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

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Case Summary

Case ID 07F-H067002-BFS
Agency Department of Fire, Building and Life Safety
Tribunal OAH
Decision Date 2007-02-21
Administrative Law Judge Diane Mihalsky
Outcome no
Filing Fees Refunded $550.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

A.R.S. § 41-2198.01(B)

Outcome Summary

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

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

Key Issues & Findings

Board Constitution and Validity of CC&R Amendments

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

Orders: Complaint dismissed for lack of jurisdiction.

Filing fee: $550.00, Fee refunded: No

Disposition: petitioner_loss

Video Overview

Audio Overview

Decision Documents

07F-H067002-BFS Decision – 162561.pdf

Uploaded 2026-01-23T17:16:58 (172.7 KB)





Briefing Doc – 07F-H067002-BFS


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

Executive Summary

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

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

Background of the Planned Community and Governing Documents

The Original 1985 CC&Rs

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

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

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

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

Ownership Succession

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

Evolution of CC&R Amendments

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

Amendment Type

Key Changes

Approval Level

July 9, 2003

Amended and Restated Declaration

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

72% of record owners

Nov 5, 2003

First Amendment

Further modifications to the restated declaration.

Not specified

Feb 21, 2006

Additional Amendment

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

87% of record owners

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

The Petitioner’s Challenge

Legal Basis of the Dispute

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

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

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

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

Requested Relief

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

Administrative Findings and Dismissal

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

Lack of Jurisdiction

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

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

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

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

Inappropriate Forum for Declaratory Relief

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

Adjudication of Attorney’s Fees

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

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

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

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

Final Order

The Administrative Law Judge ordered the following:

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

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






Study Guide – 07F-H067002-BFS


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

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

——————————————————————————–

Part I: Short-Answer Quiz

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

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

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

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

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

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

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

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

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

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

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

——————————————————————————–

Part II: Answer Key

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

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

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

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

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

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

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

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

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

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

——————————————————————————–

Part III: Essay Questions

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

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

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

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

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

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

——————————————————————————–

Part IV: Glossary of Key Terms

Definition

A.R.S. § 41-2198.01

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

Administrative Law Judge (ALJ)

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

Amended and Restated Declaration

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

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

Class B Membership

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

Common Areas

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

Declarant

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

Declaratory Judgment

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

Office of Administrative Hearings (OAH)

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

Petitioner

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

Preponderance of the Evidence

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

Respondent

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

Successor in Interest

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






Blog Post – 07F-H067002-BFS


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

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

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

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

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

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

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

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

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


Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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

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

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Case Summary

Case ID 07F-H067002-BFS
Agency Department of Fire, Building and Life Safety
Tribunal OAH
Decision Date 2007-02-21
Administrative Law Judge Diane Mihalsky
Outcome no
Filing Fees Refunded $550.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

A.R.S. § 41-2198.01(B)

Outcome Summary

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

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

Key Issues & Findings

Board Constitution and Validity of CC&R Amendments

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

Orders: Complaint dismissed for lack of jurisdiction.

Filing fee: $550.00, Fee refunded: No

Disposition: petitioner_loss

Video Overview

Audio Overview

Decision Documents

07F-H067002-BFS Decision – 162561.pdf

Uploaded 2026-01-23T17:16:56 (172.7 KB)





Briefing Doc – 07F-H067002-BFS


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

Executive Summary

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

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

Background of the Planned Community and Governing Documents

The Original 1985 CC&Rs

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

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

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

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

Ownership Succession

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

Evolution of CC&R Amendments

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

Amendment Type

Key Changes

Approval Level

July 9, 2003

Amended and Restated Declaration

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

72% of record owners

Nov 5, 2003

First Amendment

Further modifications to the restated declaration.

Not specified

Feb 21, 2006

Additional Amendment

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

87% of record owners

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

The Petitioner’s Challenge

Legal Basis of the Dispute

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

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

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

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

Requested Relief

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

Administrative Findings and Dismissal

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

Lack of Jurisdiction

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

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

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

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

Inappropriate Forum for Declaratory Relief

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

Adjudication of Attorney’s Fees

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

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

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

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

Final Order

The Administrative Law Judge ordered the following:

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

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






Study Guide – 07F-H067002-BFS


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

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

——————————————————————————–

Part I: Short-Answer Quiz

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

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

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

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

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

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

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

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

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

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

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

——————————————————————————–

Part II: Answer Key

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

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

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

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

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

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

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

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

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

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

——————————————————————————–

Part III: Essay Questions

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

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

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

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

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

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

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Part IV: Glossary of Key Terms

Definition

A.R.S. § 41-2198.01

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

Administrative Law Judge (ALJ)

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

Amended and Restated Declaration

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

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

Class B Membership

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

Common Areas

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

Declarant

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

Declaratory Judgment

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

Office of Administrative Hearings (OAH)

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

Petitioner

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

Preponderance of the Evidence

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

Respondent

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

Successor in Interest

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






Blog Post – 07F-H067002-BFS


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

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

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

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

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

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

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

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

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


Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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

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

Posted on by

Case Summary

Case ID 07F-H067010-BFS and 07F-H067011-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2007-02-14
Administrative Law Judge Diane Mihalsky
Outcome yes
Filing Fees Refunded $1,100.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

CC&Rs § 11.4

Outcome Summary

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

Key Issues & Findings

Failure to Issue Written Decision Within 45 Days

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

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

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

Disposition: petitioner_win

Cited:

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

Audio Overview

Decision Documents

07F-H067010-BFS Decision – 162264.pdf

Uploaded 2026-01-25T15:19:35 (194.0 KB)





Briefing Doc – 07F-H067010-BFS


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

Executive Summary

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

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

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Case Overview and Parties

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

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

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

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

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Governing Regulatory Framework: The CC&Rs

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

Key CC&R Provisions

Section

Provision

Core Requirement/Authority

Purpose

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

Operation

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

Discretion

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

Waiver

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

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The Dispute: Arguments for and Against the Gate

Petitioners’ Rationale for Installation

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

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

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

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

HOA Rationale for Denial

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

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

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

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

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Chronology of Procedural Failure

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

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

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

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

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

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

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

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Findings of Fact and Conclusions of Law

Substantive Merits

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

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

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

The Decisive Procedural Error

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

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

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

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

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Final Order

The Administrative Law Judge issued the following orders:

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

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

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

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






Study Guide – 07F-H067010-BFS


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

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

Part I: Short-Answer Quiz

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

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

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

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

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

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

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

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

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

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

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

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Part II: Answer Key

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

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

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

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

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

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

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

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

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

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

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Part III: Essay Questions

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

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

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

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

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

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

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Part IV: Glossary of Key Terms

Definition

A.R.S.

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

Administrative Law Judge (ALJ)

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

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

Common Area

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

Custom Lot

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

Deemed Approved

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

Design Review Committee (DRC)

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

Master-Planned Community

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

Precedent

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

Tract Home

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

Waiver

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






Blog Post – 07F-H067010-BFS


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

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

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

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

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

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

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

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

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

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

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

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

A Community Divided: Custom Estates vs. Tract Home Standards

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

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

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

The “Confidential” Neighbor Strategy Backfires

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

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

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

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

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

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

Conclusion: The Price of Accountability

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

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

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


Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

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

Posted on by

Case Summary

Case ID 07F-H067005-BFS
Agency Department of Fire, Building, and Life Safety
Tribunal OAH
Decision Date 2007-01-30
Administrative Law Judge Diane Mihalsky
Outcome yes
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

CC&Rs Section 3.1, Section 7.7; Architectural Guidelines

Outcome Summary

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

Key Issues & Findings

Arbitrary denial of architectural approval for play structure

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

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

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

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

Video Overview

Audio Overview

Decision Documents

07F-H067005-BFS Decision – 160975.pdf

Uploaded 2026-01-25T15:19:14 (276.6 KB)





Briefing Doc – 07F-H067005-BFS


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

Executive Summary

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

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

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1. Legal and Regulatory Framework

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

1.1 Key CC&R Provisions

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

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

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

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

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

1.2 Architectural Guidelines (2001 vs. 2006)

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

Feature

February 2001 Guidelines

April 2006 Guidelines

Approval Requirement

Not required for items under 6 feet.

Required for items exceeding wall height.

Playground Equipment

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

Removed from the list of examples under wall height.

General Principle

Discretion of homeowner unless it impacts adjacent property.

Committee approval required for anything exceeding wall height.

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2. Chronology of the Dispute

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

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

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

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

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

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

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

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

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3. HOA Fine Policy and Accrued Costs

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

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

• Third Notice: $25.00 fine.

• Fourth Notice: $50.00 fine.

• Continuing Violations: $100.00 assessed every seven days.

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

• Accrued Fines: $2,161.04.

• Attorney’s Fees: $2,651.43.

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4. Evidence and Testimony

4.1 Petitioner’s Arguments

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

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

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

4.2 Respondent’s Arguments

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

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

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5. Conclusions of Law and Final Order

5.1 Judicial Findings

The ALJ reached the following legal conclusions:

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

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

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

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

5.2 The Order

The ALJ issued the following mandates:

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

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

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






Study Guide – 07F-H067005-BFS


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

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

Short-Answer Quiz

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

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

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

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

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

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

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

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

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

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

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

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Answer Key

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

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

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

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

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

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

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

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

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

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

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Essay Questions

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

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

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

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

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

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Glossary of Key Terms

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

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

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

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

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

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

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

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

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

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






Blog Post – 07F-H067005-BFS


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

The HOA Nightmare You Never Expected

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

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

The Danger of “The Manager Said It Was Fine”

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

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

The “Wall Height” Myth and the Goliath Mentality

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

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

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

When Enforcement Becomes “Arbitrary and Capricious”

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

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

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

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

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

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

• Total Accrued Fines: $2,161.04

• HOA Attorney’s Fees: $2,651.43

• Total Financial Liability: $4,812.47

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

The “Remand” Reality Check and the Power of Expertise

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

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

Conclusion: Who Rules the Backyard?

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

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


Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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