Wendy Ellsworth v. Vincenz Homeowners’ Association

Posted on September 8, 2020 by [email protected]

Case Summary

Case ID	20F-H2020043-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-09-08
Administrative Law Judge	Velva Moses-Thompson
Outcome	The petition concerning the alleged violation of CC&R section 10.11.1 by the HOA was dismissed because the Petitioner failed to meet the burden of proof, and the tribunal lacked jurisdiction over the declaratory judgment request regarding waiver of enforcement.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Wendy Ellsworth	Counsel	Brian Hatch
Respondent	Vincenz Homeowners' Association	Counsel	Mark K. Sahl

Alleged Violations

VHA CC&R Article 10 § 10.11.1

Outcome Summary

The petition concerning the alleged violation of CC&R section 10.11.1 by the HOA was dismissed because the Petitioner failed to meet the burden of proof, and the tribunal lacked jurisdiction over the declaratory judgment request regarding waiver of enforcement.

Why this result: Petitioner failed to establish that VHA violated CC&R section 10.11.1 by a preponderance of the evidence. Furthermore, the tribunal lacked jurisdiction to rule on the declaratory judgment requested by the Petitioner regarding VHA's waiver of its enforcement rights.

Key Issues & Findings

Violation of CC&R Article 10, Section 10.11.1 regarding parking enforcement and waiver

Petitioner alleged VHA waived its right to enforce CC&R 10.11.1 (parking prohibition) because violations had been frequent since inception. The tribunal found Petitioner failed to establish VHA violated section 10.11.1, and the tribunal lacked jurisdiction regarding the requested declaratory judgment on waiver of enforcement.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

Topics: HOA Enforcement, CC&R Violation, Parking, Waiver, Jurisdiction

Additional Citations:

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

Video Overview

Audio Overview

Decision Documents

20F-H2020043-REL Decision – 820839.pdf

Uploaded 2026-04-24T11:25:22 (95.4 KB)

Briefing: Ellsworth v. Vincenz Homeowners’ Association (No. 20F-H2020043-REL)

Executive Summary

This briefing analyzes the Administrative Law Judge Decision in the case of Wendy Ellsworth versus the Vincenz Homeowners’ Association (VHA). The case centered on Ms. Ellsworth’s petition alleging that the VHA had waived its right to enforce a specific parking restriction outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The Administrative Law Judge dismissed the petition in its entirety.

The dismissal was based on two fundamental conclusions. First, the petitioner, Ms. Ellsworth, failed to meet her burden of proof. Her petition did not allege, nor did she provide evidence, that the VHA itself had violated the parking rule. Instead, her claim focused on the VHA’s alleged failure to enforce the rule against others. Second, and more decisively, the judge determined that the Office of Administrative Hearings (OAH) lacks the jurisdiction to issue a declaratory judgment. Ms. Ellsworth was effectively asking the tribunal to declare that the VHA had waived its enforcement rights, a legal determination beyond the OAH’s statutory authority. The VHA successfully argued that the OAH’s jurisdiction is limited to hearing alleged violations committed by the association, not to adjudicating the association’s future enforcement capabilities.

Case Background

• Petitioner: Wendy Ellsworth, a property owner within the Vincenz community.

• Respondent: Vincenz Homeowners’ Association (VHA).

• Tribunal: Arizona Office of Administrative Hearings (OAH).

• Presiding Judge: Administrative Law Judge Velva Moses-Thompson.

• Filing Date: Ms. Ellsworth filed a petition with the Arizona Department of Real Estate on or about January 15, 2020.

• Hearing Date: An evidentiary hearing was held on August 19, 2020.

• Decision Date: The final decision was issued on September 8, 2020.

The matter was referred to the OAH to determine whether VHA was in violation of its community documents as alleged by the petitioner.

Central Dispute: CC&R Article 10, Section 10.11.1

The entire dispute revolved around the enforcement of a specific vehicle parking rule within the VHA’s Covenants, Conditions, and Restrictions.

Article 10 § 10.11.1 provides:

Vehicles. No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.

This provision explicitly restricts the parking of personal vehicles to approved locations: garages, private driveways, or other areas specifically designated by the VHA Board.

Positions of the Parties

Petitioner’s Position (Wendy Ellsworth)

Ms. Ellsworth’s central argument was not that the VHA had violated the parking rule, but that it had lost the ability to enforce it through inaction.

• Core Allegation: The petition claimed VHA had waived its ability to enforce Article 10, Section 10.11.1.

• Stated Rationale: Ms. Ellsworth intended to prove that “violations of the street parking prohibition have been ‘frequent’ since Vincenz’s inception” and that the community’s CC&Rs “do not contain a relevant non-waiver provision.”

• Testimony: At the August 19, 2020 hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, under cross-examination, she later conceded that she was unsure whether the VHA had ever enforced it.

Respondent’s Position (Vincenz Homeowners’ Association)

The VHA argued for a complete dismissal of the petition, primarily on procedural and jurisdictional grounds.

• Core Argument: The petition failed to state a valid claim because it did not contend that VHA itself had improperly parked a vehicle in violation of the CC&Rs.

• Jurisdictional Challenge: VHA contended that the OAH’s jurisdiction, granted under ARIZ. REV. STAT. § 32-2199.01(A), is strictly limited to hearing petitions about alleged violations of community documents or state statutes by the association.

• Declaratory Judgment: The VHA characterized Ms. Ellsworth’s request as one for a “declaratory judgment”—a ruling on the VHA’s legal right to enforce the rule—which it argued the OAH has no legal authority to issue.

Administrative Law Judge’s Findings and Conclusions

The Administrative Law Judge (ALJ) sided entirely with the Respondent, concluding that the petition must be dismissed. The decision was based on a failure of proof by the petitioner and a critical lack of jurisdiction by the tribunal.

Legal Standards Applied

Standard

Description

Burden of Proof

The Petitioner bears the burden to prove a violation by a preponderance of the evidence.

Preponderance of the Evidence

Defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with “the most convincing force.”

Covenant Interpretation

In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties and must be interpreted as a whole.

Conclusion 1: Failure to Establish a Violation

The ALJ found that Ms. Ellsworth failed to meet her burden of proof. The decision notes:

• Ms. Ellsworth “did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”

• Because no violation by the VHA was alleged or proven, the core requirement for a successful petition was absent.

Conclusion 2: Lack of Jurisdiction

The most significant finding was that the tribunal lacked the authority to grant the relief Ms. Ellsworth sought.

• The ALJ explicitly stated: “To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”

• This conclusion affirmed the VHA’s central argument that the OAH is not the proper forum for determining an association’s prospective enforcement rights.

Final Order and Implications

Based on the findings, the final order was unambiguous:

“IT IS ORDERED, the petition is dismissed.”

The decision document includes a notice outlining the next steps available to the parties. Pursuant to Arizona Revised Statutes, the order is binding unless a party files a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

Study Guide: Ellsworth v. Vincenz Homeowners’ Association (Case No. 20F-H2020043-REL)

This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Wendy Ellsworth and Respondent Vincenz Homeowners’ Association (VHA). It covers the key facts, legal arguments, and the final ruling of the Office of Administrative Hearings (OAH).

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Review Quiz

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

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

2. What specific rule, or covenant, was at the center of the dispute?

3. What was the core allegation made by the petitioner, Wendy Ellsworth, in her initial petition?

4. What was the primary legal argument made by the respondent, Vincenz Homeowners’ Association, for why the petition should be dismissed?

5. What change occurred in Ms. Ellsworth’s testimony during the hearing?

6. According to the decision, what is the legal standard for the “burden of proof” in this type of hearing?

7. How does Arizona law interpret “restrictive covenants” when their language is unambiguous?

8. What two key reasons did the Administrative Law Judge give for dismissing the petition?

9. Which government body has jurisdiction to hear petitions from homeowners concerning violations of planned community documents?

10. What action could the parties take after the order was issued, and within what timeframe?

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Answer Key

1. The primary parties were Petitioner Wendy Ellsworth, a homeowner, and Respondent Vincenz Homeowners’ Association (VHA). Ms. Ellsworth initiated the legal action by filing a petition against the VHA.

2. The rule at the center of the dispute was Article 10, Section 10.11.1 of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs). This section prohibits the parking of private passenger automobiles or pickup trucks on the property or adjacent roadways, except in garages, private driveways, or other Board-designated areas.

3. Ms. Ellsworth’s core allegation was that the VHA had waived its ability to enforce the street parking prohibition (CC&R 10.11.1). She claimed that violations had been “frequent” since the community’s inception and that the VHA’s CC&Rs lacked a relevant non-waiver provision.

4. The VHA argued that the petition should be dismissed because Ms. Ellsworth never alleged that the VHA itself had violated the parking rule. The VHA contended that the OAH only has jurisdiction over alleged violations by the association, not over a homeowner’s request for a declaratory judgment on the right to enforce a rule.

5. During the hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, upon cross-examination, she admitted that she was unsure whether the VHA had ever enforced it.

6. The legal standard for the burden of proof is “a preponderance of the evidence.” This standard requires the petitioner to provide proof that convinces the trier of fact that their contention is more probably true than not.

7. In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. The covenants must be construed as a whole and interpreted in view of their underlying purposes.

8. The judge dismissed the petition for two main reasons. First, Ms. Ellsworth failed to establish that the VHA itself had violated section 10.11.1. Second, the tribunal (the OAH) does not have the jurisdiction to issue a declaratory judgment stating that the VHA has waived its right to enforce the covenant.

9. The Arizona Department of Real Estate is the government body that receives petitions for hearings concerning violations of planned community documents. These hearings are then referred to the Office of Administrative Hearings (OAH).

10. After the order was issued on September 8, 2020, either party could file a request for a rehearing with the Commissioner of the Department of Real Estate. This request had to be filed within 30 days of the service of the Order.

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Essay Questions

Instructions: The following questions are designed for longer, more analytical responses. Use the facts and legal principles from the case to construct your arguments. No answer key is provided.

1. Explain the concept of “waiver” as argued by the petitioner. Why was this argument ultimately ineffective before the Office of Administrative Hearings in this specific case?

2. Analyze the jurisdictional limitations of the Office of Administrative Hearings (OAH) as demonstrated in this decision. Discuss the difference between adjudicating a violation of community documents and issuing a declaratory judgment.

3. Describe the “preponderance of the evidence” standard and explain how the petitioner, Wendy Ellsworth, failed to meet this burden of proof. Consider both her initial claim and her testimony during the hearing.

4. Evaluate the petitioner’s legal strategy. What was the central flaw in her petition that prevented the Administrative Law Judge from ruling on the merits of her non-enforcement claim?

5. Based on the legal precedent cited (Powell v. Washburn), discuss the principles Arizona courts use to interpret CC&Rs. How did the judge apply this principle to the specific language of Article 10, Section 10.11.1?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official (in this case, Velva Moses-Thompson) who presides over hearings at an administrative agency (like the OAH) and issues decisions.

Affirmative Defense

A set of facts other than those alleged by the petitioner which, if proven by the respondent, defeats or mitigates the legal consequences of the respondent’s otherwise unlawful conduct.

ARIZ. REV. STAT. (A.R.S.)

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

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this case, the petitioner had the burden to prove the VHA violated its CC&Rs.

Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision.

Declaratory Judgment

A binding judgment from a court defining the legal relationship between parties and their rights in a matter before any actual harm has occurred. The OAH determined it lacked jurisdiction to issue such a judgment in this case.

Jurisdiction

The official power to make legal decisions and judgments. The OAH’s jurisdiction was limited to hearing alleged violations of community documents, not requests for declaratory judgments.

Office of Administrative Hearings (OAH)

The state agency where the evidentiary hearing for this case was held. It conducts hearings for other state agencies.

Petitioner

The party who initiates a lawsuit or files a petition to start a legal action. In this case, Wendy Ellsworth.

Preponderance of the Evidence

The standard of proof in most civil cases, meaning that the evidence presented is more convincing and likely to be true than not. It is a lower standard than “beyond a reasonable doubt.”

Respondent

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

Restrictive Covenant

A provision in a deed or a set of CC&Rs that limits the use of the property and prohibits certain uses.

Waiver

The intentional or voluntary relinquishment of a known right. The petitioner argued that the VHA, through its inaction, had waived its right to enforce the parking rule.

Why This Homeowner’s Lawsuit Against Her HOA Was Doomed From the Start: 3 Critical Lessons

The frustration is real. You see your neighbors breaking the rules—parking on the street, letting their lawn go—and it feels like your Homeowners’ Association (HOA) is doing nothing about it. This sense of inconsistent enforcement is one of the most common complaints homeowners have. For Wendy Ellsworth, this frustration led her to file a legal petition against the Vincenz Homeowners’ Association (VHA).

Her case, however, was dismissed. It wasn’t lost on a minor technicality or a surprise piece of evidence. It was doomed from the start because of fundamental strategic errors. By examining where she went wrong, we can uncover three powerful lessons for any homeowner considering a similar fight.

Lesson 1: You Must Accuse the Right Party of the Right Violation

Ms. Ellsworth’s core grievance was that the VHA was not enforcing its own on-street parking rules against other residents. Her formal petition, however, made a critical mistake: it accused the HOA itself of violating the community’s parking rule, CC&R Article 10 § 10.11.1.

This was a fatal flaw. That specific rule governs the actions of homeowners—prohibiting them from parking automobiles or trucks on roadways except in designated areas. It places no duty on the HOA. In her legal filing, Ms. Ellsworth failed to point to any specific rule that the HOA, as an entity, had actually broken. Her petition essentially accused the HOA of illegally parking a car, which was not her complaint at all. The judge noted this fundamental disconnect:

“Ms. Ellsworth did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”

A viable petition would have needed to identify a completely different rule—one that placed a specific duty on the HOA Board to enforce the community documents—and then allege that the Board had violated that duty. This fundamental error of misidentifying the violation was compounded by the fact that she was asking the tribunal for a remedy it had no power to grant. Accusing the wrong party of breaking the wrong rule can cause an entire case to be dismissed before its merits are even considered.

Lesson 2: The “Burden of Proof” is More Than Just a Legal Phrase

In any legal action, the person making the claim (the “petitioner”) has the “burden of proof.” This means it is their responsibility to present evidence that convinces the judge their claim is true. Ms. Ellsworth, as the petitioner, was responsible for proving her case by a “preponderance of the evidence.”

The court defined this standard as:

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

Making an accusation is easy; proving it is hard. Ms. Ellsworth’s own testimony failed to meet this standard. At the hearing, she initially testified that the VHA had never enforced the parking rule. However, when questioned further during cross-examination, she admitted that she was “unsure” whether the HOA had ever enforced it. This admission transformed her claim from an assertion of fact into mere speculation. In court, “I’m unsure” is the equivalent of having no evidence at all on that point, making it impossible for the judge to conclude her version of events was “more probably true than not.”

The lesson here is that winning requires more than just a belief you are right. You must present evidence that is solid, consistent, and more convincing than the other side’s. Weak or self-contradictory testimony undermines your own credibility and makes it nearly impossible to meet the burden of proof.

Lesson 3: You Have to Knock on the Right Legal Door

The legal system is highly specialized, and different courts and tribunals have the authority—or “jurisdiction”—to hear different types of cases. A major part of Ms. Ellsworth’s petition was the request for a “declaratory judgment,” essentially asking the judge to declare that the VHA had waived its right to enforce the parking rule in the future because of its alleged past non-enforcement.

The problem was that she brought this request to the wrong venue. The Office of Administrative Hearings (OAH) is designed to answer a simple question: “Did the HOA violate an existing rule?” Ms. Ellsworth was asking a far more complex question: “Based on past behavior, should the court declare that this rule is no longer enforceable in the future?” That forward-looking request for a “declaratory judgment” belongs in a court of general jurisdiction (like a state Superior Court), which has broader powers to interpret contracts and establish future rights, not in a specialized administrative tribunal.

The Administrative Law Judge made this point unequivocally:

“To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”

Even if her argument about waiver had merit, it was brought before a body that was legally powerless to grant her request. This serves as a crucial reminder: filing a case in the wrong court is an automatic loss. Understanding the specific jurisdiction of the court or tribunal you are petitioning is a non-negotiable step in legal strategy.

Conclusion: Thinking Like a Lawyer, Not Just a Homeowner

Ms. Ellsworth’s case failed not because of three separate errors, but because of a single, comprehensive breakdown in legal strategy. The “what” (the specific accusation), the “how” (the burden of proof), and the “where” (the legal venue) were all fundamentally misaligned with her ultimate goal. This misalignment created a case that was legally impossible to win, regardless of how valid her underlying frustration may have been.

While a homeowner’s anger may be entirely justified, this case demonstrates that passion alone doesn’t win lawsuits. A sound legal strategy is essential. Before you challenge your HOA, have you moved past the frustration to build a case that can actually win?

Case Participants

Petitioner Side

Wendy Ellsworth (petitioner)
Testified at hearing
Brian Hatch (petitioner attorney)
Brian A. Hatch PLLC

Respondent Side

Mark K. Sahl (HOA attorney)
CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP

Neutral Parties

Velva Moses-Thompson (ALJ)
Judy Lowe (Commissioner)
Arizona Department of Real Estate

John B. Clark Jr. v. Foothills Community Association

Posted on February 4, 2020 by [email protected]

Case Summary

Case ID	20F-H2019007-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-02-04
Administrative Law Judge	Velva Moses-Thompson
Outcome	The Administrative Law Judge dismissed the petition, ruling that the Petitioner failed to prove the HOA violated its Articles of Incorporation or Bylaws when removing him from the Design Review Committee. The judge found the HOA replaced the Petitioner to ensure quorum could be met, not for pretextual or political reasons.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	John B. Clark Jr.	Counsel	Mitchell Vasin
Respondent	Foothills Community Association	Counsel	B. Austin Baillio

Alleged Violations

Articles of Incorporation 1, 5, 6, 11, 12, 15; Bylaws Art II 2.3, Art III 3.5, Art IV 4.8(c)

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the Petitioner failed to prove the HOA violated its Articles of Incorporation or Bylaws when removing him from the Design Review Committee. The judge found the HOA replaced the Petitioner to ensure quorum could be met, not for pretextual or political reasons.

Why this result: The HOA provided evidence that the removal was based on the need to ensure quorum for meetings, given Petitioner's frequent absences. Petitioner did not meet the burden of proof to show bad faith or specific bylaw violations.

Key Issues & Findings

Removal from Design Review Committee

Petitioner alleged the HOA removed him from the Design Review Committee (DRC) for pretextual reasons and in bad faith, violating various Articles and Bylaws.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_lose

Video Overview

Audio Overview

Decision Documents

20F-H2019007-REL Decision – 767866.pdf

Uploaded 2026-04-24T11:22:49 (103.9 KB)

Administrative Law Judge Decision: Clark v. Foothills Community Association (No. 20F-H2019007-REL)

Executive Summary

In February 2020, Administrative Law Judge (ALJ) Velva Moses-Thompson issued a decision in the matter of John B. Clark Jr. v. Foothills Community Association. The case centered on a petition filed by Mr. Clark, a long-term member of the Association’s Design Review Committee (DRC), who was removed from his position in July 2019.

The Petitioner alleged that his removal was based on "pretextual" reasons and "bad faith," asserting violations of the Association's Articles of Incorporation and Bylaws. The Respondent, Foothills Community Association, maintained that the removal was necessitated by the Petitioner's chronic absenteeism and the DRC's requirement to meet a quorum to conduct business.

The ALJ ruled in favor of the Association, dismissing the petition. The decision concluded that the Petitioner failed to meet the burden of proof required to establish any violations of governing documents or statutes. The ruling affirmed that the Association's need for operational efficiency and quorum maintenance constituted a valid, non-pretextual reason for removing a committee member.

Analysis of Key Themes

1. Operational Necessity and Quorum Requirements

The central justification for the Petitioner's removal was the Association's inability to ensure a quorum for DRC meetings. The DRC meetings were held on the second Wednesday of every month. Evidence presented by the Respondent indicated that the Petitioner’s attendance had been significantly inconsistent:

Long-term attendance: Since April 2015, the Petitioner attended 19 out of 54 meetings.
Recent attendance: In the 18 meetings prior to his removal, the Petitioner attended only four.

The Association argued that while alternates could be called when a quorum was not met, those alternates were often unavailable. Consequently, the Board determined that replacing the Petitioner with a more consistently available member was necessary for the Committee to conduct business efficiently.

2. Allegations of Pretext and "Politics"

The Petitioner contended that his removal "wreaked of politics" and was done in bad faith. He argued that:

His professional commitments as an Air Force Reservist, realtor, and American Airlines pilot were known to the Board since 2011.
A change in meeting time from 3:00 PM to 2:00 PM made attendance more difficult.
No one had previously expressed concerns regarding his absences.

Despite these assertions, the ALJ found that the Petitioner provided no substantive evidence to prove that the Association’s stated reason—the need for a quorum—was a pretext for a different, underlying motive.

3. Procedural Compliance and Governance

The Association demonstrated adherence to procedural requirements regarding the removal and appointment of committee members:

Notice and Agendas: Meeting notices and agendas for the May and June 2019 Board meetings (where DRC appointments were discussed) were uploaded to the Association's website.
Public Deliberation: The minutes of the May 22, 2019, meeting noted that new members would be appointed. The June 26, 2019, minutes recorded the unanimous approval of two new DRC members and two alternates.
Documentation: The Respondent’s Bylaws (Article IV, Section 4.8(c)) require the secretary to keep minutes of all proceedings, a duty the ALJ found the Association had fulfilled.

4. Legal Standards and Jurisdiction

The case highlighted several critical legal boundaries:

Burden of Proof: The Petitioner bore the burden of proof to establish violations by a "preponderance of the evidence"—meaning the contention is more probably true than not. The ALJ found the Petitioner failed this standard for all alleged violations.
Jurisdictional Limits: The ALJ noted that the Office of Administrative Hearings (OAH) lacks jurisdiction to determine violations of A.R.S. § 10-3830.
Attorney's Fees: The Respondent’s request for attorney’s fees was denied. The ALJ ruled that the Department of Real Estate and OAH are not empowered by statute to award attorney's fees in these specific administrative proceedings, as they do not constitute a "court action."

Important Quotes and Context

Regarding the Removal Notice

"With the need for the Committee to meet quorum on a monthly basis to conduct business in an efficient manner for the homeowners, and recognizing your commitments and schedule often necessitate your absence, the Board has selected a new member for the Committee."

— Foothills Board of Directors, Letter to John B. Clark Jr. (July 10, 2019)

Context: This was the formal notification sent to the Petitioner. It framed the removal as a matter of organizational efficiency rather than personal performance or misconduct.

Regarding Attendance Records

"The truth of the matter is, since April of 2015 you have attended only 19 of the 54 DRC meetings and only 4 of the last 18."

— Michael Owen (Board Member), Email to Petitioner (July 16, 2019)

Context: This email provided the factual basis for the Board's decision, countering the Petitioner's claim that his removal was politically motivated.

Regarding the ALJ's Legal Conclusion

"Petitioner failed to establish by a preponderance of the evidence that Respondent removed him from the DRC for a pretextual reason. The preponderance of the evidence shows that Respondent removed Petitioner and replaced him with a new member due to its desire to meet quorum on a monthly basis."

— Velva Moses-Thompson, Administrative Law Judge

Context: This is the core legal finding that led to the dismissal of the petition, affirming the Association's right to manage committee membership based on attendance.

Actionable Insights

For Homeowners' Associations (HOAs)

Maintain Rigorous Attendance Records: The Association’s ability to provide specific attendance statistics (19 of 54 meetings) was crucial in defending against claims of "pretext."
Utilize Public Agendas and Minutes: Transparency in documenting when committee changes will be discussed and decided protects the Board from allegations of "bad faith" or "secret" dealings.
Link Removals to Operational Needs: When removing a volunteer or committee member, framing the decision around "the need to meet quorum" and "conduct business in an efficient manner" provides a defensible, objective rationale.

For Committee Members and Volunteers

Communication of Absences is Not Immunity: While the Petitioner asserted he always notified the DRC of his absences, the ruling suggests that even "excused" or explained absences can lead to removal if they hinder the committee's ability to reach a quorum.
Monitor Association Digital Platforms: The Petitioner claimed he was unaware of the pending changes, but the ALJ noted that notices and agendas were available on the Association website and sent via standard channels.

Procedural Note on Litigation

Attorney's Fee Limitations: Parties entering administrative hearings through the Arizona Department of Real Estate should be aware that, unlike standard civil litigation, the prevailing party is generally not entitled to recover attorney's fees because the hearing is an administrative claim rather than a court "action."

Comprehensive Study Guide: Clark v. Foothills Community Association (Case No. 20F-H2019007-REL)

This study guide provides a comprehensive overview of the administrative hearing between John B. Clark Jr. (Petitioner) and Foothills Community Association (Respondent). It explores the legal issues, findings of fact, and the ultimate decision rendered by the Administrative Law Judge (ALJ) regarding a dispute over removal from a homeowners’ association committee.

I. Key Concepts

Administrative Jurisdiction and Authority

The Arizona Department of Real Estate is authorized by statute to receive and decide petitions regarding homeowners’ associations (HOAs). While the Department has jurisdiction over certain Title 33 violations, an Administrative Law Judge (ALJ) does not have jurisdiction over all laws; for instance, the ALJ in this case noted a lack of jurisdiction to determine violations of A.R.S. § 10-3830.

Burden of Proof: Preponderance of the Evidence

In administrative hearings of this nature, the Petitioner bears the burden of proof. They must establish that the Respondent violated the governing documents (Articles of Incorporation or Bylaws) by a "preponderance of the evidence." This standard means the contention must be shown to be more probably true than not, possessing superior evidentiary weight that inclines a fair mind to one side.

The Role of the Design Review Committee (DRC)

The DRC is a specialized committee within the HOA. Maintaining a quorum—the minimum number of members required to be present—is essential for the committee to conduct business efficiently for the homeowners.

Procedural Transparency

HOA operations are governed by transparency requirements. This includes:

Notice and Agendas: Meeting notices and agendas must be uploaded to the association’s website.
Open Sessions: Significant actions, such as the appointment or removal of committee members, should be recorded in the minutes of Board of Director’s Open Session Meetings.
Record Keeping: Bylaws typically require the secretary to keep minutes of all proceedings of the Board and the Members.

Attorney’s Fees in Administrative Hearings

In Arizona administrative proceedings involving a member’s petition against an HOA filed with the Department of Real Estate, the Department and the Office of Administrative Hearings (OAH) are not empowered to award attorney’s fees. This is because such hearings are not considered "actions" under the statutes that typically authorize such awards.

II. Short-Answer Practice Questions

1. Who were the primary parties involved in Case No. 20F-H2019007-REL?

Answer: John B. Clark Jr. (Petitioner) and Foothills Community Association (Respondent).

2. How long did the Petitioner serve on the Design Review Committee (DRC) before his removal?

Answer: From 2011 to 2019.

3. What specific reason did the Board of Directors provide in their July 10, 2019, letter for selecting a new DRC member?

Answer: The need for the Committee to meet quorum on a monthly basis and the recognition that the Petitioner's schedule necessitated frequent absences.

4. According to the testimony of Michael Owen, what was the Petitioner’s attendance record for DRC meetings since April 2015?

Answer: He attended only 19 of 54 DRC meetings, and only 4 of the most recent 18.

5. Which specific Articles of Incorporation did the Petitioner allege were violated?

Answer: Articles 1, 5, 6, 11, 12, and 15.

6. What was the Petitioner's professional background, and why did it impact his attendance?

Answer: He was an Air Force Reservist, a realtor, and a pilot for American Airlines. His "on call" schedule as a pilot made it difficult to attend meetings, especially after the meeting time was moved from 3:00 PM to 2:00 PM.

7. On what dates were the Open Session Meetings held where the DRC membership was discussed and finalized?

Answer: May 22, 2019, and June 26, 2019.

8. What was the ALJ’s final ruling regarding the Petitioner’s claim of "pretextual" removal?

Answer: The ALJ concluded the Petitioner failed to prove the removal was pretextual, finding instead that the Respondent removed him due to the desire to meet quorum monthly.

9. Why was the Respondent’s request for attorney’s fees denied?

Answer: The legislature has not authorized the Department or OAH to award attorney’s fees in these specific administrative proceedings.

III. Essay Prompts for Deeper Exploration

1. Analyzing the Preponderance of Evidence Explain the concept of "preponderance of the evidence" as defined in the document. How did this standard influence the ALJ's decision to dismiss the petition despite the Petitioner’s claims of political motivations?

2. Organizational Efficiency vs. Member Commitment The Board acknowledged the Petitioner’s years of service but ultimately replaced him to ensure a quorum. Discuss the balance between an HOA’s duty to its members to "conduct business in an efficient manner" and its relationship with long-serving volunteers who have professional scheduling conflicts.

3. Procedural Due Process in HOAs The Petitioner claimed he was removed in "bad faith" and for "pretextual" reasons. Evaluate the role of the Association’s website, meeting minutes, and agendas in providing a defense against these claims. How does documented transparency (as shown by Ms. Wontor's testimony) serve as a legal safeguard for homeowners’ associations?

IV. Glossary of Important Terms

Term	Definition
Administrative Law Judge (ALJ)	A judge who conducts hearings and makes decisions in disputes involving administrative agencies.
Bylaws	The internal rules and regulations that govern the day-to-day operations of an organization, such as an HOA.
Design Review Committee (DRC)	A committee within an HOA responsible for reviewing and approving changes to properties to ensure they meet community standards.
Homeowners’ Association (HOA)	An organization in a planned community that makes and enforces rules for the properties and its residents.
Jurisdiction	The official power to make legal decisions and judgments over a specific matter or geographic area.
Preorderance of the Evidence	The evidentiary standard in civil cases where a claim is proved if it is shown to be more likely true than not.
Pretextual	A reason given in justification of a course of action that is not the real reason; a false excuse.
Quorum	The minimum number of members of an assembly or committee that must be present at any of its meetings to make the proceedings of that meeting valid.
Respondent	The party against whom a petition is filed; in this case, the Foothills Community Association.
Statute	A written law passed by a legislative body.

Attendance and Authority: Lessons from a Design Review Committee Removal Dispute

1. Introduction: A Conflict in the Foothills

In the administrative case of John B. Clark Jr. vs. Foothills Community Association, we see a classic governance conflict: the tension between a volunteer’s personal professional excellence and the operational needs of a homeowners’ association (HOA). Mr. Clark, a long-serving volunteer on the Design Review Committee (DRC) from 2011 to 2019, challenged his removal after the Board of Directors replaced him to ensure consistent meeting quorums. The resulting legal battle, adjudicated by the Arizona Office of Administrative Hearings (OAH), serves as a masterclass in how boards must navigate "bad faith" allegations and "pretextual" removal claims. This post analyzes the Administrative Law Judge's (ALJ) decision and provides actionable insights for boards facing similar volunteer disputes.

2. The Petitioner’s Case: Claims of Political Pretext

The Petitioner, Mr. Clark, was a highly accomplished community member—an Air Force Reservist, realtor, and pilot for American Airlines. His defense fell into a common "governance trap": the belief that professional stature and a history of service create a permanent right to a committee seat, regardless of current availability. Clark argued that the Board had been aware of his demanding "on call" schedule since 2011 and that he consistently communicated his availability.

When the Board removed him in 2019, Clark alleged the decision "reeked of politics" and was executed in bad faith. He claimed his removal violated several of the Association’s governing documents, specifically:

Articles of Incorporation: Articles 1, 5, 6, 11, 12, and 15.
Bylaws: Article II, Section 2.3; Article III, Section 3.5; and Article IV, Section 4.8(c).

Clark’s frustration stemmed from a lack of prior warnings regarding his absences, particularly after a meeting time change from 3:00 p.m. to 2:00 p.m. made his attendance more difficult. However, as the ruling would show, a volunteer's personal schedule does not override the Association’s duty to maintain a functioning committee.

3. The Association’s Defense: The Reality of Meeting Quorum

The Foothills Community Association (the Respondent) framed the removal not as a personal or political attack, but as an operational necessity. In a formal letter dated July 10, 2019, the Board thanked Mr. Clark for his years of service while explicitly stating that the DRC required a monthly quorum to conduct business efficiently for all homeowners.

To prove this wasn't "pretextual," the Association relied on hard data provided by Board member Michael Owen.

The Attendance Record The Association’s records revealed a significant lack of participation. Since April 2015, the Petitioner attended only 19 out of 54 DRC meetings. More critically, he attended only 4 of the last 18 meetings prior to his removal.

The Association further demonstrated a transparent process. Community Manager Patricia Wontor testified that meeting notices and agendas were posted on the association's website. Crucially, the Board proved that the decision was not made in the dark: the open session minutes from May 22, 2019, and June 26, 2019, documented the discussion and unanimous approval of the new DRC appointments.

4. The ALJ Decision: Burden of Proof and Findings of Fact

In these proceedings, the Petitioner bears the burden of proof under the "Preponderance of the Evidence" standard. This requires proving that a contention is "more probably true than not," or that the evidence has "the most convincing force."

The ALJ found that Clark failed to meet this burden. While Clark felt the removal was political, the Association’s documented evidence of poor attendance provided a legitimate, non-pretextual reason for the Board’s action.

A vital legal takeaway for boards is the "Jurisdiction Gap" identified in this case. The Petitioner attempted to argue that the Association violated A.R.S. § 10-3830. However, the ALJ ruled that the OAH lacked jurisdiction over this statute. This is because the Department of Real Estate and OAH are limited to hearing disputes regarding Title 33 (the HOA and Planned Communities statutes). A.R.S. § 10-3830 falls under Title 10 (the Nonprofit Corporation Act). Homeowners often attempt to use corporate law in these hearings, but a Governance Specialist knows that administrative judges are strictly confined to the "single-issue" jurisdiction of Title 33.

5. Why Attorney's Fees Were Denied

A significant risk for associations in OAH disputes is the "American jurisprudence" principle regarding legal costs. Even though the Foothills Community Association prevailed, their request for attorney’s fees was denied.

In Arizona, A.R.S. § 12-341.01(A) allows a winning party to recover fees in "actions" arising out of a contract. However, the ALJ clarified that an administrative hearing before the Department of Real Estate is not an "action" in the legal sense. Because the legislature has not specifically granted the OAH the power to award fees in these administrative member petitions, each party must bear their own costs. Boards should always weigh this financial reality—that they may win the case but still lose the legal fees—when deciding whether to litigate or settle.

6. Key Takeaways for Homeowners and Boards

This case provides a roadmap for defensible committee management:

Attendance is Essential: Participation logs are the ultimate defense. Boards have a fiduciary duty to ensure committees can meet quorum; if a member cannot participate, removal is a legitimate and defensible operational choice.
Minutes are the "Smoking Gun": The Association’s victory was secured by the May 22 and June 26, 2019 minutes. These proved the Board followed a transparent process in open sessions, neutralizing claims of "secret" political maneuvering.
The Burden of Proof is High: Petitioners must provide more than "feelings" of bad faith. They must provide evidence that outweighs the Association’s documented business reasons.
Know Your Statutes: Administrative hearings are restricted. Arguments based on the Nonprofit Corporation Act (Title 10) will likely be dismissed for lack of jurisdiction in a forum designed for Title 33 disputes.

7. Conclusion

The dispute in the Foothills highlights the need for clear, proactive communication regarding volunteer expectations. While the Association's decision was legally sound, a formal attendance policy might have prevented the dispute entirely.

The Final Order, issued February 4, 2020, dismissed the petition and stands as a binding decision. For any party dissatisfied with such a ruling, the only recourse is a formal request for a rehearing, which must be filed with the Commissioner of the Department of Real Estate within 30 days of the order's service. This case serves as a reminder that in HOA governance, objective data and recorded minutes are a board’s strongest shield.

Case Participants

Petitioner Side

John B. Clark Jr. (petitioner)
Foothills Community Association
Homeowner; former Design Review Committee (DRC) member; Air Force Reservist; realtor; pilot
Mitchell Vasin (petitioner attorney)
Vasin & Rocco, PLLC
Appeared on behalf of Petitioner

Respondent Side

B. Austin Baillio (respondent attorney)
Maxwell & Morgan, P.C.
Appeared on behalf of Respondent
Patricia Wontor (property manager)
Premier Community Management
Community Manager for Foothills Community Association; witness
Michael Owen (board member)
Foothills Community Association
Witness; sent email to Petitioner regarding removal
Jeffrey B. Corben (respondent attorney)
Maxwell & Morgan, P.C.
Listed on service list

Neutral Parties

Velva Moses-Thompson (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Recipient of transmitted order
A. Leverette (clerk)
Office of Administrative Hearings
Signed transmission of order

Jeffrey S Audette vs. Sun Harbor Community Association dba Desert

Posted on December 25, 2019 by [email protected]

Case Summary

Case ID	20F-H2019009-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-12-25
Administrative Law Judge	Velva Moses-Thompson
Outcome	The ALJ found that the Petitioner failed to prove the HOA violated A.R.S. § 33-1817(B)(3) or the CC&Rs. The HOA reasonably determined the Petitioner's unauthorized construction of block walls was inconsistent with architectural guidelines regarding setbacks and view preservation.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Jeffrey S. Audette	Counsel	Mark J. Bainbridge
Respondent	Sun Harbor Community Association dba Desert Harbor Homeowners Association	Counsel	Lauren Vie

Alleged Violations

A.R.S. § 33-1817(B)(3)

Outcome Summary

The ALJ found that the Petitioner failed to prove the HOA violated A.R.S. § 33-1817(B)(3) or the CC&Rs. The HOA reasonably determined the Petitioner's unauthorized construction of block walls was inconsistent with architectural guidelines regarding setbacks and view preservation.

Why this result: The Petitioner modified his property without required prior approval. The modification (block walls in a setback area) violated specific architectural guidelines. The Petitioner provided no evidence that the HOA had not enforced these guidelines against other homeowners (selective enforcement).

Key Issues & Findings

Unreasonable withholding of architectural approval

Petitioner alleged the HOA unreasonably denied his request to replace wrought iron fences with block walls and inconsistently enforced rules.

Orders: Petition dismissed; Respondent deemed prevailing party.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

A.R.S. § 33-1817(B)(3)
CC&R Article IV, Section 2(a)

Video Overview

Audio Overview

Decision Documents

20F-H2019009-REL Decision – 760862.pdf

Uploaded 2026-04-24T11:23:04 (87.1 KB)

Administrative Law Judge Decision: Jeffrey S. Audette v. Sun Harbor Community Association

Executive Summary

This briefing document analyzes the administrative hearing and subsequent decision in the matter of Jeffrey S. Audette v. Sun Harbor Community Association dba Desert Harbor Homeowners Association (No. 20F-H2019009-REL). The dispute arose when the Petitioner, Jeffrey S. Audette, replaced wrought iron fencing with five-foot-high block walls on his lakefront property without obtaining prior authorization from the Respondent, Sun Harbor Community Association (Sun Harbor).

The Petitioner alleged that the Association unreasonably denied his construction plans and practiced inconsistent enforcement of community rules. However, the Administrative Law Judge (ALJ) determined that Sun Harbor acted reasonably and within the scope of its governing documents. The ALJ found that the Petitioner failed to meet the burden of proof required to establish selective enforcement or a violation of Arizona law. Consequently, the petition was dismissed, and Sun Harbor was deemed the prevailing party.

Detailed Analysis of Key Themes

1. Procedural Non-Compliance and Prior Approval

A central theme of the case is the Petitioner’s failure to adhere to the procedural requirements set forth in the Sun Harbor Covenants, Conditions, and Restrictions (CC&Rs).

Unauthorized Modification: In February 2018, the Petitioner replaced two wrought iron fences with five-foot-high block walls.
Lack of Prior Consent: This construction occurred before the Petitioner requested permission from the Sun Harbor Architectural Committee.
Retrospective Denial: When the Petitioner eventually submitted a request in March 2018, the Committee denied it, and the Association upheld this denial upon appeal.

2. Architectural Guidelines and Setback Restrictions

The decision highlights specific technical violations regarding the placement and height of the new structures.

The 15-Foot Setback Rule: Sun Harbor Architectural Guidelines prohibit any structure, fence, or shrub with a solid height greater than three feet within the 15-foot setback of the concrete shoreline.
Violation Specifics: The Petitioner’s block walls were five feet high and located within the restricted 15-foot lake lining setback.
Preservation of Harmony and Views: Testimony from Association representatives established that the block walls were "inharmonious with the surroundings" and "obscured the view of the lake" for other homeowners, specifically those on lots 1 through 9.

3. Standards of Evidence and Selective Enforcement

The Petitioner attempted to defend the modification by claiming that Sun Harbor inconsistently enforced its rules.

Burden of Proof: Under Arizona Administrative Code R2-19-119, the party asserting a claim (the Petitioner) bears the burden of proof by a preponderance of the evidence.
Insufficient Evidence: While the Petitioner provided photographs of other properties allegedly in violation of the three-foot height limit, he failed to provide written or oral testimony proving that the Association had not enforced the guidelines against those specific homeowners.
The Precedent Concern: The Association testified that its denial was partly based on a desire to avoid creating a precedent that would allow other homeowners to replace iron fences with high block walls.

Important Quotes with Context

Quote	Context
"The Committee will take into consideration the suitability of the proposed alteration… the harmony thereof with the surroundings and the effect of the alteration as planned on any adjacent or neighboring property."	Found in the Sun Harbor Architectural Guidelines (Sept 2002), this establishes the Association's broad authority to judge projects based on aesthetics and community impact.
"No structure, fence or shrubs with a solid height greater than 3 feet are allowed in the 15-foot setback of the concrete shoreline, with the exception of approved docks."	The specific rule from the Architectural Guidelines that the Petitioner's five-foot wall violated.
"The CC&Rs are a contract between the parties and the parties are required to comply with its terms."	A legal conclusion citing Johnson v. The Pointe Community Association, reinforcing that homeowners are legally bound by the association's governing documents.
"An association shall not unreasonably withhold approval of a construction project’s architectural plans."	A reference to A.R.S. § 33-1817(B)(3), which serves as the legal standard for determining if an HOA's denial was lawful.
"A preponderance of the evidence is: The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other."	The legal standard used by the ALJ to evaluate the claims, citing Black’s Law Dictionary.

Actionable Insights

For Community Associations (HOAs)

Consistency in Documentation: The Association's success in this matter was tied to having clear, written Architectural Guidelines that specified height and setback requirements.
Aesthetic Justification: Boards should document how a non-compliant structure impacts the "harmony" of the community or the views of other residents, as these are defensible reasons for denial under Arizona law.
Precedent Awareness: Associations may validly deny a request if granting it would set an undesirable precedent for the community, provided the denial is based on existing CC&Rs.

For Homeowners and Members

The "Prior Approval" Mandate: Homeowners must obtain written approval before beginning construction. Attempting to seek approval after the fact (retrospective approval) puts the homeowner at a significant legal and financial disadvantage.
Sub-Association vs. Master Association: Approval from a sub-association does not automatically grant approval from the master association. Homeowners must ensure they have consent from all relevant governing bodies.
Substantiating Selective Enforcement: To successfully argue selective enforcement, a homeowner must provide more than just photos of other violations; they must prove that the association actively chose not to enforce rules in those specific instances while enforcing them against the homeowner.

Legal and Regulatory Takeaways

Preponderance of Evidence: In administrative hearings regarding HOA disputes, the petitioner must provide convincing force to their claims. Merely showing that neighbors approve of a change is insufficient to override the contractual obligations of the CC&Rs.
Contractual Nature of CC&Rs: The courts and administrative offices treat CC&Rs as unambiguous contracts. If the terms are clear, they will be enforced as written to give effect to the intent of the parties.

Study Guide: Audette v. Sun Harbor Community Association

This study guide provides a comprehensive overview of the administrative hearing between Jeffrey S. Audette (Petitioner) and Sun Harbor Community Association (Respondent). It explores the legal obligations of homeowners within an association, the authority of architectural committees, and the standards of proof required in administrative law.

Key Concepts and Case Overview

1. Architectural Control and Prior Approval

Under Sun Harbor’s Covenants, Conditions, and Restrictions (CC&R) Article IV, Section 2(a), homeowners are strictly required to obtain written notification and approval from the Architectural Committee before undertaking any structural changes. This ensures that alterations are suitable in terms of materials, site location, and harmony with the surrounding environment.

2. Specific Property Restrictions

The Sun Harbor Architectural Guidelines (adopted September 2002) establish specific limitations for waterfront properties:

The 15-Foot Setback: No structure, fence, or shrub with a solid height greater than 3 feet is permitted within the 15-foot setback of the concrete shoreline.
Exceptions: The only structures generally exempt from this height restriction are approved docks.

3. Legal Status of CC&Rs

In Arizona, CC&Rs are viewed as a legal contract between the association and the property owner. Courts and administrative bodies must enforce these documents according to their clear and unambiguous terms to give effect to the intent of the parties involved.

4. Burden of Proof in Administrative Hearings

In an administrative hearing, the party asserting a claim (the Petitioner) bears the "burden of proof." The standard used is a "preponderance of the evidence," meaning the evidence presented must have the most convincing force and demonstrate that the claim is more likely true than not.

5. Selective Enforcement Claims

A common defense in HOA disputes is the allegation of selective enforcement—the idea that the association is enforcing rules against one member while ignoring similar violations by others. To succeed, the petitioner must provide concrete evidence (written or oral) that the association knowingly failed to enforce guidelines in those other instances.

Short-Answer Practice Questions

1. What specific modification did Mr. Audette make to his property that led to the violation notice?

Mr. Audette removed two wrought iron fences and replaced them with 5-foot high block walls.

2. Why did the Sun Harbor Architectural Committee deny Mr. Audette’s retroactive request for the block walls?

The request was denied because the walls exceeded the 3-foot height limit within the 15-foot setback and were deemed inharmonious with the surroundings, specifically obscuring the view of the lake.

3. Which state agency has authority over disputes involving homeowners' associations in this case?

The Arizona Department of Real Estate (ADRE).

4. According to Black’s Law Dictionary, as cited in the case, how is "preponderance of the evidence" defined?

It is the greater weight of the evidence; evidence that has the most convincing force and inclines a fair and impartial mind to one side of the issue.

5. What was Mr. Audette's argument regarding the visibility of his block walls?

He asserted that no other homeowners could see the walls except for his immediate neighbors to the left and right, both of whom approved of the modification.

6. What is the association’s legal obligation regarding the approval of architectural plans under A.R.S. § 33-1817(B)(3)?

An association shall not unreasonably withhold approval of a construction project’s architectural plans.

7. Why did the Administrative Law Judge (ALJ) reject Mr. Audette’s claim of selective enforcement?

Mr. Audette provided no written or oral testimony to establish that the association had failed to enforce the guidelines against other homeowners who he claimed were also in violation.

Essay Prompts for Deeper Exploration

Contractual Obligations vs. Property Rights: Analyze the legal argument that CC&Rs serve as a binding contract. How does this contractual nature limit a homeowner's ability to modify their property, even if they have the support of their immediate neighbors?
The "Harmony" Standard in Architectural Review: The Sun Harbor Architectural Committee is tasked with considering the "harmony" of a proposed change with its surroundings. Discuss the subjective and objective elements of this standard as applied to the view of Desert Harbor Lake and the precedent of moving from wrought iron to solid block walls.
Evaluating Selective Enforcement: Mr. Audette provided photographs of other properties to argue that the association inconsistently enforced its rules. Explain the evidentiary gap between showing "other violations exist" and proving "selective enforcement" according to the ALJ's findings.

Glossary of Important Terms

Term	Definition
Administrative Law Judge (ALJ)	A professional hearing officer who presides over administrative proceedings and issues decisions based on findings of fact and conclusions of law.
A.R.S. § 33-1817(B)(3)	The Arizona Revised Statute stipulating that homeowners' associations cannot unreasonably withhold approval for architectural plans.
CC&R	Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and limitations for a planned community.
Inharmonious	A term used by the association to describe a structure that does not fit aesthetically or functionally with the surrounding properties or environment.
Petitioner	The party who initiates a lawsuit or petition; in this case, Jeffrey S. Audette.
Preponderance of the Evidence	The standard of proof in civil and administrative cases, requiring that a fact be more likely than not to be true.
Respondent	The party against whom a petition is filed; in this case, Sun Harbor Community Association.
Setback	The minimum distance a structure must be kept from a property line, shoreline, or other defined boundary.
Sub-association	A secondary homeowners' association governing a specific subset of homes within a larger master association.

The Price of a View: Lessons from a Waterfront HOA Dispute

1. Introduction: The High Cost of Bypassing the Board

For many residents in planned communities, the home is a castle, but the CC&Rs (Covenants, Conditions, and Restrictions) are the contractual bedrock that defines how that castle can be modified. When personal preference collides with community standards, the resulting neighborly friction often shifts from the front yard to the courtroom. A homeowner attempting to enhance their privacy or "improve" their property without following established protocols can quickly find themselves in a legal quagmire, proving that the cost of a better view is far higher when it bypasses the board.

The case of Jeffrey S. Audette vs. Sun Harbor Community Association (doing business as Desert Harbor Homeowners Association) serves as a quintessential cautionary tale. This dispute centered on a waterfront property owner who replaced open wrought iron fences with solid five-foot-high block walls within a restricted setback area—all without securing the necessary prior approval from the Master Association.

2. The Timeline of a Conflict

The path from a backyard renovation to an administrative judgment is often paved with missed opportunities for compliance. The chronological breakdown of this dispute highlights a nearly two-year struggle:

February 2018: Without obtaining prior permission, Mr. Audette removes two wrought iron fences and replaces them with five-foot-high block walls located within 15 feet of the lake lining setback.
March 2018: Mr. Audette submits a retroactive construction plan to the Sun Harbor Architectural Committee. The committee denies the request, leading the homeowner to file an internal appeal.
May 9, 2018: Following the denial of his appeal, Sun Harbor issues a formal violation notice citing CC&R Article IV, Section 2(a) for the unauthorized conversion of the fences.
September 4, 2019: Mr. Audette files a petition with the Arizona Department of Real Estate (ADRE), alleging that the Association improperly denied his request and was inconsistent in its enforcement of community rules.
December 5, 2019: The matter reaches a formal evidentiary hearing at the Office of Administrative Hearings.

3. The Homeowner’s Defense: Permission vs. Process

Mr. Audette’s defense was built on the argument that the Association’s denial was unreasonable and discriminatory. Notably, Mr. Audette had previously served on the Sun Harbor board, making this a case where a former "insider" found himself at odds with the very process he once helped oversee—a reminder that personal history does not exempt one from current regulations. His primary arguments included:

Sub-Association Approval: He claimed he had secured permission from his specific sub-association before construction commenced.
Immediate Neighbor Consent: He testified that the neighbors directly to his left and right approved of the new block walls.
Past Board Practices: Drawing on his experience as a former board member, he argued that the Association traditionally granted requests that had already received a "green light" from a sub-association.
Limited Visibility: He contended that the walls were only visible to his immediate neighbors and did not negatively impact the community at large.
Selective Enforcement Claims: To meet the high bar of selective enforcement, he submitted photographs of other properties in the community that he alleged were also in violation of height restrictions.

4. The Association’s Stand: Aesthetics and Regulations

The Association stood firmly on the "Sun Harbor Architectural Guidelines" adopted in September 2002. These rules exist to preserve the visual "harmony" of the community. Per Finding of Fact #17, the Architectural Committee is required to consider specific factors including the suitability of the alteration, the materials used, the topography and finished grade elevation of the site, and the effect on adjacent properties.

The Association focused heavily on the specific restrictions for shoreline lots:

"No structure, fence or shrubs with a solid height greater than 3 feet are allowed in the 15-foot setback of the concrete shoreline, with the exception of approved docks." (Sun Harbor Architectural Guidelines, pg. 11).

The Association argued that while the guidelines allowed for 3-foot structures, Mr. Audette’s 5-foot walls were fundamentally inharmonious. Testimony from the Association emphasized that these walls obscured lake views for residents on lots 1 through 9. Furthermore, the board expressed a valid concern regarding precedent: allowing one homeowner to swap transparent wrought iron for solid block would fundamentally alter the character of the waterfront for everyone.

5. The Legal Verdict: Why the HOA Prevailed

Administrative Law Judge Velva Moses-Thompson ruled in favor of the Association, dismissing the petition. The legal reasoning offers a masterclass in HOA law:

The Burden of Proof: In this administrative venue, the Petitioner (Mr. Audette) bore the burden of proving his case by a "Preponderance of the Evidence."
Defining the Standard: The Judge utilized Black’s Law Dictionary to define this standard as: "The greater weight of the evidence… evidence that has the most convincing force; superior evidentiary weight that… is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other."
Failure to Prove Unreasonableness: Under A.R.S. § 33-1817(B)(3), an association cannot "unreasonably withhold" approval. However, the legal reality was not that the HOA proved it was right, but that Mr. Audette failed to prove the HOA acted unreasonably. The Association’s adherence to its height and harmony guidelines was found to be a reasonable exercise of its authority.
The Selective Enforcement Trap: The Judge found that Mr. Audette failed to establish selective enforcement. Simply providing photos of other violations is insufficient; a petitioner must prove that the Association knowingly allowed those violations to persist without taking enforcement action.

6. Key Takeaways for Homeowners and Boards

This case yields several vital insights for those living in or managing common-interest communities:

Prior Approval is Mandatory: Never assume that a sub-association’s "okay" or a neighbor’s "thumbs up" overrides the Master Association’s authority. Process must always precede construction.
Respect the Setbacks: Shoreline and common-area setbacks are often the most strictly protected zones in a community. In this case, the distinction between the allowed 3-foot height and the offending 5-foot wall was the difference between a compliant project and a legal violation.
The Evidence Gap in Selective Enforcement: To successfully argue selective enforcement, a homeowner must provide more than just pictures of other non-compliant homes. You must provide written or oral testimony proving that the board was aware of those violations and failed to act. Without proof of board inaction, photos are just pictures of other people’s potential problems.
Process Over Personal History: Even former board members are subject to the current rules. Familiarity with the system is no substitute for following the current, written architectural guidelines.

7. Final Summary

The integrity of a community’s aesthetic depends on the consistent application of its governing documents. As Audette vs. Sun Harbor illustrates, the CC&Rs are not mere suggestions but binding contracts. Bypassing the architectural review process is a high-risk gamble that can result in expensive litigation, the dismissal of your claims, and the eventual requirement to tear down the very improvements you sought to enjoy. Following the rules from the start is the only guaranteed way to protect both your property and your peace of mind.

Case Participants

Petitioner Side

Jeffrey S. Audette (Petitioner)
Sun Harbor Community Association (Member)
Homeowner; former board member
Mark J. Bainbridge (attorney)
Appeared on behalf of Petitioner

Respondent Side

Lauren Vie (attorney)
Appeared on behalf of Respondent
Yvette Rushford (witness)
Testified for Sun Harbor
Bud Levey (witness)
Testified for Sun Harbor
Beth Mulcahy (attorney)
Mulcahy Law Firm, PC
Listed in distribution list

Neutral Parties

Velva Moses-Thompson (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Received electronic transmission of order

Marc D Archer v. PMPE Community Association, Inc.

Posted on September 3, 2019 by [email protected]

Case Summary

Case ID	19F-H1919063-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-09-03
Administrative Law Judge	Velva Moses-Thompson
Outcome	The ALJ ruled in favor of the Respondent (HOA) and dismissed the petition. The HOA's rejection of the flat roof design was found to be reasonable and consistent with the architectural rules requiring pitched roofs to predominate and designs to be harmonious with surrounding structures.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Marc D. Archer	Counsel	—
Respondent	PMPE Community Association, Inc.	Counsel	Nichols C. Hogami

Alleged Violations

A.R.S. § 33-1817(3)

Outcome Summary

The ALJ ruled in favor of the Respondent (HOA) and dismissed the petition. The HOA's rejection of the flat roof design was found to be reasonable and consistent with the architectural rules requiring pitched roofs to predominate and designs to be harmonious with surrounding structures.

Why this result: Petitioner failed to prove by a preponderance of the evidence that the HOA violated the statute; the evidence showed the HOA's decision was based on valid architectural rules.

Key Issues & Findings

Unreasonable withholding of architectural approval

Petitioner sought approval for a garage addition with a flat roof. The Board denied final approval because the design was not harmonious with surrounding structures (pitched roofs) and did not meet the exception for hidden flat roofs.

Orders: The petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1817(3)
A.R.S. Title 32, Ch. 20, Art. 11
A.R.S. § 32-2199.02(B)
A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

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Administrative Law Judge Decision: Archer v. PMPE Community Association, Inc.

Executive Summary

This document provides a detailed briefing on the administrative hearing between Petitioner Marc D. Archer and Respondent PMPE Community Association, Inc. (Case No. 19F-H1919063-REL). The dispute centered on the Petitioner's proposal to construct a garage addition with a flat roof, which the Association Board declined to approve in its final form.

The Petitioner alleged that the Association unreasonably withheld approval in violation of Arizona Revised Statutes (A.R.S.) § 33-1817(3), arguing that the design was harmonious and that the Association’s enforcement of rules was arbitrary and discriminatory. The Association maintained that its governing documents—specifically the Covenants, Conditions, and Restrictions (CC&Rs) and Architectural Rules—prioritize pitched roofs and visual harmony with surrounding structures.

On September 3, 2019, Administrative Law Judge Velva Moses-Thompson ruled in favor of the PMPE Community Association, dismissing the petition. The Judge concluded that the Petitioner failed to prove by a preponderance of the evidence that the Association acted unreasonably or violated statutory requirements.

Analysis of Key Themes

1. Architectural Harmony and Structural Consistency

The primary conflict arose from the discrepancy between the Petitioner's proposed design and the existing aesthetic of the community. While the Petitioner’s residence already featured a pitched roof on the existing garage, his plan for the addition utilized a flat roof.

Respondent’s Position: The Association argued that pitched roofs are a fundamental component of the community's visual environment and must predominate.
Petitioner’s Position: Archer argued the flat roof was harmonious because it mirrored a pitched roof/flat patio combination on the opposite side of his home.
Legal Finding: The judge found that the Association’s insistence on a pitched roof was reasonable, as the proposed flat roof was inconsistent with the existing structures, including Archer's own pitched garage roof.

2. The "Visible From Neighboring Property" Standard

A critical point of contention was whether the proposed addition violated visibility standards set forth in CC&R 1.34.

The 9-Foot Threshold: The adjoining wall was 9 feet tall. The Petitioner’s proposed flat roof would exceed this height.
The Visibility Rule: Under CC&R 1.34, an object is "visible from neighboring property" if it can be seen by a person six feet tall standing at ground level on an adjoining lot or common area. However, objects in a backyard that do not exceed the height of the enclosing wall are exempt from this definition.
Association's Compromise: The Board indicated it would allow a flat roof only if its height remained below the adjacent wall to ensure it was not visible from neighboring properties.

3. Allegations of Arbitrary Enforcement

The Petitioner attempted to demonstrate that the Association enforced CC&Rs inconsistently. He cited instances where other homeowners allegedly:

Kept a kitchen countertop in a front yard for nearly a year.
Constructed patio additions that were purportedly not harmonious with surrounding structures.
Kept a cart on their property longer than allowed.

The Association denied these claims, asserting consistent enforcement. Ultimately, the court found the Petitioner's evidence insufficient to prove that the Association’s specific decision regarding his garage was discriminatory or arbitrary.

4. Statutory and Contractual Compliance

The decision reinforced the legal standing of CC&Rs as contracts.

A.R.S. § 33-1817(3): This statute prohibits associations from "unreasonably" withholding approval of architectural plans.
Contractual Obligation: Citing Johnson v. The Pointe Community Association, the ruling noted that CC&Rs are contracts and all parties are required to comply with their terms.
Burden of Proof: The Petitioner held the burden of proof to show a violation by a "preponderance of the evidence." The court defined this as the "greater weight of the evidence" or "evidence that has the most convincing force."

Important Quotes and Context

Quote	Context
"“Visible From Neighboring Property” means… that such object is or would be visible to a person six feet tall, standing at ground level on any part of the adjoining Lot or Common Area."	CC&R 1.34 Definition: Establishes the objective physical standard used to determine if a structure infringes on the community's visual environment.
"Since roofscapes will form an important part of the visual environment, they must be carefully designed. It is intended that pitched roofs predominate."	PMPE Architectural Rules Section 4.4: The specific guideline the Board used to justify requiring a pitched roof instead of a flat one.
"The Board… may promulgate architectural design, with particular regard to the harmony of the design with the surrounding structures and topography."	CC&R Article 5.10: Grants the Board the legal authority to judge the "harmony" of a project, which was central to their rejection of Archer's plans.
"Mr. Archer failed to prove by a preponderance of the evidence that PMPE violated A.R.S. § 33-1817(3)."	Conclusion of Law: The final determination that the Petitioner's arguments regarding unreasonable withholding of approval were legally insufficient.

Actionable Insights for Stakeholders

For Homeowners’ Associations (HOAs)

Maintain Clear Definitions: The use of specific measurements (e.g., the "six-foot tall person" standard in CC&R 1.34) provides a defensible, objective basis for architectural decisions.
Document "Harmony": When rejecting a plan based on "harmony with surrounding structures," associations should point to specific existing architectural features (like pitched roofs) that the proposal contradicts.
Offer Conditional Approvals: The Board’s willingness to allow the flat roof if it remained below the wall height demonstrated a reasonable attempt at compromise, which likely supported their "reasonable" standing in court.

For Homeowners

Align with Predominant Features: If governing documents state that a certain style (like pitched roofs) must "predominate," proposing a different style for a large addition carries a high risk of rejection.
Understand the Burden of Proof: In administrative hearings regarding A.R.S. § 33-1817(3), the homeowner must provide "convincing force" that the Board's decision was unreasonable. Simply pointing to other minor violations in the neighborhood (like a countertop in a yard) may not be enough to prove discriminatory enforcement regarding structural additions.
Review Visibility Restrictions: Before designing additions, homeowners should measure existing perimeter walls, as these often serve as the height limit for structures to remain exempt from "Visible From Neighboring Property" restrictions.

Archer v. PMPE Community Association: Administrative Law Case Study

This study guide provides a comprehensive overview of the administrative hearing between Marc D. Archer and the PMPE Community Association, Inc. (No. 19F-H1919063-REL). It covers the legal standards, architectural regulations, and the specific findings of fact that led to the dismissal of the petitioner's claim regarding homeowners' association (HOA) architectural approvals.

Key Concepts and Legal Principles

1. Architectural Standards and Harmony

Under the PMPE CC&Rs and Architectural Rules, specific design principles govern modifications to residences.

Predominance of Pitched Roofs: According to Architectural Rule 4.4, pitched roofs are intended to predominate because roofscapes form a vital part of the visual environment.
Design Harmony: Article 5.10 grants the Board or Architectural Committee the authority to evaluate designs based on their harmony with surrounding structures and topography.
Flat Roof Requirements: While flat roofs are permitted in some instances (such as patio areas), they must have parapets. In this case, the Board allowed a flat roof only if it remained below the height of the adjacent wall to ensure it was not visible from neighboring properties.

2. "Visible From Neighboring Property"

CC&R 1.34 establishes a specific objective standard for determining visibility:

The Six-Foot Standard: An object is considered visible if it can be seen by a person six feet tall standing at ground level on any part of an adjoining lot or common area.
The Wall Exception: Objects in a backyard enclosed by a wall are not deemed "visible" if they do not exceed the height of that wall. In this case, the wall height was established at 9 feet.

3. Legal Standards of Proof and Authority

Jurisdiction: The Arizona Department of Real Estate (ADRE) has authority over these matters pursuant to A.R.S. Title 32, Ch. 20, Art. 11.
Statutory Restriction (A.R.S. § 33-1817(3)): An association is legally prohibited from "unreasonably" withholding approval of architectural plans.
Preponderance of the Evidence: This is the standard of proof required at the hearing. It is defined as the "greater weight of the evidence" or evidence that possesses the most "convincing force," inclining an impartial mind toward one side of the issue.
Contractual Nature of CC&Rs: In Arizona, CC&Rs are viewed as a contract between the parties. If the terms are clear and unambiguous, they must be enforced to give effect to the intent of the parties.

Short-Answer Practice Questions

1. What was the specific height of the adjoining wall in the Archer residence dispute?

The adjoining wall was 9 feet high.

2. According to CC&R 1.34, how is a person's height and position defined when determining if an object is "Visible From Neighboring Property"?

The person is defined as being six feet tall and standing at ground level on any part of the adjoining Lot or Common Area.

3. What was the Board’s primary reason for refusing final approval of Mr. Archer’s garage addition?

The Board learned that the addition would have a flat roof enclosed on all sides with a height exceeding the 9-foot adjoining wall, making it visible from neighboring properties.

4. What does A.R.S. § 33-1817(3) stipulate regarding an HOA’s power over construction plans?

It stipulates that an association shall not unreasonably withhold approval of a construction project’s architectural plans.

5. How does PMPE Architectural Rule 4.4 describe the preferred style for roofs?

It states that roofscapes are an important part of the visual environment and that it is intended for pitched roofs to predominate.

6. On what grounds did Mr. Archer argue that the Board's enforcement of the CC&Rs was "arbitrary and discriminatory"?

He contended that the Board allowed other homeowners to have non-harmonious patio additions, a kitchen countertop in a front yard for nearly a year, and a cart for longer than allowed.

Essay Prompts for Deeper Exploration

1. The Balance of Reasonableness in HOA Governance

A.R.S. § 33-1817(3) prohibits an HOA from "unreasonably" withholding approval. Analyze the Board's decision in Archer v. PMPE through the lens of this statute. Consider whether the Board's willingness to allow a flat roof only if it remained below the wall height constitutes a reasonable compromise or an arbitrary restriction, given the neighborhood's preference for pitched roofs.

2. Consistency and Selective Enforcement

Mr. Archer alleged that the HOA practiced arbitrary and discriminatory enforcement by highlighting violations by other residents (e.g., the kitchen countertop and carts). Discuss the legal challenge of proving selective enforcement in an administrative hearing. Why did the Administrative Law Judge find these arguments insufficient to prove that the Board violated the law in Mr. Archer's specific case?

3. Contractual Interpretation of CC&Rs

Arizona law treats CC&Rs as contracts. Explore the implications of this classification. If a CC&R clearly defines a term like "Visible From Neighboring Property," to what extent does the Board have discretion to deviate from that definition? Discuss how the "unambiguous" nature of the PMPE CC&Rs influenced the Judge's final decision.

Glossary of Important Terms

Term	Definition
A.R.S. § 33-1817(3)	The Arizona Revised Statute that prevents HOAs from unreasonably withholding architectural plan approvals.
Administrative Law Judge (ALJ)	The presiding official (in this case, Velva Moses-Thompson) who hears evidence and issues a decision in administrative disputes.
CC&Rs	Covenants, Conditions, and Restrictions; the legal governing documents that dictate the rules and residents' obligations within a community.
Harmony of Design	A criteria used by the Board to ensure that new construction matches the existing aesthetics and topography of surrounding structures.
Parapet	A low protective wall along the edge of a roof; required for all flat roof patio areas under PMPE Architectural Rules.
Pitched Roof	A sloping roof; the architectural style that the PMPE rules state should "predominate" in the community.
Preponderance of the Evidence	The legal standard of proof requiring that a claim is more likely to be true than not (the "greater weight" of evidence).
Respondent	The party against whom a petition is filed; in this case, PMPE Community Association, Inc.
Visible From Neighboring Property	An object visible to a six-foot person at ground level on an adjoining lot; objects below the height of a backyard wall are exempt.

Roof Wars: Lessons in HOA Architectural Compliance and Community Standards

1. Introduction: The Conflict Under the Eaves

For homeowners, the boundary between personal property rights and community governance is often defined by the roofline. While a property owner may view a garage addition as a functional necessity, a Homeowners Association (HOA) views that same structure through the lens of aesthetic uniformity and "harmony of design." This tension is the focal point of Marc D. Archer vs. PMPE Community Association, Inc. (No. 19F-H1919063-REL), a case that highlights the legal complexities of architectural compliance.

The core dispute involved a homeowner’s attempt to construct a flat-roof garage addition in a community where pitched roofs are the mandated standard. This case provides a critical look at how administrative courts evaluate "reasonableness" and the high evidentiary bar homeowners must clear when alleging arbitrary enforcement by a Board.

2. The Project and the Initial Denial

Upon review of the Findings of Fact, the dispute began in September 2017 when the Petitioner, Mr. Archer, submitted plans for a garage addition to the Respondent, the PMPE Board. While the Board initially issued a preliminary approval, they withheld final authorization after a detailed review revealed that the proposed structure deviated from the community's architectural standards.

The proposed addition included the following specifications:

Roof Style: A flat roof design, enclosed on all sides.
Height: A structure reaching a height that would exceed the 9-foot adjoining wall.
Visual Relationship: The new flat roof would be physically attached to the Petitioner’s existing garage, which featured an arched/pitched roof.

Critically, the Board did not issue a blanket denial. In an attempt at compromise, the Board notified the Petitioner that the flat roof would be acceptable if—and only if—the height remained below the adjacent wall. This would have utilized the visibility exception in the CC&Rs. However, the Petitioner insisted on a height exceeding the wall, leading to the final denial and subsequent legal challenge.

3. Defining "Visible From Neighboring Property"

The legal pivot point of this case rests on the definition of visibility. If a structure is "visible," it is subject to the full weight of the HOA’s architectural guidelines.

Terms to Know: "Visible From Neighboring Property" Under PMPE CC&R 1.34, an object is "Visible From Neighboring Property" if it can be seen by a six-foot-tall person standing at ground level on any portion of an adjoining lot or common area. The Exception: An object located in a backyard enclosed by a wall is not deemed visible if it does not exceed the height of the wall enclosing that backyard. This "wall height" standard is a safe harbor for homeowners, but once a structure rises above that line, it falls under Board jurisdiction for aesthetic harmony.

4. The Homeowner's Challenge: Claims of Arbitrary Enforcement

The Petitioner challenged the denial under A.R.S. § 33-1817(3), asserting that the Board was unreasonably withholding approval. He presented three primary arguments to the Administrative Law Judge (ALJ):

Harmony of Design: The Petitioner argued the flat roof was harmonious because it mirrored the opposite side of his home, which featured a pitched roof adjacent to a flat-top patio.
Inconsistent Enforcement: He alleged that the HOA was targeting him while ignoring violations by other neighbors, thereby acting in an arbitrary and discriminatory manner.
Specific Examples of Non-Compliance: To support the claim of inconsistency, he cited "whataboutism" examples, such as a neighbor keeping a kitchen countertop in a front yard for a year and others leaving carts in yards past allowable timeframes.

5. The HOA’s Defense: The Predominance of Pitched Roofs

The Respondent argued that the Petitioner's request would violate the fundamental "roofscape" of the community. Their defense was rooted in the specific technical requirements of the governing documents:

HOA Rule/Article	Specific Design Requirement
Article 5.10	Grants the Board/Architectural Committee authority to promote design with particular regard to harmony with surrounding structures and topography.
Section 4.4 (Architectural Rules)	Establishes that roofscapes are vital to the visual environment; it is mandated that pitched roofs predominate.
Section 4.4 (Technical Specs)	Pitched roofs must be hipped whenever possible and maintain a maximum slope of five to 12 feet (5’ to 12’).
Section 4.4 (Flat Roofs)	While flat roofs are generally discouraged, all flat roof patio areas must have parapets.

The Respondent emphasized that since the Petitioner’s existing garage featured a pitched roof, an attached flat-roof addition would create a jarring architectural disconnect.

6. The Administrative Decision: Why the HOA Prevailed

Administrative Law Judge Velva Moses-Thompson applied the "Preponderance of the Evidence" standard, as required by Arizona Administrative Code R2-19-119. Under this standard, the Petitioner must prove their case with "the greater weight of the evidence"—meaning the evidence must be more than 50% convincing. In administrative law, a "tie" or a 50/50 split in evidence means the Petitioner has failed to meet their burden, and the HOA prevails.

The ALJ's ruling for the Respondent was based on two key legal conclusions:

Reasonableness of the Board: The Board’s decision was deemed reasonable under A.R.S. § 33-1817(3) because the rules explicitly prioritize pitched roofs. The Board's offer of a compromise (keeping the roof below wall height) further demonstrated a lack of malice or unreasonableness.
The Failure of "Whataboutism": The judge dismissed the Petitioner’s claims regarding kitchen countertops and yard carts. Legally, the failure to enforce minor maintenance or "clutter" rules does not waive an HOA's right to enforce major, permanent structural and architectural standards. Structural harmony is a distinct legal tier from temporary yard maintenance.

7. Conclusion: 4 Essential Takeaways for Homeowners

The dismissal of the Petitioner’s case provides a roadmap for navigating architectural disputes in Arizona:

Understand the "Harmony" Clause: Architectural harmony is not just about matching your neighbors; it is about matching the existing structures on your own lot. As established in Johnson v. The Pointe Community Association, CC&Rs are binding contracts. If your home is designed with pitched roofs, a flat-roof addition is a difficult legal sell.
The Visibility Standard: Your "building rights" are often tied to the height of your perimeter wall. If a structure exceeds the wall height and becomes visible to a six-foot-tall neighbor, you lose the "safe harbor" protection and must strictly adhere to architectural design rules.
The Petitioner’s Burden of Proof: In an administrative hearing, the homeowner carries the heavy lifting. You must prove the Board is being unreasonable. Per Arizona Administrative Code R2-19-119, if the evidence is only equally balanced, the homeowner loses.
Contractual Obligations: Arizona courts, following cases like Powell v. Washburn, treat CC&Rs as unambiguous contracts. Judges will prioritize the clear terms of the document—such as "pitched roofs shall predominate"—to protect the original intent of the community's design.

Homeowners should meticulously review their association's specific "Architectural Rules" before finalizing designs, as these documents often contain technical specifications—like roof slope and parapet requirements—that are just as binding as the CC&Rs themselves.

Case Participants

Petitioner Side

Marc D. Archer (petitioner)
PMPE Community Association, Inc. (Member)
Appeared on behalf of himself; testified

Respondent Side

Nichols C. Hogami (respondent attorney)
Appeared on behalf of Respondent
Keith Scott Kauffman (witness)
PMPE Board of Directors
Member of the PMPE Board of Directors; testified

Neutral Parties

Velva Moses-Thompson (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Recipient of transmitted order

Myron H Colvin vs. Tierra Del Sol RV Resort Association

Posted on August 27, 2019 by [email protected]

Case Summary

Case ID	19F-H19190064-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-08-27
Administrative Law Judge	Velva Moses-Thompson
Outcome	The Administrative Law Judge dismissed the petition. The Petitioner failed to meet the burden of proof to establish that the HOA violated the CC&Rs. The ALJ ruled that the Tribunal did not have jurisdiction to issue a declaratory judgment regarding the Petitioner's request to determine if his own actions constituted a violation.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Myron H. Colvin	Counsel	—
Respondent	Tierra Del Sol RV Resort Association	Counsel	Nicholas Nogami

Alleged Violations

CC&R § 4.3

Outcome Summary

The Administrative Law Judge dismissed the petition. The Petitioner failed to meet the burden of proof to establish that the HOA violated the CC&Rs. The ALJ ruled that the Tribunal did not have jurisdiction to issue a declaratory judgment regarding the Petitioner's request to determine if his own actions constituted a violation.

Why this result: Failure to prove HOA violation; lack of jurisdiction for declaratory judgment.

Key Issues & Findings

Dispute over lot setbacks and paver installation violation notice

Petitioner installed concrete pavers in his lot's setback area. The HOA issued a Notice of Violation stating the pavers violated CC&R § 4.3 because they were not small enough to be moved by one person. Petitioner argued he had approval and sought a hearing regarding the alleged violation. The ALJ found Petitioner failed to prove the HOA violated the CC&Rs.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Video Overview

Audio Overview

Decision Documents

19F-H19190064-REL Decision – 733836.pdf

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Administrative Law Briefing: Colvin v. Tierra Del Sol RV Resort Association

Executive Summary

This briefing examines the administrative law decision in the matter of Myron H. Colvin v. Tierra Del Sol RV Resort Association (No. 19F-H19190064-REL). The dispute arose when the Tierra Del Sol RV Resort Association (the Association) issued a Notice of Violation to Mr. Colvin regarding the installation of concrete pavers within the setback area of his lot.

The primary legal question concerned whether the pavers complied with the community’s Covenants, Conditions, and Restrictions (CC&Rs) § 4.3, which requires improvements in setback areas to be movable by one person without mechanical assistance. While Mr. Colvin sought a determination that he had not violated the CC&Rs, the Administrative Law Judge (ALJ) dismissed the petition. The ruling was based on two factors: the Petitioner’s failure to prove that the Association itself violated the CC&Rs and the tribunal’s lack of jurisdiction to issue a declaratory judgment regarding an owner’s compliance status.

Case Overview

Feature	Details
Case Name	Myron H. Colvin v. Tierra Del Sol RV Resort Association
Case Number	19F-H19190064-REL
Hearing Date	August 7, 2019
Administrative Law Judge	Velva Moses-Thompson
Petitioner	Myron H. Colvin (Self-represented)
Respondent	Tierra Del Sol RV Resort Association (Represented by Nicholas Nogami, Esq.)
Final Order	Petition Dismissed

Detailed Analysis of Key Themes

1. Interpretation of CC&R Section 4.3 (Lot Setbacks)

The central technical conflict involves the definition of allowable improvements within designated setback areas. Per the Association’s CC&Rs, setbacks are defined as:

Front: Five (5) feet.
Sides: Three (3) feet.
Rear: Three (3) feet.

Section 4.3 explicitly prohibits permanent or temporary structures, improvements, or vehicles (excluding golf carts and car dollies) in these areas. The only exception is for landscaping features, provided they can be "moved by one person unassisted by mechanical devices."

The dispute focused on whether Mr. Colvin’s concrete pavers met this "movability" requirement. The Association alleged the pavers were too large for manual removal, whereas Mr. Colvin contended the Association had previously approved his plan to cut the pavers into 3 x 5 ft pieces.

2. Procedural Burden of Proof

Under Arizona law (A.R.S. § 41-1092.07(G)(2)), the Petitioner bears the burden of proof to establish a violation by a preponderance of the evidence. This standard requires the Petitioner to prove that their contention is "more probably true than not."

In this matter, the ALJ found that Mr. Colvin failed to meet this burden. Rather than proving the Association violated the CC&Rs, Mr. Colvin focused his arguments on defending his own actions. The ALJ noted that the Association can only be found in violation if it, as an entity, placed an unapproved object or improvement in a setback area—an allegation Mr. Colvin did not make.

3. Jurisdictional Limitations of the OAH

A critical theme in the decision is the distinction between a violation hearing and a request for a declaratory judgment. While the Arizona Department of Real Estate (DRE) has jurisdiction over violations of planned community documents (A.R.S. § 32-2199(B)), that jurisdiction is specific.

The ALJ concluded that the tribunal did not have the authority to grant a "declaratory judgment." Mr. Colvin was essentially asking the court to declare that he was not in violation of the rules. The OAH determined it lacks the legal jurisdiction to provide such a determination for a homeowner seeking to pre-emptively clear their own record of a violation notice.

Important Quotes with Context

On the Definition of Setback Restrictions

"Each Lot shall be subject to a setback area… No permanent or temporary structures, improvements (other than landscaping)… shall be located within such setback area… [any] Improvement, other than landscaping features which can be moved by one person unassisted by mechanical devices, [shall not] encroach on or overhang any area designated in this Declaration as a lot setback."

— CC&R § 4.3 (as cited in Finding of Fact #13)

Context: This quote establishes the specific criteria that led to the Notice of Violation. It defines the strict limitations on what may occupy the three-to-five-foot perimeter of a lot.

On the Burden of Evidence

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

— Conclusion of Law #3

Context: The ALJ uses this definition to explain the standard Mr. Colvin failed to meet when attempting to challenge the Association's actions.

On the Scope of the Tribunal’s Authority

"To the extent that Mr. Colvin is requesting a declaratory judgment regarding his alleged violation, this tribunal does not have jurisdiction to make such a determination."

— Conclusion of Law #5

Context: This serves as the primary legal basis for the dismissal. It clarifies that the Office of Administrative Hearings is not empowered to issue rulings that merely validate a homeowner's compliance to satisfy an internal HOA dispute.

Actionable Insights

For Homeowners in Planned Communities

Clarification of Approval: Even if an Association approves a request for an improvement (as they did twice for Mr. Colvin), the final installation must strictly adhere to the specific text of the CC&Rs. Approval of a "request to place pavers" does not necessarily override the specific material requirements (such as weight and movability) found in the governing documents.
Understanding the Petitioner's Role: When filing a petition with the Department of Real Estate, the homeowner must prove that the Association violated the rules. Defending one's own actions against a notice of violation may not be sufficient grounds for an administrative hearing if the Association's own conduct remains within its legal authority.

For Association Boards and Management

Enforcement Authority: The decision reinforces that A.R.S. § 33-1803 authorizes associations to enforce CC&Rs. Providing specific remediation steps in a Notice of Violation (e.g., "cutting the concrete… into small 100 pound sections") helps demonstrate that the Association is acting in accordance with its governing documents.
Jurisdictional Defense: Associations facing similar petitions can successfully argue for dismissal if the Petitioner is seeking a declaratory judgment of their own compliance rather than proving a specific breach of duty by the Association.

Legal Recourse and Rehearing

Time Sensitivity: Parties dissatisfied with an Administrative Law Judge's decision have a strictly defined window of 30 days from the service of the Order to file a request for a rehearing with the Commissioner of the Department of Real Estate (pursuant to A.R.S. § 41-1092.09).

Study Guide: Colvin v. Tierra Del Sol RV Resort Association

This study guide provides a comprehensive overview of the administrative hearing between Myron H. Colvin (Petitioner) and the Tierra Del Sol RV Resort Association (Respondent). It explores the factual background, legal standards, and the final decision rendered by the Office of Administrative Hearings.

I. Case Background and Timeline

The dispute centers on the installation of concrete pavers in a lot's setback area and the interpretation of the community's governing documents.

Initial Request (March 2018): Myron H. Colvin submitted a request to Tierra Del Sol to install concrete pavers in the setback area of his lot. This was approved, but the project was delayed because Colvin left the state.
Second Request (March 2019): Colvin submitted a second request for the same project, which was also approved by the Association.
Notice of Violation (May 8, 2019): After installation, Tierra Del Sol issued a notice alleging a violation of Covenants, Conditions, and Restrictions (CC&Rs) § 4.3. The Association claimed the pavers were too large to be moved by one person without mechanical assistance.
Proposed Remedies: The Association suggested Colvin could correct the violation by removing the concrete or cutting it into small sections weighing approximately 100 pounds.
Legal Action: On May 10, 2019, Colvin filed a petition with the Arizona Department of Real Estate (DRE). An evidentiary hearing was held on August 7, 2019.

II. Key Legal Concepts and CC&R Interpretation

CC&R Section 4.3: Lot Setbacks

The central regulation in this case defines the restricted areas of a lot and the types of items permitted within them:

Setback Dimensions: 5 feet across the front; 3 feet on both sides; 3 feet at the rear.
Prohibited Items: Permanent or temporary structures, improvements (except landscaping), vehicles (except golf carts and car dollies), Park Models, or Recreational Vehicles.
The "One Person" Rule: Landscaping features are only permitted in the setback if they can be moved by one person unassisted by mechanical devices.

Legal Standards and Burden of Proof

The case was governed by the following legal principles:

Jurisdiction: Arizona Revised Statutes (A.R.S.) § 32-2199(B) grants the Department of Real Estate authority over violations of planned community documents.
Burden of Proof: The Petitioner (Colvin) bears the burden of establishing that the Respondent (Association) violated the CC&Rs by a preponderance of the evidence.
Restrictive Covenants: In Arizona, unambiguous covenants are enforced to reflect the intent of the parties and must be construed as a whole, giving effect to all provisions.

III. Short-Answer Practice Questions

1. According to CC&R § 4.3, what are the specific dimensions of the setback areas for a lot?

Answer: The setback areas consist of five feet across the front and three feet on both sides and the rear.

2. Why did Tierra Del Sol allege that the concrete pavers violated the CC&Rs?

Answer: The Association alleged the pavers were not small enough to be removed by one person without the assistance of a mechanical device, as required for improvements in the setback area.

3. What specific weight did the Association suggest for the concrete sections to bring them into compliance?

Answer: The Association advised cutting the concrete into small 100-pound sections.

4. What is the definition of "preponderance of the evidence" used by the tribunal?

Answer: It is proof that convinces the trier of fact that a contention is "more probably true than not," or evidence that has the "most convincing force."

5. Why was Myron Colvin’s petition ultimately dismissed?

Answer: Colvin failed to establish that the Association violated Section 4.3. Additionally, the tribunal lacked jurisdiction to provide a declaratory judgment on whether Colvin himself had violated the CC&Rs.

IV. Essay Prompts for Deeper Exploration

Analysis of the Burden of Proof: Explain the legal significance of the "Petitioner bears the burden of proof." In the context of this case, why did the Administrative Law Judge find that Mr. Colvin failed to meet this burden even though he was the one who received a notice of violation?
The Limits of Administrative Jurisdiction: Discuss the distinction between a hearing to determine if a Homeowners Association (HOA) violated its own documents and a request for a "declaratory judgment." Why did the tribunal refuse to rule on whether Colvin was actually in violation of the CC&Rs?
Interpretation of Restrictive Covenants: CC&R § 4.3 includes a clause regarding "landscaping features which can be moved by one person unassisted by mechanical devices." Evaluate how such a clause balances the aesthetic interests of the homeowner with the functional requirements of the Association.

V. Glossary of Important Terms

Term	Definition
A.R.S. § 32-2199(B)	The Arizona Revised Statute that permits owners or planned community organizations to file petitions concerning violations of community documents.
CC&Rs	Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and limitations for property use within a community.
Declaratory Judgment	A legal determination by a court or tribunal that resolves legal uncertainty for the litigants, which the Office of Administrative Hearings ruled it did not have jurisdiction to provide in this specific context.
Improvement	Any structure or addition to a lot; under § 4.3, improvements in setbacks are generally restricted unless they are movable landscaping features.
Mechanical Device	Any tool or machinery used to assist in moving objects; its use is prohibited for moving items intended to be placed in the setback area under the "one person" rule.
Preponderance of the Evidence	The evidentiary standard where a claim is proved if it is shown to be more likely true than not; superior evidentiary weight.
Setback	A specific area of a lot (front, side, or rear) where structures and certain improvements are restricted to ensure space between properties or roads.
Tribunal	A person or institution (in this case, the Office of Administrative Hearings) with authority to judge, adjudicate on, or determine claims or disputes.

The Weight of Compliance: Lessons from the Tierra Del Sol Setback Dispute

1. When Lot Improvements Meet the Fine Print

For many RV resort enthusiasts, the appeal of a permanent lot lies in the ability to customize. Whether it’s a new awning or a pristine patio, these improvements define the resort lifestyle. However, as one resident at Tierra Del Sol RV Resort recently discovered, there is a significant legal distance between "getting approval" and "being in compliance."

The dispute between homeowner Myron H. Colvin and the Tierra Del Sol RV Resort Association serves as a cautionary tale for all planned community members. At the center of the conflict was a common upgrade—concrete pavers—that led to a Notice of Violation and an administrative hearing. By examining the nuances of this case, we can uncover how specific CC&R technicalities and jurisdictional boundaries determine the outcome of homeowner disputes.

2. From Green Light to Red Tape: The Project Timeline

The path to litigation began with what appeared to be a straightforward request. The timeline reveals a project that was approved twice but ultimately fell short of the community’s literal standards:

March 2018: Mr. Colvin submits his first request to the Association to install concrete pavers in his lot's setback area. The Association grants approval.
The Intervening Year: The project is stalled when Mr. Colvin leaves the state, preventing the immediate installation of the pavers.
March 2019: Upon his return, Mr. Colvin submits a second request for the same project. Once again, the Association issues an approval.
May 8, 2019: Shortly after the pavers are finally installed, the Association issues a formal Notice of Violation.

While the project was approved by the Architectural Officer, the execution—specifically the physical size and weight of the installed pavers—was deemed a breach of the community’s governing documents.

3. Decoding Section 4.3: The "One-Person" Rule and the 100-Pound Safe Harbor

The legal core of this dispute is Section 4.3 of the CC&Rs, which governs lot setbacks. Setbacks are designated "no-build" zones (five feet at the front, three feet on the sides and rear) intended to remain clear for utility access and safety.

The exact text of CC&R § 4.3 states:

"…in no event shall any Recreational Vehicle, its slide-out, or any Improvement, other than landscaping features which can be moved by one person unassisted by mechanical devices, encroach on or overhang any area designated in this Declaration as a lot setback."

To clarify this for members, the Association provided a "Safe Harbor" suggestion: the violation could be remedied if the concrete was cut into sections weighing no more than 100 pounds.

Category	Restriction Details
Permitted Landscaping	Must be movable by 1 person without tools or mechanical devices (e.g., no dollies, forklifts, or heavy machinery).
Prohibited Structures	No sheds, Arizona Rooms, or permanent structures of any kind.
Vehicles & Slide-outs	Strictly prohibited from overhanging the setback area.
Specific Exemptions	Golf carts and car dollies are permitted.

The Association’s grievance was that Mr. Colvin’s pavers were too large and heavy to be moved by a single person unassisted, effectively turning a "landscaping feature" into a "permanent improvement" prohibited in the setback.

4. The Legal Paradox: Why You Can’t Sue the Board for Your Own Violation

On August 7, 2019, the parties met for an administrative hearing. Mr. Colvin’s defense was built on the fact that he had received prior approval to place pavers cut into 3×5 foot pieces. He argued that because the Association approved the plan, he was not in violation.

However, the Association raised a brilliant, albeit frustrating, legal defense. They argued that under A.R.S. § 32-2199(B), the tribunal only has the authority to hear petitions regarding violations committed by the Association. Since the Association did not place the pavers in the setback—Mr. Colvin did—the Association could not have violated Section 4.3.

This created a procedural wall for the homeowner. In these hearings, the Petitioner (Mr. Colvin) bears the Burden of Proof. He had to establish his case by a Preponderance of the Evidence, meaning he had to prove it was "more probably true than not" that the Association broke a rule. Because the CC&Rs restrict what owners do, not what the Board does, the Petitioner’s argument was fundamentally misplaced.

Furthermore, the Association argued that the Office of Administrative Hearings (OAH) lacks the jurisdiction to issue a "declaratory judgment." In layperson’s terms, the court is not a consulting firm; it cannot provide a "stamp of approval" or pre-emptive advice to a homeowner looking to overturn a violation notice.

5. The Verdict: Dismissal and the Limits of Jurisdiction

Administrative Law Judge Velva Moses-Thompson ultimately dismissed the petition. The decision rested on two primary Conclusions of Law:

Failure to Establish a Violation by the Respondent: The Petitioner admitted to placing the pavers himself. Therefore, the Association did not violate the restriction against placing objects in the setback.
Lack of Jurisdiction: The tribunal does not have the legal authority to decide whether a member's personal actions constitute a violation when that member is seeking a "second opinion" to challenge a notice.

The final order was issued on August 27, 2019, and transmitted to the Commissioner of the Arizona Department of Real Estate.

6. Key Takeaways: Lessons for Every Resort Member

This case provides essential insights for anyone living under the governance of an HOA or RV resort:

Approval Is Not Absolute: An initial nod from an Architectural Officer is a green light to proceed, but it is not a shield against the literal text of the CC&Rs. If the finished product (e.g., the weight of a paver) violates the written code, the approval is effectively voided by the non-compliant execution.
The Tribunal is Not a "Second Opinion": Administrative hearings are for adjudicating breaches of law by the Association. They are not a venue to seek "declaratory relief" or to ask a judge to tell the Board to leave you alone.
The Burden of Proof is Yours: When you file a petition, you must prove the Association did something wrong. Proving that you followed a plan that later turned out to be a violation is rarely enough to win a case against the Board.
The Hierarchy of Authority: While an Architectural Officer may review your plans, the Board of Directors and the written CC&Rs remain the ultimate authority. Always ensure your project meets the "fine print" standards—like the "one-person" weight limit—before the concrete is poured.

7. Conclusion: The Constant State of Compliance

The Tierra Del Sol dispute highlights a vital truth of resort living: compliance is a constant state, not a one-time event. Obtaining a permit is only the first step; maintaining the project within the technical bounds of the CC&Rs is what prevents a costly legal setback.

The order in this matter became binding upon its issuance. Under Arizona law, any party wishing to challenge such a decision has a 30-day window to file a request for a rehearing with the Commissioner of the Department of Real Estate. For homeowners, the best defense remains a thorough understanding of the "one-person" rule and a cautious approach to the setback line.

Case Participants

Petitioner Side

Myron H. Colvin (petitioner)
Tierra Del Sol RV Resort Association (member)
Appeared on behalf of himself

Respondent Side

Nicholas Nogami (attorney)
Tierra Del Sol RV Resort Association
Esq.

Neutral Parties

Velva Moses-Thompson (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Received electronic transmission of order

Peter de Scheel vs. Sandpiper Scottsdale Association, Inc.

Posted on June 19, 2019 by [email protected]

Case Summary

Case ID	19F-H1919048-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-06-19
Administrative Law Judge	Velva Moses-Thompson
Outcome	The ALJ granted the petition, finding that the HOA violated the CC&Rs. The evidence established that architectural beams are part of the 'exterior' which the Association must maintain, rather than the 'roof' which is excluded from Association maintenance. The HOA failed to prove by a preponderance of the evidence that beams were part of the roof.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Peter de Scheel	Counsel	—
Respondent	Sandpiper Scottsdale Association, Inc.	Counsel	Bradley R. Jardine

Alleged Violations

Article V Section 1; Article VI Section 1(c)

Outcome Summary

The ALJ granted the petition, finding that the HOA violated the CC&Rs. The evidence established that architectural beams are part of the 'exterior' which the Association must maintain, rather than the 'roof' which is excluded from Association maintenance. The HOA failed to prove by a preponderance of the evidence that beams were part of the roof.

Key Issues & Findings

Exterior Maintenance Responsibility (Architectural Beams)

Petitioner alleged the HOA violated CC&Rs by requiring him to repair architectural beams. The dispute centered on whether beams were part of the 'roof' (owner responsibility) or 'exterior' (HOA responsibility).

Orders: Respondent shall reimburse Petitioner the $500.00 filing fee. Respondent is responsible for the repair and maintenance of architectural beams.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

Article V Section 1
Article VI Section 1(c)

Video Overview

Audio Overview

Decision Documents

19F-H1919048-REL Decision – 716710.pdf

Uploaded 2026-04-24T11:19:18 (103.6 KB)

Administrative Law Judge Decision: de Scheel v. Sandpiper Scottsdale Association, Inc.

Executive Summary

This briefing document analyzes the administrative decision in the matter of Peter de Scheel vs. Sandpiper Scottsdale Association, Inc. (No. 19F-H1919048-REL). The dispute centered on whether the Sandpiper Scottsdale Association (the Respondent) or the homeowner, Peter de Scheel (the Petitioner), was responsible for the repair and maintenance of architectural wood beams on the Petitioner’s property.

The Administrative Law Judge (ALJ), Velva Moses-Thompson, ruled in favor of the Petitioner. The decision determined that under the Association's Covenants, Conditions, and Restrictions (CC&Rs), architectural wood beams are classified as part of the "exterior building surfaces," which the Association is obligated to maintain. The Association's argument that the beams were part of the roof—an item specifically excluded from Association maintenance—was rejected. As a result, the Association was ordered to cease requiring the Petitioner to perform these repairs and to reimburse his $500 filing fee.

Analysis of Key Themes

1. Interpretation of Maintenance Obligations under CC&Rs

The core of the legal dispute rested on the interpretation of Article V, Section 1 and Article VI, Section 1(c) of the Respondent’s CC&Rs.

Association Obligations: The CC&Rs mandate that the Association provide exterior maintenance for each "Improved Lot." This includes painting, repairing, replacing, and caring for "exterior building surfaces and other such exterior improvements."
Specific Exclusions: The CC&Rs list specific items for which the Association is not responsible. These include:
Roofs (except for Condominium Lots).
Glass surfaces, air conditioning units, and landscaping (trees, shrubs, grass).
Walks, driveways, and parking areas.
Improvements within a patio or enclosed yard.

The Petitioner successfully argued that because architectural wood beams were not specifically listed in these exclusions, they fell under the general category of "exterior building surfaces" maintained by the Association.

2. The Distinction Between "Roof" and "Architectural Beams"

The Respondent attempted to classify the architectural beams as part of the "roof" to trigger the maintenance exclusion. However, the ALJ found this argument inconsistent with the Association's own communications. Both the community manager and the Board President had issued communications (newsletters and emails) that listed "roofs" and "architectural beams" as separate items.

The Judge concluded that the Respondent failed to prove by a preponderance of the evidence that architectural beams are legally or functionally part of the roof. Instead, the evidence supported the conclusion that they are exterior building surfaces.

3. Burden of Proof and Evidentiary Standards

The case was decided based on the preponderance of the evidence—meaning the proof showed the Petitioner’s contention was "more probably true than not."

Petitioner’s Burden: To establish that the Association violated the CC&Rs by shifting maintenance responsibility to the homeowner.
Respondent’s Burden: To establish affirmative defenses (e.g., that the beams were part of the roof and thus excluded from Association maintenance).

The court found the Petitioner met his burden, while the Respondent did not provide sufficient evidence to support its reclassification of the beams.

4. Association Classification (Planned Unit Development vs. Condominium)

A secondary theme involved the legal nature of the Association. While the CC&Rs contained language regarding "Condominium Lots," the Board President testified that the development is a Planned Unit Development (PUD) and never met the criteria for a condominium association because a "declaration of horizontal property regime" was never submitted. This distinction influenced the application of Article V, Section 1, which has different roof maintenance rules for Condominium Lots versus standard Improved Lots.

Important Quotes with Context

Quote	Context
"The Association shall provide exterior maintenance upon each Improved Condominium Lot and Improved Lot… as follows: paint, repair, replace and care for exterior building surfaces."	Article V, Section 1 of the CC&Rs. This serves as the primary basis for the Association's duty to maintain the exterior of the homes.
"Such exterior maintenance shall not include roofs, except in the case of Improved Condominium Lots."	Article V, Section 1 of the CC&Rs. This is the specific exclusion the Association attempted to use to avoid responsibility for the beams.
"Please remember that our CC&Rs require each owner to maintain their property including driveways, roofs, architectural beams and posts…"	Newsletter/Email from Respondent. This internal communication was used as evidence against the Association, as it listed roofs and beams as separate entities.
"Respondent did not establish by a preponderance of the evidence that the architectural beams are a part of the roof."	ALJ Conclusion of Law. The Judge's final determination on the Association's primary defense.
"Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein."	Legal Standard cited by the ALJ. Explains the methodology used to interpret the Association's governing documents.

Actionable Insights

For Homeowners’ Associations (HOAs)

Consistency in Communication: Associations must ensure that newsletters and informal communications do not contradict or broaden the scope of the CC&Rs. By listing "beams" separately from "roofs" in a newsletter, the Association undermined its own legal argument that beams were part of the roof.
Definition of Exclusions: If an Association intends for specific exterior elements (like beams or posts) to be the owner's responsibility, those items should be explicitly listed in the "Exclusions" section of the CC&Rs.
Historical Practice vs. Written Code: The Association argued that homeowners had "historically" repaired roofs. However, historical practice does not override unambiguous language in the CC&Rs regarding "exterior building surfaces."

For Homeowners

Reviewing Specific CC&R Articles: When faced with a repair notice, homeowners should cross-reference the specific repair requested against the "Exterior Maintenance" sections of their CC&Rs.
Identifying Omissions: If a specific architectural feature is not listed in the "Association shall not maintain" list, there is a strong legal argument that it remains the Association's responsibility as an "exterior surface."

Legal Implications

Reimbursement of Fees: Under A.R.S. § 32-2199.02(B), if an Association is found in violation of its governing documents, it may be ordered to reimburse the Petitioner’s filing fees ($500 in this case).
Binding Nature: The ALJ’s order is binding unless a rehearing is granted by the Commissioner of the Department of Real Estate within 30 days.

Study Guide: de Scheel v. Sandpiper Scottsdale Association, Inc.

This study guide provides a comprehensive overview of the administrative law case Peter de Scheel v. Sandpiper Scottsdale Association, Inc. (No. 19F-H1919048-REL). It covers the legal disputes regarding homeowner association (HOA) maintenance responsibilities, the interpretation of restrictive covenants, and the evidentiary standards used in Arizona administrative hearings.

1. Case Overview and Background

Core Dispute

The primary issue in this case was determining whether the homeowner (Petitioner) or the Homeowners Association (Respondent) was responsible for the repair and maintenance of disintegrating architectural wood beams.

Petitioner: Peter de Scheel, a homeowner in the Sandpiper Scottsdale Association.
Respondent: Sandpiper Scottsdale Association, Inc., a planned unit development.
Initial Action: In August 2018, the HOA notified the Petitioner that he must repair his architectural wood beams by December 25, 2018. The Petitioner argued the HOA was responsible under the community's governing documents.

Legal Context

The case was heard by the Office of Administrative Hearings under the authority of the Arizona Department of Real Estate (ADRE). Per A.R.S. § 32-2199(B), the ADRE is authorized to decide petitions regarding violations of planned community documents.

2. Key Legal Concepts

The Burden of Proof

In this administrative matter, the Petitioner held the burden of proof to establish a violation of the Covenants, Conditions, and Restrictions (CC&Rs) by a preponderance of the evidence.

Definition: A preponderance of the evidence means that the contention is "more probably true than not" or possesses "superior evidentiary weight."
Affirmative Defenses: The Respondent bears the burden to establish any affirmative defenses using the same standard.

Interpretation of CC&Rs

Arizona law requires that unambiguous restrictive covenants be enforced to give effect to the intent of the parties. Covenants must be:

Construed as a whole.
Interpreted in view of their underlying purposes.
Evaluated to give effect to all provisions contained within them.

Governing CC&R Articles

The case centered on the following provisions from the Sandpiper Scottsdale Association CC&Rs:

Provision	Title	Key Language/Requirement
Article V, Section 1	Exterior Maintenance	The Association shall provide exterior maintenance upon each Improved Lot (paint, repair, replace exterior building surfaces).
Article VI, Section 1(c)	Duties and Powers	The Association shall maintain the exterior of Living Units subject to the limitations in Article V.
Article I, Section 9	Definitions	Defines "Lot" and "Improved Lot" (a lot with a completed single-family residence).

3. Evidence and Testimony

Arguments for the Homeowner (Petitioner)

Architectural beams are part of the exterior building surface.
Article V, Section 1 does not list "architectural beams" as an exception to the Association’s maintenance duties.
While roofs are an exception, architectural beams are distinct from the roof.

Arguments for the Association (Respondent)

Historical Practice: The Association has consistently required homeowners to repair beams for years.
Roof Categorization: The Board President argued that architectural beams are functionally part of the roof (which homeowners are responsible for maintaining).
Association Status: Although the CC&Rs mention "condominiums," the Association argued it is a planned unit development because no declaration of horizontal property regime was ever submitted.

Findings of the Administrative Law Judge (ALJ)

The ALJ determined that the Association failed to prove that architectural beams are part of the roof. Because the CC&Rs specifically distinguished roofs from architectural beams in newsletters and failed to list beams as an exception in Article V, the Association was found responsible for their maintenance.

4. Short-Answer Practice Questions

What was the specific deadline given to the Petitioner to repair the wood beams?

Answer: December 25, 2018.

According to Article V, Section 1, what are the specific exceptions to the Association's exterior maintenance responsibility?

Answer: Roofs (except for Improved Condominium Lots), glass surfaces, air conditioning units, trees, shrubs, grass, walks, driveways, parking areas, landscaping, and improvements within patio or enclosed yard spaces.

What amount was the Respondent ordered to reimburse the Petitioner following the decision?

Answer: $500.00 (the filing fee for the petition).

Who served as the Administrative Law Judge for this case?

Answer: Velva Moses-Thompson.

How does Article I, Section 9 define an "Improved Lot"?

Answer: A Lot upon which has been completed a single-family residence.

Under what Arizona Revised Statute is the Order binding on the parties?

Answer: A.R.S. § 32-2199.02(B).

5. Essay Prompts for Deeper Exploration

The Role of Historical Practice vs. Written Contract: Analyze the Association's argument that they had "consistently required" homeowners to repair beams since 1984. Why did the ALJ prioritize the written text of the CC&Rs over the historical testimony of the community managers?
Ambiguity in Restrictive Covenants: The Respondent argued that architectural beams should be considered part of the roof. Discuss how the Association’s own communication (newsletters and emails) undermined this argument and how it impacted the ALJ’s determination that the beams were part of the "exterior."
Condominium vs. Planned Unit Development: The CC&Rs describe a "planned residential area consisting of townhouses, interspersed condominiums and common area." However, testimony suggested the Association never met the criteria for a condominium. Explain how this distinction (or lack thereof) influenced the interpretation of maintenance responsibilities for roofs under Article V.

6. Glossary of Important Terms

A.R.S. § 32-2199: The Arizona statute granting the Department of Real Estate the authority to hear disputes between homeowners and associations.
CC&Rs (Covenants, Conditions, and Restrictions): The governing documents that outline the rules, requirements, and responsibilities of homeowners and the association within a development.
Declarant: The entity (usually the developer) that originally created the CC&Rs and the community.
Horizontal Property Regime: A legal structure required to officially establish a condominium; the Respondent argued this was never submitted.
Improved Lot: A plot of land within the subdivision that has a completed single-family residence.
Living Unit: A term used in the CC&Rs to refer to the individual residential structures within the development.
Preponderance of the Evidence: The evidentiary standard in civil and administrative cases requiring that a claim be more likely true than not.
Restrictive Covenant: A provision in a deed or a set of CC&Rs that limits or dictates the use of the property or the obligations of the owner.

Homeowner vs. HOA: Who Really Pays for Architectural Wood Beams?

1. Introduction: The High Stakes of HOA Maintenance

In the often-contentious world of planned communities, few things trigger a legal battle faster than a high-cost repair bill. For many homeowners, the relationship with their Homeowners’ Association (HOA) is a delicate balance of shared benefits and individual burdens. However, when an Association attempts to shift its maintenance obligations onto individual owners through creative—and often legally flawed—interpretations of governing documents, the stakes escalate from mere disagreement to a pivotal fight for property rights.

The case of Peter de Scheel vs. Sandpiper Scottsdale Association, Inc. serves as a landmark victory for homeowners facing arbitrary assessments. At the center of this dispute was a seemingly simple question: Who is responsible for "disintegrating" architectural wood beams? The outcome provides a masterclass in how to hold a Board accountable to the literal text of the law.

2. The "Beams of Contention": Background of the Dispute

The conflict began on August 21, 2018, when the Sandpiper Scottsdale Association (the Association) issued a formal notification to homeowner Peter de Scheel. The Association alleged that the architectural wood beams on his property were "disintegrating" and demanded their repair by December 25, 2018.

Mr. de Scheel, recognizing the financial implications of this demand, challenged the Board's authority. He argued that under the community’s Covenants, Conditions, and Restrictions (CC&Rs), the maintenance of these structural exterior elements was the Association's responsibility, not his. When the Association refused to yield, de Scheel took the necessary legal step to protect his interests: he filed a single-issue petition with the Arizona Department of Real Estate on February 14, 2019. He alleged a direct violation of Article V and Article VI of the CC&Rs, setting the stage for an evidentiary hearing to determine the boundaries of contractual obligation.

3. Decoding the CC&Rs: What the Rules Actually Say

As any seasoned legal analyst knows, the CC&Rs are the "constitution" of the community. In this case, the Administrative Law Judge (ALJ) focused on Article V, Section 1 and Article VI, Section 1(c) to determine where the Association’s duties ended and the Homeowner’s began.

The Association’s Maintenance Scope Per the CC&Rs, the Association is mandated to provide exterior maintenance upon each Improved Lot, specifically to:

Paint, repair, and replace exterior building surfaces.
Maintain and care for "other such exterior improvements."

The Explicit Exceptions The governing documents also provide a definitive list of items the Association is not responsible for. These exceptions are narrow and must be interpreted strictly:

Roofs (Except in the case of Improved Condominium Lots).
Glass surfaces and air conditioning units.
Landscaping, including trees, shrubs, and grass.
Walks, driveways, and parking areas.
Improvements built by an owner within a patio or enclosed yard space.

The Critical Omission Under the principle of contractual interpretation, what is not listed is often as important as what is. The ALJ noted that "architectural beams" were conspicuously absent from the list of exceptions. Furthermore, the definition of an "Improved Lot" in Article I, Section 13 made a clear distinction between a standard Lot and a Condominium Lot—a distinction that would later prove fatal to the Association’s defense.

4. The HOA’s Defense: A Failure of Legal Consistency

The Association’s defense strategy relied on a blend of witness testimony and a shifting legal identity. Witnesses Mary Lou Pace (Community Manager), Pamela L. Polo (Former Property Manager), and Carol Nesland (Board President) all attempted to argue that architectural beams should be classified as part of the "roof," thereby falling under the maintenance exception.

However, the Association struggled with its own legal standing. In its initial written answer to the petition, the Association claimed to be a condominium association. Yet, during the hearing, Board President Carol Nesland reversed this position, admitting the Association was actually a planned unit development (PUD). She conceded that the developers had never filed a "declaration of horizontal property regime"—the legal instrument required to create a condominium. Without this regime, the Association could not legally enforce the "roof" exception against Mr. de Scheel, as the CC&Rs only applied that exception to "Improved Condominium Lots."

Perhaps most damaging to the Association was its own history of communication. The Homeowner presented a January 2019 email from the Community Manager and a newsletter from the Board President that explicitly listed "roofs" and "architectural beams" as separate maintenance items. In legal terms, this constituted a "party admission." By distinguishing between the two in their own correspondence, the Association undermined their affirmative defense that the beams were merely an extension of the roof.

5. The Verdict: A Victory for Homeowner Clarity

The ALJ applied the "Preponderance of the Evidence" standard, which requires the evidence to show that a contention is "more probably true than not." While the Homeowner bore the initial burden of proving a violation, the Association bore the burden of proving its affirmative defense—that the beams fell under the roof exception.

The judge found the Association’s arguments unconvincing. The evidence demonstrated that the beams were exterior building surfaces, and the Association failed to prove they were legally part of the roof.

The Final Order On June 19, 2019, the ALJ ruled in favor of the Homeowner, Peter de Scheel. The Association was found in violation of the CC&Rs for attempting to force the Homeowner to repair the beams. In a final symbolic and financial victory for de Scheel, the judge ordered the Association to reimburse the Homeowner’s $500.00 filing fee.

6. Key Takeaways for Homeowners and Boards

This case serves as a vital reminder that an HOA's power is not absolute; it is strictly limited by its own governing documents.

Specificity in CC&Rs is Mandatory: If an item is not explicitly listed as an exception to the Association’s maintenance duties, it generally remains the Association’s responsibility under "exterior building surfaces." Courts will not "read in" exceptions that aren't there.
Internal Communications are Evidence: Newsletters and emails are not just community updates; they are legal records. When a Board separates items in a newsletter for "clarity," they may inadvertently create evidence that those items are legally distinct entities.
The Burden of Affirmative Defenses: If an HOA claims a maintenance item is a homeowner’s responsibility based on an exception in the CC&Rs, the HOA bears the burden of proving that exception applies. A failure to maintain legal consistency—such as the "Condo vs. PUD" flip-flop seen here—can destroy the Board's credibility.

Homeowners should never accept a Board's demand for repair at face value. Before opening your wallet, conduct an audit of your CC&Rs. If the documents do not explicitly exempt the Association from maintaining a specific exterior element, the Law may be on your side.

Case Participants

Petitioner Side

Peter de Scheel (Petitioner)
Homeowner
Appeared on behalf of himself

Respondent Side

Bradley R. Jardine (Attorney)
Jardine, Baker, Hickman & Houston, P.L.L.C.
Attorney for Sandpiper Scottsdale Association, Inc.
Mary Lou Pace (Community Manager)
Sandpiper Scottsdale Association, Inc.
Witness; also referred to as Mary Loud Pace
Carol Nesland (Board President)
Sandpiper Scottsdale Association, Inc.
Witness; President of the Board of Directors
Pamela L. Polo (Former Property Manager)
Sandpiper Scottsdale Association, Inc.
Witness; manager from 1984 to 2015

Neutral Parties

Velva Moses-Thompson (Administrative Law Judge)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Recipient of the transmitted order

Patricia Davies-Brown vs. Starwood Estates Homeowners Association

Posted on September 14, 2018 by [email protected]

Case Summary

Case ID	18F-H1818039-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-09-14
Administrative Law Judge	Velva Moses-Thompson
Outcome	The Petitioners' request alleging that the Starwood Estates Homeowners Association violated community documents by approving a copper-colored metal roof was denied. The Administrative Law Judge concluded that Petitioners failed to establish the violation by a preponderance of the evidence, noting that the guidelines prohibiting reflective surfaces applied primarily to windows and doors, not roofs.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Patricia Davies-Brown, Individually and as Trustee of the Trust; BART A. BROWN, JR.; SCOTT R. DAVIES	Counsel	—
Respondent	Starwood Estates Homeowners Association	Counsel	Daniel Campbell & Kristopher L. Smith

Alleged Violations

CC&Rs; Bylaws; Architectural Guidelines

Outcome Summary

The Petitioners' request alleging that the Starwood Estates Homeowners Association violated community documents by approving a copper-colored metal roof was denied. The Administrative Law Judge concluded that Petitioners failed to establish the violation by a preponderance of the evidence, noting that the guidelines prohibiting reflective surfaces applied primarily to windows and doors, not roofs.

Why this result: Petitioners failed to establish by a preponderance of the evidence that Respondent violated its CC&Rs, Bylaws, or Architectural Guidelines.

Key Issues & Findings

Violation of Exterior Appearance and Colors provisions regarding copper-colored metal roof approval

Petitioners alleged that the HOA improperly approved a copper-colored metal roof because it constituted a reflective surface and did not blend with the natural surroundings, violating the community documents. The ALJ denied the petition, finding Petitioners failed to establish by a preponderance of the evidence that the HOA violated its documents, noting the reflective surfaces ban applied to windows and doors, not roofs, and the roof's appearance was acceptable.

Orders: Petitioners' petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Analytics Highlights

Topics: architectural control, CC&Rs enforcement, metal roof approval, reflective surfaces, burden of proof

Additional Citations:

A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Video Overview

Audio Overview

Decision Documents

18F-H1818039-REL Decision – 653217.pdf

Uploaded 2026-04-24T11:12:08 (41.6 KB)

18F-H1818039-REL Decision – 659968.pdf

Uploaded 2026-04-24T11:12:20 (104.6 KB)

Briefing Document: Davies-Brown v. Starwood Estates HOA

Executive Summary

This document summarizes the administrative hearing and decision in case No. 18F-H1818039-REL, concerning a dispute between homeowners Patricia Davies-Brown, Bart A. Brown, Jr., and Scott R. Davies (the “Petitioners”) and the Starwood Estates Homeowners Association (the “Respondent”). The core of the dispute was the HOA Board of Directors’ 2013 approval of a copper-colored metal roof for homeowners Jeff and Karen Martin.

The Petitioners alleged this approval violated the community’s CC&Rs, Bylaws, and Architectural Guidelines. Their primary arguments were that the roof was an impermissible “reflective surface,” that it did not “blend with the natural surrounding and landscape,” and that the Board lacked the authority to approve it without prior review by the Architectural Committee (ACC) and without viewing a physical sample.

The Respondent defended the Board’s decision, arguing that the Board possessed the authority to grant such approvals. They contended the prohibition on reflective surfaces in the community guidelines applies specifically to windows and doors, not roofing. Furthermore, they asserted that the roof was aesthetically compliant and that other reflective metal roofs exist within the community.

The Administrative Law Judge (ALJ), Velva Moses-Thompson, ruled in favor of the Respondent. The decision, issued on September 14, 2018, denied the petition, concluding that the Petitioners failed to meet their burden of proof. The ALJ found that the Board had the authority to approve the roof, the ban on reflective surfaces did not apply to roofing, and the Petitioners did not establish that the roof failed to blend with its natural surroundings.

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Case Overview

• Case Name: Patricia Davies-Brown, et al. vs. Starwood Estates Homeowners Association

• Case Number: 18F-H1818039-REL

• Forum: Arizona Office of Administrative Hearings

• Presiding Judge: Velva Moses-Thompson, Administrative Law Judge

• Hearing Dates: July 10, 2018, and August 13, 2018

• Final Decision Date: September 14, 2018

Key Parties and Representatives

Name(s)

Representation / Contact

Petitioners

Patricia Davies-Brown, Bart A. Brown, Jr., Scott R. Davies

Appeared on behalf of themselves
9777 E Dreyfus Ave., Scottsdale, AZ 85260
[email protected]

Respondent

Starwood Estates Homeowners Association

Kristopher L. Smith, Esq.
O’Connor & Campbell, P.C.
7955 S Priest Dr., Tempe, AZ 85284
[email protected]

Homeowners

Jeff and Karen Martin

Owners of the property with the disputed roof at 8500 Skywood Drive, Pinetop, Arizona (Lot 40 of Starwood Estates).

Core Dispute: The Martin Residence Roof

The central conflict originated in the summer of 2013 when the Starwood Estates Board of Directors approved a request from Jeff and Karen Martin to install a copper-colored metal roof on their home. The approval was passed by a 5-1 vote. Petitioner Scott R. Davies was the sole board member who voted against the approval at that time.

The Board reviewed a brochure containing the roof’s color before granting approval but did not observe a physical sample. However, one Board member, Pat Knight, was reportedly familiar with the appearance of such roofs from a previous home she owned nearby. The petition challenging this 2013 decision was filed on or about March 26, 2018.

Petitioners’ Allegations and Arguments

The Petitioners filed their petition with the Arizona Department of Real Estate, alleging that the HOA violated community governing documents. Their case was built on three central questions:

1. Does the exterior appearance of the Martins’ aluminum copper-colored metal roof blend with the “natural surrounding and landscape” of Starwood Estates?

2. Does such roof constitute a “reflective surface”?

3. If the answer to (1) above is no and/or the answer to (2) above is yes, did the ACC and the Board of Starwood Estates erroneously violate the provisions of the CC&R’s and GUIDELINES in permitting the Martins to install such aluminum copper-colored metal roof…?

During the hearing, the Petitioners expanded on these points, arguing:

• Reflective Surface: The copper-colored roof was a prohibited reflective surface under the Architectural Guidelines.

• Aesthetic Incompatibility: The roof did not blend with the natural surroundings as required.

• Procedural Violations:

◦ The Board violated the CC&Rs by approving the roof without first viewing a physical sample of the material.

◦ The approval was invalid because it should have first been granted by the two-person Architectural Committee (ACC) appointed by the Board.

Respondent’s Defense and Arguments

The Starwood Estates HOA maintained that its approval of the Martin roof was proper and compliant with all governing documents. Their key arguments were:

• Board Authority: The HOA asserted that either the Board of Directors or the Architectural Committee had the authority to approve the roof.

• Interpretation of “Reflective Surfaces”: The Respondent argued that the prohibition on “reflective surfaces” within the Architectural Guidelines applies specifically to windows and doors, not to roofing, which is addressed in a separate section of the guidelines.

• Aesthetic Compliance: They contended the roof, while having a “shine,” was not a barred reflective surface and did blend in with the natural surroundings.

• Precedent: The HOA noted that several other metal roofs that are reflective had been previously approved in Starwood Estates. They submitted images of reflective green and red roofs in the Pinetop Country Club area as evidence.

Referenced Governing Documents

The decision cited specific sections from the HOA’s governing documents to adjudicate the dispute.

• Section 3.1.4: Requires prior written approval from the Architectural Committee for any work that alters the exterior appearance of a Lot.

• Section 5.2: States that approvals or actions to be taken by the Association “shall be valid if given or taken by the Board.”

• Article VII, Section A(2): Grants the Board authority to exercise all powers and duties vested in the Association unless reserved to the membership.

• Article VII, Section B: Empowers the Board to “Review and approve any architectural plan for the building of any improvements on any Lots.”

• Exterior Appearance and Colors: Mandates that exterior appearance “shall blend with the natural surroundings and landscape.” It also states, “Clear aluminum window and doorframes are not permitted, nor are reflective surfaces.” A note requires the owner to submit samples of materials for ACC approval.

• Roofs, Materials, and Pitches: Stipulates that “Metal roofs are permitted only with ACC approval” and that all pitched roof materials “shall promote a continuity of texture and color.”

Evidence Presented

• Petitioner’s Exhibit 13: A photograph of the Martins’ copper-colored roof. The ALJ’s decision noted that while the image showed a reflection, the photograph itself was “blurred.”

• Respondent’s Exhibit 26: The brochure containing the color of the copper-colored roof that the Board reviewed before its 2013 approval.

• Respondent’s Exhibit 7: Images of other reflective green and red metal roofs located in the Pinetop Country Club area, which were previously approved.

• Testimony: Board member Pat Knight’s familiarity with the appearance of copper-colored roofs was noted.

Administrative Law Judge’s Decision and Rationale

The petition was denied. The ALJ found that the Petitioners failed to establish by a preponderance of the evidence that the Respondent violated its CC&Rs, Bylaws, or Architectural Guidelines.

Conclusions of Law

1. Burden of Proof: The Petitioners bore the burden of proving their claims by a “preponderance of the evidence,” defined as evidence that is more probably true than not. They failed to meet this standard.

2. Board Authority: The ALJ concluded that the governing documents allowed for the roof to be approved by either the Architectural Committee or the Board of Directors. The Board’s action was therefore valid.

3. Interpretation of Reflective Surfaces: The evidence established that the prohibition on “reflective surfaces” in the Architectural Guidelines applies to windows and doors. Roofs are addressed in a separate section of the guidelines. The existence of other approved shiny metal roofs further supported this interpretation.

4. Aesthetic Compliance: The Petitioners did not provide sufficient evidence to prove that the copper-colored roof failed to blend in with the natural surroundings.

Final Order

IT IS ORDERED that Petitioners’ petition is denied because Petitioners have not established that Respondent violated the Community Bylaws, Community CC&Rs, and the Community Architectural Guidelines when Respondent approved the Martins’ request to install the copper-colored roof.

The order was made binding unless a rehearing was requested within 30 days of service.

Study Guide: Davies-Brown v. Starwood Estates HOA (Case No. 18F-H1818039-REL)

This guide provides a comprehensive review of the administrative hearing case between Patricia Davies-Brown, et al., and the Starwood Estates Homeowners Association. It includes a short-answer quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined within the context of the provided legal documents.

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Short-Answer Quiz

Answer the following questions in two to three sentences, drawing exclusively from the information presented in the case documents.

1. Who were the primary parties involved in Case No. 18F-H1818039-REL?

2. What specific architectural feature was the central point of the dispute?

3. What were the three main questions the Petitioners raised in their petition filed on March 26, 2018?

4. How did the Respondent (Starwood Estates HOA) justify the approval of other reflective metal roofs in the community?

5. According to the Petitioners, which two procedural errors did the Board of Directors commit when approving the Martins’ roof?

6. What was the Administrative Law Judge’s conclusion regarding the prohibition of “reflective surfaces” in the Architectural Guidelines?

7. What is the legal standard of proof the Petitioners were required to meet, and did they succeed?

8. Which governing documents grant the Board of Directors the authority to approve architectural plans?

9. When was the disputed roof originally approved by the Board, and what was the vote count?

10. What evidence did the Board review before its initial approval, and what evidence was not reviewed at that time?

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Answer Key

1. The Petitioners were Patricia Davies-Brown (Individually and as Trustee of the Trust), Bart A. Brown, Jr., and Scott R. Davies. The Respondent was the Starwood Estates Homeowners Association.

2. The central dispute was an aluminum, “copper-colored metal roof” installed by homeowners Jeff and Karen Martin on their property at Lot 40 of Starwood Estates. The Petitioners challenged the HOA Board’s approval of this roof.

3. The Petitioners’ petition questioned whether the roof blended with the “natural surrounding and landscape,” whether it constituted a “reflective surface,” and if so, whether the Board and ACC violated the CC&Rs and Guidelines by permitting it.

4. The Respondent submitted evidence of other reflective green and red metal roofs within the Pinetop Country Club area that had been previously approved by the Board. This was used to argue that roofs with a shine were not explicitly barred.

5. The Petitioners contended the Board violated the CC&Rs by approving the roof without first viewing a physical sample. They also argued that the roof required approval from the two-person Architectural Committee (ACC) and could not be approved by the Board alone.

6. The Judge concluded that the bar on reflective surfaces, as written in the Architectural Guidelines, applies specifically to windows and doors. Roofs are addressed in a separate section of the guidelines that does not contain the same prohibition.

7. The Petitioners bore the burden of proof to establish their case by a “preponderance of the evidence,” which means showing their contention is more probably true than not. The Judge ruled that they failed to meet this standard.

8. Section 5.2 of the CC&Rs states that actions taken by the Board are valid, and Article VII of the Starwood Bylaws grants the Board the power to exercise Association authority and to review and approve architectural plans. The Judge found this authority allowed the Board to approve the roof.

9. The roof was approved by the Board of Directors in the summer of 2013. The approval passed with a 5-1 vote, with Petitioner Scott R. Davies being the sole board member who voted against it.

10. Before approving the roof, the Board reviewed a brochure containing the color of the copper-colored roof. However, the Board did not observe a physical sample of the actual roofing material.

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Essay Questions for Further Study

The following questions are designed for deeper, analytical consideration of the case. Answers are not provided.

1. Analyze the conflict between CC&Rs Section 3.1.4 (requiring ACC approval) and other governing documents (like CC&Rs Section 5.2 and Bylaws Article VII) that grant broad authority to the Board. How did the Administrative Law Judge resolve this apparent contradiction in the final decision?

2. Discuss the concept of “burden of proof” as it applied in this case. Explain what “preponderance of the evidence” means and detail why the Petitioners failed to meet this standard with respect to their claims about the roof’s reflective nature and its harmony with the natural surroundings.

3. Examine the interpretation of the Architectural Guidelines regarding “reflective surfaces.” How did the Respondent and the Administrative Law Judge construe this rule, and what evidence and reasoning supported their interpretation over the Petitioners’ broader application?

4. Evaluate the evidence presented by both the Petitioners and the Respondent. Discuss the strengths and weaknesses of each party’s evidence (e.g., the blurred photograph vs. the brochure and photos of other roofs) and explain how this likely influenced the outcome of the case.

5. Based on the issues raised in this case, what specific changes or clarifications could be made to the community’s CC&Rs and Architectural Guidelines to prevent similar disputes in the future?

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Glossary of Key Terms

Definition in Context

ACC (Architectural Committee)

A committee, as referenced in the CC&Rs and Architectural Guidelines, responsible for approving exterior alterations and ensuring all building materials and colors conform to community standards.

Administrative Law Judge (ALJ)

The presiding official (Velva Moses-Thompson) at the Office of Administrative Hearings who conducts hearings, evaluates evidence, and issues a binding decision on the matter.

Architectural Guidelines

A set of community documents establishing goals and specific rules for exterior appearance, colors, materials, and site development to retain the character of Starwood Estates.

Board of Directors (Board)

The governing body of the Starwood Estates Homeowners Association, which is empowered by the CC&Rs and Bylaws to conduct the affairs of the Association and approve architectural plans.

Bylaws

The rules and regulations that govern the internal operations of the Starwood Estates Homeowners Association, including the powers and duties of the Board of Directors.

Covenants, Conditions, and Restrictions. Legally binding rules recorded with the property deeds in the Starwood Estates community that govern what homeowners may or may not do with their property.

Conclusions of Law

The section of the ALJ’s decision that applies legal principles, statutes, and case law to the established facts of the case to reach a final judgment.

Findings of Fact

The section of the ALJ’s decision that formally lists the factual determinations made by the judge based on the evidence presented at the hearing.

Petitioner

The party that initiates a legal action by filing a petition. In this case, Patricia Davies-Brown, Bart A. Brown, Jr., and Scott R. Davies, who brought the complaint against the HOA.

Preponderance of the evidence

The standard of proof required in this administrative hearing. It is defined as evidence that is more convincing and has a greater weight than the evidence offered in opposition, persuading the fact-finder that a contention is more likely true than not.

Respondent

The party against whom a petition is filed. In this case, the Starwood Estates Homeowners Association, which had to defend its decision to approve the roof.

Restrictive Covenant

A provision in a deed or community document (like a CC&R) that limits the use of the property. In Arizona, if unambiguous, these are enforced to give effect to the intent of the parties.

This Copper Roof Caused a Legal Battle: 3 Surprising Lessons Every Homeowner Should Learn

Introduction: The Neighborhood Dispute That Went to Court

The relationship between homeowners and their Homeowners Association (HOA) can be a delicate balance. Architectural rules, designed to maintain a community’s aesthetic, often become a source of friction. But what happens when a disagreement over design choices escalates?

In the case of Davies-Brown v. Starwood Estates Homeowners Association, a dispute over Jeff and Karen Martin’s new copper-colored metal roof didn’t just cause whispers over the fence—it went all the way to a formal administrative hearing. When the HOA board approved the roof in a 5-1 vote, the lone dissenting board member, Scott R. Davies, joined two other homeowners to formally challenge the decision.

This seemingly simple disagreement over a roofing material reveals several powerful, and often counter-intuitive, lessons for anyone living in a planned community. From the structural placement of a single sentence to the evidentiary power of a blurry photograph, this case offers a masterclass in HOA law. Here are three surprising lessons every homeowner should learn.

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1. The Devil in the Document: How a Single Sentence Can Decide Everything

The first major lesson from this case is that the hyper-specific wording and structure of your community guidelines are paramount. The location and context of a rule can be just as important as the rule itself.

The petitioners’ core argument was that the copper-colored roof violated the Architectural Guidelines because it was a “reflective surface,” which they believed was forbidden. On the surface, this seems like a straightforward complaint.

However, the HOA mounted a successful counter-argument based on document structure. The Administrative Law Judge agreed with the HOA’s interpretation. The rules for roofs were addressed in a distinct section titled “Roofs, Materials, and Pitches.” The ban on “reflective surfaces,” meanwhile, was located in an entirely separate section, “Exterior Appearance and Colors,” which also contained rules for windows and doors. This seemingly minor structural detail was the deciding factor on this point.

The exact rule the petitioners cited, found in the “Exterior Appearance and Colors” section, illustrates the point perfectly:

Clear aluminum window and doorframes are not permitted, nor are reflective surfaces.

Because this prohibition was not located in the roofing section, the judge concluded it applied only to windows, doors, and general exterior surfaces—not roofs. This case highlights that homeowners must read their community documents with extreme care. A prohibition you think is universal might, in fact, be limited to a very specific context by its placement in the text.

2. The Power of Precedent: What Your Neighbors Did Years Ago Matters Today

The second key takeaway is that an HOA board’s decisions can be heavily influenced by the character of the surrounding area, not just by what has been approved inside the development’s gates.

During the hearing, the HOA presented evidence of other reflective metal roofs, including green and red ones, that existed in the broader Pinetop Country Club area. Starwood Estates is part of this larger community, and the judge’s official findings noted this evidence, which significantly supported the HOA’s position to approve the Martins’ copper-colored roof.

This reveals a nuanced lesson: an HOA doesn’t exist in a vacuum. Once a certain style or material becomes common in the surrounding region, it can establish a de facto community standard. This makes it significantly more difficult for other homeowners to argue against a similar request, as the board can point to the broader neighborhood aesthetic to justify its decision. Before you challenge a project, it’s crucial to look not only at what has been approved within your HOA, but also at the character of the community at large.

3. The Burden of Proof: Your Complaint Is Only as Good as Your Evidence

The third critical lesson is that in any formal dispute, the quality of your evidence is non-negotiable. A subjective feeling or personal opinion holds little weight without objective proof.

The petitioners attempted to prove the roof was overly reflective by submitting a photograph as evidence. However, the judge’s official findings delivered a devastating blow, noting with precise and revealing language: “Although the image showed a reflective the image, the photograph was blurred.”

This detail underscores a vital point: in a legal or formal setting, a complaint must be backed by clear, objective proof. Weak or poor-quality evidence, like a blurred photo, can completely undermine an otherwise valid concern. Even though the image hinted at the issue, its poor quality rendered it useless. If you are going to make a claim, the burden is on you to prove it with convincing, high-quality evidence. Without it, your case is likely to be dismissed.

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Conclusion: Before You Build or Battle, Do Your Homework

The Starwood Estates case serves as a powerful reminder that navigating HOA rules requires diligence. From this single dispute over a copper roof, we learn to read the fine print—and the structure—of governing documents, understand the power of aesthetic standards in the broader community, and ensure any complaint is backed by strong, clear evidence.

The next time you plan a home project or question a neighbor’s, ask yourself: have you really done your homework on the rules, the history, and the facts?

Case Participants

Petitioner Side

Patricia Davies-Brown (petitioner)
Appeared on behalf of petitioners
Bart A. Brown, Jr. (petitioner)
Scott R. Davies (petitioner, board member)
Starwood Estates HOA Board
Voted against the roof approval

Respondent Side

Kristopher L. Smith (HOA attorney)
O'Connor & Campbell, P.C.
Appeared on behalf of Respondent
Daniel Campbell (HOA attorney)
O'Connor & Campbell, P.C.
Pat Knight (board member)
Starwood Estates HOA Board

Neutral Parties

Velva Moses-Thompson (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
L Dettorre (ADRE Staff)
Arizona Department of Real Estate
A Hansen (ADRE Staff)
Arizona Department of Real Estate
D Jones (ADRE Staff)
Arizona Department of Real Estate
D Gardner (ADRE Staff)
Arizona Department of Real Estate
N Cano (ADRE Staff)
Arizona Department of Real Estate
C Serrano (OAH Staff)
Office of Administrative Hearings
Transmitted the order

Other Participants

Jeff Martin (Starwood Estates resident)
Starwood Estates
Property owner whose roof was subject of the dispute
Karen Martin (Starwood Estates resident)
Starwood Estates
Property owner whose roof was subject of the dispute

Lewis Smith v. Desert Isle Homeowners Association, Inc.

Posted on May 29, 2018 by [email protected]

Case Summary

Case ID	18F-H1817020-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-05-29
Administrative Law Judge	Velva Moses-Thompson
Outcome	The Administrative Law Judge granted the Petitioner's request for relief, finding that the Respondent HOA violated ARIZ. REV. STAT. section 33-1804(F) by failing to provide adequate notice and agenda information regarding the proposed CC&R amendment to prohibit short term rentals. The Respondent was ordered to pay the filing fee to the Petitioner.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Lewis Smith	Counsel	Mark J. Bainbridge, Esq.
Respondent	Desert Isle Homeowners Association, Inc.	Counsel	William D. Condray, Esq.

Alleged Violations

ARIZ. REV. STAT. section 33-1804(F)

Outcome Summary

The Administrative Law Judge granted the Petitioner's request for relief, finding that the Respondent HOA violated ARIZ. REV. STAT. section 33-1804(F) by failing to provide adequate notice and agenda information regarding the proposed CC&R amendment to prohibit short term rentals. The Respondent was ordered to pay the filing fee to the Petitioner.

Key Issues & Findings

Violation of open meeting and notice requirements regarding CC&R amendment

The Board violated ARIZ. REV. STAT. section 33-1804(F) when it failed to provide notice or an agenda to all of its members of information that was reasonably necessary to inform the members that an amendment to the CC&Rs to prohibit short term members would be discussed at its special board of directors meetings held on November 8, 2017 and November 20, 2017.

Orders: Petitioner's petition was granted. Respondent was ordered to pay Petitioner the filing fee required by ARIZ. REV. STAT. section 32-2199.01.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

ARIZ. REV. STAT. section 33-1804
ARIZ. REV. STAT. section 33-1804(B)
ARIZ. REV. STAT. section 33-1804(E)(1)
ARIZ. REV. STAT. section 33-1804(F)
ARIZ. REV. STAT. section 41-2198.01
ARIZ. REV. STAT. section 32-2199.02(A)
ARIZ. REV. STAT. section 32-2199.01

Analytics Highlights

Topics: Open Meetings, HOA Governance, Notice Requirements, CC&R Amendment, Short Term Rentals

Additional Citations:

ARIZ. REV. STAT. section 33-1804
ARIZ. REV. STAT. section 33-1804(B)
ARIZ. REV. STAT. section 33-1804(E)(1)
ARIZ. REV. STAT. section 33-1804(F)
ARIZ. REV. STAT. section 41-2198.01
ARIZ. REV. STAT. section 32-2199.02(A)
ARIZ. REV. STAT. section 32-2199.01

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Video Overview

Audio Overview

Decision Documents

18F-H1817020-REL Decision – 629473.pdf

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Administrative Law Judge Decision Briefing: Smith vs. Desert Isle Homeowners Association, Inc.

Executive Summary

This document provides a comprehensive analysis of the legal dispute between Petitioner Lewis Smith and Respondent Desert Isle Homeowners Association, Inc. The core of the case revolves around allegations that the HOA’s Board of Directors violated Arizona’s open meeting laws.

The Administrative Law Judge (ALJ) ultimately ruled in favor of the Petitioner, finding that the Desert Isle HOA violated ARIZ. REV. STAT. § 33-1804(F). The decision established that the Board failed to provide its members with agendas containing information “reasonably necessary to inform the members” about discussions concerning a proposed amendment to the Covenants, Conditions, and Restrictions (CC&Rs) that would prohibit short-term rentals. This failure occurred during Board of Directors meetings held on November 8 and November 20, 2017.

As a result of this finding, the Petitioner’s petition was granted, and the Respondent was ordered to pay the Petitioner’s filing fee. The ruling underscores the state’s policy that planned community meetings must be conducted with transparency, and agendas must provide sufficient detail for members to understand the matters to be discussed or decided.

Case Overview

Case Number

18F-H1817020-REL

Tribunal

Office of Administrative Hearings (Phoenix, Arizona)

Petitioner

Lewis Smith

Respondent

Desert Isle Homeowners Association, Inc.

Administrative Law Judge

Velva Moses-Thompson

Hearing Date

April 16, 2018

Decision Date

May 29, 2018

Central Allegation

On or about December 5, 2017, Petitioner Lewis Smith filed a petition with the Arizona Department of Real Estate alleging that the Desert Isle HOA violated ARIZ. REV. STAT. § 33-1804. The petition contended that the Board of Directors discussed and advanced a significant CC&R amendment without proper notification to the association members.

The petition states, in part:

“All Board members have been meeting to discuss and add an amendment to the CC&R’s [sic] Prohibiting short term renters. These meetings have not been conducted openly and no notice or agenda were provided containing information necessary to inform members of the association of the matters to be discussed… At no time was the issue to add an amendment for short term rentals properly noticed or on an agenda for discussion before it became a ballot vote.”

Chronology of Events

October 23, 2017:

• Lewis Smith, William H. Winn, Kevin Barnett, and Chester Jay submit a formal request to the Board for a special members’ meeting.

• The stated purposes of the meeting were to:

1. Select and fund an attorney to update the HOA’s bylaws and CC&Rs to comply with current Arizona law.

2. Discuss obtaining a reserve study for the association’s capital needs.

3. Discuss a separate attorney letter regarding HOA governance.

October 24, 2017:

• Board President Doug Robinson responds to the request, expressing support for a meeting but stating that more than 30 days would be needed to gather supporting documentation.

October 31, 2017:

• A second group of homeowners, including Board members Greg Yacoubian, Doug Robinson, Curt Carlson, and Mike Andrews, submits a request to add an item to the agenda of the forthcoming special meeting.

• Their request was to “amend the CC&Rs by adding a section prohibiting ‘Short Term Rentals’ and defining minimum time allowed for Rentals.”

November 5, 2017:

• The Board provides an agenda for a Board of Directors meeting scheduled for November 8, 2017. The agenda did not include any item related to the proposed amendment to prohibit short-term rentals.

November 8, 2017:

• The Board of Directors meeting is held.

• The Board votes to call a special members’ meeting before November 23, 2017, to address the two petitions.

• During the “BOARD INPUT” section, member Curt Carlson “spoke of past issues about short term renting,” but this was not a formal agenda item for discussion or action.

November 10, 2017:

• The Board emails Lewis Smith, acknowledging his petition and requesting a “narrative explanation from you on each of your subjects” by November 17, 2017, to prepare the meeting information package for all homeowners.

November 18, 2017:

• The Board sends an agenda for another Board of Directors meeting scheduled for November 20, 2017.

• The agenda lists “Review/approval of special meeting mailing package” as a topic but provides no specific details regarding the proposed amendment on short-term rentals.

December 1, 2017:

• Board President Doug Robinson emails all homeowners to explain the upcoming special meeting on December 16, 2017.

• The email states: “To avoid cost and time we put both petitions together and are having one meeting that will required [sic] all owners to vote for or against these two petitions.”

• The agenda for the December 16 meeting is attached, which explicitly lists a vote on prohibiting short-term rentals.

December 16, 2017:

• The special members’ meeting is held. A vote is taken on the proposed amendment to prohibit short-term rentals.

• Vote Result: 9 homeowners in favor, 6 homeowners against.

Legal Framework and Analysis

The case centered on the interpretation and application of Arizona Revised Statutes related to planned communities.

Key Statute: ARIZ. REV. STAT. § 33-1804

This statute governs meetings and notices for planned communities. The judge’s decision rested heavily on the policy outlined in subsection (F).

• § 33-1804(B): Requires that notice for any special meeting of members must state the purpose, including “the general nature of any proposed amendment to the declaration or bylaws.”

• § 33-1804(E)(1): Requires that the agenda for a Board of Directors meeting be made available to all members in attendance.

• § 33-1804(F): This subsection contains the state’s declaration of policy, which was central to the judge’s conclusion. It states:

Burden of Proof

The Petitioner, Lewis Smith, bore the burden of proving that the Respondent violated the statute by a “preponderance of the evidence.” This standard is defined as evidence that is sufficient “to incline a fair and impartial mind to one side of the issue rather than the other.”

Findings and Conclusion of the Court

The Administrative Law Judge found that the Petitioner successfully met the burden of proof. The decision concludes that the agendas for the November 8 and November 20 Board of Directors meetings were legally insufficient.

Conclusion of Law #4:

“Petitioner established by a preponderance of the evidence that the Board violated ARIZ. REV. STAT. section 33-1804(F) when it failed to provide notice or an agenda to all of its members of information that was reasonably necessary to inform the members that an amendment to the CC&Rs to prohibit short term members would be discussed at its special board of directors meetings held on November 8, 2017 and November 20, 2017.”

Final Order

• The Petitioner’s petition in the matter was granted.

• Pursuant to ARIZ. REV. STAT. § 32-2199.02(A), the Respondent (Desert Isle HOA) was ordered to pay the Petitioner the filing fee.

• The Order is legally binding unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

Parties and Legal Representation

Address

Legal Counsel

Petitioner

Lewis Smith
5459 E. Sorrento Dr.
Long Beach, CA 90803

Mark J. Bainbridge, Esq.
The Bainbridge Law Firm LLC
2122 E. Highland Ave. Ste. 250
Phoenix, AZ 85016-4779

Respondent

Desert Isle Homeowners Association, Inc.
411 Riverfront Dr. #7
Bullhead City, AZ 86442

William D. Condray, Esq.
2031 Highway 95 Ste. 2
Bullhead City, AZ 86442-6004

Study Guide: Smith v. Desert Isle Homeowners Association, Inc.

This guide provides a detailed review of the administrative case No. 18F-H1817020-REL between Petitioner Lewis Smith and Respondent Desert Isle Homeowners Association, Inc. It includes a short-answer quiz, an answer key, suggested essay questions, and a comprehensive glossary of key terms and entities involved in the matter.

Short-Answer Quiz

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

1. Who are the primary parties in case No. 18F-H1817020-REL, and who represented them legally?

2. What was the three-part purpose of the special meeting requested by Lewis Smith and other homeowners on October 23, 2017?

3. A second petition was submitted on October 31, 2017. What was its purpose and who were the petitioners?

4. What key actions were taken regarding officers and a special meeting during the Board of Directors meeting on November 8, 2017?

5. What did the Desert Isle HOA Board demand from Lewis Smith in its email on November 10, 2017, to proceed with the special meeting?

6. What was the central allegation Lewis Smith made in his petition to the Arizona Department of Real Estate on December 5, 2017?

7. What was the outcome of the vote on the proposed amendment to prohibit short-term rentals at the December 16, 2017 special meeting?

8. Which specific section of the Arizona Revised Statutes did the Administrative Law Judge find the Board had violated?

9. According to the case documents, what is the definition of “preponderance of the evidence”?

10. What was the final ruling issued by Administrative Law Judge Velva Moses-Thompson on May 29, 2018?

Answer Key

1. The primary parties were the Petitioner, Lewis Smith, and the Respondent, Desert Isle Homeowners Association, Inc. Lewis Smith was represented by Mark J. Bainbridge, Esq., and the Desert Isle HOA was represented by William D. Condray, Esq.

2. The purpose of the meeting was threefold: to select and fund an attorney to update the HOA’s bylaws and CC&Rs to comply with current Arizona law; to discuss obtaining a reserve study for the association’s capital needs; and to discuss an attorney letter regarding HOA governance.

3. Greg Yacoubian, Doug Robinson, Curt Carlson, and Mike Andrews submitted a request to amend the CC&Rs by adding a section to prohibit “Short Term Rentals.” They requested this subject be added to the agenda of the special meeting already requested by Lewis Smith’s group to save time and money.

4. At the November 8, 2017 meeting, a motion passed unanimously to remove the existing VP, treasurer, and secretary. New officers and assistants were elected, and another motion passed to call the special meeting requested by the two groups of owners before November 23, 2017.

5. The Board requested a “narrative explanation” from Lewis Smith for each of his proposed subjects. The Board stated it would expect four narratives plus any referenced attorney engagement letters and needed the materials by November 17, 2017, to prepare the special meeting package.

6. Lewis Smith alleged that the Desert Isle HOA Board members met to discuss and add an amendment prohibiting short-term rentals without conducting the meetings openly. He stated that no proper notice or agenda was provided to inform members of the matters to be discussed before the issue became a ballot vote.

7. At the December 16, 2017 meeting, the proposed amendment to prohibit short-term rentals was voted on by homeowners. Nine homeowners voted in favor of the amendment, and six homeowners voted against it.

8. The Judge found that the Board violated ARIZ. REV. STAT. section 33-1804(F). The violation occurred when the Board failed to provide an agenda with information reasonably necessary to inform members that an amendment to the CC&Rs prohibiting short-term rentals would be discussed at the board meetings on November 8 and November 20, 2017.

9. The documents provide two definitions. The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

10. The Administrative Law Judge granted the Petitioner’s petition. The Judge’s order required the Respondent (Desert Isle HOA) to pay the Petitioner the filing fee required by statute.

Essay Questions

1. Construct a detailed timeline of events from the initial petition by Lewis Smith on October 23, 2017, to the final Administrative Law Judge Decision on May 29, 2018. Include all key meetings, communications, and legal filings mentioned in the documents.

2. Analyze the ways in which the Desert Isle Homeowners Association Board failed to comply with the open meeting policies outlined in ARIZ. REV. STAT. section 33-1804. Use specific examples from the meeting agendas and communications to support the analysis.

3. Discuss the concept of “burden of proof” as it applies to this case. Explain who held the burden of proof for the violation and any affirmative defenses, and how the “preponderance of the evidence” standard was met by the Petitioner.

4. Compare and contrast the two petitions submitted by homeowners in October 2017. Evaluate how the Board handled each request and the procedural steps it took that ultimately led to the legal dispute.

5. Based on the findings of fact, evaluate the communication between the Desert Isle HOA Board and its members. Discuss the effectiveness and legality of the Board’s notices, agendas, and email correspondence regarding the special meeting and the proposed CC&R amendment.

Glossary of Key Terms

Term / Entity

Definition

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, in this case, Velva Moses-Thompson. The ALJ hears evidence and issues a decision based on findings of fact and conclusions of law.

ARIZ. REV. STAT. section 33-1804

An Arizona state statute governing meetings in planned communities. It requires open meetings, proper notice to members (between 10 and 50 days prior), and agendas that are reasonably necessary to inform members of matters to be discussed or decided.

ARIZ. REV. STAT. section 41-2198.01

An Arizona state statute that permits an owner or planned community organization to file a petition with the Department of Real Estate for a hearing concerning violations of community documents or relevant statutes.

Board of Directors (Board)

The governing body of the Desert Isle Homeowners Association, Inc. At the time of the events, key members included Doug Robinson (President), Curt Carlson, and Mike Andrews.

Burden of Proof

The obligation to prove one’s assertion. In this case, the Petitioner bore the burden of proof to establish the violation, and the Respondent bore the burden for any affirmative defenses.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing documents of the Desert Isle planned community. The petitions submitted by homeowners sought to amend these documents.

Desert Isle Homeowners Association, Inc.

The Respondent in the case; the planned community organization and non-profit corporation responsible for managing the Desert Isle community.

Lewis Smith

The Petitioner in the case; a homeowner in the Desert Isle community who filed a petition against the HOA.

Notice of Hearing

A formal notification issued by the Department of Real Estate setting the date and location for an administrative hearing. In this case, it was issued on January 22, 2018.

Office of Administrative Hearings

The state tribunal where the hearing for this case was conducted.

Petitioner

The party who files a petition initiating a legal action. In this case, Lewis Smith.

Post-hearing Briefs

Written legal arguments submitted by parties after a hearing has concluded. The record in this case was held open until May 9, 2018, to receive these briefs.

Preponderance of the Evidence

The standard of proof required in this administrative hearing. It is defined as evidence that is sufficient to convince the trier of fact that a contention is more probably true than not.

Reserve Study

A study to determine an association’s long-term capital needs for its common areas. Lewis Smith’s petition requested a discussion about obtaining one.

Respondent

The party against whom a petition is filed. In this case, Desert Isle Homeowners Association, Inc.

Special Meeting

A meeting of association members called for a specific purpose outside of regularly scheduled meetings. Both petitions in this case requested a special meeting.

Select all sources

629473.pdf

629515.pdf

636989.pdf

No emoji found

18F-H1817020-REL

3 sources

The provided documents are related to a legal dispute between Lewis Smith and the Desert Isle Homeowners Association, Inc., heard by the Office of Administrative Hearings. The first two sources, 629473.pdf and 629515.pdf, are identical “Order Holding Record Open” documents dated April 18, 2018, which mandated that the parties submit post-hearing briefs by specific deadlines and required the Homeowners Association to clarify its objection to a specific exhibit. The final source, 636989.pdf, is the “Administrative Law Judge Decision” issued on May 29, 2018, which found that the Homeowners Association violated Arizona law by failing to properly inform members that they would be discussing a proposed amendment to prohibit short-term rentals at two special board meetings. Ultimately, the judge granted Lewis Smith’s petition and ordered the Homeowners Association to pay the required filing fee.

Case Participants

Petitioner Side

Lewis Smith (petitioner)
Mark J. Bainbridge (petitioner attorney)
The Bainbridge Law Firm LLC
William H. Winn (homeowner)
Submitted petition with Petitioner
Kevin Barnett (homeowner)
Submitted petition with Petitioner
Chester Jay (homeowner)
Submitted petition with Petitioner
Mike Sharp (homeowner/representative)
Representative for Kevin Barnett
Kim Sharp (homeowner/representative)
Representative for Kevin Barnett

Respondent Side

William D. Condray (respondent attorney)
Doug Robinson (board member)
Desert Isle Homeowners Association, Inc.
Board President
Curt Carlson (board member)
Desert Isle Homeowners Association, Inc.
Mike Andrews (board member)
Desert Isle Homeowners Association, Inc.
Greg Yacoubian (homeowner/board member)
Desert Isle Homeowners Association, Inc.
Replaced Mike Andrews on 11/20/17
Judy Carlson (HOA officer)
Desert Isle Homeowners Association, Inc.
Treasurer
Terri Robinson (HOA officer)
Desert Isle Homeowners Association, Inc.
Secretary
Jamie Kelly (HOA attorney)
Consulted on Special Meeting package

Neutral Parties

Velva Moses-Thompson (ALJ)
Judy Lowe (Commissioner)
Arizona Department of Real Estate
M.Aguirre (Clerk/Admin)
Transmitting agent
LDettorre (ADRE Staff)
ADRE
Recipient of transmission
AHansen (ADRE Staff)
ADRE
Recipient of transmission
djones (ADRE Staff)
ADRE
Recipient of transmission
DGardner (ADRE Staff)
ADRE
Recipient of transmission
ncano (ADRE Staff)
ADRE
Recipient of transmission

Other Participants

Terry Constantino (homeowner/attendee)
Lynn Hammond (homeowner/attendee)
Dale Collins (guest speaker)

Michael J. Stoltenberg vs. Rancho Del Oro Homeowners Association

Posted on April 17, 2018 by [email protected]

Case Summary

Case ID	18F-H1818023-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-04-17
Administrative Law Judge	Velva Moses-Thompson
Outcome	The Administrative Law Judge dismissed the petition because the Petitioner failed to prove the alleged CC&R violation, and the claim was barred by the four-year statute of limitations.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Michael J. Stoltenberg	Counsel	—
Respondent	Rancho Del Oro Homeowners Association	Counsel	Lydia Linsmeier, Esq.

Alleged Violations

CC&R section 2.5

Outcome Summary

The Administrative Law Judge dismissed the petition because the Petitioner failed to prove the alleged CC&R violation, and the claim was barred by the four-year statute of limitations.

Why this result: Petitioner failed to establish a violation of CC&R section 2.5, and the petition was filed after the four-year statute of limitations (A.R.S. § 12-550) expired.

Key Issues & Findings

Alleged violation of Community Governing Document regarding pipe installation

Petitioner alleged the HOA violated CC&R section 2.5 by installing pipes for a well. Respondent argued that CC&R section 2.5 was inapplicable as it governs additional easements conveyed to a third party, and that the claim was barred by the four-year statute of limitations (A.R.S. § 12-550).

Orders: Petitioner's petition is dismissed. Respondent deemed the prevailing party.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. § 12-550
CC&R section 2.5
ARIZ. REV. STAT. § 32-2199.02

Analytics Highlights

Topics: Statute of Limitations, Easement, CC&R Violation, Well Installation

Additional Citations:

ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 12-550
CC&R section 2.5

Video Overview

Audio Overview

Decision Documents

18F-H1818023-REL Decision – 629162.pdf

Uploaded 2026-04-24T11:09:54 (77.0 KB)

Administrative Law Judge Decision Briefing: Stoltenberg vs. Rancho Del Oro HOA

Executive Summary

This briefing analyzes the Administrative Law Judge (ALJ) Decision in case number 18F-H1818023-REL, concerning a dispute between homeowner Michael J. Stoltenberg and the Rancho Del Oro Homeowners Association (HOA). Mr. Stoltenberg alleged that the HOA violated community governing documents (CC&Rs) by installing pipes related to a well through his lot.

The ALJ, Velva Moses-Thompson, dismissed the petitioner’s case in its entirety. The decision was based on two independent and definitive grounds. First, Mr. Stoltenberg failed to meet his burden of proof on the merits of the case; the evidence demonstrated that the pipes were installed within a pre-existing easement and not improperly on his lot, and the specific CC&R section cited was inapplicable. Second, the petition was procedurally barred by Arizona’s four-year statute of limitations, as the installation occurred in the summer of 2013, and the action was filed after this period had expired. Consequently, the Rancho Del Oro HOA was deemed the prevailing party.

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I. Case Overview

This matter was brought before the Arizona Office of Administrative Hearings following a petition filed by Michael J. Stoltenberg against his HOA.

Case Detail

Information

Case Name

Michael J. Stoltenberg, Petitioner, vs. Rancho Del Oro Homeowners Association, Respondent

Case Number

18F-H1818023-REL

Hearing Body

Arizona Office of Administrative Hearings

Administrative Law Judge

Velva Moses-Thompson

Hearing Date

March 28, 2018

Decision Date

April 17, 2018

II. Core Dispute and Allegations

A. Petitioner’s Claim

The central allegation from the petitioner, Mr. Stoltenberg, was that the Rancho Del Oro HOA violated the Community Governing Document CC&Rs.

• Specific Allegation: The HOA improperly installed pipes through his lot as part of a well installation project.

• Cited CC&R Violations: The petition focused on violations of CC&R sections 1.13, 1.19, and 2.5. The decision notes that sections 1.13 and 1.19 are definition sections, making section 2.5 the substantive focus of the dispute.

B. Respondent’s Defense Strategy

The Rancho Del Oro HOA presented a multi-faceted defense against the petitioner’s claims, combining a procedural dismissal argument with a substantive rebuttal.

1. Statute of Limitations: The HOA contended the claim was barred by the four-year statute of limitations established in ARIZ. REV. STAT. § 12-550. They asserted that since the well and pipes were installed in the summer of 2013, the time frame for filing a petition had expired.

2. Inapplicability of CC&R Section 2.5: The HOA argued that this section was not relevant to the situation. They maintained that CC&R section 2.5 pertains specifically to instances where the HOA grants or conveys an additional easement to a third party, which had not occurred.

3. Factual Rebuttal: The HOA asserted that the pipes were installed within an easement that already existed at the time of installation, not on Mr. Stoltenberg’s lot outside of an easement.

III. Adjudicated Findings and Conclusions

The Administrative Law Judge made several key findings of fact and conclusions of law that formed the basis of the final order. The petitioner, Mr. Stoltenberg, bore the burden of proving the alleged violations by a “preponderance of the evidence.”

A. Findings of Fact

The ALJ’s decision was based on the testimony and evidence presented at the hearing. The key findings were:

• Witnesses: The court heard testimony from petitioner Michael J. Stoltenberg, HOA community manager Diana Crites, and HOA Board Chairman James Van Sickle.

• Location of Installation: Evidence showed the pipes were installed in an easement that was already in existence at the time of the 2013 installation.

• Failure of Evidentiary Support: The judge explicitly noted, “There was no evidence presented at hearing that the well or the well pipe were installed on Mr. Stoltenberg’s lot.”

B. Conclusions of Law

Based on the evidence and statutes, the ALJ reached the following legal conclusions:

• Statute of Limitations is Applicable: The judge affirmed that ARIZ. REV. STAT. § 12-550 establishes a four-year statute of limitations for such actions. The installation occurred in 2013, and Mr. Stoltenberg filed his petition after this four-year period had expired, rendering the claim time-barred.

• Interpretation of CC&R 2.5: The judge agreed with the HOA’s interpretation, concluding that CC&R section 2.5 applies to easements granted to a third party by the HOA.

• No Violation Occurred: The “weight of the evidence” demonstrated that the pipes were in an existing easement and the HOA did not grant or convey a new easement to a third party. Therefore, Mr. Stoltenberg failed to establish a violation of CC&R section 2.5.

• Failure to Meet Burden of Proof: Due to the lack of evidence and the inapplicability of the cited CC&R section, the petitioner failed to prove the alleged violation by a preponderance of the evidence.

IV. Final Order and Implications

Based on the dual findings that the claim was both time-barred and without merit, the Administrative Law Judge issued a decisive order.

• Order: “IT IS ORDERED that Mr. Stoltenberg’s petition is dismissed.”

• Prevailing Party: The Respondent, Rancho Del Oro Homeowners Association, was deemed the prevailing party in the matter.

• Next Steps: The decision is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the order’s service, pursuant to A.R.S. § 32-2199.04 and § 41-1092.09.

Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association (Case No. 18F-H1818023-REL)

This study guide provides a comprehensive review of the Administrative Law Judge Decision in the matter of Michael J. Stoltenberg versus the Rancho Del Oro Homeowners Association, heard by the Office of Administrative Hearings in Arizona.

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Short-Answer Quiz

Instructions: Answer the following ten questions in two to three complete sentences each, based on the information provided in the case document.

1. Who were the primary parties in case number 18F-H1818023-REL, and what were their respective roles?

2. What was the core allegation made by the Petitioner, Michael J. Stoltenberg, against the Respondent?

3. What two primary legal arguments did the Rancho Del Oro Homeowners Association present in its defense?

4. According to the judge’s findings, what crucial piece of evidence was not presented at the hearing regarding the location of the well and pipes?

5. What is the statute of limitations cited in this case, and why was it a critical factor in the judge’s decision?

6. How did the Administrative Law Judge interpret Community Governing Document CC&R section 2.5 in relation to the Respondent’s actions?

7. Who has the burden of proof in this type of hearing, and what is the specific standard of proof required to win the case?

8. What was the ultimate Order issued by the Administrative Law Judge, and who was named the prevailing party?

9. Aside from the statute of limitations, what was the other fundamental reason the Petitioner failed to prove his case?

10. After the judge’s Order was issued on April 17, 2018, what recourse was available to the parties involved?

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Answer Key

1. The primary parties were Petitioner Michael J. Stoltenberg, who brought the complaint, and Respondent Rancho Del Oro Homeowners Association, who was defending against the complaint. Mr. Stoltenberg represented himself, while the Homeowners Association was represented by its attorney, Lydia Linsmeier, Esq.

2. Mr. Stoltenberg alleged that the Homeowners Association violated sections 1.13, 1.19, and 2.5 of the Community Governing Document (CC&Rs). The basis of his petition was that the HOA had improperly installed pipes through his lot in connection with a new well.

3. The HOA argued that the claim was barred by the statute of limitations under ARIZ. REV. STAT. section 12-550, as the installation occurred in 2013, more than four years prior. The HOA also contended that CC&R section 2.5 did not apply because it refers to granting additional easements to a third party, which the HOA did not do.

4. The judge’s “Findings of Fact” state that “There was no evidence presented at hearing that the well or the well pipe were installed on Mr. Stoltenberg’s lot.” This lack of evidence was a key failure in the Petitioner’s case.

5. The statute of limitations cited is ARIZ. REV. STAT. section 12-550, which requires actions to be brought within four years. This was critical because the well and pipes were installed in the summer of 2013, and Mr. Stoltenberg filed his petition after this four-year period had expired, making his claim untimely.

6. The judge concluded that CC&R section 2.5 specifically applies to easements that are granted or conveyed to a third party by the Respondent. Since the evidence showed the pipes were installed in an existing easement and the HOA did not grant a new one to a third party, the judge found that this section was not violated.

7. The Petitioner, Mr. Stoltenberg, bears the burden of proof. The standard of proof required is a “preponderance of the evidence,” which means the evidence must have the most convincing force and be sufficient to incline a fair and impartial mind to one side of the issue over the other.

8. The Administrative Law Judge ordered that Mr. Stoltenberg’s petition be dismissed. As a result of the dismissal, the Respondent (Rancho Del Oro Homeowners Association) was deemed the prevailing party in the matter.

9. The Petitioner failed to prove his case because the weight of the evidence showed the HOA did not violate CC&R section 2.5. The evidence indicated the pipes were installed in a pre-existing easement, and the HOA did not grant or convey a new easement to a third party as described in that section.

10. Pursuant to A.R.S. §32-2199.02(B) and A.R.S. § 41-1092.09, the parties had the right to request a rehearing. This request had to be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

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Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive essay-style response for each.

1. Analyze the concept of “burden of proof” as it applied in this case. How did the Petitioner’s failure to meet the “preponderance of the evidence” standard, particularly regarding the location of the pipes, contribute to the dismissal of his petition?

2. Discuss the significance of the statute of limitations (ARIZ. REV. STAT. section 12-550) in the judge’s decision. Why are such statutes important in legal proceedings, and how did it provide a separate and independent basis for dismissing the case?

3. Explain the legal reasoning behind the judge’s interpretation of CC&R section 2.5. Why was the distinction between an “existing easement” and granting a “new easement to a third party” a critical factor in the outcome?

4. Imagine you were legal counsel for the Petitioner. Based on the information in the decision, what kind of evidence would have been necessary to successfully prove a violation of the Community Governing Documents and overcome the Respondent’s defenses?

5. Examine the roles of the different entities involved in this dispute: the Petitioner, the Homeowners Association, the Office of Administrative Hearings, and the Arizona Department of Real Estate. How does the structure of this administrative hearing process provide a mechanism for resolving disputes between homeowners and HOAs?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official (in this case, Velva Moses-Thompson) who presides over administrative hearings, weighs evidence, and makes legal rulings and decisions.

ARIZ. ADMIN. CODE

The Arizona Administrative Code, a set of state regulations. Section R2-19-119 is cited as establishing the standard of proof for the hearing.

ARIZ. REV. STAT.

Arizona Revised Statutes, the collection of laws passed by the Arizona state legislature. Several statutes are cited, including those governing real estate, HOA disputes, and the statute of limitations.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this matter, the burden of proof was on the Petitioner, Mr. Stoltenberg.

An abbreviation for Covenants, Conditions, and Restrictions, which are rules set forth in a Community Governing Document that property owners in a planned community or condominium must follow.

Easement

A legal right to use another person’s land for a specific, limited purpose. In this case, it refers to the area where pipes were installed, which the judge found was an “existing easement.”

Findings of Fact

The section of a legal decision that details the factual determinations made by the judge based on the evidence and testimony presented at a hearing.

Homeowners Association (HOA)

An organization in a planned community (like Rancho Del Oro) that creates and enforces rules for the properties and residents within its jurisdiction.

Notice of Hearing

A formal document issued to inform the parties of the date, time, location, and subject matter of a scheduled legal hearing.

Petitioner

The party who initiates a lawsuit or petition, seeking a legal remedy. In this case, Michael J. Stoltenberg.

Preponderance of the Evidence

The standard of proof in this case. Defined in the document as “The greater weight of the evidence…sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Respondent

The party against whom a petition is filed; the party who must respond to the allegations. In this case, the Rancho Del Oro Homeowners Association.

Statute of Limitations

A law that sets the maximum amount of time that parties involved in a dispute have to initiate legal proceedings. In this case, ARIZ. REV. STAT. section 12-550 established a four-year limit.

Ellipsis

Case Participants

Petitioner Side

Michael J. Stoltenberg (petitioner)

Respondent Side

Lydia Peirce Linsmeier (HOA attorney)
Carpenter, Hazlewood, Delgado & Bolen, LLP
Nicole Payne (HOA attorney)
Carpenter, Hazlewood, Delgado & Bolen, LLP
Diana Crites (community manager)
Rancho Del Oro Homeowners Association
Testified for Respondent
James Van Sickle (board member)
Rancho Del Oro Homeowners Association
Chairman of the Board; testified for Respondent

Neutral Parties

Velva Moses-Thompson (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate

Jerry L. Webster v. Mountain Rose Homeowners Association

Posted on February 28, 2018 by [email protected]

Case Summary

Case ID	18F-H1817019-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-02-09
Administrative Law Judge	Velva Moses-Thompson
Outcome	The Petitioner's claim that the HOA violated CC&Rs Article 10.8 (Notice of Violation) was dismissed because the Article governs only recorded notices, and the Petitioner did not prove the notices in question were recorded.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Jerry L. Webster	Counsel	—
Respondent	Mountain Rose Homeowners Association	Counsel	Nathan Tennyson, Esq.

Alleged Violations

CC&Rs Article 10, Section 10.8

Outcome Summary

The Petitioner's claim that the HOA violated CC&Rs Article 10.8 (Notice of Violation) was dismissed because the Article governs only recorded notices, and the Petitioner did not prove the notices in question were recorded.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Mountain Rose violated its CC&Rs Article 10.8, because that provision applies only to recorded notices, and the notices issued to the Petitioner were not recorded.

Key Issues & Findings

Alleged violation of CC&R notice requirements regarding clarity and completeness of violation notices.

The Petitioner alleged the HOA violated CC&Rs Article 10.8 because the violation notices sent to him failed to include five mandatory pieces of information required by that section of the CC&Rs. The Petitioner also sought the refund of $175 in fines.

Orders: Petitioners' petition in this matter is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 41-2198.01
A.A.C. R2-19-119

Analytics Highlights

Topics: HOA, CC&R, Notice of Violation, Recording

Additional Citations:

A.R.S. § 41-2198.01
A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

18F-H1817019-REL Decision – 620124.pdf

Uploaded 2026-04-24T11:08:57 (78.5 KB)

Case Briefing: Webster v. Mountain Rose Homeowners Association

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 18F-H1817019-REL, wherein Petitioner Jerry L. Webster’s complaint against the Mountain Rose Homeowners Association was dismissed. The central issue revolved around Mr. Webster’s claim that the HOA engaged in a pattern of harassment by issuing vague and improper violation notices that failed to comply with Article 10.8 of the community’s Covenants, Conditions, and Restrictions (CC&Rs).

The case was decided on a critical legal interpretation of the CC&Rs. The presiding judge determined that the specific requirements of Article 10.8, which Mr. Webster cited as being violated, apply exclusively to violation notices that are formally “Recorded” with the Maricopa County Recorder’s office. The petitioner failed to provide any evidence, or even make the claim, that the notices he received had been recorded. Consequently, Mr. Webster did not meet his burden of proof to demonstrate that the HOA had violated the cited article. The dismissal of the petition was based entirely on this procedural and definitional distinction, without a ruling on the petitioner’s underlying allegations of harassment or selective enforcement.

Case Background

• Parties:

◦ Petitioner: Jerry L. Webster, a homeowner and member of the Mountain Rose Homeowners Association.

◦ Respondent: Mountain Rose Homeowners Association (“Mountain Rose”), located in Scottsdale, Arizona.

• Adjudicating Body:

◦ The Office of Administrative Hearings in Phoenix, Arizona.

◦ Administrative Law Judge: Velva Moses-Thompson.

• Key Dates:

◦ 2016–2017: Mountain Rose issues a series of violation notices to Mr. Webster regarding tree trimming and debris cleanup.

◦ December 6, 2017: Mr. Webster files a petition with the Arizona Department of Real Estate.

◦ February 9, 2018: A hearing is held.

◦ February 9, 2018: The Administrative Law Judge issues the decision dismissing the petition.

Petitioner’s Allegations and Arguments

Mr. Webster’s petition centered on the claim that the HOA’s actions constituted harassment and violated specific provisions of the governing documents.

Core Claim: Violation of CC&Rs Article 10.8

Mr. Webster contended that the violation notices he received from Mountain Rose were invalid because they failed to contain information mandated by Article 10.8 (“Notice of Violation”) of the CC&Rs. Specifically, he alleged the notices omitted the following required elements:

• (ii) The legal description of the lot against which the notice is being Recorded.

• (iii) A brief description of the nature of the violation.

• (iv) A statement that the notice is being Recorded by the Association pursuant to the Declaration.

• (v) A statement of the specific steps which must be taken by the Owner or occupant to cure the violation.

Allegations of Harassment and Prejudicial Treatment

In his petition, Mr. Webster framed the HOA’s actions as a targeted and unfair campaign against him.

• Stated Intent: “The intent of this action is to stop the HOA from violating our civil rights by prejudicially harassing us with unclear and unwarranted violation notices.”

• History of Conflict: He alleged that “The HOA has harassed us for over 10 years with vague violation notices.”

• Lack of Communication: He claimed that his “Numerous requests were made for clarification…which were ignored.”

• Financial Penalties: Mr. Webster stated he was recently fined three times for a total of $175, which he sought to have refunded.

• Alleged Bias: To demonstrate selective enforcement, Mr. Webster noted that a review of the neighborhood revealed “22 trees touching dwellings, including ours,” and stated, “It is very doubtful any other member received notices or fines for identical circumstances.”

• Supporting Evidence: Mr. Webster submitted an aerial photo from 2012 showing the tree in a similar condition, a 2017 photo of another home with a tree touching the dwelling, and a 2017 photo of HOA-maintained trees.

Respondent’s Position

The Mountain Rose HOA, represented by Nathan Tennyson, Esq., presented a focused defense based on the specific language of the CC&Rs.

• Central Argument: The HOA contended that the violation notices issued to Mr. Webster were not recorded with the Maricopa County Recorder.

• Legal Position: Because the notices were not recorded, the stringent requirements outlined in Article 10.8 did not apply to them.

• Additional Detail: The HOA also argued that it had previously communicated the necessary corrective action to Mr. Webster, stating that “his tree needed to be trimmed 8 feet above the ground.”

The Decisive Legal Interpretation and Ruling

The Administrative Law Judge’s decision hinged on the precise definition and application of “Recording” as established within the Mountain Rose CC&Rs.

The Definition of “Recording”

Article 1.33 of the CC&Rs provides the controlling definition:

“Recording” means placing an instrument of public record in the office of County Recorder of Maricopa County, Arizona, and “Recorded” means having been so placed of public record.

Application of Law to Facts

The Judge concluded that Mr. Webster’s entire case rested on a misapplication of Article 10.8.

• Limited Scope of Article 10.8: The ruling states, “Mountain Rose CC&Rs Article 10.8. applies to the recording of notices and recorded notices.”

• Burden of Proof: Under Arizona law (A.A.C. R2-19-119), the burden of proof fell to the petitioner, Mr. Webster, to demonstrate his claim by a preponderance of the evidence.

• Crucial Factual Finding: The decision explicitly states, “There was no evidence presented at hearing that the notices issued to Mr. Webster were recorded.“

• Petitioner’s Failure to Allege: The Judge further noted, “Mr. Webster did not even contend that Mountain Rose recorded the notices issued to him.”

Conclusion of Law

Based on the evidence and the plain language of the CC&Rs, the Judge found that Mr. Webster failed to make his case.

“Mr. Webster failed to establish by a preponderance of the evidence that Mountain Rose violated its CC&Rs as described above.”

Final Order and Disposition

The petition was summarily dismissed based on the failure to prove that the relevant CC&R article was applicable to the facts presented.

Order:

“IT IS ORDERED that Petitioners’ petition in this matter is dismissed.”

The order was dated February 9, 2018, and transmitted to the parties on February 28, 2018.

Study Guide: Case No. 18F-H1817019-REL

This study guide provides a detailed review of the Administrative Law Judge Decision in the case of Jerry L. Webster v. Mountain Rose Homeowners Association, heard on February 9, 2018. It includes a quiz to test comprehension, suggested essay topics for deeper analysis, and a glossary of key terms as defined within the source document.

Answer the following questions in 2-3 complete sentences based on the provided source text.

1. Identify the primary parties involved in this case and describe their respective roles.

2. What was the central accusation that Petitioner Jerry L. Webster made against the Mountain Rose Homeowners Association?

3. Which specific article of the Covenants, Conditions, and Restrictions (CC&Rs) did Mr. Webster claim the HOA violated, and what key information did he allege was missing from the notices he received?

4. Beyond the content of the violation notices, what other complaints did Mr. Webster include in his petition regarding the HOA’s conduct?

5. According to the Mountain Rose CC&Rs, what is the specific definition of “Recording”?

6. What was the key piece of evidence that was absent from the hearing, which proved critical to the final decision?

7. What was the Mountain Rose HOA’s primary defense against Mr. Webster’s allegation that it had violated Article 10.8 of the CC&Rs?

8. In this type of administrative hearing, who holds the burden of proof, and what is the standard of proof required to win the case?

9. What was the final Order issued by Administrative Law Judge Velva Moses-Thompson in this matter?

10. What recourse did the parties have after the judge issued the Order on February 9, 2018?

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Answer Key

1. The primary parties were Petitioner Jerry L. Webster, a homeowner and member of the association, and Respondent Mountain Rose Homeowners Association, a planned community in Scottsdale, Arizona. Mr. Webster filed a petition alleging violations by the HOA, making him the accuser, while the HOA was the party responding to the allegations.

2. Mr. Webster’s central accusation was that the HOA violated Article 10.8 of its own CC&Rs. He contended that the HOA engaged in prejudicial harassment by sending him a series of vague, unclear, and unwarranted violation notices over a period of more than 10 years.

3. Mr. Webster claimed the HOA violated Article 10.8, titled “Notice of Violation.” He alleged the notices he received failed to include several required subsections, including the legal description of the lot (ii), a brief description of the violation (iii), a statement that the notice was being Recorded (iv), and a statement of the specific steps needed to cure the violation (v).

4. Mr. Webster also complained that his numerous requests for clarification were ignored and that the HOA’s intent was harassment. He claimed he was fined $175 based on invalid notices and that the HOA was engaging in selective enforcement, noting 22 other homes had trees touching dwellings without receiving similar notices or fines.

5. According to Article 1.33 of the CC&Rs, “Recording” is defined as placing an instrument of public record in the office of the County Recorder of Maricopa County, Arizona. “Recorded” means that the instrument has been placed on public record in that office.

6. The key piece of evidence absent from the hearing was any proof that the violation notices sent to Mr. Webster were ever recorded with the County Recorder of Maricopa County. The judge’s decision explicitly states, “There was no evidence presented at hearing that the notices issued to Mr. Webster were recorded.”

7. The HOA’s primary defense was that the requirements of Article 10.8 only apply to recorded notices. Since the notices issued to Mr. Webster were never recorded, the HOA argued that the article’s specific formatting requirements were not applicable to their correspondence with him.

8. The burden of proof falls to the party asserting the claim, which in this case was the Petitioner, Mr. Webster. The standard of proof required is a “preponderance of the evidence,” which means the evidence must have the most convincing force and be sufficient to incline a fair and impartial mind to one side of the issue.

9. The final Order issued by the judge was that the Petitioner’s petition in the matter be dismissed. This means Mr. Webster’s case was unsuccessful.

10. After the Order was issued, the parties had the right to request a rehearing. Pursuant to A.R.S. § 41-1092.09, this request had to be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

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Essay Questions

The following questions are designed for longer-form, analytical answers. Answers are not provided.

1. Analyze the petitioner’s argument as presented in the petition. What was the critical legal misinterpretation regarding Article 10.8 that ultimately led to the dismissal of his case?

2. Explain the direct relationship between Article 1.33 (“Recording”) and Article 10.8 (“Notice of Violation”). How did the specific definition in the former article completely undermine the petitioner’s entire claim, which was based on the latter?

3. Discuss the concepts of “burden of proof” and “preponderance of the evidence” as applied in this case. Citing specific findings from the decision, explain exactly how the petitioner failed to meet this standard.

4. Mr. Webster raised several secondary issues in his petition, including allegations of long-term harassment, selective enforcement (“22 trees touch dwellings”), and ignored requests for clarification. Why were these claims ultimately not addressed or validated in the Administrative Law Judge’s final decision?

5. Based on the text of Article 10.8, what is the specific function and legal purpose of a recorded Notice of Violation? Why might an HOA choose to go through the formal process of recording a notice rather than just sending an unrecorded letter to a homeowner?

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Glossary

Definition from Source Context

Administrative Law Judge (ALJ)

The official who presides over hearings at the Office of Administrative Hearings. In this case, the ALJ was Velva Moses-Thompson.

A.R.S. § 41-2198.01

An Arizona Revised Statute that permits a homeowner or a planned community organization to file a petition with the Department of Real Estate for a hearing concerning violations of community documents or statutes.

Burden of Proof

The responsibility of the party asserting a claim or right to prove their case. In this matter, the burden of proof fell to the Petitioner.

An abbreviation for the Declaration of Covenants, Conditions and Restrictions for Mountain Rose, which are the governing documents for the homeowners association.

Department

The Arizona Department of Real Estate, the agency with which Mr. Webster filed his petition.

Notice of Violation (Article 10.8)

A written notice that the Association has the right to record. This article specifies that such a recorded notice must contain five key pieces of information, including the legal description of the lot and the specific steps to cure the violation. Its provisions apply specifically to notices that are formally recorded.

Petitioner

The party who filed the petition. In this case, it was Jerry L. Webster, a homeowner and member of the Mountain Rose HOA.

Preponderance of the Evidence

The standard of proof required in this hearing. It is defined as “the greater weight of the evidence…that has the most convincing force; superior evidentiary weight that…is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Recording (Article 1.33)

The act of “placing an instrument of public record in the office of County Recorder of Maricopa County, Arizona.” “Recorded” means having been so placed on public record.

Respondent

The party against whom the petition was filed. In this case, it was the Mountain Rose Homeowners Association.

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18F-H1817019-REL

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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings in Arizona, addressing a dispute between Petitioner Jerry L. Webster and the Respondent Mountain Rose Homeowners Association (HOA). Mr. Webster alleged that the HOA violated Article 10.8 of its CC&Rs by issuing unclear and unwarranted violation notices, specifically regarding the trimming of his tree and cleaning debris, and he sought the refund of recent fines. The HOA contended that the notices were not recorded, making the specific requirements of Article 10.8—which applies to recorded notices—inapplicable to the general violation notices Mr. Webster received. Ultimately, the Administrative Law Judge found that Mr. Webster failed to establish by a preponderance of the evidence that the HOA violated the CC&Rs because the notices in question were never officially recorded, leading to the dismissal of the Petitioner’s petition.

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Case Participants

Petitioner Side

Jerry L. Webster (petitioner)
Pamela Webster (witness)

Respondent Side

Nathan Tennyson (HOA attorney)
Frank Puma (manager)
Mountain Rose

Neutral Parties

Velva Moses-Thompson (ALJ)
Judy Lowe (Commissioner)
Arizona Department of Real Estate