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Briefing Document: Legal Analysis and Dispute Resolution in PebbleCreek Golf Resort HOA v. Bernard & Wiener

Executive Summary

This briefing document provides an exhaustive analysis of the administrative dispute between PebbleCreek Golf Resort Homeowners Association No. 1, Inc. (Petitioner/HOA) and homeowners Christopher Bernard and Deborah Wiener (Respondents) under Office of Administrative Hearings (OAH) Docket No. 26F-H069-REL.

The matter originated from a petition filed by the HOA with the Arizona Department of Real Estate (ADRE) on March 5, 2026, alleging two distinct Covenants, Conditions, and Restrictions (CC&R) violations on Lot 20 (16078 W. Sheila Lane, Goodyear, AZ 85395):

1. Installation of an unapproved river rock decorative border.
2. Installation and maintenance of an unapproved animal structure (dog pen/frame pet cover) visible from neighboring property.

Prior to the evidentiary hearing held on September 11, 2026, the parties settled the river rock border issue, resulting in a partial withdrawal of that claim on September 2, 2026. The evidentiary hearing before Administrative Law Judge (ALJ) Velva Moses-Thompson focused exclusively on whether the Respondents' dog pen violated Article IV, Sections 2(a) and 2(b) of the HOA’s CC&Rs and Section E.8C/E.6 of the Architectural and Landscape Committee (ALC) Guidelines.

On October 5, 2026, ALJ Moses-Thompson issued a final Administrative Law Judge Decision ruling in favor of the HOA. The ALJ concluded that the dog pen was installed without prior written ALC approval and remained visible from neighboring property, violating Article IV, Sections 2(a) and 2(b). The Respondents were ordered to pay the HOA’s $500.00 ADRE filing fee and to abide by the CC&Rs. A civil penalty was denied because Respondent Christopher Bernard genuinely believed—albeit incorrectly—that the structure was non-violative and subject to selective enforcement.

Procedural Timeline and Case Background

The case progressed through multiple administrative orders, continuances, representative changes, and evidentiary submissions:

Detailed Analysis of Key Themes

1. Architectural Control and CC&R Standards

The dispute hinges on two primary provisions of the PebbleCreek Golf Resort CC&Rs (recorded in 1992 with the Maricopa County Recorder) and the 2024 ALC Guidelines:

• Article IV, Section 2(a) [Architectural Control]: Mandates that no structure, improvement, alteration, landscaping, or exterior work altering the appearance of any lot shall be commenced, erected, or maintained without prior written approval from the ALC.
• Article IV, Section 2(b) [Animals]: Explicitly provides:

"No structure for the care, housing or confinement of any animal or bird shall be maintained so as to be Visible From Neighboring Property, unless otherwise approved by the Architectural Committee."

• Definition of "Visible From Neighboring Property": Under Section TT (page 10) of the Declaration, an object is defined as visible if it can be seen by a 6-foot-tall person standing on a neighboring property at the level of the base of the structure being viewed.

Approved Screening vs. Faux Greenery

To attempt compliance without building a permanent wall, Respondents installed green faux foliage, synthetic vines, and lattice material along their open-air view fence.

The HOA presented testimony from General Manager William Barnard and Board President Jack Gregory establishing that:

1. Faux greenery, artificial plants, or faux fencing materials are never automatically approved and are consistently denied across the community.
2. Artificial plants are unapproved screening mechanisms because they do not eliminate multi-angle visibility, do not mitigate noise, deteriorate over time, and fail to provide permanent structural enclosure.
3. Natural vegetation (shrubs, vines) is permitted for general privacy between adjacent patios, but is strictly prohibited as a primary screening mechanism for animal enclosures or trash receptacles, as plants can die or leave gaps.
4. The HOA’s standard required cure for screening visible animal enclosures or trash containers on golf course lots is a solid cinder/block wall with an integrated gate.

“ [ Neighboring View / Golf Course / Street ] │ ▼ (Unapproved Screening Attempt) [ Faux Greenery / Synthetic Vines / Lattice ] │ <-- Does NOT satisfy CC&Rs ▼ [ Unapproved Dog Pen Structure ] (3'x7' Black-Framed & Netted Box with Pitched Roof) ▲ │ <-- HOA Required Cure [ Solid Cinder Block Wall & Gate ] “

2. HOA Enforcement Integrity vs. Homeowner Defenses

Selective Enforcement and Targeting Allegations

Respondent Christopher Bernard argued that the HOA engaged in harassment, moving goalposts, and selective enforcement, claiming Respondents had accumulated 27 different violation notices across 2025–2026. Bernard asserted that other residents maintained visible dog structures or had shrubbery approved to screen hot tubs.

To refute the selective enforcement defense, the HOA submitted extensive administrative records:

• Community Compliance Metrics (Jan 1, 2026 – July 14, 2026):
• 972 courtesy violation letters issued community-wide.
• 1,035 total violations closed.
• 136 formal fine warning letters sent.
• 34 actual fine assessments levied.
• Comparative Denials (Exhibits 18.1–18.2 & 17.1–17.3): The HOA demonstrated that other applications for pet enclosures without block wall screening were uniformly denied, and citation notices were actively issued to other lot owners attempting to use faux greenery/fencing.
• Trash Enclosures (Exhibits 25.1–25.3): Requests for trash enclosures were only approved when constructed with an fully enclosing block wall and gate.

Neighbor Dispute and Coyote Protection Context

• Coyote Protection: Respondents testified the pen was utilized solely between 6:00 a.m. and 7:00 a.m. to protect two 6-pound dogs from coyotes, as community rules prohibit altering open fences or harming wildlife.
• Neighbor Conflict: The adjacent neighbor submitted formal complaints regarding both the visibility of the pen from her side dining window and unpleasant odors arising from dog feces. Respondent Bernard disputed the smell issue, alleging the neighbor had thrown Drano tablets over the fence and lacked proper boundary fencing, thereby attracting coyotes to the area.

Economic and Aesthetic Impact Arguments

Respondents opposed constructing a block wall based on the following:

• Estimated construction cost of $8,000.00.
• Destruction of $1,500.00 worth of recently installed AstroTurf.
• Negative alteration of the front and rear aesthetics of a lot where they had recently invested $120,000.00 in backyard improvements.
• Respondents offered to construct the wall if the HOA subsidized 50% of the cost, an offer the HOA declined.

3. Administrative Law Judge Findings and Legal Reasoning

In the final Decision issued on October 5, 2026, ALJ Moses-Thompson systematically evaluated the statutory, contractual, and photographic evidence:

1. Jurisdiction & Standard of Proof: Under A.R.S. § 32-2199(B) and A.R.S. § 33-1803, the ADRE and OAH have jurisdiction over Planned Community Act disputes. The HOA held the burden to prove violations by a preponderance of the evidence (A.R.S. § 41-1092.07(G)(2)).
2. Unambiguous Restrictive Covenants: Under Arizona case law (Powell v. Washburn, 211 Ariz. 553), unambiguous restrictive covenants must be enforced according to their express language and underlying purpose.
3. Core Violations Established:

• Article IV, Section 2(a): Unquestioned violation occurred because Respondents erected the dog pen in December 2024 without seeking or receiving prior written approval from the ALC.
• Article IV, Section 2(b): The preponderance of evidence—including photographs taken from the street and golf course (Exhibits 16.1–16.5) and Respondents' own post-hearing photos (Exhibit B: Photos 1653, 1655, 1656)—established that the structure was visible to a 6-foot-tall person standing on neighboring property.

1. Rejection of Civil Penalty: Although the HOA requested penalties for ongoing non-compliance, the ALJ declined to levy a civil penalty under A.R.S. § 32-2199.02(A). The record demonstrated that Bernard genuinely believed he was not violating the CC&Rs (relying on subjective interpretations of visibility, initial audit communications, and perceived selective enforcement).
2. Mandatory Statutory Relief: Pursuant to A.R.S. § 32-2199.02(A), as the prevailing party, the HOA was statutorily entitled to an order directing Respondents to comply with the CC&Rs and reimburse the HOA's $500.00 filing fee within 30 days.

Important Quotes with Context

Statements by HOA Legal Counsel (Beth Mulcahy, Esq.)

• On the Binding Contractual Nature of CC&Rs:

"This declaration is a contract that binds the owners within the association to follow the terms of the contract, as well as the association needs to follow the terms of the contract… respondents here today, Mr. Bernard and Ms. Wiener are the owners of lot 20… they are required to follow the declaration, the bylaws, the architectural landscape guidelines, and all other governing documents."

• Context: Opening statement establishing that lot ownership automatically subjects residents to mandatory architectural review processes.

• On the Uniformity of Architectural Review:

"This is not selective enforcement. It's ordinary architectural review at 6,000 lot community association… Any selective enforcement or harassment defense is unsupported by the evidence heard today."

• Context: Closing argument dismantling Respondent's targeting claims by highlighting standard enforcement metrics.

Testimony of HOA Witnesses

• William Barnard (General Manager) on the Purpose of Fines:

"The bottom line is we're just trying to obtain compliance that's it. We're not trying to make money. It's not a revenue generator for us. And so, you know, the fine is after several notices have been given and no response or no correction."

• Context: Direct examination explaining why the HOA levied an $800 fine following uncured notices.

• William Barnard on Why Faux Foliage and Plants are Rejected:

"A pet enclosure or a garbage can, we do not allow plants to be used for situations like that because they don't completely screen and you know they can die and all of that. So in those two specific situations we don't allow shrubs or plants."

• Context: Cross/redirect examination clarifying the structural rationale behind prohibiting vegetation or artificial foliage as primary screening for animal structures.

• Jack Gregory (Board President) on the Purpose of Architectural Controls:

"Well, principally, it's to protect property values. It's to maintain the visual quality of the community using the established set of standards. And it also allows homeowners to understand what is acceptable within the community."

• Context: Direct examination outlining the Board's duty to maintain neighborhood aesthetics.

• Jack Gregory on Photo Verification:

"Exhibit 16.1, which was taken from the front of the house, was taken using an iPhone 16 camera… used a zoom feature just to make sure that, you know, for clarity, but even to the naked eye from the street… the dog pin was still visible."

• Context: Rebuttal testimony refuting Respondent's claims that photo evidence was fabricated or manipulated using high-powered binoculars.

Statements by Respondent (Christopher Bernard)

• On Frustration with Mandatory Wall Construction:

"What I don't want to have to do is tear up my AstroTurf and spend $8,000 to build a wall to enclose two miniature dogs. That's what we're unwilling to do. That's what we're being forced to do with no alternatives and no options presented from the HOA. Zero."

• Context: Closing argument detailing the financial and practical burden imposed by the HOA's block wall requirement.

• On Photographic Zooming and Distance:

"My fence is 97 feet from the street. The back fence is 162 feet from the golf course. Those pictures that you took, you were on top of my property in both instances or you zoomed in and took a pair of binoculars. That enclosure cannot be seen from the golf course and it certainly can't be seen from the street."

• Context: Defense presentation challenging the HOA's visual evidence regarding the visibility of the pen.

Rulings by Administrative Law Judge (Velva Moses-Thompson)

• On Findings of Fact Regarding Visibility:

"After reviewing the photographs, the Administrative Law Judge (ALJ) finds that the photographs marked as 1653, 1655, and 1656 show that the animal structure is visible to neighboring property. The ALJ finds that remaining photos in Exhibit B do not refute this finding."

• Context: Finding of Fact No. 35 in the Final Decision analyzing post-hearing evidence submitted by Respondents.

• On Decision to Decline Civil Penalties:

"Although Mr. Bernard was incorrect in his allegations and assertions, the record shows that Mr. Bernard believed his dog pen was not in violation of the CC&Rs. Based on the foregrounding, the ALJ concludes that a civil penalty is not appropriate at this time."

• Context: Conclusion of Law No. 9 articulating why monetary penalties beyond fee reimbursement were withheld.

Key Takeaways and Actionable Insights

For Homeowners Association Boards and Management

1. Maintain Rigorous, Fact-Based Enforcement Logs:

• The HOA successfully defeated selective enforcement defenses by presenting concrete compliance statistics (972 courtesy notices, 34 fine assessments) and identical denial records for other lots (Exhibits 17, 18, and 25).
• Action: Continue compiling quantitative enforcement data to validate uniform standard application during administrative hearings.

1. Provide Clear Structural Specifications in Denial Notices:

• The ALC’s written denial on December 10, 2025, specifically suggested a "block wall with gate" as an acceptable cure, demonstrating that the HOA was offering constructive compliance pathways rather than outright prohibition.
• Action: Ensure all architectural denial notices explicitly outline permissible structural remedies and grant standard cure windows (e.g., 21 days).

1. Document Visibility from Standard Photographic Angles:

• Although Respondents challenged zoomed-in photos, witness testimony confirming that structures were visible "to the naked eye" from public/common vantage points (street, golf course) proved decisive.
• Action: When documenting violations, photo inspectors should take wide-angle context shots alongside zoomed detail shots from standard standing height (6 feet) at property boundaries.

For Homeowners in Planned Communities

1. Prior Written Approval Is Mandatory Before Installation:

• Installing exterior structures prior to receiving written ALC approval places the homeowner in an immediate, hard-to-defend breach of CC&Rs, eliminating leverage during subsequent negotiations.
• Action: Always submit detailed architectural applications—and receive explicit written approval—prior to purchasing or erecting exterior structures, regardless of intended usage (e.g., coyote protection).

1. Self-Help Screening Solutions Do Not Override Rules:

• Installing unapproved faux greenery, plastic vines, or reed fencing onto view fences often creates secondary violations rather than curing the primary visibility issue.
• Action: Verify whether non-permanent or synthetic materials are permissible under community guidelines before investing in temporary screening measures.

1. Distinguish Between Administrative Rules and Subjective Intent:

• Good faith beliefs, coyote threats, or investments in landscaping ($120,000) do not legalise CC&R non-compliance under Arizona law.
• Action: Focus administrative hearing defenses on objective CC&R language, precise definitions (such as the 6-foot eye-level standard), and official permit records rather than perceived harassment or cost disputes.