as is common in remote rural areas.”

This point was brought to life by the colorful testimony of the POA president, Mr. Wilson. He explained that in rural areas, it’s common practice to leave vehicle hoods open. Why? To prevent mice and rats from nesting inside the engines. What looks like a clear violation in a manicured suburb is often standard, practical procedure in a rural development. This case shows that homeowner expectations—and an HOA’s enforcement standards—must adapt to the local context and culture.

3. Sometimes, an HOA’s Best Move IsNotto Enforce a Rule

Behind every HOA violation notice is a decision-making process, and this case pulls back the curtain on the strategic thinking involved. The POA president testified that they had, in fact, written letters to the owner of Lot 77, Mr. Hamlin, in the past and that he was “generally responsive.” However, they were hesitant to take a “heavy hand” with him, characterizing him as “the sort of man who would dig in his heels.”

The president’s testimony reveals a fascinating look into the pragmatic balancing act an HOA board must perform. He explained the board’s strategic calculation:

If Mr. Hamlin is pushed beyond the point where Lot 77 needs to be in compliance with the zoning code and CC&Rs, he will resist and Respondent will incur litigation costs that will decrease the amount of money available for road maintenance.

This is a crucial lesson in community governance. The board made a calculated decision that avoiding a costly and protracted legal battle with one resident was more beneficial for the community as a whole than strictly enforcing every rule to the letter. It was a choice between pursuing a single violation and preserving the limited funds needed for essential services for everyone.

4. An Unsellable Property Can Fuel a Losing Battle

While the lawsuit focused on roads and junkyards, the court documents reveal a deeper, underlying motivation. Mr. Stedronsky’s complaints were not new; they started as far back as 2009 and were often linked in his letters to his “inability to sell his property.” His frustration was made more tangible by the fact that he had informed the POA in 2013 that the lot was under contract for sale, a deal that apparently fell through.

From the POA’s perspective, the problem wasn’t the road or the neighbor—it was the lot itself. The board president described Lot 76 as “undesirable” because it was steep, rocky, and would require a significant amount of bulldozer work just to create a level place to build.

After years of complaints, the POA president sent a blunt and revealing letter to Mr. Stedronsky that was included as evidence in the case:

“You have been complaining to the POA since 2009 about your inability to sell your property. Many properties have been unable to sell due to Rural Rugged area. You sir are the only one blaming the POA and your neighbors for your inability to sell an undesirable property. The POA has done its due diligence in this matter. Please cease complaints to the POA on this matter.”

While Mr. Stedronsky’s frustration was evident, the judge ultimately found that he failed to meet the burden of proof for his claims. The case was dismissed. This serves as a powerful reminder that feeling wronged, even for years, is not enough to win a legal dispute.

——————————————————————————–

Conclusion: A Lesson in Pragmatism

The case of Lot 76 is a powerful story about the gap between homeowner expectations and the messy, pragmatic reality of community governance. It demonstrates that an association’s decisions are often a complex calculation involving limited budgets, local norms, and strategic risk management.

It reminds us that boards are not faceless corporations but groups of neighbors tasked with making difficult choices for the collective good. The next time you disagree with your HOA, will you see them as an adversary, or as a group of neighbors managing limited resources with “reasonable discretion”?

Case Participants

Petitioner Side

  • Thomas J Stedronsky (petitioner)
    Appeared and testified on his own behalf

Respondent Side

  • John S. Perlman (attorney)
    Copper Canyon Ranches POA
  • Joe Wilson (board president, witness)
    Copper Canyon Ranches POA
    Testified for Respondent

Neutral Parties

  • Diane Mihalsky (ALJ)
    OAH
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Recipient of the decision

Other Participants

  • Jerry Hamlin (property owner)
    Lot 77
    Subject of CC&R enforcement action
  • Helen Hamlin (property owner)
    Lot 77
    Named in Gila County enforcement action related to Lot 77

Charles Mandela vs. Blue Ridge Estates Homeowner Association

Posted on by

Case Summary

Case ID 18F-H1817006-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-12-06
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge denied the homeowner's petition, finding that the HOA did not violate its CC&Rs by allowing play structures on properties that already contained a detached garage or shed, because play structures are not easily convertible into a second residence, which was the underlying concern of the relevant CC&R section.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Charles Mandela Counsel —
Respondent Blue Ridge Estates Homeowner Association Counsel Brian C. Axt, Esq.

Alleged Violations

CC&Rs § 3.1(a); Architectural Committee Aligned Standard 3(D)

Outcome Summary

The Administrative Law Judge denied the homeowner's petition, finding that the HOA did not violate its CC&Rs by allowing play structures on properties that already contained a detached garage or shed, because play structures are not easily convertible into a second residence, which was the underlying concern of the relevant CC&R section.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated CC&R § 3.1. The ALJ determined that the HOA correctly clarified the status of play structures through an amendment to the Architectural Committee's regulations.

Key Issues & Findings

Alleged violation of CC&Rs § 3.1(a) and Architectural Committee regulation 3(D) regarding allowing play structures (swing sets, treehouses) when another detached structure (garage or shed) is present.

Petitioner alleged that the Respondent HOA violated CC&Rs § 3.1(a) and Architectural Committee regulation 3(D) by permitting members to construct play structures (swingsets, treehouses, etc.) on properties that already contained one detached structure (garage or shed), arguing that the rules allowed only one detached structure of any type.

Orders: Petitioner's petition is denied because he failed to establish that CC&R § 3.1 prohibits play structures under any circumstances. All play structures that the Architectural Committee has previously approved are allowed to remain, and the Architectural Committee may consider and grant future Play Structure Approval Requests.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

Topics: HOA governance, CC&R interpretation, detached structures, play structures, Architectural Committee regulations, burden of proof
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)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

18F-H1817006-REL Decision – 604710.pdf

Uploaded 2026-04-24T11:07:52 (155.4 KB)

18F-H1817006-REL Decision – 604710.pdf

Uploaded 2026-01-23T17:21:47 (155.4 KB)

Briefing Document: Mandela v. Blue Ridge Estates Homeowner Association (No. 18F-H1817006-REL)

Executive Summary

This document synthesizes the findings of an Administrative Law Judge (ALJ) decision regarding a dispute between a homeowner, Charles Mandela (“Petitioner”), and the Blue Ridge Estates Homeowner Association (“Respondent”). The core issue was whether the HOA violated its Covenants, Conditions, and Restrictions (CC&Rs) by permitting homeowners to install play structures (e.g., swing sets, treehouses) on lots that already contained another detached structure, such as a garage or shed.

The Petitioner argued that the HOA had historically enforced a strict “one detached structure” rule and that its recent allowance of play structures constituted a violation of CC&R § 3.1. In contrast, the Respondent contended that the underlying intent of the CC&Rs was to prevent secondary residential dwellings, not to prohibit recreational structures consistent with a family-oriented community. The HOA asserted it had properly amended its Architectural Committee regulations, not the CC&Rs, to clarify this distinction.

The ALJ ruled decisively in favor of the Respondent HOA. The central finding was that the intent of the restrictive covenant was to maintain the single-family residential character of the community. Because play structures cannot be easily converted into secondary residences, they are not inconsistent with this intent. The ALJ concluded that the HOA was not required to amend the CC&Rs (which requires a 75% member vote) but acted within its authority to amend its rules and regulations via a simple board vote. The Petitioner’s petition was denied.

Case Overview

• Case Number: 18F-H1817006-REL

• Parties:

◦ Petitioner: Charles Mandela

◦ Respondent: Blue Ridge Estates Homeowner Association

• Hearing Date: November 28, 2017

• Presiding Judge: Administrative Law Judge Diane Mihalsky

• Core Allegation: The Petitioner alleged that the Respondent HOA violated CC&R § 3.1(a) and Architectural Committee Aligned Standard 3(D) by allowing members to build play structures, swing sets, or treehouses on properties that already had another detached structure like a garage or shed.

Central Arguments and Presented Evidence

Petitioner’s Position (Charles Mandela)

The Petitioner’s case was built on the premise of a long-standing, strict interpretation of the “one detached structure” rule.

• Core Argument: For 18 years, the Respondent interpreted CC&R § 3.1 to permit only one detached structure on any given lot, regardless of its type.

• Evidence and Testimony:

◦ Historical Enforcement: Testified that between 2002 and 2016, the HOA enforced this rule by removing nine non-compliant structures, including a gazebo, a playhouse, an observation deck, and a zipline structure.

◦ 2006 Legal Opinion: Submitted a February 7, 2006, letter from the law firm Carpenter Hazlewood, PLC, which opined on the ambiguity of CC&R § 3.1. The letter stated, “It still appears that only one structure (garage or shed) is permitted,” and supported the HOA’s ability to “enforce the ‘one detached structure’ requirement.” The letter did not specifically mention play structures.

◦ Invalid Approval Form: Presented a “Play Structure Approval Request” form he had drafted while on the board. This form incorrectly stated that the Board of Directors had voted on June 25, 2016, “to adopt changes to the CCR’s [sic], which will allow play structures.” Petitioner argued this was invalid because changing the CC&Rs requires a 75% vote of the membership, which was not obtained.

◦ Ancillary Documents: Submitted documents related to a housing discrimination claim filed by the HOA’s current president, Joseph Hancock, and a letter concerning another member. Petitioner testified these matters involved play structures, though the documents themselves did not mention CC&R § 3.1.

Respondent’s Position (Blue Ridge Estates HOA)

The Respondent’s defense centered on the purpose of the CC&Rs and its authority as a board to clarify and amend its own rules and regulations.

• Core Argument: The HOA did not violate the CC&Rs because the intent of the relevant articles is to prohibit secondary residential dwellings, not recreational structures suitable for a community intended to be a “uniquely planned recreation property.”

• Evidence and Testimony:

◦ Community Status: There are currently 16 swingsets or play structures within the 193-lot development. The HOA president, Joseph Hancock, testified he has a swingset used by his children, grandchildren, and neighbors.

◦ Legal Counsel: The HOA retained the firm of Poli & Ball, PLC, which opined that because the community is for recreation and family use, “[p]lay structures are perfectly consistent with recreation and family use.” The firm advised that the Architectural Committee’s regulations could be changed to reflect this without amending the CC&Rs. Another law firm, Carpenter Hazlewood, generally agreed with this opinion.

◦ Correction of Clerical Error: Mr. Hancock testified that the form submitted by the Petitioner contained a typographical error. The board’s intent in its June 25, 2016, vote was to amend the Architectural Committee’s regulations, not the CC&Rs.

◦ Board Meeting Minutes: The HOA submitted minutes from board meetings in December 2016 and October 2017. These minutes document the board’s discovery of the error on the website form and subsequent votes to formally clarify that the change was to the rules and regulations, not the CC&Rs, thereby ratifying its decision.

◦ Amended Approval Form: Respondent submitted the corrected “Play Structure Approval Request” form, which states, “Per the modified Rules and Regulations dated April 6, 2016, this form must be submitted to Architectural Committee for approval of any Play Structure.”

Governing Rules and Covenants

The dispute hinged on the interpretation and interplay of several key provisions in the community’s governing documents.

Document / Section

Key Provision

CC&R § 3.1

“No building or structure shall be erected or maintained separate from the Single Family Residence located on any Lot, other than a garage… No garage or shed shall be built prior to the issuance of a Coconino County building permit for the construction of a Single Family Residence.”

Architectural Regulation 3(D)

“One detached structure may, with Architectural Committee approval, be constructed on a property. The residence must be constructed and completed before the detached structure is built.”

CC&R § 4.2

“By a majority vote of the Board, the Association may, from time to time… adopt, amend and repeal rules and regulations to be known as the ‘Rules and Regulations.’”

CC&R § 12.2

Amending the Declaration of CC&Rs requires “the affirmative vote… or written consent of Members owning at least seventy-five percent (75%) of all Lots.”

Administrative Law Judge’s Findings and Legal Rationale

The ALJ found that the Petitioner failed to meet his burden of proof and that the Respondent acted properly within its authority.

• Intent of the Covenant: The Judge determined that CC&R Article III is fundamentally “concerned with keeping Respondent single-family residential by prohibiting structures and vehicles that could be used as a second residential dwelling on a lot.” This interpretation is supported by other rules in the article prohibiting mobile homes and clarifying that “If you can live/sleep in it, you cannot park it” in the development.

• Status of Play Structures: The decision concludes that a play structure “cannot be easily converted into a second residence.” Therefore, permitting a play structure in addition to a garage or shed is not inconsistent with the primary purpose of CC&R § 3.1.

• Board Authority vs. Member Vote: Because allowing play structures was not inconsistent with the CC&Rs, the Respondent was not required to amend the CC&Rs through a 75% member vote. Instead, the Board was empowered by CC&R § 4.2 to “amend the Architectural Committee’s regulations to provide clarification on the status of play structures” through a majority vote of the Board.

• History of Enforcement: The Judge found that the Petitioner failed to establish a uniform history of enforcement against play structures. Rather, “it appears that the status of play structures, swingsets, and tree houses has been unsettled and the subject of some contention,” partly due to the Petitioner’s own advocacy.

• Conclusion: The Respondent properly resolved the ambiguity by amending its regulations.

Final Order and Implications

• Decision: The petition was denied because the Petitioner did not establish that CC&R § 3.1 prohibits play structures under any circumstances.

• Outcome for the Community:

1. The HOA’s amendment of its rules to explicitly permit play structures was deemed valid.

2. All play structures previously approved by the Architectural Committee are allowed to remain on members’ properties.

3. The Architectural Committee is authorized to consider and approve future Play Structure Approval Requests that are submitted in accordance with the established regulations.

Study Guide for Administrative Law Judge Decision No. 18F-H1817006-REL

Quiz: Short-Answer Questions

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

1. Who were the primary parties in case No. 18F-H1817006-REL, and what was their relationship?

2. What specific violation did the Petitioner, Charles Mandela, allege against the Respondent?

3. What is the legal standard of proof required in this case, and which party bears the initial burden?

4. According to the CC&Rs, what is the procedural difference between amending the CC&Rs and amending the “Rules and Regulations”?

5. What was the Petitioner’s primary evidence to support his claim that the HOA historically enforced a “one detached structure” rule?

6. How did the Respondent, Blue Ridge Estates HOA, legally justify its decision to permit play structures even on lots that already had a detached garage or shed?

7. How did the Respondent explain the document from its website which stated that the Board had voted to “adopt changes to the CCR’s”?

8. What did the law firm Poli & Ball conclude regarding the permissibility of play structures within the community?

9. What did Administrative Law Judge Diane Mihalsky determine was the primary intent of Article III of the CC&Rs?

10. What was the final Recommended Order issued by the Administrative Law Judge in this case?

——————————————————————————–

Quiz Answer Key

1. The primary parties were the Petitioner, Charles Mandela, and the Respondent, Blue Ridge Estates Homeowner Association. Mr. Mandela is a homeowner within the Blue Ridge Estates development and a member of the homeowners’ association.

2. The Petitioner alleged that the Respondent violated CC&Rs § 3.1(a) and Architectural Committee regulation 3(D). He claimed the HOA wrongly allowed members to build play structures, swing sets, or treehouses on their properties when another detached structure, such as a garage or shed, already existed.

3. The legal standard is “preponderance of the evidence,” which means the evidence must convince the judge that a contention is more probably true than not. The Petitioner, Charles Mandela, bears the initial burden of proof to establish that a violation occurred.

4. To amend the CC&Rs (the Declaration), an affirmative vote or written consent from members owning at least 75% of all lots is required. In contrast, the Board of Directors can adopt, amend, or repeal “Rules and Regulations” by a simple majority vote of the Board.

5. The Petitioner testified that between 2002 and 2016, the HOA removed nine non-compliant structures, including a gazebo and a playhouse. He also submitted a 2006 letter from the law firm Carpenter Hazlewood, which opined that the HOA could enforce a “one detached structure” requirement.

6. The Respondent argued that the intent of the CC&Rs was to prevent second residential dwellings on a lot, not to prohibit recreational items consistent with a family community. Therefore, the Board acted within its authority under CC&R § 4.2 to amend the Architectural Committee’s regulations to clarify that play structures are permitted.

7. The Respondent’s president, Joseph Hancock, testified that the wording was a typographical error made by the previous Chair of the Architectural Committee (the Petitioner). Board meeting minutes from December 2016 and October 2017 were submitted as evidence to show the Board’s actual intent was to modify the rules and regulations, not the CC&Rs.

8. The Poli & Ball law firm opined that play structures are “perfectly consistent with recreation and family use” in a community intended to be a planned recreation property. The firm concluded that the HOA could change the Architectural Committee’s regulations to allow them as long as the change was consistent with the CC&Rs.

9. The Judge concluded that the purpose of Article III is to keep the community single-family residential by prohibiting structures and vehicles that could be used as a second dwelling. Since a play structure cannot be easily converted into a second residence, allowing one did not violate the intent of the CC&Rs.

10. The Judge ordered that the Petitioner’s petition be denied. The Judge found that the Petitioner had not established that CC&R § 3.1 prohibits play structures under any circumstances, and that the HOA had properly resolved the issue by amending its regulations.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response for each, drawing upon specific facts, arguments, and legal principles from the source document.

1. Discuss the critical distinction between amending the community’s CC&Rs and amending the Architectural Committee’s regulations. Explain how this distinction became the central pivot upon which the entire case turned.

2. Analyze the evidence presented by both the Petitioner and the Respondent. Evaluate the strengths and weaknesses of each party’s exhibits and testimony, and explain why the Administrative Law Judge ultimately found the Respondent’s evidence more persuasive.

3. The “Conclusions of Law” section discusses the legal principle of interpreting restrictive covenants based on the “intent of the parties.” How did Judge Mihalsky apply this principle to CC&R § 3.1, and how did the community’s stated purpose as a “uniquely planned recreation property” influence this interpretation?

4. Charles Mandela, the Petitioner, was a former board member and president of the Architectural Committee who drafted one of the key documents in question. Discuss how his past involvement in HOA governance may have shaped his legal position and the evidence he presented.

5. Trace the timeline of the “play structure” controversy as detailed in the hearing evidence, from the 2015 discrimination claim to the “clarification vote” in October 2017. How does this sequence of events illustrate the challenges of community governance and rule interpretation within a homeowners’ association?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent, impartial judge who presides over administrative hearings at government agencies. In this case, the ALJ from the Office of Administrative Hearings heard the dispute between the homeowner and the HOA.

Architectural Committee

A committee within the homeowners’ association responsible for approving any construction, alteration, or improvement to the exterior of any property to ensure it complies with community standards.

Burden of Proof

The obligation of a party in a legal case to prove their allegations. In this hearing, the Petitioner had the burden to prove his claims by a preponderance of the evidence.

CC&Rs (Covenants, Conditions, and Restrictions)

A legally binding document that governs a planned community or subdivision. It outlines the rights and obligations of the homeowners and the homeowners’ association.

Declaration

The formal legal document that creates the homeowners’ association and its CC&Rs. In this case, amending the Declaration required a 75% vote of the members.

Detached Structure

A building on a property that is separate from the main residence. The dispute centered on whether play structures counted as the “one detached structure” permitted by the CC&Rs.

Improvements

A broad term defined in the CC&Rs (§ 1.17) to include buildings, garages, fences, walls, landscaping, and all other structures of every type and kind on a property.

Jurisdiction

The official power to make legal decisions and judgments. The judge noted that if Title 33 did not apply, the Office of Administrative Hearings would lack jurisdiction to hear the case.

Petitioner

The party who files a petition initiating a legal action. In this case, homeowner Charles Mandela.

Preponderance of the Evidence

The standard of proof in most civil cases. It requires the trier of fact (the judge) to be convinced that a claim is more probably true than not.

Respondent

The party against whom a petition is filed. In this case, the Blue Ridge Estates Homeowner Association.

Restrictive Covenant

A provision in a deed or CC&Rs that limits the use of the property. The “one detached structure” rule is an example of a restrictive covenant.

Single Family Residential Use

The designated purpose of the properties in Blue Ridge Estates, meaning they are to be used exclusively as private homes for single families, not for commercial or multi-family dwelling purposes.

Briefing Document: Mandela v. Blue Ridge Estates Homeowner Association (No. 18F-H1817006-REL)

Executive Summary

This document synthesizes the findings of an Administrative Law Judge (ALJ) decision regarding a dispute between a homeowner, Charles Mandela (“Petitioner”), and the Blue Ridge Estates Homeowner Association (“Respondent”). The core issue was whether the HOA violated its Covenants, Conditions, and Restrictions (CC&Rs) by permitting homeowners to install play structures (e.g., swing sets, treehouses) on lots that already contained another detached structure, such as a garage or shed.

The Petitioner argued that the HOA had historically enforced a strict “one detached structure” rule and that its recent allowance of play structures constituted a violation of CC&R § 3.1. In contrast, the Respondent contended that the underlying intent of the CC&Rs was to prevent secondary residential dwellings, not to prohibit recreational structures consistent with a family-oriented community. The HOA asserted it had properly amended its Architectural Committee regulations, not the CC&Rs, to clarify this distinction.

The ALJ ruled decisively in favor of the Respondent HOA. The central finding was that the intent of the restrictive covenant was to maintain the single-family residential character of the community. Because play structures cannot be easily converted into secondary residences, they are not inconsistent with this intent. The ALJ concluded that the HOA was not required to amend the CC&Rs (which requires a 75% member vote) but acted within its authority to amend its rules and regulations via a simple board vote. The Petitioner’s petition was denied.

Case Overview

• Case Number: 18F-H1817006-REL

• Parties:

◦ Petitioner: Charles Mandela

◦ Respondent: Blue Ridge Estates Homeowner Association

• Hearing Date: November 28, 2017

• Presiding Judge: Administrative Law Judge Diane Mihalsky

• Core Allegation: The Petitioner alleged that the Respondent HOA violated CC&R § 3.1(a) and Architectural Committee Aligned Standard 3(D) by allowing members to build play structures, swing sets, or treehouses on properties that already had another detached structure like a garage or shed.

Central Arguments and Presented Evidence

Petitioner’s Position (Charles Mandela)

The Petitioner’s case was built on the premise of a long-standing, strict interpretation of the “one detached structure” rule.

• Core Argument: For 18 years, the Respondent interpreted CC&R § 3.1 to permit only one detached structure on any given lot, regardless of its type.

• Evidence and Testimony:

◦ Historical Enforcement: Testified that between 2002 and 2016, the HOA enforced this rule by removing nine non-compliant structures, including a gazebo, a playhouse, an observation deck, and a zipline structure.

◦ 2006 Legal Opinion: Submitted a February 7, 2006, letter from the law firm Carpenter Hazlewood, PLC, which opined on the ambiguity of CC&R § 3.1. The letter stated, “It still appears that only one structure (garage or shed) is permitted,” and supported the HOA’s ability to “enforce the ‘one detached structure’ requirement.” The letter did not specifically mention play structures.

◦ Invalid Approval Form: Presented a “Play Structure Approval Request” form he had drafted while on the board. This form incorrectly stated that the Board of Directors had voted on June 25, 2016, “to adopt changes to the CCR’s [sic], which will allow play structures.” Petitioner argued this was invalid because changing the CC&Rs requires a 75% vote of the membership, which was not obtained.

◦ Ancillary Documents: Submitted documents related to a housing discrimination claim filed by the HOA’s current president, Joseph Hancock, and a letter concerning another member. Petitioner testified these matters involved play structures, though the documents themselves did not mention CC&R § 3.1.

Respondent’s Position (Blue Ridge Estates HOA)

The Respondent’s defense centered on the purpose of the CC&Rs and its authority as a board to clarify and amend its own rules and regulations.

• Core Argument: The HOA did not violate the CC&Rs because the intent of the relevant articles is to prohibit secondary residential dwellings, not recreational structures suitable for a community intended to be a “uniquely planned recreation property.”

• Evidence and Testimony:

◦ Community Status: There are currently 16 swingsets or play structures within the 193-lot development. The HOA president, Joseph Hancock, testified he has a swingset used by his children, grandchildren, and neighbors.

◦ Legal Counsel: The HOA retained the firm of Poli & Ball, PLC, which opined that because the community is for recreation and family use, “[p]lay structures are perfectly consistent with recreation and family use.” The firm advised that the Architectural Committee’s regulations could be changed to reflect this without amending the CC&Rs. Another law firm, Carpenter Hazlewood, generally agreed with this opinion.

◦ Correction of Clerical Error: Mr. Hancock testified that the form submitted by the Petitioner contained a typographical error. The board’s intent in its June 25, 2016, vote was to amend the Architectural Committee’s regulations, not the CC&Rs.

◦ Board Meeting Minutes: The HOA submitted minutes from board meetings in December 2016 and October 2017. These minutes document the board’s discovery of the error on the website form and subsequent votes to formally clarify that the change was to the rules and regulations, not the CC&Rs, thereby ratifying its decision.

◦ Amended Approval Form: Respondent submitted the corrected “Play Structure Approval Request” form, which states, “Per the modified Rules and Regulations dated April 6, 2016, this form must be submitted to Architectural Committee for approval of any Play Structure.”

Governing Rules and Covenants

The dispute hinged on the interpretation and interplay of several key provisions in the community’s governing documents.

Document / Section

Key Provision

CC&R § 3.1

“No building or structure shall be erected or maintained separate from the Single Family Residence located on any Lot, other than a garage… No garage or shed shall be built prior to the issuance of a Coconino County building permit for the construction of a Single Family Residence.”

Architectural Regulation 3(D)

“One detached structure may, with Architectural Committee approval, be constructed on a property. The residence must be constructed and completed before the detached structure is built.”

CC&R § 4.2

“By a majority vote of the Board, the Association may, from time to time… adopt, amend and repeal rules and regulations to be known as the ‘Rules and Regulations.’”

CC&R § 12.2

Amending the Declaration of CC&Rs requires “the affirmative vote… or written consent of Members owning at least seventy-five percent (75%) of all Lots.”

Administrative Law Judge’s Findings and Legal Rationale

The ALJ found that the Petitioner failed to meet his burden of proof and that the Respondent acted properly within its authority.

• Intent of the Covenant: The Judge determined that CC&R Article III is fundamentally “concerned with keeping Respondent single-family residential by prohibiting structures and vehicles that could be used as a second residential dwelling on a lot.” This interpretation is supported by other rules in the article prohibiting mobile homes and clarifying that “If you can live/sleep in it, you cannot park it” in the development.

• Status of Play Structures: The decision concludes that a play structure “cannot be easily converted into a second residence.” Therefore, permitting a play structure in addition to a garage or shed is not inconsistent with the primary purpose of CC&R § 3.1.

• Board Authority vs. Member Vote: Because allowing play structures was not inconsistent with the CC&Rs, the Respondent was not required to amend the CC&Rs through a 75% member vote. Instead, the Board was empowered by CC&R § 4.2 to “amend the Architectural Committee’s regulations to provide clarification on the status of play structures” through a majority vote of the Board.

• History of Enforcement: The Judge found that the Petitioner failed to establish a uniform history of enforcement against play structures. Rather, “it appears that the status of play structures, swingsets, and tree houses has been unsettled and the subject of some contention,” partly due to the Petitioner’s own advocacy.

• Conclusion: The Respondent properly resolved the ambiguity by amending its regulations.

Final Order and Implications

• Decision: The petition was denied because the Petitioner did not establish that CC&R § 3.1 prohibits play structures under any circumstances.

• Outcome for the Community:

1. The HOA’s amendment of its rules to explicitly permit play structures was deemed valid.

2. All play structures previously approved by the Architectural Committee are allowed to remain on members’ properties.

3. The Architectural Committee is authorized to consider and approve future Play Structure Approval Requests that are submitted in accordance with the established regulations.

Case Participants

Petitioner Side

  • Charles Mandela (petitioner)
    Appeared and testified on his own behalf; previously served as president of the Architectural Committee.

Respondent Side

  • Brian C. Axt (attorney)
    Resnick & Louis, P.C.
    Represented Blue Ridge Estates Homeowner Association.
  • Joseph Hancock (board member)
    Blue Ridge Estates Homeowner Association
    Board's president; presented testimony/witness for Respondent.
  • Jason Miller (counsel)
    Carpenter Hazlewood
    Provided an email opinion supporting the Respondent's position.

Neutral Parties

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

John Shields vs. Will Rogers Equestrian Ranch

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

CC&R § 6.2(A)

Outcome Summary

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

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

Key Issues & Findings

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

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

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

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

17F-H1717034-REL Decision – 619560.pdf

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

17F-H1717034-REL Decision – 592935.pdf

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

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

Executive Summary

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

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

I. Case Overview

Case Name

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

Case Number

17F-H1717034-REL-RHG

Jurisdiction

Office of Administrative Hearings, Phoenix, Arizona

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Date of Decision

February 26, 2018

Core Dispute

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

Final Outcome

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

II. Petitioner’s Claim and Arguments

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

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

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

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

III. Respondent’s Position and Evidence

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

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

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

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

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

IV. Chronology of Key Events

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

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

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

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

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

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

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

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

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

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

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

This section governs alterations to shared fences and walls.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

VII. Final Order

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

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

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

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

Study Guide: Shields v. Will Rogers Equestrian Ranch

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

Short-Answer Quiz

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

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

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

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

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

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

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

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

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

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

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

——————————————————————————–

Answer Key

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

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

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

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

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

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

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

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

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

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

——————————————————————————–

Essay Questions

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

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

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

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

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

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

——————————————————————————–

Glossary of Key Terms

Definition in Context

Administrative Law Judge (ALJ)

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

Architectural Control Committee (“the Committee”)

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

A.R.S. § 32-2199.01

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

Burden of Proof

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

Covenants, Conditions, and Restrictions (CC&Rs)

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

Homeowners’ Association (HOA)

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

Party Wall

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

Petitioner

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

Preponderance of the Evidence

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

Rehearing

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

Respondent

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

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

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

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

——————————————————————————–

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

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

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

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

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

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

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

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

3. Building First and Asking Permission Later Creates Confusion

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

The timeline further illustrates the breakdown in process:

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

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

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

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

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

4. The Burden of Proof Rests Entirely on You

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

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

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

——————————————————————————–

Conclusion: Know Your Rules, Not Just Your Rights

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

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

Case Participants

Petitioner Side

  • John Shields (petitioner)

Respondent Side

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

Neutral Parties

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

Richard Long vs. Pebble Creek Resort Community

Posted on by

Case Summary

Case ID 17F-H1717037-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-09-06
Administrative Law Judge Diane Mihalsky
Outcome The ALJ denied the petition, concluding that the homeowner failed to meet the burden of proof demonstrating the HOA violated community documents by refusing the requested block wall. The wall was prohibited by CC&Rs and ALC Guidelines because it was planned for just inside the property line and excluded the adjacent owner from use, potentially leading to prohibited parallel walls.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Richard Long Counsel —
Respondent Pebble Creek Resort Community Counsel —

Alleged Violations

A.R.S. § 41-2198.01; CC&Rs § 1(Hh), 2(P)(i); ALC Guideline SS(4)(a)

Outcome Summary

The ALJ denied the petition, concluding that the homeowner failed to meet the burden of proof demonstrating the HOA violated community documents by refusing the requested block wall. The wall was prohibited by CC&Rs and ALC Guidelines because it was planned for just inside the property line and excluded the adjacent owner from use, potentially leading to prohibited parallel walls.

Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated the CC&Rs and ALC Guidelines.

Key Issues & Findings

Refusal to approve construction of a 10’ long, 6’ high block wall for privacy

Petitioner sought approval for a 10’ long, 6’ high block wall for privacy, built a foot or so inside his property line, designed to prevent adjacent neighbors (the Rohlmans) from using it. Respondent denied the wall based on community documents restricting such constructions to avoid parallel walls and requiring party walls to be on or immediately adjacent to the property line, granting contiguous owners the right to use them.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • CC&R § 1(Hh)
  • CC&R § 2(P)(i)
  • ALC Guideline SS(4)(a)
  • 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)

Analytics Highlights

Topics: HOA, Block Wall, Privacy Wall, CC&Rs, ALC Guidelines, Party Wall
Additional Citations:

  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • CC&R § 1(Hh)
  • CC&R § 2(P)(i)
  • ALC Guideline SS(4)(a)

Video Overview

Audio Overview

Decision Documents

17F-H1717037-REL Decision – 586501.pdf

Uploaded 2026-04-24T11:05:32 (117.9 KB)

17F-H1717037-REL Decision – 588547.pdf

Uploaded 2026-04-24T11:05:36 (1013.5 KB)

17F-H1717037-REL Decision – 586501.pdf

Uploaded 2026-01-23T17:20:42 (117.9 KB)

17F-H1717037-REL Decision – 588547.pdf

Uploaded 2026-01-23T17:20:45 (1013.5 KB)

Briefing: Case No. 17F-H1717037-REL, Long v. Pebble Creek Resort Community

Executive Summary

This document provides a comprehensive analysis of the administrative hearing and final decision concerning a dispute between homeowner Richard Long (“Petitioner”) and the Pebble Creek Resort Community homeowners’ association (“Respondent”). The core of the dispute was the Petitioner’s request to build a 10-foot long, 6-foot high block privacy wall approximately one foot inside his property line, which the Respondent’s Architectural Landscape Committee (ALC) denied.

The Administrative Law Judge (ALJ) ultimately denied the petition, a decision that was subsequently adopted as a Final Order by the Arizona Department of Real Estate. The central finding was that the Respondent’s governing documents—specifically the Covenants, Conditions, and Restrictions (CC&Rs) and ALC Guidelines—unequivocally prohibit the proposed wall. The ALJ concluded that a wall built so close to a property line is defined as a “Party Wall,” which must be constructed “on or immediately adjacent to” the boundary and be usable by both property owners. The Petitioner’s proposal violated these foundational rules by being set back from the property line with the explicit intent of preventing neighbor access and use.

The Respondent had offered a conditional variance for a wall to be built directly on the property line, but this required a mutual “Party Wall/Fence Agreement” with the adjacent neighbor, who refused to sign, citing concerns over property value and the legal complexity of a perpetual easement. The final ruling affirmed the Respondent’s authority to enforce its governing documents as written.

Case Overview

The matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed by the Petitioner with the Arizona Department of Real Estate. The Petitioner alleged that the Respondent HOA had violated its own governing documents by refusing to approve his proposed wall.

Case Detail

Information

Case Name

Richard Long, Petitioner, v. Pebble Creek Resort Community, Respondent

Case Number

No. 17F-H1717037-REL / HO 17-17/037

Office of Administrative Hearings (Phoenix, Arizona)

Petitioner

Richard Long (Appeared on his own behalf)

Respondent

Pebble Creek Resort Community (Represented by Jack Sarsam, SVP for Robson Communities)

Administrative Law Judge

Diane Mihalsky

Real Estate Commissioner

Judy Lowe

Hearing Date

August 30, 2017

ALJ Decision Date

September 6, 2017

Final Order Date

September 14, 2017

Core Dispute and Party Positions

Petitioner’s Proposal and Argument (Richard Long)

• Project: A 10-foot long, 6-foot high block wall intended to provide privacy between his patio and the patio of his adjacent neighbors, the Rohlmans.

• Proposed Location: “A foot or so inside his side of the property line.”

• Stated Intent: To construct a wall to which his neighbors could not attach or otherwise use. The Petitioner testified that if the Rohlmans later wanted their own wall (e.g., for a pool or pet), they could build a separate, parallel wall on their property.

• Rejection of Alternatives: The Petitioner acknowledged that the ALC would approve a “privacy panel wall” made of alumawood or lattice, but he rejected this option, deeming it “unsightly and flimsy.”

• Core Claim: The Petitioner argued that the Respondent’s CC&Rs and ALC Guidelines did not explicitly prohibit the construction of his proposed block wall at its intended location inside his property line.

Respondent’s Position and Actions (Pebble Creek HOA)

• Initial Action: The ALC denied the Petitioner’s request.

• Rationale for Denial: The Respondent explained that walls near lot lines can become problematic, particularly if they result in “two parallel walls.” This situation can create a narrow, inaccessible space between the walls that is difficult to maintain and “becomes filled with refuse, leaves, insects, nests and rodents.”

• Conditional Variance: On May 1, 2017, the Respondent offered to approve a variance with several key conditions:

1. The wall must be constructed directly on the property line.

2. Both the Petitioner and the Rohlmans must sign a written “Party Wall/Fence Agreement” (Form ALC 48).

3. This agreement must grant current and future owners permission to “extend/complete the wall” and must be disclosed upon the sale of either home.

4. The signed agreement would be kept in the ALC files for both properties.

Neighbor’s Position (The Rohlmans)

• The Rohlmans declined to sign the Party Wall/Fence Agreement proposed by the Respondent.

• In an email submitted as evidence, they outlined their reasons for refusal:

◦ Property Value: They believed a wall on the property line would negatively affect the “current and future value” of both properties.

◦ Legal Complexity: The agreement would require granting a perpetual easement, which they identified as a legal document entailing legal expenses.

◦ Disclosure upon Sale: The easement would have to be disclosed to future buyers, which they argued “lowers the value of the property.”

◦ Future Construction: A wall on the property line could be extended by either party or future owners “without the agreement of the other party.”

◦ They concluded that “All of these requirements are onerous.”

Analysis of Governing Documents

The ALJ’s decision rested on a direct interpretation of four key sections of the community’s CC&Rs and ALC Guidelines.

• CC&R § 1(Hh) – Definition of “Party Walls”

◦ This section defines a party wall as: “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.”

◦ The ALJ found that the Petitioner’s proposal for a wall “a foot or so inside” the property line did not meet this definition.

• CC&R § 2(P)(i) – Use of Party Walls

◦ This rule states: “Each Owner shall have the right to use the Party Wall, provided that such use does not interfere with the other Owner’s use and enjoyment thereof.”

◦ This directly contradicted the Petitioner’s goal of building a wall that his neighbors would be prohibited from using.

• ALC Guideline SS(4)(a) – Parallel Walls

◦ This guideline explicitly states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.”

◦ The Petitioner’s own testimony acknowledged the possibility of his neighbor building a parallel wall in the future, a scenario the guidelines are designed to prevent.

• ALC Guideline JJ – “Privacy Panel Wall”

◦ This section details the pre-approved alternative for privacy screening. Such a wall must be:

▪ Free-standing alumawood.

▪ Six feet in height and no more than sixteen feet in length.

▪ Located “at least three (3) feet from the property line.”

◦ This demonstrates a clear distinction in the rules between a shared “Party Wall” near the boundary and a private “Privacy Panel” set significantly back from it.

Administrative Law Judge’s Decision and Rationale

The ALJ, Diane Mihalsky, concluded that the Petitioner failed to meet his burden of proof to establish that the Respondent had violated its governing documents.

• Key Findings of Law:

1. A block wall built “a foot inside the property line” does not conform to CC&R § 1(Hh), which requires a party wall to be “on or immediately adjacent to” the boundary.

2. The Petitioner’s intent to deny his neighbor the use of the wall violates CC&R § 2(P)(i), which grants both owners rights to use a party wall.

3. The Petitioner’s proposal creates the potential for prohibited parallel walls, violating ALC Guideline SS(4)(a).

• Conclusion: The ALJ stated that the community’s documents “unequivocally prohibit Respondent from building a 6’ high, 10’ long block wall a foot from his property line that the Rohlmans are not permitted to use.”

• Recommended Order: On September 6, 2017, the ALJ issued a recommended order that the Petitioner’s petition be denied.

Final Order and Subsequent Actions

• Adoption of Decision: On September 14, 2017, Judy Lowe, Commissioner of the Arizona Department of Real Estate, issued a Final Order adopting the ALJ’s decision in its entirety.

• Effect of Order: The denial of the petition became final, binding, and effective immediately.

• Conditions for Rehearing: The Final Order stipulated that a rehearing could be granted pursuant to A.R.S. § 32-2199.04, but only for one of the following reasons:

1. Irregularity in proceedings or abuse of discretion by the ALJ.

2. Misconduct by the Department, ALJ, or prevailing party.

3. Accident or surprise that could not have been prevented.

4. Newly discovered material evidence.

5. Excessive or insufficient penalties.

6. Error in the admission or rejection of evidence.

7. The decision is arbitrary, capricious, or an abuse of discretion.

8. The findings of fact are not supported by the evidence or are contrary to law.

• Judicial Review: The order is subject to judicial review through the filing of a complaint pursuant to state law.

Study Guide: Long v. Pebble Creek Resort Community (Case No. 17F-H1717037-REL)

This study guide provides a review of the administrative hearing decision concerning a dispute between homeowner Richard Long and the Pebble Creek Resort Community homeowners’ association. It covers the facts of the case, the arguments presented, the relevant community rules, and the final legal outcome.

——————————————————————————–

Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences, based on the information provided in the case documents.

1. What was the specific structure that the Petitioner, Richard Long, proposed to build, and what was its intended purpose?

2. On what grounds did the Respondent, Pebble Creek Resort Community, justify its restrictions against the type of wall the Petitioner proposed?

3. What conditional variance did the Respondent offer to the Petitioner on May 1, 2017?

4. What were the primary concerns expressed by the Petitioner’s neighbors, the Rohlmans, which led them to decline the proposed wall agreement?

5. According to ALC Guideline JJ, what alternative structure could the Petitioner have built for privacy, and what were its key requirements?

6. How do the CC&Rs define a “Party Wall,” and what right does CC&R § 2(P)(i) grant to contiguous property owners regarding such a wall?

7. What rule from the ALC Guidelines prohibits the construction of two parallel walls side-by-side, and why is this rule in place?

8. What is the legal standard of “preponderance of the evidence” as defined in the hearing decision?

9. Who held the burden of proof to establish that the homeowners’ association violated its governing documents?

10. What was the final, binding outcome of the case after the Administrative Law Judge’s decision was reviewed?

——————————————————————————–

Answer Key

1. The Petitioner proposed to build a 10-foot long, 6-foot high block wall for privacy between his patio and his neighbor’s patio. The wall was to be located a foot or so inside his side of the property line, so his neighbors could not attach to it.

2. The Respondent explained that walls built near, but not on, the property line can lead to problems. This can result in two parallel walls being built, creating an unmaintainable space between them that collects refuse, leaves, insects, nests, and rodents.

3. The Respondent approved a variance on the condition that the wall be built on the property line. Both the Petitioner and his neighbors (the Rohlmans) had to agree in writing that current or future owners could extend the wall, with this agreement being disclosed upon sale of either house.

4. The Rohlmans declined because they believed a wall on the property line would negatively affect their property’s value. They were also concerned about the legal expense and perpetual nature of an easement, and the possibility that future owners could lengthen the wall without consent.

5. ALC Guideline JJ permits a “privacy panel wall,” which is a free-standing alumawood wall. This wall must be 6 feet high, no longer than 16 feet, and located at least 3 feet from the property line. The Petitioner rejected this option, feeling it was “unsightly and flimsy.”

6. CC&R § 1(Hh) defines a “Party Wall” as a wall constructed on or immediately adjacent to the common boundary of lots. CC&R § 2(P)(i) states that each owner of a contiguous property has the right to use the Party Wall, provided it does not interfere with the other owner’s use.

7. ALC Guideline SS(4)(a) states that an existing party wall along a joint property line “precludes any adjacent parallel party wall.” This rule is in place to prevent the negative situation described by the Respondent where a difficult-to-maintain space is created between two walls.

8. A “preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. It is also described as “the greater weight of the evidence” that is sufficient to incline a fair mind to one side of an issue over the other.

9. The Petitioner, Richard Long, bore the burden of proof. He had to establish by a preponderance of the evidence that the Respondent violated the CC&Rs and ALC Guidelines.

10. The Administrative Law Judge (ALJ) denied the Petitioner’s petition, and this decision was adopted by the Commissioner of the Department of Real Estate, becoming a Final Order. The Order is binding on the parties unless a rehearing is granted.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a longer, essay-style response. Use the case documents to formulate a comprehensive answer supported by specific facts and citations to the community’s governing documents.

1. Analyze the conflict between the Petitioner’s desire for a specific type of privacy structure and the Respondent’s interpretation of the community’s CC&Rs and ALC Guidelines. How did the governing documents prioritize community standards and potential future problems over an individual homeowner’s preference?

2. Discuss the role and reasoning of the Petitioner’s neighbors, the Rohlmans. Evaluate their concerns regarding property value, easements, and future modifications as presented in their email, and explain how their refusal to sign the agreement was a critical factor in the dispute.

3. Explain the legal reasoning used by Administrative Law Judge Diane Mihalsky to reach her decision. Detail which specific sections of the CC&Rs and ALC Guidelines were most influential and how she applied them to unequivocally deny the Petitioner’s request.

4. Compare and contrast the two types of structures discussed for ensuring privacy: the block wall proposed by the Petitioner and the “privacy panel wall” permitted by ALC Guideline JJ. What are the key differences in their material, specifications, placement, and the implications of those differences within the community’s rules?

5. Trace the procedural path of this dispute, from the initial petition to the Final Order. Describe the distinct roles and authority of the Arizona Department of Real Estate, the Architectural Landscape Committee (ALC), the Office of Administrative Hearings, the Administrative Law Judge, and the Commissioner.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over hearings at an administrative agency (in this case, the Office of Administrative Hearings) and makes decisions on disputes. In this case, the ALJ was Diane Mihalsky.

Architectural Landscape Committee (ALC)

The committee within the homeowners’ association responsible for reviewing and approving or denying proposed changes to properties, such as walls and fences, based on the community’s guidelines.

Burden of Proof

The obligation to prove one’s assertion. In this case, the Petitioner bore the burden of proof to establish that the Respondent violated the community documents.

Covenants, Conditions and Restrictions. These are the governing legal documents that set out the guidelines for a planned community or homeowners’ association.

The Department

The Arizona Department of Real Estate, which is authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations.

Homeowners’ Association (HOA)

The organization that creates and enforces rules for the properties within its jurisdiction. In this case, the Pebble Creek Resort Community homeowners’ association was the Respondent.

Party Wall

As defined in CC&R § 1(Hh), “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.” CC&R § 2(P)(i) grants each owner the right to use the Party Wall.

Petitioner

The party who files a petition initiating a legal action. In this case, the homeowner Richard Long.

Preponderance of the Evidence

The standard of proof in this civil case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and “[t]he greater weight of the evidence.”

Respondent

The party against whom a petition is filed. In this case, the Pebble Creek Resort Community homeowners’ association.

Why Your HOA Can Control a Wall Built Entirely on Your Property

Introduction: The Privacy Paradox

Imagine you want a bit more privacy from your next-door neighbor. The solution seems simple: build a wall. To avoid any disputes, you decide to build it entirely on your land, a good foot inside your property line. It’s your property, your wall, your right. But what if your Homeowners’ Association (HOA) tells you that you can’t? This is not a hypothetical scenario; it’s precisely what happened to homeowner Richard Long when he tried to build a 10’ long, 6’ high block wall.

Mr. Long proposed building the wall just one foot inside his property line, believing this would make it a private structure, free from the shared-property rules that often complicate neighborly relations. The HOA denied his request, sparking a legal dispute. The outcome of this case provides surprising and counter-intuitive lessons that every homeowner in a planned community should understand about property rights, community rules, and the hidden logic that governs them.

——————————————————————————–

1. The Hidden Logic: Preventing the “Rodent Run”

At first glance, the HOA’s rule might seem like arbitrary overreach. Why should they care if a wall is on the property line or one foot away from it? The answer reveals a practical, long-term logic designed to prevent a specific, unpleasant problem: two parallel walls built side-by-side.

The HOA’s governing documents were written to avoid a scenario where a small, unmaintainable gap is created between two separate walls on adjacent properties. If Mr. Long built his wall a foot inside his line, and his neighbor later decided to do the same, a narrow dead space would be created between the homes. In its official written answer, the HOA vividly described the issue this creates:

This is not a good situation in that there often isn’t room between the walls to properly maintain either wall, and the area in between the two walls becomes filled with refuse, leaves, insects, nests and rodents.

This reveals a core principle of planned community management: rules are often designed not to restrict current owners, but to mitigate future risks and liabilities for the entire community. This preventative governance aims to protect the community from future blight, sanitation issues, and pest infestations.

——————————————————————————–

2. The “Immediately Adjacent” Rule: Your Property Isn’t an Island

The homeowner’s central argument was that by building the wall a foot inside his property, it was his private wall, not a shared “party wall” subject to joint rules. It was a clever attempt to circumvent the regulations, but it failed because of the precise wording in the community’s Covenants, Conditions, and Restrictions (CC&Rs).

Here, the dispute hinged on two seemingly innocuous words. The community’s CC&Rs define a “Party Wall” as a wall constructed “on or immediately adjacent to the common boundary.” The Administrative Law Judge interpreted a wall built only a foot away as falling under the definition of “immediately adjacent.” This single phrase effectively negated the homeowner’s entire strategy.

The judge’s determination that the wall qualified as “immediately adjacent” was critical. By legally defining it as a Party Wall, another rule from the CC&Rs automatically kicked in: the adjoining neighbor’s explicit right to use it. This completely undermined the homeowner’s central goal of creating a purely private structure.

As if that weren’t definitive enough, another, even more explicit rule served as the final nail in the coffin. ALC Guideline SS(4)(a) states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.” This rule directly forbids the exact “rodent run” scenario, showing that the governing documents had multiple, overlapping prohibitions against his plan.

——————————————————————————–

3. The Neighbor’s Veto: It’s a Three-Party Problem

In an attempt to find a middle ground, the HOA offered a potential compromise. They would approve the wall, but only if it were built directly on the property line and if both Mr. Long and his neighbors, the Rohlmans, signed a formal “Party Wall/Fence Agreement.” This solution, however, revealed another layer of complexity. The neighbors refused to sign.

The Rohlmans explained their reasoning in an email, highlighting concerns that went beyond simple aesthetics. They worried about the financial and legal implications of a shared wall on the property line.

[We] declined to have a wall built on the property line between our homes because it affects the current and future value of our property – and yours. Furthermore, each of us would have to grant the other an easement in perpetuity, which is a legal document… Upon the sale of our home, we would have to inform the purchaser of the easement, which lowers the value of the property.

This demonstrates a common blind spot for homeowners: disputes are rarely bilateral. The rights and financial interests of adjacent property owners create a complex, multi-party dynamic. More often than not, an HOA dispute is a three-party negotiation, and a neighbor’s consent—or lack thereof—can be the deciding factor.

——————————————————————————–

Conclusion: The Rules You Don’t Know Can Hurt You

The final outcome was decisive. The Administrative Law Judge upheld the HOA’s decision, and the homeowner’s petition was denied. The judge concluded that the community’s governing documents “unequivocally prohibit” the proposed wall. However, this was not a total denial of privacy. Mr. Long did have an approved option: a free-standing “alumawood” privacy panel, provided it was located three feet from the property line. He rejected this alternative because he felt it was “unsightly and flimsy.”

This case serves as a powerful reminder that an HOA’s governing documents are not mere suggestions; they are legally binding contracts. The conflict was ultimately not between a homeowner’s right to privacy and the HOA, but between the homeowner’s specific aesthetic preference and the community’s established architectural standards. What you can do on your own land is deeply intertwined with the collective rules you agreed to when you purchased your home.

Before your next home improvement project, does your plan align not just with your vision, but also with the shared vision encoded in your community’s rules?

Case Participants

Petitioner Side

  • Richard Long (petitioner)
    Appeared on his own behalf
  • Petitioner's wife (interested party)
    Required, along with Petitioner, to agree in writing to the wall conditions for variance approval (Unit 39 Lot 12)

Respondent Side

  • Jack Sarsam (executive/witness)
    Robson Communities
    Senior Vice President for Robson Communities, overseeing Respondent's operations; testified for Respondent

Neutral Parties

  • Diane Mihalsky (ALJ)
    Administrative Law Judge who issued the decision
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Commissioner who adopted the ALJ decision in the Final Order
  • Dan Gardner (HOA Coordinator)
    Contact for rehearing requests; listed as HOA Coordinator

Other Participants

  • The Rohlmans (neighbor/interested party)
    Adjacent neighbors (Unit 39 lot 11) whose refusal to sign the party wall agreement was central to the dispute

Jason West vs. Desert Sage Two Homeowners Association

Posted on by

Case Summary

Case ID 17F-H1716031-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-06-28
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge denied the homeowner’s petition alleging the HOA failed to fill board vacancies (Bylaw § 3.6 violation), finding that the HOA had made reasonable efforts, but vacancies could not be filled because no eligible members were willing to serve, partly due to the Petitioner's actions.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jason West Counsel —
Respondent Desert Sage Two Homeowners Association Counsel Stewart F. Salwin, Esq.

Alleged Violations

Bylaw § 3.6

Outcome Summary

The Administrative Law Judge denied the homeowner’s petition alleging the HOA failed to fill board vacancies (Bylaw § 3.6 violation), finding that the HOA had made reasonable efforts, but vacancies could not be filled because no eligible members were willing to serve, partly due to the Petitioner's actions.

Why this result: Respondent established that the Board performed all reasonable actions to fill vacancies, but no eligible members were willing to serve, in part due to Petitioner's obstructionist tactics, rendering enforcement of the Bylaw impossible as it would lead to an absurdity.

Key Issues & Findings

Refusing to fill vacancies on Respondent’s Board of Directors

Petitioner alleged Respondent violated Bylaw § 3.6 by refusing to fill vacancies on the Board of Directors. The Administrative Law Judge determined that the Board had done all it could to fill vacancies, but no eligible members were willing to serve, and Bylaw § 3.6 does not empower the Board to conscript unwilling members.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • 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)
  • Mail Boxes v. Industrial Comm’n of Arizona, 181 Ariz. 119, 122, 888 P.2d 777, 780 (1995)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04

Analytics Highlights

Topics: HOA Board Vacancies, Bylaw 3.6, Obstructionist Tactics, Refusal to Serve
Additional Citations:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazanno v. Superior Court
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY
  • Mail Boxes v. Industrial Comm’n of Arizona
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04

Video Overview

Audio Overview

Decision Documents

17F-H1716031-REL Decision – 572314.pdf

Uploaded 2026-04-24T11:04:00 (137.9 KB)

17F-H1716031-REL Decision – 576049.pdf

Uploaded 2026-04-24T11:04:04 (1160.4 KB)

17F-H1716031-REL Decision – 572314.pdf

Uploaded 2026-01-23T17:19:29 (137.9 KB)

17F-H1716031-REL Decision – 576049.pdf

Uploaded 2026-01-23T17:19:32 (1160.4 KB)

Briefing Document: West v. Desert Sage Two Homeowners Association (Case No. 17F-H1716031-REL)

Executive Summary

This briefing document analyzes the administrative hearing and final order concerning a petition filed by homeowner Jason West (“Petitioner”) against the Desert Sage Two Homeowners Association (“Respondent”). The Petitioner alleged that the HOA’s Board of Directors violated its own Bylaw § 3.6 by failing to fill vacant board positions.

The Administrative Law Judge (ALJ) denied the petition, a decision that was subsequently adopted as a Final Order by the Commissioner of the Arizona Department of Real Estate. The central finding was that the Respondent had made repeated and reasonable efforts to fill the vacancies but was unsuccessful due to a lack of willing and eligible candidates. The ALJ concluded that the governing bylaw mandates the appointment of willing members but does not grant the power to conscript individuals to serve against their will. Furthermore, the decision determined that the shortage of volunteers was attributable, in part, to the Petitioner’s own “obstructionist tactics,” which created a hostile and dysfunctional environment, leading to a series of board member resignations and deterring potential candidates.

Case Overview

• Case Number: 17F-H1716031-REL

• Petitioner: Jason West, a homeowner and member of the Desert Sage Two Homeowners Association.

• Respondent: Desert Sage Two Homeowners Association, representing a small community of approximately 40 homes.

• Core Allegation: On April 10, 2017, the Petitioner filed a single-issue petition alleging the Respondent violated Bylaw § 3.6 by refusing to fill vacancies on its Board of Directors.

• Hearing Date: June 21, 2017, before Administrative Law Judge Diane Mihalsky.

• Final Disposition: The Petitioner’s petition was denied in a decision dated June 28, 2017. This decision was adopted as a Final Order by the Arizona Department of Real Estate on July 12, 2017, making it binding on the parties.

Governing Bylaw in Dispute

The central issue revolved around the interpretation of Section 3.6 of the HOA’s Bylaws, which states:

Vacancies. Vacancies on the Board caused by any reason other than the removal of a director in accordance with the provisions of Section 3.3 of these Bylaws shall be filled by a majority vote of the remaining directors at the first regular or special meeting of the Board held after the occurrence of such vacancy, even though the directors present at such meeting may constitute less than a quorum. Each person so elected shall serve the unexpired portion of the prior director’s term.

Key Parties and Witnesses

Role / Affiliation

Key Testimony / Actions

Jason West

Petitioner, Homeowner, Former Board President

Filed the petition alleging bylaw violation. Previously filed recall petitions against other board members, resigned from the board himself, and proposed a bylaw amendment that disqualified newly elected members.

Eugenia (“Gina”) Murray

Respondent’s Board President

Testified that the board made repeated efforts to find volunteers, but no one was willing to serve, citing the Petitioner’s behavior as a major cause for resignations and lack of interest.

Edward (“Eddie”) Padilla

Community Manager, National Property Service (NPS)

Testified about sending multiple email requests for board candidates on behalf of the board, which yielded no interested parties other than those who would later be disqualified.

Christina Van Soest

Former Board Member

Resigned on Feb. 8, 2017, stating, “I have found the direction of some of the board does not appear to be in the best interest of the community as a whole.” Testified she was uncomfortable with the Petitioner.

Elizabeth Mayhew

Former Board Member

Resigned on Apr. 4, 2017, citing stress directly related to the Petitioner: “I have enough stress daily with my job and cannot handle this or him. It is making me physically ill and he is not worth that.”

Myron (“Ray”) Elmer

Former Board Member

Resigned on Apr. 5, 2017, with the stated reason: “[d]ue to continued problems Jason etc.”

Korey Hjelmeir & Debra Epstein

Former Board Members

Testified for the Petitioner’s rebuttal. Both had previously resigned in June 2016 in response to the Petitioner’s recall petitions and were later disqualified from serving by a bylaw amendment he proposed.

Chronology of Board Destabilization and Resignations

The hearing evidence established a pattern of significant board turnover and dysfunction between June 2016 and June 2017.

• June 23, 2016: Board members Adrian Justiniano, Debra Epstein, and Korey Hjelmeir resigned after the Petitioner filed recall petitions against them.

• August 3, 2016: The Petitioner, June Thompson, and Christina Van Soest were elected to the Board. The Petitioner served as president.

• August 18, 2016: The Board expanded from 3 to 5 members, appointing Gina Murray and Ray Elmer.

• August 29, 2016: June Thompson resigned.

• February 8, 2017: Christina Van Soest resigned, citing the board’s direction and her discomfort with the Petitioner’s “research into members’ backgrounds and history, and the way he was making Board decisions.”

• February 18, 2017: The Petitioner resigned from the Board because he had “more important things to worry about than the management of this dysfunctional community.”

• April 4, 2017: Elizabeth Mayhew resigned, stating she could not handle the stress caused by the Petitioner and his “verbal assaults, constant lashing out, and personal attacks.”

• April 5, 2017: Ray Elmer resigned, attributing his departure to “continued problems Jason etc.” This left Gina Murray as the sole remaining board member.

Respondent’s Efforts to Fill Vacancies

The Respondent provided evidence of multiple, documented attempts to recruit new board members.

• February 23, 2017: Following the resignations of Ms. Van Soest and the Petitioner, Community Manager Eddie Padilla sent an email requesting “motivated and dedicated individuals” to serve on the Board. No one responded.

• March 31, 2017: At an open Board Meeting with “Board appointments” on the agenda, Gina Murray asked for volunteers and nominations from the floor. No one responded.

• April 4 & 18, 2017: Mr. Padilla sent two further emails requesting members interested in serving on the board to submit biographies for an upcoming annual meeting. The only individuals to respond and submit biographies were Mr. Justiniano and Ms. Hjelmeir.

• May 15, 2017: At the annual meeting, Ms. Murray again accepted nominations from the floor. Debra Epstein was nominated.

• June 5, 2017: After the newly elected board was disqualified, Mr. Padilla sent another email asking for volunteers.

Petitioner’s Actions and Their Consequences

The Administrative Law Judge’s decision identified the Petitioner’s own actions as a primary cause for the board’s inability to fill vacancies.

• Instigation of Resignations: The Petitioner’s recall petitions in June 2016 and behavior cited in the 2017 resignation letters from Van Soest, Mayhew, and Elmer directly contributed to the board vacancies.

• Contradictory Claims: The Petitioner testified that four individuals (Linda Siedler, Teresa Price, Bret Morse, and Bryan Brunatti) were interested in serving. However, the sign-in sheet for the March 31, 2017 meeting, where appointments were to be made, showed none of these individuals were present.

• Disqualifying Bylaw Amendment: The Petitioner proposed a new bylaw, § 3.12, which was passed at the May 15, 2017 meeting. It stated:

• Attempted Removal of Remaining Director: On June 12, 2017, the Petitioner submitted a petition to remove Gina Murray, the last remaining original board member, which would have left the board entirely vacant.

Administrative Law Judge’s Findings and Decision

The ALJ’s conclusions of law were decisive in denying the petition.

1. Burden of Proof: The Petitioner bore the burden of proving by a preponderance of the evidence that the Respondent had violated its bylaws.

2. Interpretation of Bylaw § 3.6: The Judge ruled that while the bylaw requires the Board to appoint members to fill vacancies, “it does not empower the Board to conscript members who are not willing to serve on the Board.”

3. Principle of Absurdity: Citing legal precedent, the decision stated that bylaws must be construed to avoid an absurd result. Forcing an HOA to operate without a board because no eligible members are willing to serve, especially when the situation is exacerbated by the Petitioner, would be such an absurdity.

4. Respondent’s Due Diligence: The Judge found that “Respondent established that the Board has done all it could to fill vacancies.”

5. Petitioner’s Culpability: The final conclusion explicitly states that “at this time, no eligible members are willing to serve, in part due to Petitioner’s obstructionist tactics, including Petitioner and his claimed supporters.”

Based on these findings, the ALJ ordered that the Petitioner’s petition be denied. The order became final and binding upon adoption by the Arizona Department of Real Estate on July 12, 2017.

Study Guide: West v. Desert Sage Two Homeowners Association

This study guide provides a review of the administrative hearing case No. 17F-H1716031-REL, Jason West v. Desert Sage Two Homeowners Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms based on the provided legal documents.

Short-Answer Quiz

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

1. What was the specific allegation made by the Petitioner, Jason West, in his April 10, 2017 petition?

2. According to the text of Bylaw § 3.6, how are vacancies on the Board of Directors supposed to be filled?

3. Who was the sole remaining member of the Board of Directors at the time of the mass resignations in April 2017, and what was her stated reason for not resigning?

4. Describe the circumstances that led to the resignations of board members Christina Van Soest and Jason West in February 2017.

5. What was the immediate and paradoxical outcome of the May 15, 2017 annual meeting election?

6. Explain the purpose and effect of the proposed Bylaw § 3.12, which was sponsored by the Petitioner.

7. What efforts did the Respondent’s management company, National Property Service (NPS), make to recruit new board members?

8. On what grounds did Administrative Law Judge Diane Mihalsky deny the Petitioner’s petition?

9. According to the Petitioner’s testimony, why were certain individuals he named hesitant to volunteer for the Board?

10. What action did the Commissioner of the Arizona Department of Real Estate take regarding the Administrative Law Judge’s decision?

——————————————————————————–

Answer Key

1. Jason West’s single-issue petition alleged that the Desert Sage Two Homeowners Association (the Respondent) had violated Bylaw § 3.6 by refusing to fill vacancies on its Board of Directors.

2. Bylaw § 3.6 states that vacancies on the Board (for reasons other than removal) shall be filled by a majority vote of the remaining directors at the next meeting. The person elected serves the unexpired portion of the prior director’s term.

3. Eugenia (“Gina”) Murray was the sole remaining board member. She stated she had no intention of resigning because it was important for someone to serve the community’s interests, such as negotiating the insurance contract and handling other community affairs.

4. Christina Van Soest resigned on February 8, 2017, stating the board’s direction was not in the community’s best interest and she was uncomfortable with the Petitioner’s methods. On February 18, 2017, Jason West resigned, citing his belief that he had “more important things to worry about than the management of this dysfunctional community.”

5. At the May 15, 2017 meeting, Eugenia Murray, Debra Epstein, Adrian Justiniano, and Korey Hjelmeir were elected to the Board. However, a bylaw amendment proposed by the Petitioner also passed at the same meeting, which made Epstein, Justiniano, and Hjelmeir ineligible to serve because they had resigned within the previous year.

6. The proposed Bylaw § 3.12 was designed to ban any director who resigns or is removed from serving on the board again for one year. Its passage at the May 15, 2017 meeting had the immediate effect of disqualifying three of the four newly elected board members.

7. NPS, through Community Manager Edward Padilla, sent out multiple emails requesting that interested individuals submit biographies to be considered for board positions. These requests were sent on February 23, April 4, April 18, and June 5, 2017.

8. Judge Mihalsky denied the petition because the Respondent had established that the Board did all it could to fill the vacancies. The judge concluded that the Bylaws cannot be construed to empower the Board to conscript unwilling members and that the lack of volunteers was due in part to the Petitioner’s own “obstructionist tactics.”

9. The Petitioner testified that Linda Siedler, Teresa Price, Bret Morse, and Bryan Brunatti were interested but had two conditions. They were concerned about serving with certain other members (Murray, Hjelmeir, Justiniano, or the Epsteins) and wanted assurance that the directors’ insurance policy would be renewed, which was questionable due to petitions filed by West himself.

10. On July 12, 2017, the Commissioner of the Department of Real Estate, Judy Lowe, issued a Final Order adopting the Administrative Law Judge’s decision. This order made the denial of the Petitioner’s petition binding on the parties.

——————————————————————————–

Suggested Essay Questions

The following questions are designed for a more in-depth analysis of the case. No answers are provided.

1. Analyze the role of Jason West in the series of board resignations and the difficulty in finding new board members, citing specific evidence presented by the Respondent and testimony from former board members.

2. Discuss the Administrative Law Judge’s interpretation of Bylaw § 3.6. How does the judge balance the literal requirement to fill vacancies with the practical realities faced by the Board, and what legal principles support this interpretation?

3. Trace the timeline of board membership from March 2016 to May 2017. What patterns emerge regarding appointments, resignations, and elections, and how do these events illustrate the internal conflict within the Desert Sage Two community?

4. Evaluate the effectiveness of the Bylaw amendment (§ 3.12) proposed by Jason West. Did it achieve its likely intended purpose, and what were its immediate, perhaps unintended, consequences for the governance of the homeowners’ association?

5. Based on the evidence presented, construct an argument for why the Respondent, Desert Sage Two Homeowners Association, successfully defended itself against the Petitioner’s claim. Your answer should focus on the actions taken by the Board and its management company and the legal conclusions drawn by the judge.

——————————————————————————–

Glossary of Key Terms

Term / Entity

Definition

Administrative Law Judge (ALJ)

The official, in this case Diane Mihalsky, who presides over an administrative hearing at the Office of Administrative Hearings and issues a decision.

Arizona Department of Real Estate (“the Department”)

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations.

Bylaw § 3.12 (Proposed)

An amendment proposed by the Petitioner that would ban any director who resigns or is removed from the board from serving again for a period of one year. This amendment was passed at the May 15, 2017 annual meeting.

Bylaw § 3.6

The section of the Respondent’s bylaws that was the central issue of the petition. It requires the remaining directors to fill board vacancies by a majority vote at the next regular or special meeting.

Desert Sage Two Homeowners Association

The Respondent in the case; a small homeowners’ association for a development of approximately 40 condominium homes.

Final Order

The binding decision issued by the Commissioner of the Department of Real Estate, which formally adopts the ALJ’s decision. This order makes the ruling effective and outlines the process for requesting a rehearing.

Jason West

The Petitioner in the case. He is a homeowner and member of the Respondent association who filed a petition alleging the Board violated Bylaw § 3.6.

National Property Service (NPS)

The management company employed by the Respondent, represented in the hearing by Community Manager Edward (“Eddie”) Padilla.

Office of Administrative Hearings

An independent state agency that conducts evidentiary hearings for cases referred by other state agencies, such as the Department of Real Estate.

Petitioner

The party who files a petition initiating a legal action. In this case, Jason West.

Preponderance of the evidence

The standard of proof required for the Petitioner to win the case. It is defined as evidence that is more convincing and has the greater weight, inclining an 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 Desert Sage Two Homeowners Association.

Study Guide: West v. Desert Sage Two Homeowners Association

This study guide provides a review of the administrative hearing case No. 17F-H1716031-REL, Jason West v. Desert Sage Two Homeowners Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms based on the provided legal documents.

Short-Answer Quiz

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

1. What was the specific allegation made by the Petitioner, Jason West, in his April 10, 2017 petition?

2. According to the text of Bylaw § 3.6, how are vacancies on the Board of Directors supposed to be filled?

3. Who was the sole remaining member of the Board of Directors at the time of the mass resignations in April 2017, and what was her stated reason for not resigning?

4. Describe the circumstances that led to the resignations of board members Christina Van Soest and Jason West in February 2017.

5. What was the immediate and paradoxical outcome of the May 15, 2017 annual meeting election?

6. Explain the purpose and effect of the proposed Bylaw § 3.12, which was sponsored by the Petitioner.

7. What efforts did the Respondent’s management company, National Property Service (NPS), make to recruit new board members?

8. On what grounds did Administrative Law Judge Diane Mihalsky deny the Petitioner’s petition?

9. According to the Petitioner’s testimony, why were certain individuals he named hesitant to volunteer for the Board?

10. What action did the Commissioner of the Arizona Department of Real Estate take regarding the Administrative Law Judge’s decision?

——————————————————————————–

Answer Key

1. Jason West’s single-issue petition alleged that the Desert Sage Two Homeowners Association (the Respondent) had violated Bylaw § 3.6 by refusing to fill vacancies on its Board of Directors.

2. Bylaw § 3.6 states that vacancies on the Board (for reasons other than removal) shall be filled by a majority vote of the remaining directors at the next meeting. The person elected serves the unexpired portion of the prior director’s term.

3. Eugenia (“Gina”) Murray was the sole remaining board member. She stated she had no intention of resigning because it was important for someone to serve the community’s interests, such as negotiating the insurance contract and handling other community affairs.

4. Christina Van Soest resigned on February 8, 2017, stating the board’s direction was not in the community’s best interest and she was uncomfortable with the Petitioner’s methods. On February 18, 2017, Jason West resigned, citing his belief that he had “more important things to worry about than the management of this dysfunctional community.”

5. At the May 15, 2017 meeting, Eugenia Murray, Debra Epstein, Adrian Justiniano, and Korey Hjelmeir were elected to the Board. However, a bylaw amendment proposed by the Petitioner also passed at the same meeting, which made Epstein, Justiniano, and Hjelmeir ineligible to serve because they had resigned within the previous year.

6. The proposed Bylaw § 3.12 was designed to ban any director who resigns or is removed from serving on the board again for one year. Its passage at the May 15, 2017 meeting had the immediate effect of disqualifying three of the four newly elected board members.

7. NPS, through Community Manager Edward Padilla, sent out multiple emails requesting that interested individuals submit biographies to be considered for board positions. These requests were sent on February 23, April 4, April 18, and June 5, 2017.

8. Judge Mihalsky denied the petition because the Respondent had established that the Board did all it could to fill the vacancies. The judge concluded that the Bylaws cannot be construed to empower the Board to conscript unwilling members and that the lack of volunteers was due in part to the Petitioner’s own “obstructionist tactics.”

9. The Petitioner testified that Linda Siedler, Teresa Price, Bret Morse, and Bryan Brunatti were interested but had two conditions. They were concerned about serving with certain other members (Murray, Hjelmeir, Justiniano, or the Epsteins) and wanted assurance that the directors’ insurance policy would be renewed, which was questionable due to petitions filed by West himself.

10. On July 12, 2017, the Commissioner of the Department of Real Estate, Judy Lowe, issued a Final Order adopting the Administrative Law Judge’s decision. This order made the denial of the Petitioner’s petition binding on the parties.

——————————————————————————–

Suggested Essay Questions

The following questions are designed for a more in-depth analysis of the case. No answers are provided.

1. Analyze the role of Jason West in the series of board resignations and the difficulty in finding new board members, citing specific evidence presented by the Respondent and testimony from former board members.

2. Discuss the Administrative Law Judge’s interpretation of Bylaw § 3.6. How does the judge balance the literal requirement to fill vacancies with the practical realities faced by the Board, and what legal principles support this interpretation?

3. Trace the timeline of board membership from March 2016 to May 2017. What patterns emerge regarding appointments, resignations, and elections, and how do these events illustrate the internal conflict within the Desert Sage Two community?

4. Evaluate the effectiveness of the Bylaw amendment (§ 3.12) proposed by Jason West. Did it achieve its likely intended purpose, and what were its immediate, perhaps unintended, consequences for the governance of the homeowners’ association?

5. Based on the evidence presented, construct an argument for why the Respondent, Desert Sage Two Homeowners Association, successfully defended itself against the Petitioner’s claim. Your answer should focus on the actions taken by the Board and its management company and the legal conclusions drawn by the judge.

——————————————————————————–

Glossary of Key Terms

Term / Entity

Definition

Administrative Law Judge (ALJ)

The official, in this case Diane Mihalsky, who presides over an administrative hearing at the Office of Administrative Hearings and issues a decision.

Arizona Department of Real Estate (“the Department”)

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations.

Bylaw § 3.12 (Proposed)

An amendment proposed by the Petitioner that would ban any director who resigns or is removed from the board from serving again for a period of one year. This amendment was passed at the May 15, 2017 annual meeting.

Bylaw § 3.6

The section of the Respondent’s bylaws that was the central issue of the petition. It requires the remaining directors to fill board vacancies by a majority vote at the next regular or special meeting.

Desert Sage Two Homeowners Association

The Respondent in the case; a small homeowners’ association for a development of approximately 40 condominium homes.

Final Order

The binding decision issued by the Commissioner of the Department of Real Estate, which formally adopts the ALJ’s decision. This order makes the ruling effective and outlines the process for requesting a rehearing.

Jason West

The Petitioner in the case. He is a homeowner and member of the Respondent association who filed a petition alleging the Board violated Bylaw § 3.6.

National Property Service (NPS)

The management company employed by the Respondent, represented in the hearing by Community Manager Edward (“Eddie”) Padilla.

Office of Administrative Hearings

An independent state agency that conducts evidentiary hearings for cases referred by other state agencies, such as the Department of Real Estate.

Petitioner

The party who files a petition initiating a legal action. In this case, Jason West.

Preponderance of the evidence

The standard of proof required for the Petitioner to win the case. It is defined as evidence that is more convincing and has the greater weight, inclining an 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 Desert Sage Two Homeowners Association.

Case Participants

Petitioner Side

  • Jason West (petitioner)
    Appeared on his own behalf; testified on his own behalf
  • Linda Siedler (witness, member)
    Allegedly interested in serving on the Board; signed petition to remove Ms. Murray
  • Teresa Price (witness, member)
    Allegedly interested in serving on the Board; signed petition to remove Ms. Murray
  • Bret Morse (witness, member)
    Allegedly interested in serving on the Board; submitted absentee ballot; signed petition to remove Ms. Murray
  • Bryan Brunatti (witness, member)
    Allegedly interested in serving on the Board; attended meeting and counted ballots; signed petition to remove Ms. Murray

Respondent Side

  • Stewart F. Salwin (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Represented the Respondent
  • Eugenia Murray (board president, witness)
    Only current Board member at the time of hearing; testified for Respondent
  • Edward Padilla (property manager, witness)
    National Property Service (NPC)
    Community Manager; testified for Respondent

Neutral Parties

  • Diane Mihalsky (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    ADRE Commissioner who adopted the ALJ Decision

Other Participants

  • Korey Hjelmeir (witness, former board member)
    Testified for Petitioner as former Board member; resigned and later sought re-election
  • Debra Epstein (witness, former board member)
    Testified for Petitioner as former Board member; resigned and later sought re-election; appeared via Skype at a meeting
  • Adrian Justiniano (former board member)
    Resigned and later sought re-election
  • June Thompson (former board member)
    Elected and resigned in 2016
  • Christina Van Soest (former board member)
    Elected and resigned in 2017
  • Myron Elmer (former board member)
    Appointed and resigned in 2017
  • Elizabeth Mayhew (former board member)
    Appointed and resigned in 2017
  • David Epstein (member)
    Appeared via Skype at a meeting; expressed interest in serving on Board
  • Abby Hansen (HOA coordinator)
    Individual to whom requests for rehearing should be addressed

Tom Pyron vs Cliffs at North Mountain Condominium Association, Inc.

Posted on by

Case Summary

Case ID 17F-H1717026-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-06-19
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge denied the petition, concluding that the HOA correctly identified only one Board position (the one-year term) was up for election in 2017 based on the Bylaws' staggered term provisions.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Tom Pyron Counsel —
Respondent Cliffs at North Mountain Condominium Association, Inc. Counsel B. Austin Baillio

Alleged Violations

Bylaws, Article III, §§ 3.02 and 3.06, and Article IV, § 4.06

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the HOA correctly identified only one Board position (the one-year term) was up for election in 2017 based on the Bylaws' staggered term provisions.

Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated its Bylaws.

Key Issues & Findings

Dispute over the number of Board of Director positions available for the 2017 election.

Petitioner alleged Respondent HOA violated Bylaws by stating only one Board position was up for election for a one-year term in 2017, when Petitioner contended two positions (one-year and two-year terms) were open.

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.08
  • R4-28-1310

Analytics Highlights

Topics: HOA Election, Bylaw Violation, Board Term, Staggered Terms, Condominium Association
Additional Citations:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.08
  • R4-28-1310

Related election workflow tool

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

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

17F-H1717026-REL Decision – 570560.pdf

Uploaded 2026-04-24T11:04:17 (120.2 KB)

17F-H1717026-REL Decision – 570560.pdf

Uploaded 2026-01-23T17:19:38 (120.2 KB)

17F-H1717026-REL Decision – 576045.pdf

Uploaded 2026-01-23T17:19:41 (959.2 KB)

  • 2016

Study Guide: Pyron v. Cliffs at North Mountain Condominium Association, Inc.

This study guide provides a review of the administrative hearing case No. 17F-H1717026-REL between Tom Pyron (Petitioner) and the Cliffs at North Mountain Condominium Association, Inc. (Respondent). It covers the central arguments, key evidence, relevant bylaws, and the final legal decision.

Short Answer Quiz

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

1. What was the single issue at the heart of Tom Pyron’s petition filed on March 16, 2017?

2. According to the Association’s bylaws, how are Board of Director terms structured when the board consists of three members?

3. What was the Petitioner’s argument regarding Jeff Oursland’s term on the Board of Directors?

4. What was the Respondent’s counter-argument regarding Barbara Ahlstrand’s 2015 election and, subsequently, Jeff Oursland’s term?

5. What actions did the Respondent take in an attempt to resolve the dispute with the Petitioner before the hearing?

6. Who was the key witness for the Respondent, and what was their role?

7. Explain the legal standard “preponderance of the evidence” as it is defined in the case documents.

8. What was the Administrative Law Judge’s core legal reasoning for concluding that only one board position was open in 2017?

9. What was the final outcome of the case as stated in the Recommended Order and adopted by the Commissioner of the Department of Real Estate?

10. Following the Final Order issued on July 12, 2017, what legal recourse was available to a party dissatisfied with the decision?

——————————————————————————–

Answer Key

1. Tom Pyron’s petition alleged that the Respondent violated its bylaws by announcing only one Board position was open for a one-year term in the 2017 election. Pyron contended that two positions—one for a one-year term and another for a two-year term—should have been up for election.

2. Bylaw Article III, § 3.02 specifies that for a three-person board, the directors hold staggered terms of one year, two years, and three years. The bylaw further dictates which terms end at which annual meetings (e.g., the two-year term ends at the second, fourth, sixth, etc., annual meetings).

3. The Petitioner argued that Barbara Ahlstrand was elected to a two-year term in 2015. Therefore, when Jeff Oursland was appointed to fill her vacancy, his term should have expired in 2017, meaning his two-year position should have been on the 2017 ballot.

4. The Respondent argued that under the plain language of Bylaw § 3.02, only the one-year and three-year terms were up for election in 2015. Since Sandra Singer received the most votes and secured the three-year term, Ms. Ahlstrand must have been elected to the one-year term, meaning Mr. Oursland’s appointed term expired in 2016.

5. In response to the petition, the Respondent twice rescheduled the 2017 annual meeting and re-issued ballots to include all candidates who had submitted an application. The Association also offered to pay the Petitioner’s $500 single-issue filing fee if he was satisfied with this resolution.

6. The key witness for the Respondent was Cynthia Quillen. She served as the Community Manager for the Association’s management company, Associated Property Management, and testified about the Board’s composition and her interpretation of the bylaws.

7. “A preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. It is described as the greater weight of evidence, which is sufficient to incline a fair and impartial mind to one side of an issue over the other.

8. The Judge’s decision was based on the “plain language” of Bylaw § 3.02. This bylaw dictated that only the one-year and three-year terms were up for election in 2015. Since the parties agreed Ms. Singer won the three-year term, the Judge concluded Ms. Ahlstrand must have been elected to the one-year term, making the Respondent’s subsequent actions and election notices correct.

9. The Administrative Law Judge’s Recommended Order was that the Petitioner’s petition be denied. This order was adopted by the Commissioner of the Department of Real Estate in a Final Order, making it binding on the parties.

10. According to the Final Order, a dissatisfied party could request a rehearing within thirty days by filing a petition setting forth the reasons. The document lists eight specific causes for a rehearing. A party could also appeal the final administrative decision by filing a complaint for judicial review.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to test a deeper understanding of the case. Formulate a comprehensive essay-style response for each.

1. Analyze the conflicting interpretations of the 2015 election presented by the Petitioner and the Respondent. How did the Administrative Law Judge use the “plain language” of Bylaw § 3.02 to resolve this conflict, and what does this reveal about the interpretation of governing documents in legal disputes?

2. Trace the chain of events from the 2012 election to the 2017 dispute. Explain how the board composition, terms of office, and specific actions (like Ms. Ahlstrand’s resignation) compounded to create the disagreement at the heart of this case.

3. Discuss the burden of proof in this administrative hearing. Define “preponderance of the evidence” and explain why the Petitioner, Tom Pyron, failed to meet this standard in the view of the Administrative Law Judge.

4. Examine the roles and authorities of the different entities involved: the homeowners’ association Board, the Arizona Department of Real Estate, the Office of Administrative Hearings, and the Administrative Law Judge. How do these bodies interact to resolve disputes within a planned community?

5. Based on the Final Order, outline the legal recourse available to Tom Pyron following the denial of his petition. What specific grounds for a rehearing are mentioned, and what is the process for further appeal?

——————————————————————————–

Glossary of Key Terms

Definition

Acclamation

A form of election where a candidate is declared elected without opposition, as when Sandra Singer’s election was “unanimously passed by acclamation” in 2014.

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact, draws conclusions of law, and issues a recommended decision. In this case, the ALJ was Diane Mihalsky.

Arizona Department of Real Estate (“the Department”)

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations. The Commissioner of the Department, Judy Lowe, issued the Final Order in this case.

Bylaws

The governing documents of the homeowners’ association that outline its rules and procedures, including the number of directors, terms of office, and process for filling vacancies.

Final Order

The binding decision issued by the Commissioner of the Department of Real Estate, which accepts and adopts the Administrative Law Judge’s decision. This order becomes effective and can only be changed by a successful rehearing or judicial appeal.

Office of Administrative Hearings (OAH)

An independent state agency to which the Department of Real Estate refers petitions for an evidentiary hearing.

Petitioner

The party who files a petition initiating a legal action. In this case, the Petitioner was Tom Pyron, a homeowner in the association.

Preponderance of the Evidence

The standard of proof required in this hearing, defined as “proof as convinces the trier of fact that the contention is more probably true than not.” The Petitioner bore this burden to prove the Respondent violated its bylaws.

Recommended Order

The decision and order issued by the Administrative Law Judge following a hearing. In this case, it recommended that the Petitioner’s petition be denied.

Rehearing

A formal request to have a case heard again. The Final Order specifies that a petition for rehearing must be filed within thirty days and may be granted for specific causes, such as newly discovered evidence or an arbitrary decision.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the Cliffs at North Mountain Condominium Association, Inc.

Staggered Terms

A system where not all board members are elected at the same time. As defined in Bylaw § 3.02, the three-person board had terms of one, two, and three years to ensure continuity.

Unexpired Portion of the Prior Director’s Term

The remainder of a board member’s term that an appointee serves after the original member resigns or is removed, as specified in Bylaw § 3.6.

We Read an HOA Lawsuit So You Don’t Have To: 3 Shocking Lessons Hidden in the Bylaws

1. Introduction: The Hidden Drama in Your Community’s Fine Print

If you live in a condominium association or a planned community, you’re familiar with the thick packet of governing documents you received at closing—the Covenants, Conditions & Restrictions (CC&Rs) and the Bylaws. For many, these documents are filed away and forgotten, seen as a collection of mundane rules about trash cans and paint colors. But hidden within that legalese is the complete operating manual for your community, and a simple misunderstanding of its contents can have significant consequences.

What happens when a homeowner’s interpretation of the rules clashes with the association’s? In a case from Arizona involving homeowner Tom Pyron and the Cliffs at North Mountain Condominium Association, the dispute escalated into a formal administrative hearing. The central question was simple: how many board seats were open for election in 2017? But this wasn’t just a procedural disagreement. Court documents reveal that before the hearing, the association offered to re-issue ballots to include all candidates and even “offered to pay Petitioner’s $500 single-issue filing fee if he was satisfied with the proposed resolution.” The homeowner refused.

This decision transforms the case from a simple rules dispute into a cautionary tale about how a deeply held belief can override a pragmatic, no-cost compromise. The official court documents offer a fascinating look at how community governance can go awry, revealing powerful, practical lessons for any homeowner or board member who believes they know what the rules should say.

2. Takeaway 1: Your Beliefs Don’t Overrule the Bylaws

What You Think the Rules Say Doesn’t Matter—Only What They Actually Say

The core of the dispute rested on a belief held by a former board member, Ms. Ahlstrand, who was elected in 2015. She testified that she believed she had been elected to a two-year term. Based on this belief, the petitioner argued that the director appointed to replace her after her resignation should have served until 2017, meaning a two-year position was open for election that year.

The Administrative Law Judge, however, looked not at what anyone believed, but at the “plain language” of the community’s governing documents. The judge’s conclusion was a matter of inescapable logic derived directly from the bylaws:

1. First, Bylaw § 3.02 clearly states that in an election with multiple open seats, “the person receiving the most votes will become the Director with the longest term.”

2. Next, the court record shows that “the parties agreed that… because she got the most votes, Ms. Singer was elected to a three-year term” in the 2015 election.

3. Finally, the judge determined that according to the same bylaw, only the one-year and three-year terms were available in 2015. Since Ms. Singer secured the three-year term, Ms. Ahlstrand, by definition, must have been elected to the only other available position: the one-year term.

The lesson is stark and unambiguous: an individual’s interpretation or assumption, however sincere, cannot change the written rules. The bylaws are the ultimate authority. As the judge stated in the final decision, the documents speak for themselves.

The Bylaws do not allow their plain language to be modified or amended by a member’s understanding.

3. Takeaway 2: The Domino Effect of a Single Resignation

A Single Resignation Can Create Years of Confusion

This entire legal conflict was set in motion by a single, routine event: a board member’s resignation. The timeline of events shows how one small action, when combined with a misunderstanding of the rules, can create a ripple effect with long-lasting consequences.

1. On August 3, 2015, the newly elected board member, Ms. Ahlstrand, resigned.

2. The Board then appointed another member, Jeff Oursland, to serve the remainder of her term, as permitted by the bylaws.

3. The critical point of contention became the length of that “remainder.” Was it the rest of a one-year term ending in 2016, or a two-year term ending in 2017?

4. The judge’s determination that Ahlstrand’s original term was only one year (as explained above) meant that Mr. Oursland’s appointed term correctly expired in 2016. He was then properly elected to a new two-year term at the 2016 meeting.

5. This sequence confirmed that the association was correct all along: only one board position (a one-year term) was actually open for election in 2017.

A single resignation created two years of confusion that ultimately required an administrative hearing to resolve. It’s a powerful reminder of how crucial it is for boards to precisely follow their own procedures, especially when handling vacancies and appointments, as one small error can cascade into years of conflict.

4. Takeaway 3: The Hidden Complexity of “Staggered Terms”

“Staggered Terms” Are Designed for Stability, But Can Cause Chaos

Many associations use staggered terms for their board of directors. The concept, outlined in Bylaw § 3.02 for the Cliffs at North Mountain, is simple: instead of all directors being elected at once, they serve terms of varying lengths (in this case, one, two, and three years). This is a common and effective practice designed to ensure leadership continuity and prevent the entire board from turning over in a single election.

However, this case reveals the hidden downside of that system: complexity. The staggered terms created an election cycle where the available term lengths changed every single year. The court documents show that in 2014, the one-year and two-year positions were on the ballot. In 2015, the one-year and three-year terms were available. This rotating schedule was difficult for members—and apparently even some board members—to track accurately.

This built-in complexity was the root cause of the entire disagreement. The system’s lack of intuitive clarity created the exact conditions necessary for a personal belief, like Ms. Ahlstrand’s, to seem plausible even when it was contrary to the bylaws. The very governance structure intended to create stability inadvertently created the fertile ground for confusion, allowing a misunderstanding to grow into a lawsuit.

5. Conclusion: The Power Is in the Paperwork

The overarching theme from this case is that in the world of community associations, the governing documents are the ultimate source of truth. They are not merely suggestions; they are the binding legal framework that dictates how the community must operate. A board’s actions and a homeowner’s rights are all defined within that paperwork.

In the end, the homeowner’s petition was denied, and the judge’s order affirmed the association’s position. The written rules, as found in the bylaws, prevailed over individual beliefs and interpretations. The case stands as a powerful testament to the importance of reading, understanding, and strictly adhering to your community’s foundational documents.

This entire conflict stemmed from a few lines in a legal document—when was the last time you read yours?

Case Participants

Petitioner Side

  • Tom Pyron (petitioner)

Respondent Side

  • B. Austin Baillio (HOA attorney)
    Maxwell & Morgan, P.C.
  • Cynthia Quillen (property manager)
    Associated Property Management
    Community Manager

Neutral Parties

  • Diane Mihalsky (ALJ)
  • Judy Lowe (ADRE commissioner)
    Arizona Department of Real Estate
  • Abby Hansen (coordinator)
    HOA Coordinator/Admin Official listed for rehearing requests and transmission

Other Participants

  • Anne Fugate (witness)
    Elected to the Board in 2012
  • Barbara Ahlstrand (witness)
    Elected to the Board in 2015
  • Kevin Downey (witness)
    Candidate for 2017 election
  • John Haunschild (board member)
    Elected to the Board in 2012
  • Ron Cadaret (board member)
    Elected to the Board in 2012, re-elected 2013
  • Sandra Singer (board member)
    Elected to the Board in 2014 and 2015
  • Jeff Oursland (board member)
    Appointed to the Board in 2015, elected 2016
  • Steve Molever (board member)
    Elected to the Board in 2016

Kurt Gronlund vs. Cottonfields Community Association

Posted on by

Case Summary

Case ID 17F-H1716024-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-05-11
Administrative Law Judge Diane Mihalsky
Outcome The Commissioner accepted the ALJ decision granting the Respondent's Motion for Summary Judgment, recommending dismissal of the petition due to the Department's lack of statutory jurisdiction over the dispute, which involved a Reciprocal Easement and Maintenance Agreement (REMA) and the rights of a third-party Golf Course Owner.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Kurt Gronlund Counsel —
Respondent Cottonfields Community Association Counsel Troy B. Stratman, Esq.

Alleged Violations

A.R.S. § 32-2199.01(A)

Outcome Summary

The Commissioner accepted the ALJ decision granting the Respondent's Motion for Summary Judgment, recommending dismissal of the petition due to the Department's lack of statutory jurisdiction over the dispute, which involved a Reciprocal Easement and Maintenance Agreement (REMA) and the rights of a third-party Golf Course Owner.

Why this result: The Department lacked jurisdiction to resolve the dispute because the REMA was not considered a 'community document' under A.R.S. § 33-1802(2) and the requested relief implicated the rights of a non-party (the Golf Course Owner) over whom the Department has no jurisdiction.

Key Issues & Findings

Jurisdiction over REMA Amendment Dispute

Petitioner sought a finding that REMA Amendments 2 and 3 were void because the HOA board unilaterally amended the REMA without the required member vote (two-thirds majority) as specified in the CC&Rs and REMA, and sought an order for the removal of the amendments from the record.

Orders: The Administrative Law Judge recommended granting Respondent's Motion for Summary Judgment and dismissing the Complaint.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199.01(A)
  • A.R.S. § 33-1802(2)
  • CC&Rs 14.2
  • REMA Article 12

Analytics Highlights

Topics: jurisdiction, summary judgment, golf course, REMA, third party
Additional Citations:

  • A.R.S. § 32-2199.01(A)
  • A.R.S. § 33-1802(2)
  • A.R.S. § 32-2199.02(A)
  • CC&Rs 14.2
  • REMA 5.1
  • REMA Article 12

Related election workflow tool

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

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

17F-H1716024-REL Decision – 563660.pdf

Uploaded 2026-04-29T10:12:19 (99.8 KB)

17F-H1716024-REL Decision – 568840.pdf

Uploaded 2026-04-29T10:12:24 (854.5 KB)

17F-H1716024-REL Decision – 563660.pdf

Uploaded 2026-01-23T17:19:21 (99.8 KB)

17F-H1716024-REL Decision – 568840.pdf

Uploaded 2026-01-23T17:19:24 (854.5 KB)

Briefing Document: Gronlund vs. Cottonfields Community Association (Case No. 17F-H1716024-REL)

Executive Summary

This document synthesizes the legal proceedings and decision in the case of Kurt Gronlund versus the Cottonfields Community Association, adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute centers on the petitioner’s allegation that the Homeowners Association (HOA) board improperly amended a critical land-use agreement in 2011 without a required vote of the membership, ultimately enabling the commercial rezoning of an adjacent golf course.

The Administrative Law Judge (ALJ) granted the HOA’s motion for summary judgment, and the Commissioner of the Arizona Department of Real Estate adopted this decision, dismissing the petition. The dismissal was not based on the merits of the petitioner’s claim but on a crucial lack of jurisdiction. The ALJ determined that the Department of Real Estate could not rule on the matter for two primary reasons:

1. The governing agreement in question (the REMA) is not a “community document” as defined by the relevant Arizona statute, placing it outside the Department’s purview.

2. The relief sought by the petitioner would directly implicate the property rights of a third party (the Golf Course Owner) and a prior legal settlement, which exceeds the Department’s statutory authority.

While acknowledging the petitioner’s concerns about the golf course development may be “well-founded,” the decision concluded that the petitioner’s available remedies lie in electing a new HOA board, filing a lawsuit in a judicial forum, or seeking legislative change.

Case Overview

This case involves a dispute between a homeowner and his HOA regarding the amendment of a land-use agreement governing a golf course property.

Parties Involved

Name / Entity

Description

Petitioner

Kurt Gronlund

A homeowner within the Cottonfields community and a member of the Respondent association.

Respondent

Cottonfields Community Association

The Homeowners Association (HOA) for the Cottonfields development.

Third Party

The Golf Course Owner

A separate legal entity that owns the golf course property adjacent to the community.

Case Chronology

• December 11, 2001: The developer records both the Reciprocal Easement and Maintenance Agreement (REMA) and the community’s CC&Rs.

• March 2011: The Cottonfields HOA board votes 3-2 to amend the REMA.

• March 3 & May 16, 2011: Amendments 2 and 3 to the REMA, which alter the legal description of the golf course property, are officially recorded.

• 2014: Litigation (Case No. CV2014-000639) begins in Maricopa County Superior Court between the HOA and the Golf Course Owner regarding the REMA and its amendments.

• July 2015: The HOA and the Golf Course Owner execute a settlement agreement.

• August 7, 2015: The superior court lawsuit is dismissed with prejudice.

• October 5, 2016: The HOA president represents to the City Council that homeowners favor rezoning the golf course. The Council approves a rezone from “GC” (Golf Course) to Commercial, relying on the 2011 REMA amendments.

• February 3, 2017: Kurt Gronlund files a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate.

• April 27, 2017: The HOA files a Motion for Summary Judgment, arguing a lack of jurisdiction.

• May 10, 2017: Oral arguments on the motion are held.

• May 11, 2017: The Administrative Law Judge issues a decision recommending dismissal.

• May 11, 2017: The Commissioner of the Department of Real Estate issues a Final Order adopting the ALJ’s decision and dismissing the case.

Core Dispute: Unilateral Amendment of the REMA

The petitioner’s case is founded on the claim that the HOA board acted in violation of its own governing documents when it facilitated changes to the REMA without consulting the community’s homeowners.

Petitioner’s Allegations

On February 3, 2017, Kurt Gronlund filed a petition asserting that the HOA board’s actions in 2011 were illegal and directly led to the loss of protection for homeowner property values.

• The Unilateral Action: The petition states, “[In] March 2011 the HOA board voted 3-2 to unilaterally amend REMA 5.1’s use restriction on the golf course property without the required vote of the approximately 450 eligible class members…”

• The Consequence: These amendments were used as justification for the HOA president to support a commercial rezoning of the golf course property before the City Council on October 5, 2016. The petitioner argues this “stripped away that last layer of protection” for homeowners who believed the golf course could not be developed without their approval.

• Homeowner Reliance: During oral arguments, the petitioner testified that members relied on the protections within the CC&Rs and REMA when purchasing their homes, believing development required a two-thirds majority vote.

Petitioner’s Requested Relief

The petitioner respectfully requested that the Administrative Court issue the following orders:

1. Find that REMA Section 5.1 may not be amended without the member vote required by REMA Article 12 and CC&Rs Section 14.2.

2. Find that Amendments 2 and 3 to the REMA are void and unenforceable.

3. Order the HOA Board to remove Amendments 2 and 3 from the public record.

Analysis of Governing Document Provisions

The dispute hinges on the interpretation of and interaction between two key legal documents: the REMA and the HOA’s CC&Rs.

Document

Section

Description

Key Language

Section 5.1

Use Restriction: Restricts the golf course property’s use to either a golf course or open space.

“The Golf Course Property shall be used solely and exclusively for Golf Course Use or as open space, and for no other purposes.”

Article 12

Amendment Procedure: Stipulates that changes to Section 5.1 require the same member vote as an amendment to the HOA’s Declaration (CC&Rs).

“…no termination, cancellation, change, modification or amendment of paragraph 5.1… shall be made without the written approval thereof by the number of Members… required to amend the Declaration pursuant to Section 13.2 thereof.”

Section 14.2

Member Vote Requirement: Defines the threshold for amending the CC&Rs.

“…may be amended only by the affirmative vote (in person or by proxy) or written consent of: (a) Members holding not less than two-thirds (2/3) of all Class A votes then entitled to be cast; and (b) Members holding not less than two thirds (2/3) of all Class B votes…”

Section 14.17

Third-Party Rights: Protects the rights of the Golf Course Owner, stating that provisions benefiting them cannot be amended without their written consent.

“…no provision of this Declaration… which grants to or confers upon the Golf Course Owner or the Golf Course Property any rights… shall be modified, amended or revoked in any way without the express written consent of the Golf Course Owner.”

Jurisdictional Challenge and Legal Rationale for Dismissal

The HOA’s defense focused not on the factual allegations but on the argument that the Department of Real Estate was the improper forum for this dispute. The ALJ ultimately agreed with this position.

Respondent’s Motion for Summary Judgment

The Cottonfields Community Association argued that the Department could not grant the petitioner’s requested relief because:

1. The REMA is not a “community document” as defined under Arizona law (A.R.S. § 32-2199.01(A)).

2. The Golf Course Owner is a third party over whom the Department lacks jurisdiction.

3. Any ruling would affect the rights of this third party and could impact the 2015 settlement agreement from the superior court case.

Administrative Law Judge’s Conclusions of Law

The ALJ’s decision was based on a strict interpretation of the Department’s statutory authority.

• REMA is Not a “Community Document”: The judge found that although the REMA references the CC&Rs, it does not meet the legal definition of a community document under A.R.S. § 33-1802(2), which defines them as “the declaration, bylaws, articles of incorporation, if any, and rules, if any.” The Department’s authority under A.R.S. § 32-2199.01(A) is limited to violations of these specific documents.

• Implication of Third-Party Rights: The decision states that the petitioner’s request to void the amendments “implicates the Golf Course Owner’s interests in its property and may affect the settlement that the Golf Course Owner entered into with Respondent.” The law does not grant the Department “jurisdiction over disputes that implicate the rights of third parties.”

• Petitioner’s Available Remedies: While validating the petitioner’s underlying worries, the judge outlined specific alternative courses of action. The decision states: “Petitioner’s concerns about development of the golf course may be well-founded. However, under applicable statutes, at this time, his available remedies are to elect a board that will better protect members’ interest in maintaining the golf course, to file suit in a judicial forum against Respondent and the Golf Course Owner, or to ask the legislature to amend A.R.S. §§ 33-1802(2) and 32-2199.01(A).”

Final Order and Disposition

Based on the legal conclusions regarding jurisdiction, the case was dismissed.

• ALJ Recommendation: On May 11, 2017, Administrative Law Judge Diane Mihalsky recommended that the complaint be dismissed.

• Commissioner’s Final Order: On May 11, 2017, Judy Lowe, Commissioner for the Arizona Department of Real Estate, issued a Final Order stating: “The Commissioner accepts the ALJ decision that the petition in this matter be dismissed.”

• Further Action: The Final Order noted that a party may file for a rehearing or review within thirty days, or may appeal the final administrative decision by filing a complaint for judicial review.

Study Guide: Gronlund v. Cottonfields Community Association

This guide provides a detailed review of the administrative case Kurt Gronlund v. Cottonfields Community Association (No. 17F-H1716024-REL), focusing on the key legal arguments, governing documents, and the court’s final decision regarding jurisdiction.

Short-Answer Quiz

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

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

2. What central allegation did the Petitioner make regarding the HOA board’s actions in March 2011?

3. What specific relief did the Petitioner request from the Administrative Court in his petition?

4. Identify the two key legal documents at the heart of the dispute and briefly explain their respective roles.

5. According to REMA Article 12 and CC&Rs Section 14.2, what was the required procedure to amend the use restriction on the golf course property?

6. On what primary grounds did the Respondent, Cottonfields Community Association, file a motion for summary judgment?

7. What was the Administrative Law Judge’s key legal conclusion regarding the status of the Reciprocal Easement and Maintenance Agreement (REMA)?

8. Why did the Administrative Law Judge ultimately find that the Arizona Department of Real Estate lacked the jurisdiction to grant the Petitioner’s requested relief?

9. What alternative remedies did the Administrative Law Judge suggest were available to the Petitioner?

10. What was the final outcome of the case as determined by the Commissioner of the Department of Real Estate?

——————————————————————————–

Answer Key

1. The Petitioner is Kurt Gronlund, a homeowner and member of the Cottonfields Community Association. The Respondent is the Cottonfields Community Association, which is the Homeowners Association (HOA) for the residential development where the Petitioner owns a home.

2. The Petitioner alleged that the HOA board voted 3-2 to unilaterally amend REMA Section 5.1’s use restriction on the golf course property. This action was allegedly taken without the required vote of the approximately 450 eligible class members, which constituted a violation of the governing documents.

3. The Petitioner requested that the court find Amendments 2 and 3 to the REMA to be void and unenforceable, order the HOA Board to remove these amendments from the public record, and issue a finding that REMA 5.1 may not be amended without the member vote required by the CC&Rs.

4. The key documents are the Declaration of Covenants, Conditions and Restrictions (CC&Rs) and the Reciprocal Easement and Maintenance Agreement (REMA). The CC&Rs are the primary governing documents for the HOA, while the REMA is a separate agreement between the developer/HOA and the Golf Course Owner specifically governing the use of the golf course property.

5. REMA Article 12 required that any amendment to Section 5.1 (the use restriction) receive written approval from the number of Members specified in the CC&Rs. CC&Rs Section 14.2 stipulates this requires an affirmative vote or written consent of members holding at least two-thirds (2/3) of all Class A and Class B votes.

6. The Respondent argued that the Department of Real Estate lacked jurisdiction to rule on the matter. This argument was based on two points: the REMA was not a “community document” as defined by Arizona statute, and the dispute involved the rights of the Golf Course Owner, a third party over whom the Department had no authority.

7. The Judge concluded that although the REMA references the CC&Rs, it is not a “community document” as defined in A.R.S. § 33-1802(2). This determination was central to the case, as the Department’s jurisdiction is limited to disputes concerning community documents.

8. The Department’s jurisdiction under A.R.S. § 32-2199.01(A) does not extend to disputes that implicate the rights of third parties. Because the Petitioner’s request would affect the property interests of the Golf Course Owner and a 2015 legal settlement, the Department was not statutorily authorized to resolve the issue.

9. The Judge suggested three potential remedies: elect a new HOA board that will better protect members’ interests, file a lawsuit in a judicial forum against both the HOA and the Golf Course Owner, or ask the state legislature to amend the relevant statutes governing HOAs and community documents.

10. The Commissioner of the Department of Real Estate adopted the Administrative Law Judge’s recommendation in a Final Order dated May 11, 2017. The Commissioner accepted the decision that the Department lacked jurisdiction and ordered that the Petitioner’s complaint be dismissed.

——————————————————————————–

Essay Questions

The following questions are designed to encourage a deeper analysis of the case. No answers are provided.

1. Analyze the distinction between a “community document” and the REMA as presented in this case. Why was this distinction the pivotal point in the Administrative Law Judge’s decision to recommend dismissal for lack of jurisdiction?

2. Discuss the procedural history of the dispute over the golf course property, beginning with the REMA amendments in 2011 and including the 2014 litigation, the 2015 settlement, and the 2016 rezoning. How did these prior events impact the arguments and outcome of Gronlund’s 2017 petition?

3. Explain the conflict between the powers granted to the HOA Board and Golf Course Owner in REMA Article 12 and the protections afforded to homeowners in the same article’s reference to CC&Rs Section 14.2. How did the Petitioner and Respondent interpret these clauses differently?

4. Evaluate the legal reasoning behind the Administrative Law Judge’s conclusion that the Department of Real Estate lacked jurisdiction over third parties like the Golf Course Owner. Why would resolving Gronlund’s petition necessarily implicate the rights of this third party?

5. The Judge outlines three potential remedies for the Petitioner: electoral, judicial, and legislative. Describe each of these remedies and discuss the potential challenges and benefits of each path in seeking to protect the golf course from development.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

A judge who presides over administrative hearings at a government agency, in this case, the Office of Administrative Hearings (OAH). The ALJ in this matter was Diane Mihalsky.

A.R.S. (Arizona Revised Statutes)

The collection of all the laws passed by the Arizona state legislature. Specific statutes, such as A.R.S. § 32-2199.01(A) and § 33-1802(2), were central to this case.

CC&Rs (Declaration of Covenants, Conditions and Restrictions)

The primary governing legal documents for a planned community or homeowners’ association that outline the rules and member obligations.

Commissioner

The head of a government department. In this case, Judy Lowe, the Commissioner of the Arizona Department of Real Estate, issued the Final Order.

Community Documents

As defined by A.R.S. § 33-1802(2), these include a planned community’s declaration (CC&Rs), bylaws, articles of incorporation, and rules. The REMA was determined not to fall under this definition.

Dismissed with Prejudice

A legal term for a final judgment that prevents the plaintiff from filing another case on the same claim. The 2014 lawsuit between the HOA and the Golf Course Owner was dismissed with prejudice.

Golf Course Owner

A separate legal entity that owned the golf course property and was a primary party to the REMA, but was not a party to this administrative case.

• HOA (Homeowners Association) | An organization in a subdivision or planned community that creates and enforces rules for the properties within its jurisdiction. In this case, the Cottonfields Community Association. | | Jurisdiction | The official power to make legal decisions and judgments. The central legal issue of the case was whether the Arizona Department of Real Estate had jurisdiction over the dispute. | | Motion for Summary Judgment | A request made by a party asking the court to decide a case in their favor without a full trial, arguing that there are no material facts in dispute and that they are entitled to win as a matter of law. | | Office of Administrative Hearings (OAH) | An independent Arizona state agency that conducts evidentiary hearings for other state agencies to ensure fair and impartial decisions. | | Petitioner | The party who files a petition or brings an action before a court or administrative body. In this case, Kurt Gronlund. | | REMA (Reciprocal Easement and Maintenance Agreement) | A recorded legal agreement between the original developer/HOA and the Golf Course Owner that established mutual rights, easements, and obligations, including the critical use restriction on the golf course property. | | Respondent | The party against whom a petition is filed or an appeal is brought. In this case, the Cottonfields Community Association. |

⚖️

17F-H1716024-REL

2 sources

The provided sources consist of an Administrative Law Judge Decision and a subsequent Final Order from the Arizona Department of Real Estate concerning a dispute between homeowner Kurt Gronlund, the Petitioner, and the Cottonfields Community Association, the Respondent. The administrative law judge recommended granting the Association’s motion for summary judgment because the Department of Real Estate lacked jurisdiction over the matter, a recommendation which the Commissioner ultimately accepted. The core of the conflict was Gronlund’s petition challenging the Association’s 2011 amendments to a Reciprocal Easement and Maintenance Agreement (REMA), which governed the use of a golf course adjacent to the community. The decision clarified that the REMA was not classified as a “community document” under the relevant statutes, and furthermore, the requested relief would improperly implicate the rights of the Golf Course Owner, a third party over whom the Department had no authority. The final ruling therefore dismissed the petition, suggesting judicial action or legislative change as alternative remedies for the petitioner.

Case Participants

Petitioner Side

  • Kurt Gronlund (petitioner)

Respondent Side

  • Troy B. Stratman (attorney)
    Stratman Law Firm, PLC

Neutral Parties

  • Diane Mihalsky (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Abby Hansen (HOA Coordinator)
    Arizona Department of Real Estate
    Responsible for processing rehearing requests and listed on ADRE service email list.
  • LDettorre (administrative staff)
    Arizona Department of Real Estate
    Email contact listed ([email protected])
  • djones (administrative staff)
    Arizona Department of Real Estate
    Email contact listed ([email protected])
  • jmarshall (administrative staff)
    Arizona Department of Real Estate
    Email contact listed ([email protected])
  • ncano (administrative staff)
    Arizona Department of Real Estate
    Email contact listed ([email protected])