Tag Archives: Pro se

Jerome L. Glazer vs Heritage Village III Homeowners Association

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Case Summary

Case ID 24F-H039-REL
Agency —
Tribunal Arizona Office of Administrative Hearings
Decision Date 2024-08-23
Administrative Law Judge ADS
Outcome complete
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Taylor Kidd Counsel Patrick T. Nackley, Brandon P. Bodea
Respondent Heritage Village III Homeowners Association Counsel Tessa Knueppel, Mark K. Sahl, Charles H. Oldham, Josh Bolen

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

24F-H039-REL Decision – 1182719.pdf

Uploaded 2026-04-24T12:23:10 (62.8 KB)

24F-H039-REL Decision – 1182767.pdf

Uploaded 2026-04-24T12:23:18 (13.4 KB)

24F-H039-REL Decision – 1182769.pdf

Uploaded 2026-04-24T12:23:21 (50.0 KB)

24F-H039-REL Decision – 1203525.pdf

Uploaded 2026-04-24T12:23:25 (49.3 KB)

24F-H039-REL Decision – 1215299.pdf

Uploaded 2026-04-24T12:23:28 (123.4 KB)

24F-H039-REL Decision – 1226570.pdf

Uploaded 2026-04-24T12:23:31 (39.7 KB)

Briefing Document: Kidd and Glazer v. Heritage Village III Homeowners Association

Executive Summary

This briefing document details the legal proceedings and final decision in the consolidated matters of Taylor Kidd and Jerome L. Glazer vs. Heritage Village III Homeowners Association (Case Nos. 24F-H037-REL and 24F-H039-REL). The dispute centered on the Respondent’s approval of a $1.55 million "Landscape Improvement Project" and a subsequent $9,385.24 special assessment per homeowner, conducted without a membership vote.

The Office of Administrative Hearings (OAH) ultimately ruled in favor of the Petitioners, Taylor Kidd and Jerome L. Glazer. The Administrative Law Judge (ALJ) determined that the Association’s governing documents explicitly incorporated the "McCormick Ranch CC&Rs," which require a two-thirds majority vote for capital improvement assessments. Because no such vote was held, the Association was found in violation of its Covenants, Conditions, and Restrictions (CC&Rs). The Association was ordered to reimburse the Petitioners' filing fees.

Procedural History and Case Background

The following table outlines the timeline and administrative milestones of the case:

Date Event Details
February 27, 2024 Petition Filed (Kidd) Taylor Kidd filed a single-issue petition regarding the landscape project and paid a $500 fee.
February 29, 2024 Petition Filed (Glazer) Jerome L. Glazer filed a similar single-issue petition and paid a $500 fee.
May 28, 2024 Consolidation Order ALJ Tammy L. Eigenheer ordered the cases consolidated for administrative efficiency.
May 28, 2024 Cease & Desist Denied The ALJ denied Glazer's request to halt project expenditures, citing a lack of authority to issue such orders.
May 30, 2024 Original Hearing Date Postponed due to a medical emergency involving Petitioner Glazer’s domestic partner.
July 19, 2024 Rescheduled Hearing Continued again due to a widespread computer outage.
August 9, 2024 Evidentiary Hearing Held before ALJ Adam D. Stone.
August 23, 2024 Final Decision ALJ Stone ruled in favor of Petitioners, granting their petitions.
September 23, 2024 Minute Entry ALJ Stone declined to consider a Motion for Rehearing, stating such requests must go to the Arizona Department of Real Estate.

Detailed Analysis of Key Themes

1. Incorporation of External Governing Documents

The central legal conflict involved which CC&Rs governed the Association's actions. While the Association’s own CC&Rs were silent on the requirement for a membership vote for capital improvements, Article VII, Section 1 of their documents stated that the McCormick Ranch CC&Rs "are made part hereof and are hereby referenced as to the provisions required for this entire property."

The McCormick Ranch CC&Rs (Article III, Section 4) explicitly require the "assent of two-thirds (2/3) of the votes cast by Voting Owners" for special assessments related to capital improvements. The ALJ concluded that the Association could not cherry-pick which parts of the McCormick Ranch CC&Rs applied; the incorporation was total.

2. Board Authority vs. Member Consent

The Association, through Board member Jennifer Hutsko, argued that the Board had a fiduciary duty to maintain the property, which was suffering from a 40-year-old failing irrigation system and diseased trees. They contended that since the Association’s specific CC&Rs were silent on voting for maintenance, the Board could act unilaterally.

The Petitioners successfully argued that the "Landscape Improvement Project" constituted a capital improvement rather than routine maintenance. Consequently, the procedural requirement for a membership vote took precedence over the Board's unilateral decision-making authority.

3. Administrative Economy and Efficiency

The Respondent successfully moved to consolidate the Kidd and Glazer cases under ARIZ. ADMIN. CODE R2-19-109(A). The consolidation was granted to avoid "potentially inconsistent rulings" and to promote administrative efficiency, as both matters involved objections from different homeowners to the same Board action. Despite objections from Taylor Kidd regarding potential delays, the ALJ found that the substantially similar factual and legal issues justified a single hearing.

4. Jurisdictional Limits of the OAH

A significant procedural theme was the ALJ's limited authority. When Petitioner Glazer requested a Cease and Desist Order to stop the Association from spending funds on the project, the ALJ denied the request, stating, "The Administrative Law Judge is without the authority to issue such an order in this matter." This highlights that while the OAH can adjudicate violations of community documents, its power to grant injunctive-style relief is restricted.

Important Quotes with Context

"Respondent violated McCormick Ranch CC&R’s Article III, Section 4, as it did not take the required vote, as well as and the Association CC&R’s Article VII, Section 1, by failing to follow the McCormick Ranch CC&R’s in regards to the same."

— ALJ Adam D. Stone, Final Decision (August 23, 2024). This quote summarizes the legal basis for the ruling, confirming that the Association is bound by the voting requirements of the incorporated documents.

"The letter also informed homeowners that there was a project cost of $1,557,950.00, which would be divided amongst the 166 homeowners, resulting in a special assessment in the amount of $9,385.24 per homeowner."

— Findings of Fact regarding Taylor Kidd's testimony. This provides the financial context of the dispute and the scale of the financial burden placed on the homeowners without their consent.

"While the Administrative Law Judge acknowledges that the decision to consolidate these matters is not required by the applicable rule, it is certainly permitted in this instance as these matters involve substantially similar factual or legal issues."

— ALJ Tammy L. Eigenheer, Order Consolidating Matters (May 28, 2024). This clarifies the standard for consolidation in administrative hearings, prioritizing "administrative economy."

"The document, consisting of Motion for Rehearing, will not be considered as no further action can be taken on the matter. All requests for rehearing must be made directly to the Arizona Department of Real Estate."

— ALJ Adam D. Stone, Minute Entry (September 23, 2024). This illustrates the finality of the OAH's role and the transition of the case back to the Department of Real Estate for any further administrative appeals.

Actionable Insights

  • Review Incorporation Clauses: Homeowners' associations must carefully review their governing documents for "incorporation by reference" clauses. If an HOA's documents incorporate the rules of a master association (like McCormick Ranch), those rules are legally binding even if they are more restrictive than the HOA's own specific bylaws.
  • Definition of Capital Improvements: Boards should clearly distinguish between routine maintenance and "capital improvements." While maintenance may fall under Board authority, major projects—especially those requiring significant special assessments—often trigger mandatory voting requirements.
  • Special Assessment Procedures: Before levying a special assessment, Boards must ensure they have met all procedural prerequisites, such as membership votes and quorum requirements, as dictated by the hierarchy of their governing documents.
  • Reimbursement Risks: Under ARIZ. REV. STAT. § 32-2199.02(A), if an Association is found in violation, they are legally required to reimburse the Petitioner’s filing fees. In this case, the Association was ordered to pay $1,000 total ($500 to each Petitioner).
  • Appellate Path: Parties dissatisfied with an ALJ decision must file their request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the order, rather than filing with the Office of Administrative Hearings.

Study Guide: Kidd and Glazer vs. Heritage Village III Homeowners Association

This study guide provides a comprehensive overview of the administrative legal proceedings between Petitioners Taylor Kidd and Jerome L. Glazer and the Respondent, Heritage Village III Homeowners Association. It covers procedural motions, governing legal standards, the core conflict regarding CC&Rs, and the final administrative decision.

1. Case Overview and Background

The dispute centered on a proposed Landscape Improvement Project initiated by the Heritage Village III Homeowners Association Board of Directors.

  • The Project: A $1,557,950.00 landscaping initiative intended to address dead/dying vegetation and a failing 40-year-old irrigation system.
  • The Assessment: The project cost was to be divided among 166 homeowners, resulting in a special assessment of $9,385.24 per homeowner.
  • The Dispute: Petitioners Kidd and Glazer alleged the Board approved this capital improvement and special assessment without the 75% or two-thirds homeowner vote required by governing documents.
  • The Venue: The Arizona Office of Administrative Hearings (OAH), acting on behalf of the Arizona Department of Real Estate (ADRE).

2. Key Legal Concepts and Standards

Administrative Procedures
  • Consolidation (ARIZ. ADMIN. CODE R2-19-109(A)): An Administrative Law Judge (ALJ) may consolidate pending matters if there are "substantially similar factual or legal issues" or if "all parties are the same." In this case, the matters were consolidated for administrative economy because they involved the same Board action, despite the petitioners being different individuals.
  • Continuance: A delay in proceedings. This occurred twice: once due to Petitioner Glazer’s domestic partner's surgery and once due to a widespread computer outage on July 19, 2024.
  • Jurisdiction: Under ARIZ. REV. STAT. §§ 32-2102 and 32-2199, the ADRE and OAH have the authority to hear disputes between homeowners and planned community associations regarding violations of community documents.
  • Burden of Proof: The Petitioner bears the burden of proving their case by a preponderance of the evidence.
Governing Documents
  • CC&Rs (Covenants, Conditions, and Restrictions): The primary rules governing the homeowners' association.
  • Incorporation by Reference: A legal mechanism where one document makes another document part of itself. Here, the Heritage Village III CC&Rs (Article VII, Section 1) incorporated the McCormick Ranch CC&Rs.

3. Chronology of Proceedings (2024)

Date Event Details
Feb 27–29 Petitions Filed Kidd and Glazer filed separate petitions with the ADRE ($500 fee each).
May 28 Consolidation Order ALJ Eigenheer consolidated cases 24F-H037-REL and 24F-H039-REL.
May 28 Cease & Desist Denied ALJ Eigenheer ruled the OAH lacked authority to stop HOA spending before a decision.
July 19 Original Hearing Date Postponed due to a computer outage.
Aug 9 Evidentiary Hearing Held before ALJ Adam D. Stone; testimony provided by Kidd, Glazer, and Board member Hutsko.
Aug 23 Final Decision ALJ Stone ruled in favor of Petitioners, finding the HOA violated CC&Rs.
Sept 23 Minute Entry OAH declined to hear a Motion for Rehearing, as such motions must be filed with the ADRE.

4. Short-Answer Practice Quiz

  1. What was the specific financial assessment proposed for each homeowner for the landscaping project?
  2. **According to ARIZ. ADMIN. CODE R2-19-109(A), what are the two conditions under which an ALJ may consolidate cases?**
  3. Why did the Administrative Law Judge deny Petitioner Glazer’s request for a Cease and Desist Order?
  4. What was the primary reason the Association argued they did not need a homeowner vote for the project?
  5. Which specific section of the McCormick Ranch CC&Rs requires a two-thirds vote for special assessments related to capital improvements?
  6. What was the final ruling regarding the filing fees paid by the Petitioners?
  7. What reason was given for the hearing continuance from July 19 to August 9, 2024?
  8. To which entity must a party submit a Motion for Rehearing after a final OAH decision has been issued?

5. Essay Questions for Deeper Exploration

  1. The Interplay of Governing Documents: Analyze how the "incorporation by reference" in Article VII, Section 1 of the Heritage Village III CC&Rs determined the outcome of the case. Why did the ALJ reject the Association's argument that they were only bound by "part" of the McCormick Ranch CC&Rs?
  2. Administrative Efficiency vs. Individual Rights: Discuss the arguments made for and against the consolidation of the Kidd and Glazer matters. How does ARIZ. ADMIN. CODE R2-19-109(A) balance the need for "administrative economy" with the rights of individual petitioners to have their specific grievances heard without delay?
  3. The Scope of ALJ Authority: Examine the ALJ’s decision to deny the Cease and Desist Order. What does this reveal about the limitations of the Office of Administrative Hearings compared to other judicial venues?

6. Glossary of Important Terms

  • Administrative Law Judge (ALJ): A judge who presides over hearings and adjudicates disputes involving government agencies.
  • Capital Improvement: Substantial permanent changes or additions to a property (e.g., the $1.5M landscaping and irrigation overhaul).
  • Cease and Desist Order: An order to stop a specific activity.
  • Consolidation: The joining of two or more separate legal cases into one because they involve similar issues.
  • Continuance: A postponement of a legal proceeding or hearing to a later date.
  • Minute Entry: A brief record of the court's actions or rulings on a specific motion or procedural matter.
  • Preponderance of the Evidence: The standard of proof in civil and administrative cases, meaning a fact is "more probably true than not."
  • Special Assessment: A one-time fee charged to HOA members for a specific project or expense outside the regular annual dues.
  • Tribunal: A person or institution (like the OAH) with the authority to judge or determine claims or disputes.

The $1.5 Million Landscape Lesson: How Two Homeowners Successfully Challenged Their HOA Board

1. Introduction: The High Cost of Silence

On December 19, 2023, the 166 homeowners of Heritage Village III in Hereford, Arizona, received a holiday "gift" they never requested: a formal notice announcing a massive landscaping overhaul and a mandatory special assessment of $9,385.24 per household. There had been no community vote, no formal presentation of costs, and no opportunity for homeowners to weigh in on a project totaling over $1.5 million.

While many might have simply grumbled at the mailbox, two residents decided to hold their Board accountable. Taylor Kidd, represented by counsel Patrick T. Nackley, and Jerome L. Glazer, appearing pro se (representing himself), filed petitions with the Arizona Department of Real Estate. Their challenge against the Heritage Village III Homeowners Association was more than a dispute over grass and trees; it was a fight for procedural transparency and the supremacy of governing documents. Their victory provides a masterclass in how homeowners can successfully check Board overreach.

2. The Project That Sparked the Protest

The "Landscape Improvement Project" approved by the Board in 2023 was not a minor facelift. It was a seven-figure overhaul funded entirely by a surprise levy on the residents. The project specifics included:

  • Total Estimated Cost: $1,557,950.00.
  • Individual Impact: A $9,385.24 special assessment for every homeowner.
  • The Board’s Justification: Directors argued the community was suffering from a 40-year-old irrigation system requiring constant patchwork repairs, alongside dozens of dead or diseased trees. They framed the project as a necessary move toward water conservation.

However, the human cost was significant. During her testimony, Ms. Kidd—who purchased her home in 2014 specifically for its lush green grass—noted the Board offered no concrete evidence of water savings to justify the loss of the community's aesthetic character. The Board had prioritized a massive capital replacement under the guise of simple maintenance.

3. Procedural Hurdles: Consolidation and Outages

The path to justice was marked by administrative delays and technical failures. The cases (24F-H037-REL and 24F-H039-REL) were eventually consolidated for "administrative economy" because they shared substantially similar legal questions.

The timeline was stretched by two major events:

  • A Motion to Continue: Granted on May 28, 2024, after Petitioner Glazer’s domestic partner required major back surgery.
  • A Technical Outage: A scheduled hearing on July 19, 2024, was derailed by a widespread computer outage, pushing the final showdown to August 9, 2024, before Administrative Law Judge (ALJ) Adam D. Stone.
4. The Legal Battle: Maintenance Duty vs. Membership Votes

The Board’s defense relied on a common but fatal trap: the belief that their general fiduciary duty to maintain the property gave them a "blank check" to bypass membership approval. They argued that because their specific local CC&Rs were silent on voting for such projects, they could proceed based on a community survey showing 72% support.

The Petitioners countered that the Board was ignoring the community's "Master" documents. The following table highlights the clash:

The Board's Defense The Petitioners' Argument
Claim: The Board has a fiduciary duty to maintain property; the 40-year-old irrigation system was failing. Rebuttal: A $1.5M replacement of an entire system is a "capital improvement," not routine maintenance.
Claim: Local CC&Rs are silent on voting requirements for improvements. Rebuttal: McCormick Ranch CC&Rs (Article III, Section 4) require a 2/3 vote for capital improvement assessments.
Claim: A survey showed 72% of the community supported the project. Rebuttal: A survey is not a legal vote. The McCormick Ranch rules are incorporated by reference and take supremacy.

The "Hidden Link": The Petitioners correctly identified that Article VII, Section 1 of the Heritage Village III CC&Rs explicitly incorporated the McCormick Ranch CC&Rs, stating they were "made part hereof and are hereby referenced."

5. The Verdict: Why the "Fine Print" Mattered

On August 23, 2024, ALJ Adam D. Stone issued a definitive ruling in favor of the homeowners. The decision turned on the legal interpretation of the phrase "including but not limited to."

The Association argued this phrase limited the incorporation of McCormick Ranch rules to matters of dues and collections. Judge Stone disagreed, ruling that "including but not limited to" is an inclusive phrase that expands rather than restricts. By referencing the McCormick Ranch documents, the Association effectively imported the entire suite of homeowner protections, including the requirement for a two-thirds (2/3) membership vote for any Special Assessment for Capital Improvements.

The ALJ concluded that the Board committed a clear violation of its governing documents. They could not rebrand a massive construction project as "maintenance" to circumvent the democratic rights of the membership.

6. The Cease and Desist Side-Note

Earlier in the dispute, on May 28, 2024, Petitioner Glazer had sought a Cease and Desist order to stop the Board from spending any funds on the project until the hearing concluded. While the Judge eventually ruled that the Board's actions were unauthorized, the request for a Cease and Desist was denied at that time. The ALJ clarified that the Office of Administrative Hearings (OAH) lacks the statutory authority to issue injunctive orders, noting that such relief must be sought in Superior Court or another appropriate venue.

7. Final Takeaways and Community Impact

This ruling is a significant win for homeowner rights in Arizona. Key lessons include:

  • Know Your Governing Documents: Always investigate if your local CC&Rs incorporate a master association’s rules. These "hidden links" often provide the strongest protections against Board overreach.
  • Surveys are Not Votes: A Board cannot use a "72% approval" survey to bypass a legally required formal vote. Procedural shortcuts are a breach of fiduciary duty.
  • The Cost of Non-Compliance: The HOA was ordered to reimburse the $500 filing fees to both Ms. Kidd and Mr. Glazer.
  • Project Status: Because the homeowners acted swiftly, the project had not yet commenced and the assessment had not been officially levied at the time of the ruling.
8. Important Notice for Readers

Following the ALJ’s decision, a Minute Entry was issued on September 23, 2024, regarding a Motion for Rehearing. Homeowners and Boards must take note: The OAH loses jurisdiction the moment a decision is rendered. Any motions for rehearing must be filed directly with the Arizona Department of Real Estate (ADRE) Commissioner, not the OAH. Attempting to file with the OAH after a decision is a procedural dead end.

Case Participants

Petitioner Side

  • Jerome L. Glazer (Petitioner)
    Filed petition pro se.
  • Taylor Kidd (Petitioner)
  • Brandon P. Bodea (Attorney)
    MEDALIST LEGAL PLC
  • Patrick T. Nackley (Attorney)
    MEDALIST LEGAL PLC
    Appeared at hearing as representation for Taylor Kidd.

Respondent Side

  • Charles H. Oldham (Attorney)
    CHDB Law LLP
  • Josh Bolen (Attorney)
    CHDB Law LLP
  • Tessa Knueppel (Attorney)
    CHDB Law LLP
    Appeared at hearing as representation for Heritage Village III Homeowners Association.
  • Mark K. Sahl (Attorney)
    CHDB Law LLP
    Appeared at hearing as representation for Heritage Village III Homeowners Association.
  • Jennifer Hutsko (Witness)
    Heritage Village III Homeowners Association
    Board of Directors member and Community Planning Committee member; testified for the respondent.

Neutral Parties

  • Tammy L. Eigenheer (Administrative Law Judge)
    Office of Administrative Hearings
    Issued initial procedural orders.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Adam D. Stone (Administrative Law Judge)
    Office of Administrative Hearings
    Presided over the hearing and issued the decision.

R.L. Whitmer v. Hilton Casitas Council of Homeowners

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Case Summary

Case ID 24F-H034-REL
Agency —
Tribunal —
Decision Date 2024-05-30
Administrative Law Judge —
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner R.L. Whitmer Counsel —
Respondent Hilton Casitas Council of Homeowners Counsel —

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

24F-H034-REL Decision – 1169191.pdf

Uploaded 2026-04-24T12:21:18 (49.5 KB)

24F-H034-REL Decision – 1170407.pdf

Uploaded 2026-04-24T12:21:22 (53.9 KB)

24F-H034-REL Decision – 1179078.pdf

Uploaded 2026-04-24T12:21:27 (72.0 KB)

Briefing Document: R.L. Whitmer v. Hilton Casitas Council of Homeowners

Executive Summary

This briefing document summarizes the administrative proceedings and final resolution of Case No. 24F-H034-REL, heard before the Arizona Office of Administrative Hearings. The dispute involved Petitioner R.L. Whitmer and Respondent Hilton Casitas Council of Homeowners regarding the legal authority of the Association’s Board of Directors to adopt rules and regulations.

The central conflict rested on whether the Hilton Casitas Board exceeded its authority in August 2016 by adopting rules that the Petitioner argued were reserved solely for the "Council" (defined as the collective of all owners). While the Petitioner sought a summary judgment to invalidate these rules and requested civil penalties against the Association, the Respondent moved for dismissal based on the statute of limitations and the principle of document harmonization.

On May 30, 2024, Administrative Law Judge (ALJ) Amy M. Haley denied the Petitioner’s Motion for Summary Judgment and granted the Respondent’s Motion to Dismiss. The decision concluded that the Petitioner’s claims were time-barred, as they were filed beyond the six-year statute of limitations for breach of contract in Arizona.

Detailed Analysis of Key Themes

1. Supremacy of Governing Documents

A primary theme of the dispute was the hierarchy of an HOA’s governing documents. The Petitioner relied on A.R.S. § 33-1213, arguing that the Declaration (CC&Rs) is the supreme document and that any conflicting provisions in the Bylaws are invalid.

  • Petitioner's Argument: Section 23.9 of the Declaration reserves the right to adopt and amend rules specifically to the "Council." Since the Council is defined as the collective of owners, any rules adopted by the Board alone are ultra vires (beyond their legal power).
  • Respondent's Argument: The Respondent contended that the Declaration and Bylaws cover different scopes. They argued that Section 23.9 of the Declaration pertains to the Council's rights and duties, while Article 9, Section 2 of the Bylaws empowers the Board to manage the "operation and use of the property."
2. Legal Harmonization vs. Conflict

The parties disagreed on how to resolve perceived inconsistencies between the Declaration and the Bylaws.

  • The "Harmonization" Rule: The Respondent cited Mountain View Condominiums Homeowners Association, Inc. v. Scott, stating that governing documents must be read together and harmonized whenever possible.
  • The "Conflict" Rule: The Petitioner argued that harmonization is impossible when a specific power is explicitly reserved for one body (the Council) and then claimed by another (the Board) in a subordinate document.
3. Statute of Limitations in HOA Disputes

The case underscores the critical nature of procedural timelines. Under Arizona law (A.R.S. § 12-548(A)), the statute of limitations for a breach of contract—which includes HOA governing documents—is six years.

  • Tolling and Discovery: The Petitioner argued that the timeline should "toll" from the date of discovery, citing a 2023 Court of Appeals decision that clarified the definition of the "Council."
  • The Final Ruling: The ALJ rejected the tolling argument, finding that the alleged breach occurred on August 19, 2016. Therefore, the Petitioner was required to file the claim by August 19, 2022.
4. Civil Penalties and Administrative Oversight

The Petitioner requested civil penalties, alleging the Board was negligent in its duty to update documents that "don't work right now." The Respondent countered that civil penalties require evidence of punitive action or bad faith, which they argued was entirely absent in this matter.

Important Quotes with Context

Quote Source Context
"It's clear that the bylaws are subordinate to the declaration." R.L. Whitmer (Transcript) Asserting that the Board's rule-making authority in the Bylaws cannot override the Council's authority in the Declaration.
"An association's governing documents… must be read together in relation to each other and harmonized if possible." Emily Mann (Transcript) Citing Arizona case law to argue that the Board and Council have distinct, non-conflicting rule-making spheres.
"The council must still abide by the terms of [the] declaration unless and until it's amended." R.L. Whitmer (Transcript) Emphasizing that cumbersome processes (like a full owner vote) do not excuse the Board from following the Declaration.
"Petitioner failed to assert such a claim within the requisite six-year period. As a result, Petitioner is now barred by the statute of limitations." ALJ Amy M. Haley (Decision) The definitive legal reasoning for dismissing the case and denying the Motion for Summary Judgment.

Actionable Insights

For Homeowners and Members
  • Monitor Board Actions Closely: If a homeowner believes a Board has exceeded its authority (an ultra vires act), legal action must be initiated within six years of the action.
  • Understand Document Hierarchy: While Declarations generally prevail over Bylaws, courts and ALJs will attempt to "harmonize" the two if the subject matter can be interpreted as distinct.
  • Discovery Rule Limitations: Do not assume that a later court ruling clarifying document definitions will reset the statute of limitations for past Board actions.
For HOA Boards and Management
  • Document Consistency: To avoid litigation, ensure that rule-making authority is clearly delineated and consistent between the Declaration and the Bylaws.
  • Amending Documents: As noted in the proceedings, if documents are outdated or "cumbersome," Boards should pursue formal amendments (e.g., the 67% owner vote required for the Declaration) rather than relying on potentially conflicting Bylaw provisions.
  • Statute of Limitations as a Defense: Boards facing challenges to long-standing rules should evaluate whether the claims are time-barred under Arizona's six-year contract statute.
Legal Standards Applied
  • Breach of Contract: HOA governing documents (CC&Rs, Bylaws, Rules) are legally treated as contracts.
  • A.R.S. § 12-548(A): Establishes the six-year limit for filing claims related to these contracts.
  • A.R.S. § 33-1213: Dictates the order of precedence for condominium documents (Declaration > Articles > Bylaws > Rules).

Study Guide: R.L. Whitmer vs. Hilton Casitas Council of Homeowners (Case No. 24F-H034-REL)

This study guide provides a comprehensive analysis of the legal dispute between R.L. Whitmer and the Hilton Casitas Council of Homeowners. It explores the central themes of homeowner association (HOA) governance, the hierarchy of governing documents, and the application of statutes of limitation in breach of contract disputes within a residential community.

Case Overview and Core Themes

The matter of R.L. Whitmer vs. Hilton Casitas Council of Homeowners originated from a dispute regarding the authority of the HOA's Board of Directors to adopt rules and regulations. The Petitioner, R.L. Whitmer, challenged rules adopted by the Board in August 2016, arguing they were created without proper contractual authority. The case highlights critical tensions between the rights of the "Council" (defined as all unit owners) and the powers of the "Board of Directors."

Central Legal Arguments
  1. Hierarchy of Documents: Under Arizona law (ARS 33-1213), the Declaration (CC&Rs) prevails if a conflict exists between it and other community documents, such as the Bylaws or Board rules.
  2. Ultra Vires Actions: The Petitioner argued that because Section 23.9 of the Declaration reserves rule-making authority for the "Council" (all 29 owners), the Board's 2016 actions were "ultra vires" (acting beyond its legal power) and therefore invalid.
  3. Harmonization Principle: The Respondent argued that governing documents must be read together and harmonized. They contended that Section 23.9 of the Declaration and Article 9, Section 2 of the Bylaws cover different subject matters—Council duties versus property operation—and thus do not conflict.
  4. Statute of Limitations: A primary defense used by the Respondent was that the six-year statute of limitations for breach of contract (ARS 12-548(A)) had expired, as the rules were adopted in 2016 and the petition was filed after August 2022.

Procedural Timeline

Date Event
August 19, 2016 The Hilton Casitas Board of Directors votes to adopt new Rules and Regulations.
August 30, 2023 A lower court of appeals decision provides a ruling on the definition of "Council," which the Petitioner claims tolls the statute of limitations.
April 22, 2024 Administrative Law Judge Amy M. Haley grants a continuance for the oral argument.
May 13, 2024 Oral arguments are held regarding the Petitioner’s Motion for Summary Judgment.
May 30, 2024 The Administrative Law Judge issues a decision denying the Petitioner’s motion and granting the Respondent’s Motion to Dismiss.

Short-Answer Practice Questions

1. According to the Petitioner, who constitutes the "Council" in the Hilton Casitas community? Answer: According to the Petitioner and the Declaration (Section 1.4), the Council is defined as all the owners of the Casitas.

2. What is the specific Arizona Revised Statute (ARS) governing the hierarchy of condominium documents? Answer: ARS 33-1213, which states that the Declaration prevails if a conflict exists with other condominium documents.

3. Why did the Respondent argue that there was no conflict between the Declaration and the Bylaws? Answer: The Respondent argued the two documents covered different subject matters: Section 23.9 of the Declaration concerns the Council's rights and duties, while Article 9, Section 2 of the Bylaws concerns the operation and use of property.

4. What was the ultimate reason the Administrative Law Judge dismissed the Petitioner's complaint? Answer: The complaint was dismissed because it was barred by the six-year statute of limitations for breach of contract, as the action occurred in 2016 and the claim was not asserted by August 19, 2022.

5. What is the legal requirement for amending the Declaration compared to the Bylaws at Hilton Casitas? Answer: Amending the Declaration requires the approval of 67% of unit owners, whereas the Bylaws can be amended with a simple majority (50% + 1).

6. What was the Petitioner's justification for requesting a civil penalty against the HOA? Answer: The Petitioner argued the Board was negligent in its duty by refusing to update documents despite multiple administrative law decisions against them.

Essay Prompts for Deeper Exploration

  1. The Principle of Harmonization vs. Document Hierarchy: Discuss the tension between the legal requirement to "harmonize" HOA documents and the statutory hierarchy that places the Declaration above the Bylaws. How did both parties in this case use these principles to support their conflicting interpretations of rule-making authority?
  2. The Impact of the Statute of Limitations on Governance: Evaluate the role of the statute of limitations (ARS 12-548(A)) in this case. Should homeowners be barred from challenging "ultra vires" Board actions if they do not act within six years, or does an invalid rule remain invalid regardless of when it is challenged? Support your argument using the details of the Judge's final decision.
  3. Contractual Authority in HOAs: Analyze the Petitioner’s argument that the Declaration is a contract. If the "Council" is defined as all owners, explore the practical and legal implications of requiring a full vote for every rule change versus delegating that power to a Board of Directors through Bylaws.

Glossary of Important Terms

  • Administrative Law Judge (ALJ): A judge who oversteps or presides over hearings and makes decisions for government agencies (in this case, the Office of Administrative Hearings).
  • Bylaws: The rules and regulations adopted by an organization for its internal governance and management.
  • CC&Rs (Covenants, Conditions, and Restrictions): Often referred to as the Declaration, these are the primary governing documents that run with the land and bind all property owners.
  • Council: As defined in the Hilton Casitas Declaration, the collective body of all 29 unit owners.
  • Harmonize: A legal principle requiring that different sections of a contract or governing documents be read together in a way that gives effect to all provisions rather than creating a conflict.
  • Motion for Summary Judgment: A request for the court to rule in favor of one party without a full trial, based on the argument that there are no disputed material facts.
  • Petitioner: The party who initiates a lawsuit or petition (R.L. Whitmer).
  • Respondent: The party against whom a petition is filed (Hilton Casitas Council of Homeowners).
  • Statute of Limitations: A law that sets the maximum time after an event within which legal proceedings may be initiated.
  • Ultra Vires: A Latin term meaning "beyond the powers"; refers to acts performed by a body (like an HOA board) that exceed the scope of their legal authority.

HOA Governance and the Clock: Lessons from Whitmer v. Hilton Casitas

1. Introduction: The Power Struggle in Modern Communities

The governance of common-interest communities rests upon a delicate contractual balance between the authority of the Board of Directors and the rights of individual homeowners. When a Board exercises power not granted by its founding documents, it commits an "ultra vires" act—acting beyond the scope of its legal authority. The case of R.L. Whitmer vs. Hilton Casitas Council of Homeowners (No. 24F-H034-REL) serves as a stark reminder that even potentially meritorious claims of ultra vires governance can be defeated by procedural lapses. At the heart of this dispute is a fundamental question of HOA law: Who holds the ultimate authority to dictate the rules of the community, and how long do owners have to challenge a perceived overreach?

2. The Petitioner’s Case: Declaration vs. Bylaws

The Petitioner, R.L. Whitmer, asserted that the Hilton Casitas Board of Directors acted ultra vires when it adopted new rules and regulations on August 19, 2016. Central to Whitmer’s argument was the definition of the "Council" found in Section 1.4 of the Declaration, which identifies the Council as the collective body of all 29 unit owners.

Whitmer argued a "Negative Implication" theory: because the Declaration explicitly reserved the right to adopt rules to the Council, it effectively excluded the Board from doing so. He relied on the hierarchy of documents established by ARS § 33-1213(C), which mandates that the Declaration prevails over the Bylaws in the event of a conflict.

Governing Provision Scope of Authority
Declaration Section 23.9 Reserves to the Council (all 29 owners) the right to adopt, amend, and cancel rules with respect to all aspects of the Council’s rights, activities, and duties.
Bylaws Article 9 Section 2 Purports to authorize the Board to adopt, amend, or repeal rules governing the details of the operation and use of the property.

Whitmer contended that the Board’s 2016 action was a contractual breach because the power utilized by the Board was a right specifically reserved for the 29-member Council.

3. The Association’s Defense: Harmonization and the Law of the Case

Representing the Respondent, Emily H. Mann argued that the Petitioner’s claim of conflict was legally flawed. The Association’s defense was built on the principle of "harmonization." Citing Mountain View Condominiums vs. Scott, the Respondent noted that governing documents must be "read together in relation to each other and harmonized if possible."

The Association argued the provisions governed distinct realms:

  • Council Rights: Section 23.9 of the Declaration governs the "rights, activities, and duties" of the collective owners.
  • Property Operations: Article 9 of the Bylaws governs the "operation and use of the property."

In this context, "Property" is a specifically defined term in the community’s documents, encompassing all casitas, buildings, and general common elements. By distinguishing between the Council’s high-level rights and the Board’s duty to manage physical improvements and buildings, the Association argued the documents functioned in tandem rather than in conflict.

4. The Deciding Factor: The Statute of Limitations

While the substantive debate regarding document hierarchy was significant, the tribunal’s decision ultimately rested on the statutory period of repose. The cause of action accrued upon the adoption of the rules in 2016, making the Petitioner’s 2024 filing untimely under Arizona’s contract law.

Under ARS § 12-548(A), a breach of contract claim must be initiated within six years of the alleged breach.

Critical Timelines in Whitmer v. Hilton Casitas August 19, 2016: The date the Board adopted the contested rules and regulations, triggering the accrual of the cause of action. August 19, 2022: The statutory deadline for filing a breach of contract claim under the six-year limitation period.

The Petitioner attempted to argue that the timeline should "toll" (pause) until August 30, 2023, based on the "discovery" of a legal theory in a separate court decision (LC 202200424). However, Administrative Law Judge Amy M. Haley adhered to the established date of the act. On May 30, 2024, Judge Haley issued her decision to deny the Petitioner’s Motion for Summary Judgment and grant the Association’s Motion to Dismiss, effectively ending the litigation.

5. Key Takeaways for Homeowners and Boards

The Whitmer decision provides critical insights for HOA governance and dispute resolution in Arizona:

  • The "Six-Year" Rule: Governing documents are contracts. Challenges to the validity of Board-enacted rules must be brought within six years of the act. Waiting for a "discovery" of a new legal interpretation—such as the one found in LC 202200424—will not generally reset the clock.
  • Document Hierarchy and Harmonization: While ARS § 33-1213(C) establishes the supremacy of the Declaration, courts will exert significant effort to "harmonize" seemingly conflicting provisions by narrowing their subject matter (e.g., Council rights vs. property maintenance).
  • Burden of Proof for Civil Penalties: Homeowners seeking civil penalties against a Board must prove by a preponderance of the evidence that the Board acted punitively or in bad faith. The Whitmer case reinforces that a mere disagreement over document interpretation does not automatically meet this high burden.
  • The Finality of Limitations: A statute of limitations serves to provide finality to community operations. Without it, Boards would be unable to rely on long-standing rules, as they would be subject to indefinite legal challenges.
6. Conclusion: The Final Verdict

Judge Amy M. Haley’s final order to deny the Motion for Summary Judgment and dismiss the complaint serves as a definitive ruling on the importance of legal timelines. The decision underscores that procedural adherence is often just as vital as substantive merit in administrative law.

For Association Boards, Whitmer v. Hilton Casitas highlights the necessity of periodically updating governing documents to resolve ambiguities regarding rule-making authority. For homeowners, the case serves as a clear warning: the moment a governance change is enacted, the clock begins to tick. Vigilance is required to ensure that challenges to potential ultra vires actions are filed before the statutory window for relief is permanently closed.

Case Participants

Petitioner Side

  • R.L. Whitmer (Petitioner)
    Representing himself

Respondent Side

  • Emily H. Mann (Attorney)
    Phillips, Maceyko & Battock, PLLC
    Counsel for Hilton Casitas Council of Homeowners

Neutral Parties

  • Amy M. Haley (Administrative Law Judge)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Senol Pekin v. Artesian Ranch Community Association

Posted on by

Case Summary

Case ID 23F-H037-REL
Agency —
Tribunal —
Decision Date 2023-04-10
Administrative Law Judge VMT
Outcome complete
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Senol Pekin Counsel Pro Se
Respondent Artesian Ranch Community Association Counsel Ashley N. Moscarello, Esq., Daniel S. Francom, Esq., Goodman Law Group

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

23F-H037-REL Decision – 1037672.pdf

Uploaded 2026-04-24T12:04:22 (49.3 KB)

23F-H037-REL Decision – 1041383.pdf

Uploaded 2026-04-24T12:04:28 (50.6 KB)

23F-H037-REL Decision – 1044671.pdf

Uploaded 2026-04-24T12:04:33 (166.9 KB)

23F-H037-REL Decision – 1044839.pdf

Uploaded 2026-04-24T12:04:38 (36.5 KB)

23F-H037-REL Decision – 1048179.pdf

Uploaded 2026-04-24T12:04:43 (105.1 KB)

23F-H037-REL Decision – 1054714.pdf

Uploaded 2026-04-24T12:04:47 (47.2 KB)

Briefing: Dispute and Resolution – Pekin vs. Artesian Ranch Community Association

Executive Summary

This briefing document summarizes the legal proceedings and administrative decisions regarding the dispute between Petitioner Senol Pekin and Respondent Artesian Ranch Community Association. The matter, involving consolidated dockets No. 23F-H034-REL and No. 23F-H037-REL, was heard before the Office of Administrative Hearings (OAH) on March 20, 2023, under the jurisdiction of Administrative Law Judge Velva Moses-Thompson.

The Petitioner alleged five distinct violations of the Association’s Bylaws and the Arizona Planned Communities Act (A.R.S. §§ 33-1801 to 33-1818). The Administrative Law Judge (ALJ) concluded that the Association violated its Bylaws by failing to hold its 2022 annual meeting on the prescribed date and violated state law by prohibiting members from recording open board sessions. Consequently, the Petitioner was deemed the prevailing party on these issues, and the Association was ordered to reimburse the $1,000 filing fee. Claims regarding the timing of organizational meetings, the authority of the HOA manager to schedule meetings, and the muting of members during Zoom calls were dismissed.

Detailed Analysis of Key Themes

1. Adherence to Governing Documents and Bylaws

A central theme of the dispute was the Association's failure to strictly follow its own Bylaws regarding meeting schedules.

  • Annual Meeting Requirement: Bylaws Article II, Section 2.3 requires the regular annual meeting to be held on the second Wednesday of April. In 2022, the Association held this meeting in May instead.
  • The "Technical Violation" Defense: The Association argued this was a "technical violation" with no harm to the Petitioner, citing A.R.S. § 10-3701(e). However, the ALJ ruled that while state statute may protect the validity of corporate actions taken during late meetings, it does not provide an exception for failing to adhere to the specific timing requirements set forth in the Bylaws.
2. Member Rights and Open Meeting Statutes

The case highlighted the tension between HOA management and member rights under A.R.S. § 33-1804.

  • Recording of Meetings: During an October 24, 2022, meeting, the Community Manager informed homeowners they could not record the session. The ALJ found this to be a direct violation of A.R.S. § 33-1804(A), which explicitly permits attendees to audiotape or videotape open portions of meetings.
  • Notice and Restrictions: The Association attempted to require advanced notice for recording, but the ALJ noted that the law prohibits boards from requiring such notice.
  • Participation and "Muting": The Petitioner alleged that the Association muted opposing viewpoints during Zoom meetings. The ALJ ruled in favor of the Association on this point, finding that the Petitioner was given several opportunities to speak and that the muting was a response to "generally aggressive" behavior rather than a systematic effort to silence dissent.
3. Governance and Administrative Authority

The proceedings clarified the roles of the Board versus the Community Manager (AAM, LLC).

  • Organizational Meetings: The Petitioner argued that officers must be elected in a separate, exclusively scheduled organizational meeting. The ALJ disagreed, noting that Bylaws do not require these meetings to be held separately from regular board meetings.
  • Managerial Agency: The Petitioner challenged the HOA Manager's authority to schedule board meetings. The ALJ ruled that a Community Manager, as an employee of the management firm (AAM, LLC), may act as an agent of the Board.
4. Evidentiary and Procedural Rulings
  • Subpoenas: The court managed multiple subpoenas for witnesses including Mandy Rogers, Susanne Roskens, and others. Notably, a subpoena for Dennis Berger was quashed, and the subpoena for Mandy Rogers was limited to her attendance, exempting her from producing documents.
  • Closure of Record: Following the March 20, 2023, hearing, the Petitioner attempted to file additional allegations and the Respondent filed a response. These were rejected by the ALJ as the record had officially closed at the conclusion of the hearing.

Important Quotes with Context

Quote Context
"Subsequent regular annual meetings shall be held on the second Wednesday of April of each year." Found in the Respondent’s Bylaws (Article II, Section 2.3), this served as the basis for the finding that the Association was in violation by holding its meeting in May.
"The board of directors of the association shall not require advance notice of the audiotaping or videotaping…" A critical excerpt from A.R.S. § 33-1804(A) used by the ALJ to determine that the Association's prohibition on recording was unlawful.
"The section does not provide an exception to the adherence to Bylaws that require a set time for an annual meeting." The ALJ’s rebuttal to the Association’s defense that their late annual meeting was merely a "technical violation."
"Ms. Rogers explained that she placed Petitioner on mute because he was generally aggressive." Testimony regarding the Association's conduct during the October 24, 2022, Zoom meeting, which the ALJ accepted as a reasonable management of the meeting.
"Petitioner be deemed the prevailing party regarding issues 1 and 4… Respondent pay Petitioner his filing fee of $1,000." The final order regarding the financial consequences of the Association's violations.

Actionable Insights

For Homeowners' Association Boards
  • Strict Bylaw Compliance: Boards must treat the specific dates and procedures outlined in their Bylaws as mandatory. "Technical violations" regarding meeting dates are still legally actionable and can result in the Association paying the Petitioner's filing fees.
  • Recording Policy Update: Associations should immediately cease any policy requiring advance notice for recording open meetings. While boards can adopt "reasonable rules" for recording, they cannot preclude the act of recording itself unless the Association provides its own unedited recording to members.
  • Managerial Conduct: Community managers should be trained to clearly distinguish between closed (executive) and open sessions when communicating rules about recording and participation to avoid inadvertently violating state statutes.
Regarding Dispute Resolution
  • Record Integrity: Once a hearing concludes, no further evidence or allegations can be introduced. Parties must ensure all relevant documentation and testimony are presented during the scheduled hearing.
  • Rehearing Procedures: If a party is dissatisfied with an ALJ decision, the request for a rehearing must be filed with the Commissioner of the Arizona Department of Real Estate (ADRE) within 30 days, as the Office of Administrative Hearings (OAH) loses jurisdiction once a decision is rendered.
  • Conflict of Interest in Meetings: As noted in internal Association communications, if a Board member has filed a petition against the Association, they may be required to recuse themselves or log off during executive sessions where their specific legal matter is being discussed with the Association's attorney.

Study Guide: Pekin v. Artesian Ranch Community Association

This study guide provides a comprehensive overview of the administrative legal proceedings between Senol Pekin (Petitioner) and the Artesian Ranch Community Association (Respondent). It covers the legal framework, procedural history, specific allegations, and final rulings issued by the Office of Administrative Hearings (OAH).

I. Case Overview and Legal Framework

Jurisdiction and Authority

The matter was adjudicated by the Arizona Office of Administrative Hearings (OAH) under the authority of the Arizona Department of Real Estate (ADRE).

  • Governing Law: The proceedings are governed by Title 33, Chapter 16 of the Arizona Revised Statutes, known as the Planned Communities Act (A.R.S. §§ 33-1801 to 33-1818).
  • Adjudicator: Administrative Law Judge (ALJ) Velva Moses-Thompson.
Case Identification
  • Petitioner: Senol Pekin.
  • Respondent: Artesian Ranch Community Association.
  • Docket Numbers: 23F-H034-REL and 23F-H037-REL (Consolidated).

II. Procedural History and Significant Events

Date Event Description
January 25, 2023 Notice of Hearing ADRE sets the initial hearing dates.
February 28, 2023 Consolidation Order The ALJ consolidates the two dockets and sets a single hearing for March 20, 2023.
February 28, 2023 Subpoena Issuance Subpoenas issued for Mandy Rogers, Susanne Roskens, Dennis Berger, Brock O’Neal, Julie Willoughby, Shelley Nelson, and Sherry Swanson.
March 13, 2023 Order on Subpoenas Dennis Berger's subpoena is quashed. Mandy Rogers' subpoena is limited to attendance (no document production). Other motions to quash are denied.
March 20, 2023 Administrative Hearing The hearing convenes at 9:00 AM.
March 28, 2023 Minute Entry The ALJ refuses to consider documents filed after March 20, 2023, as the record was closed.
April 10, 2023 Final Decision The ALJ issues the official Findings of Fact and Conclusions of Law.
May 8, 2023 Rehearing Request A request for rehearing is filed but forwarded to the ADRE as the OAH loses jurisdiction after a decision is rendered.

III. Summary of Allegations and Judgments

The Petitioner raised five specific issues regarding the Association's adherence to its Bylaws and Arizona law.

Issue 1: Annual Meeting Frequency
  • Allegation: The Association violated Bylaws Article II, Paragraph 2.3 by failing to hold its 2022 annual meeting on the second Wednesday of April.
  • Evidence: The Association held the meeting in May 2022 instead of April.
  • Ruling: Violation Found. While A.R.S. § 10-3701(e) protects the validity of corporate actions despite timing errors, it does not exempt the Association from adhering to its own Bylaws.
Issue 2: Organizational Meetings
  • Allegation: Officers were not elected in a timely or exclusively scheduled Organizational Meeting as required by Bylaws.
  • Evidence: The Board appointed officers during a regular board meeting in August 2022.
  • Ruling: No Violation. The Bylaws do not require the organizational meeting to be held separately from other board meetings.
Issue 3: Authority to Call Meetings
  • Allegation: A meeting on September 22, 2022, was organized by the HOA Manager, who Petitioner argued lacked the authority to call meetings.
  • Evidence: Board President Susanne Roskens requested Mandy Rogers (Community Manager) to organize the meeting to address a landscaping issue.
  • Ruling: No Violation. The Community Manager acts as an agent of the Board.
Issue 4: Recording Open Sessions
  • Allegation: The Association violated A.R.S. § 33-1804(A) by prohibiting the recording of the open session on October 24, 2022.
  • Evidence: Mandy Rogers informed homeowners they could not record without clarifying that the rule only applied to closed sessions and stated that the Board required advanced notice.
  • Ruling: Violation Found. State law explicitly allows audio and video recording of open meetings and forbids the Board from requiring advance notice.
Issue 5: Participant Participation (Muting)
  • Allegation: The Association muted opposing sides during a Zoom meeting on October 24, 2022, preventing them from speaking.
  • Evidence: The Petitioner was muted due to "aggressive" behavior, but evidence showed he still had multiple opportunities to speak.
  • Ruling: No Violation. Boards may place reasonable time and conduct restrictions on speakers.

IV. Short-Answer Practice Questions

  1. What is the "Preponderance of the Evidence" standard?
  • Answer: It is a standard of proof where the evidence must show that a contention is "more probably true than not," or has the "most convincing force."
  1. Which party bears the burden of proof in an OAH hearing regarding a planned community dispute?
  • Answer: The Petitioner (Senol Pekin) bears the burden of proof to establish violations.
  1. Why did the ALJ refuse to consider the documents filed on March 27 and March 28, 2023?
  • Answer: The evidentiary record was closed on the day of the hearing, March 20, 2023.
  1. According to A.R.S. § 33-1804, what are the rules regarding advanced notice for recording a meeting?
  • Answer: The board of directors shall not require advance notice of audiotaping or videotaping of open portions of meetings.
  1. What was the financial penalty imposed on the Respondent for the violations found?
  • Answer: The Association was ordered to pay the Petitioner's $1,000 filing fee. No other civil penalty was deemed appropriate.

V. Essay Prompts for Deeper Exploration

  1. The Intersection of Corporate Validity and Bylaw Adherence: Analyze the ALJ's reasoning in Issue 1. How does the decision balance A.R.S. § 10-3701(e) (which validates corporate actions despite timing errors) with the mandatory nature of Association Bylaws?
  2. Agency and Authority in HOA Management: Discuss the ruling on Issue 3 regarding the Community Manager's role. To what extent can a third-party management firm (like AAM, LLC) exercise the powers of the Board of Directors?
  3. Open Meeting Rights vs. Orderly Conduct: Using Issue 5 as a reference, explore the legal limits of a Board's power to "mute" or restrict participants in a digital meeting format. Where is the line between "reasonable time restrictions" and the suppression of "opposing sides"?

VI. Glossary of Important Terms

  • Administrative Law Judge (ALJ): An official who presides over an administrative hearing and serves as the trier of fact and law.
  • A.R.S. § 33-1804: The specific Arizona statute governing open meetings, the right to speak, and the right to record meetings within planned communities.
  • CAAM: Certified Arizona Association Manager (referencing the title of Mandy Rogers).
  • Consolidation: The legal process of joining two or more separate cases (dockets) into one when they involve common questions of law or fact.
  • Organizational Meeting: A meeting held within a reasonable time after directors take office to elect officers (e.g., President, Secretary).
  • Planned Communities Act: The section of Arizona law (Title 33, Chapter 16) that regulates the formation and management of HOAs.
  • Quash: A legal term meaning to nullify or void, specifically used here regarding a subpoena for Dennis Berger.
  • Respondent: The party against whom a petition is filed (in this case, the Artesian Ranch Community Association).

HOA Accountability in Action: Key Lessons from the Pekin vs. Artesian Ranch Ruling

In the complex ecosystem of Arizona planned communities, the relationship between homeowners and their Board of Directors often fractures when governance becomes opaque or rules are applied inconsistently. While many disputes are settled through internal grievance processes, some reach a boiling point where legal intervention is the only path to clarity.

The case of Senol Pekin vs. Artesian Ranch Community Association (No. 23F-H034-REL) stands as a significant real-world example of a homeowner successfully seeking recourse through the Arizona Office of Administrative Hearings (OAH). This ruling stands as a cautionary tale for Boards who treat Bylaws as optional and a roadmap for homeowners seeking to enforce statutory transparency.

The Core Allegations: A Five-Point Dispute

The Petitioner’s challenge centered on five specific allegations, asserting that the Association repeatedly failed to adhere to its own governing documents and Arizona law. According to the Findings of Fact, the dispute involved:

  • Failure to Hold Annual Meetings: Violation of Bylaws Article II, Paragraph 2.3 by failing to hold the 2022 annual meeting on the required date.
  • Improper Election Procedures: Failure to elect officers during an exclusively and timely scheduled Organizational Meeting.
  • Unauthorized Meeting Organization: Alleging a September 2022 board meeting was invalid because it was organized by the Community Manager rather than the Board.
  • Prohibition of Recording: Violation of A.R.S. § 33-1804 by prohibiting a member from recording an open session on October 24, 2022.
  • Muting of Participants: Alleging that muting the Petitioner during a Zoom-based meeting prevented "the opposing side" from being heard, in violation of state law.

Victory for Transparency: The Ruling on Recording and Bylaws

The Administrative Law Judge (ALJ) ruled in favor of the Petitioner on two critical issues, delivering a stern reminder that internal governing documents carry the weight of law.

Annual Meeting Violations

The Association’s Bylaws (Article II, Paragraph 2.3) explicitly mandate that regular annual meetings be held on the second Wednesday of April. In 2022, the Association unilaterally moved this meeting to May. The Association defended this as a "technical violation" that resulted in no harm, citing A.R.S. § 10-3701(e).

However, the ALJ rejected this defense with a nuance every Board must understand: while A.R.S. § 10-3701(e) protects the validity of corporate actions taken despite timing errors, it does not provide immunity from suit or an exception for associations to ignore their own Bylaws. Adherence to mandated timeframes is a requirement, not a suggestion.

The Right to Record

The most significant win for transparency involved the Board’s attempt to restrict meeting recordings.

STATUTORY PROTECTIONS: A.R.S. § 33-1804 Arizona law is clear: persons attending open board meetings may audiotape or videotape the proceedings. The Board of Directors cannot require advance notice for recording and cannot preclude it unless the Board itself provides its own unedited recordings to members upon request. Rules may be adopted to govern recording, but they cannot be used to effectively prohibit the practice.

The ALJ found the Association in direct violation after the Community Manager informed homeowners they could not record and falsely claimed the Board required advance notice.

Financial and Reputational Outcome

While the ALJ determined a civil penalty was not warranted, the Association was ordered to reimburse the Petitioner’s $1,000 filing fee. Beyond the dollar amount, the reputational cost of being declared the non-compliant party in a public ruling is a heavy burden for any Board.

The Limits of Claims: Where the Association Prevailed

The ruling also clarified the boundaries of Board authority, finding in favor of the Association on three counts:

  1. Organizational Meetings: The ALJ ruled that Bylaws do not require "organizational meetings" (where officers are elected) to be a standalone event; they may occur within the context of a regular board meeting.
  2. Management Agency: The Petitioner’s claim that a meeting was invalid because the HOA Manager organized it was dismissed. The evidence showed Board President Susanne Roskens specifically requested Manager Mandy Rogers (of AAM, LLC) to schedule the meeting to address urgent landscaping issues. The ALJ affirmed that management companies act as authorized agents of the Board.
  3. The "Muting" Threshold: Under A.R.S. § 33-1804, a Board must allow a "reasonable number of persons to speak on each side." While the Petitioner was muted during a Zoom session due to "aggressive behavior," the ALJ found no violation because the evidence showed Pekin still had several other opportunities to speak. Muting is not an automatic violation if the "opposing side" is still given a reasonable chance to be heard.

Procedural Reality Check: The Life Cycle of an HOA Dispute

This case illustrates the complex procedural hurdles involved in OAH litigation. For homeowners and boards alike, the timeline is everything:

  • February 28, 2023: The ALJ consolidated two separate dockets (23F-H034-REL and 23F-H037-REL) to streamline the hearing.
  • March 13, 2023: A significant discovery ruling occurred. The ALJ quashed the subpoena for Dennis Berger but maintained subpoenas for Susanne Roskens, Brock O’Neal, and others, demonstrating the limits of who can be compelled to testify.
  • March 20, 2023: The official Record Closing date. This is the "point of no return" for evidence.
  • March 27 & 28, 2023: The Petitioner attempted to file additional allegations and evidence. The ALJ issued a Minute Entry refusing to consider these filings, as they were submitted after the record had closed.
  • Post-Decision: After the final order in April, the Petitioner sought a rehearing. The OAH issued a Minute Entry stating it lost jurisdiction the moment the decision was rendered. Any further requests for rehearing must be directed to the Arizona Department of Real Estate (ADRE).

Essential Takeaways for Homeowners and Boards

  1. Bylaws are Not Suggestions: Even "technical" timing shifts regarding annual meetings are actionable violations. Boards cannot use A.R.S. § 10-3701(e) as a shield to ignore their own governing documents.
  2. Recording is a Statutory Right: Boards cannot impose arbitrary hurdles, such as mandatory advance notice, on members wishing to record open meetings. Transparency is a protected right under A.R.S. § 33-1804.
  3. The Record is Final: In an administrative hearing, the window for evidence is narrow. As seen with the rejected March 27/28 filings, late submissions—no matter how relevant they seem—will be ignored once the record is closed.

Conclusion: Seeking Harmony Through Compliance

The Pekin vs. Artesian Ranch ruling serves as a vital reminder: transparency is not just a best practice; in Arizona, it is a legal mandate. While the Association prevailed on internal management issues, their failure to respect recording rights and bylaw-mandated schedules resulted in a $1,000 reimbursement order and a public record of non-compliance. To maintain community harmony and avoid the costs of litigation, both homeowners and board members must anchor their actions in a strict reading of A.R.S. § 33-1804.

Case Participants

Petitioner Side

  • Senol Pekin (Petitioner)
    Testified on his own behalf
  • Julie Willoughby (Witness)
    Testified for Petitioner; also spelled Julie Willowby in hearing decision
  • Shelley Nelson (Witness)
    Testified for Petitioner; also spelled Shelly Nelson in hearing decision
  • Sherry Swanson (Witness)
    Testified for Petitioner

Respondent Side

  • Ashley N. Moscarello (Attorney)
    Goodman Law Group
    Appeared on behalf of Respondent Artesian Ranch Community Association
  • Daniel S. Francom (Attorney)
    Goodman Law Group
    Listed in service records for Respondent
  • Susanne Easterday Roskens (Director of Board / Witness)
    Artesian Ranch Community Association
    Testified for Respondent; Board President
  • Mandy Rogers (Community Manager Employee / Witness)
    AAM, LLC
    Employee of Respondent's Community Manager; organized meetings and testified

Neutral Parties

  • Velva Moses-Thompson (Administrative Law Judge)
    Office of Administrative Hearings
    Assigned judge who issued the decision and orders
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Received administrative copies of orders and decisions

Other Participants

  • Dennis Berger (Subpoenaed Individual)
    Subpoena was quashed
  • Brock O'Neal (Subpoenaed Individual)
    Motion to quash his subpoena was denied

Senol Pekin v. Artesian Ranch Community Association (ROOT)

Posted on by

Case Summary

Case ID 23F-H034-REL
Agency Arizona Department of Real Estate
Tribunal Arizona Office of Administrative Hearings
Decision Date 2023-04-10
Administrative Law Judge VMT
Outcome —
Filing Fees Refunded —
Civil Penalties $0.00

Parties & Counsel

Petitioner Senol Pekin Counsel Pro Se
Respondent Artesian Ranch Community Association Counsel Ashley Moscarello, Esq.

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

23F-H034-REL Decision – 1044665.pdf

Uploaded 2026-04-28T11:14:03 (166.9 KB)

23F-H034-REL Decision – 1048179.pdf

Uploaded 2026-04-28T11:14:24 (106.9 KB)

Briefing Document: Pekin vs. Artesian Ranch Community Association (Consolidated Matters 23F-H034-REL and 23F-H037-REL)

Executive Summary

This briefing document synthesizes the testimony, evidentiary records, and final judicial decision regarding the consolidated legal matters between Petitioner Senol Pekin and Respondent Artesian Ranch Community Association. The dispute centers on allegations of governance failures, bylaw violations, and the infringement of member rights by the Association and its management firm, Associated Asset Management (AAM).

Following a hearing on March 20, 2023, Administrative Law Judge (ALJ) Velva Moses-Thompson issued a decision on April 10, 2023. The ALJ found that the Association committed two specific violations: failing to hold its annual meeting in accordance with its bylaws and unlawfully prohibiting the recording of an open board meeting. While several other allegations regarding meeting organization and the muting of board members were dismissed, the Respondent was ordered to reimburse the Petitioner’s $1,000 filing fee for the established violations.

Key Case Entities and Witnesses

Entity/Individual Role Description
Senol Pekin Petitioner A homeowner and elected board member who filed the petitions.
Artesian Ranch Community Association Respondent The homeowners' association governing the community.
AAM, LLC Management Agent Associated Asset Management; provides portfolio management for the Association.
Mandy Rogers Witness Community Manager at AAM; manages 10 communities including Artesian Ranch.
Susanne Easterday Roskens Witness Board President of the Association.
Velva Moses-Thompson Presiding ALJ Administrative Law Judge who rendered the final decision.

Detailed Analysis of Key Themes

1. Bylaw Adherence vs. Operational Cadence

A central conflict in the testimony was the discrepancy between the Association's written bylaws and its actual practices. Article II, Section 2.3 of the Bylaws explicitly requires subsequent regular annual meetings to be held on the second Wednesday of April each year.

  • Evidence of Violation: The 2022 annual meeting was held in May.
  • Management Defense: Mandy Rogers testified that the meeting date was set based on a "cadence" established by previous management and board decisions influenced by COVID-19 delays. She argued that the provision requiring an April election for a January 1st term commencement was "unheard of" and that she had never seen such a requirement in her 17 years of experience.
  • Judicial Ruling: The ALJ rejected the Association’s defense that this was a "technical violation" with no harm. The ruling stated that A.R.S. § 10-3701(e) does not provide an exception for adhering to bylaws that require a set time for an annual meeting.
2. The Scope of Management Authority

Petitioner Pekin argued that the HOA Manager overstepped her authority by scheduling a board meeting on September 22, 2022, asserting that only board members possess such power under the bylaws.

  • Conflict of Testimony: Pekin claimed he never authorized the meeting. Conversely, Susanne Roskens testified that she requested the meeting via a phone call with Mandy Rogers to resolve a time-sensitive landscaping issue regarding "overseeding" that required a prompt decision.
  • Judicial Ruling: The ALJ ruled in favor of the Association on this issue, noting that Rogers, as an employee of the Community Manager, may act as an agent of the Board.
3. Transparency and Statutory Recording Rights

The October 24, 2022, board meeting featured a directive from management prohibiting attendees from recording the session.

  • Statutory Context: A.R.S. § 33-1804(A) explicitly permits persons attending open board meetings to audiotape or videotape the proceedings. It forbids the board from requiring advance notice for such recording.
  • Management Justification: Rogers claimed the prohibition was based on advice from the Association’s attorney to protect the privacy of executive session items being discussed in an open forum.
  • Judicial Ruling: The ALJ found this to be a clear violation of state law, confirming that the Association cannot preclude members from recording open portions of meetings.
4. Digital Governance and Board Member Participation

The Petitioner alleged he was silenced during Zoom meetings through the "mute" function, preventing him from voicing opposition to financial decisions, specifically regarding a $60,000 tree trimming budget.

  • The "Combative" Label: Rogers testified that the mute function was used because Pekin was "combative," "aggressive," and brought up "executive session material in an open session."
  • Witness Observations: Witness Shelly Nelson testified that Pekin was muted several times and that the tone of the meeting felt "antagonistic" and "not friendly."
  • Judicial Ruling: Despite the muting, the ALJ found that Pekin failed to prove he was not allowed to speak. The evidence showed he had several opportunities to speak during the meeting and even suggested follow-up discussions on agenda items.

Important Quotes with Context

"Your annual meeting for the past 3 years was on the wrong date per the bylaw. That's my answer." — Mandy Rogers, Community Manager Context: This admission followed a line of questioning by Pekin regarding the consistent failure to hold April meetings as mandated by the governing documents.

"I have never seen governing documents that call that out ever. Nor has anybody in my company or at the attorney's firm… it's unheard of." — Mandy Rogers, Community Manager Context: Rogers was defending the decision to ignore the bylaw requiring a January 1st start date for directors elected in April, arguing the document was an anomaly she was not initially aware of.

"By muting me they are inhibiting my effective participation functioning in the board… I am representing [homeowners] who have been severely molested by the mosquitoes in our community." — Senol Pekin, Petitioner Context: Pekin explaining his frustration during closing arguments, linking the procedural silencing to his inability to address urgent health and safety issues like vector control.

"The board shall provide for a reasonable number of persons to speak on each side of an issue. Persons attending may audiotape or videotape those portions of the meetings… the board… shall not require advance notice." — ALJ Velva Moses-Thompson (citing A.R.S. § 33-1804) Context: The legal foundation for the ruling that the Association violated statutory member rights by banning recording.

Actionable Insights

For Homeowners' Associations
  • Strict Bylaw Compliance: Technical violations regarding meeting dates are not excused by "practicality" or "unprecedented issues" like COVID-19. Associations must formally amend bylaws if the mandated timelines are no longer feasible.
  • Adherence to A.R.S. § 33-1804: Boards cannot prohibit the recording of open meetings or require prior notice. Any such rule is a violation of Arizona law.
  • Management as Agent: Management firms may lawfully organize meetings at the verbal or written direction of the Board President or a majority of the board, provided they act as authorized agents.
For Board Members and Management
  • Documentation of Directives: To avoid disputes over who "called" a meeting, board presidents should provide written confirmation of their request to management.
  • Judicious Use of Muting: While managing "combative" members is a legitimate function of meeting moderation, it must be balanced against the statutory right of members to speak at appropriate times during deliberations.
  • Director Training Requirements: Per Bylaws Section 3.1A, all directors should complete training before commencing service. The evidence indicated that failure to synchronize training with election dates can lead to delays in organizational meetings.

Final Judicial Disposition

Issue Finding Ruling
1. Annual Meeting Date Violated Bylaw 2.3 Prevailing Party: Petitioner
2. Organizational Meeting Bylaws do not require separate meeting Prevailing Party: Respondent
3. Authority to Call Meeting Manager acted as agent of the Board Prevailing Party: Respondent
4. Prohibition of Recording Violated A.R.S. § 33-1804 Prevailing Party: Petitioner
5. Muting/Opposing Views Petitioner had opportunities to speak Prevailing Party: Respondent

Remedy: Respondent ordered to pay Petitioner $1,000 (filing fee reimbursement). Civil penalties were deemed inappropriate.

Artesian Ranch Community Association vs. Senol Pekin: A Study Guide on HOA Governance and Legal Disputes

This study guide provides a comprehensive overview of the consolidated legal matters (23F-H034-REL and 23F-H037-REL) involving the Artesian Ranch Community Association and Petitioner Senol Pekin. It explores key concepts of HOA governance, the interpretation of bylaws versus state statutes, and the final rulings of the Administrative Law Judge (ALJ).

1. Core Themes and Key Concepts

Governing Documents and Statutes

The case centers on the hierarchy and interpretation of specific legal documents:

  • HOA Bylaws: Specifically Article II (Annual Meetings), Article III (Organizational Meetings), and Article IV (Officers).
  • A.R.S. § 33-1804 (Arizona Revised Statutes): Part of the Planned Communities Act, which mandates that meetings must be open to all members and allows for the recording of such meetings.
  • A.R.S. § 10-3701(e): A provision of the Nonprofit Corporation Act regarding the validity of corporate actions even if an annual meeting is delayed.
Types of Meetings and Requirements
  • Annual Meeting: Per Bylaw 2.3, this must be held on the second Wednesday of April each year.
  • Organizational Meeting: Per Bylaw 3.7, this must be held within a "reasonable time" after new directors take office to elect officers.
  • Open Session vs. Executive Session: Open sessions allow homeowners to observe and speak; executive sessions are closed for sensitive matters (e.g., legal advice, personnel issues).
Roles and Authority
  • The Board of Directors: Responsible for the affairs of the association. Actions generally require a quorum (a majority of directors).
  • The Community Manager (AAM, LLC): Acts as an agent for the Board. The manager (Mandy Rogers) handles day-to-day operations, including noticing meetings and drafting budgets.
  • Officer Duties: The Secretary/Treasurer (a role assigned to Senol Pekin in 2022) is responsible for minutes and overseeing budget preparation, though the management agent often performs the actual drafting.

2. Summary of Legal Issues and Final Rulings

The following table outlines the five specific issues adjudicated by Administrative Law Judge Velva Moses-Thompson on April 10, 2023.

Issue Number Allegation Final Ruling
1 Violation of Bylaw 2.3 for not holding the 2022 Annual Meeting in April. Violation Found. Respondent failed to follow the specific date required by Bylaws.
2 Failure to hold an "exclusive and timely" Organizational Meeting. No Violation. Bylaws do not require the meeting to be exclusive from other board business.
3 Unauthorized calling of a Board Meeting (Sept 22, 2022) by the HOA Manager. No Violation. The meeting was requested by the Board President; the manager acted as an agent.
4 Violation of A.R.S. § 33-1804(A) by prohibiting the recording of an open session. Violation Found. Statute explicitly prohibits requiring advance notice for recording.
5 Violation of A.R.S. § 33-1804 by muting the Petitioner during a Zoom meeting. No Violation. Evidence showed Petitioner had opportunities to speak; muting was deemed a management tool for conduct.

3. Short-Answer Practice Questions

Q1: According to the Artesian Ranch Bylaws, specifically Section 2.3, when exactly must the regular annual meeting take place?

  • Answer: The second Wednesday of April each year.

Q2: What is the significance of A.R.S. § 33-1804 regarding the recording of board meetings?

  • Answer: It states that persons attending may audiotape or videotape open portions of meetings and that the board shall not require advance notice for such recording.

Q3: Why did the Association claim the 2021 and 2022 meetings were held outside of the required April timeframe?

  • Answer: The Association argued that COVID-19 pushed the calendar off course, leading to an August meeting in 2021 and a May meeting in 2022.

Q4: How does the Administrative Law Judge define a "preponderance of the evidence"?

  • Answer: Proof that convinces the trier of fact that a contention is "more probably true than not," or the "greater weight of the evidence."

Q5: What was the Board’s justification for muting Senol Pekin during the October 24, 2022, Zoom meeting?

  • Answer: The Community Manager testified that he was being combative/aggressive and was attempting to bring up closed Executive Session items during an Open Session.

4. Essay Prompts for Deeper Exploration

  1. The Conflict Between Bylaws and State Statutes: Analyze the ALJ's decision regarding Issue 1 and Issue 4. In Issue 1, the Association argued that a state statute (A.R.S. § 10-3701(e)) excused their failure to follow their own bylaws. In Issue 4, the state statute overrode the Association's internal rules about recording. Discuss the hierarchy of authority in HOA governance based on these rulings.
  2. The Role of Professional Management: Evaluate the testimony of Mandy Rogers (AAM, LLC). To what extent does a management company act as a neutral administrator versus a decision-making entity? Reference the dispute over who "called" the September 2022 meeting in your answer.
  3. Defining "Reasonable Time" and "Organizational Meeting": The Petitioner argued that an organizational meeting should be a standalone event held immediately after directors take office on January 1st. The Board argued that holding it during the first scheduled meeting in August was "reasonable." Critique these opposing views using the Source Context.
  4. Due Process in Virtual Meetings: Discuss the challenges of maintaining a "parliamentary process" in digital formats (e.g., Zoom). How did the ability to "mute" participants impact the legal determination of whether the Petitioner was allowed to voice an opposing side?

5. Glossary of Important Terms

  • A.R.S. § 33-1804: The Arizona statute governing open meetings for homeowners' associations in planned communities.
  • Adjudicated: To make a formal judgment or decision about a problem or disputed matter.
  • Agent: A person or entity (like AAM, LLC) authorized to act on behalf of another (the Board).
  • Combative: A term used by the Respondent to describe the Petitioner's behavior, defined in testimony as being argumentative or conflict-oriented.
  • Consolidated Matter: When multiple separate legal petitions (in this case, two filed by the same Petitioner) are joined into a single hearing.
  • Executive Session: A portion of a board meeting closed to homeowners, restricted to specific topics like legal advice, pending litigation, or personal/financial info of members.
  • Notwithstanding: A legal term meaning "in spite of" or "regardless of." Used in A.R.S. § 33-1804 to show that state law overrides any contrary HOA bylaws.
  • Organizational Meeting: A meeting specifically intended for the board to elect officers (President, Secretary, etc.) among themselves.
  • Prevailing Party: The participant in a lawsuit or hearing who wins on the specific issues presented.
  • Quorum: The minimum number of members (usually a majority) of an assembly that must be present to make the proceedings of that meeting valid.
  • Ultra Vires: A legal term (alluded to by the Petitioner) meaning "beyond the powers." It refers to an act which requires legal authority but is done without it.

HOA Law in Action: Lessons from the Artesian Ranch Legal Battle

In a legal landscape where "technical violations" are often dismissed by boards as trivial inconveniences, the recent ruling in the Artesian Ranch legal battle serves as a $1,000 reminder that governing documents are not mere suggestions. The consolidated cases of Senol Pekin v. Artesian Ranch Community Association (Nos. 23F-H034-REL and 23F-H037-REL) offer a masterclass in the friction between homeowner rights and board authority.

Adjudicated by the Arizona Office of Administrative Hearings (OAH) on behalf of the Arizona Department of Real Estate, this dispute underscores a critical reality for community leaders: administrative oversight exists to ensure that the "business" of an HOA is conducted with the transparency and procedural integrity required by law. For homeowners and board members alike, the findings regarding meeting conduct, the right to record, and strict bylaw adherence provide a definitive roadmap for modern HOA governance.

The Five Charges: A Summary of the Dispute

The litigation involved five specific charges brought by Petitioner Senol Pekin against the Association. The proceedings featured testimony from Mr. Pekin, Board President Susanne Roskens, and Community Manager Mandy Rogers of AAM, LLC.

Petitioner’s Allegations vs. Legal Basis
Allegation Specific Bylaw or Arizona Revised Statute (A.R.S.)
1. Annual Meeting Timing: Failure to hold the 2022 Annual Meeting on the date required by the governing documents. Bylaws Art. II, § 2.3
2. Organizational Meeting: Failure to elect officers in an exclusively scheduled and timely manner. Bylaws Art. III, § 3.5 & 3.7; Art. IV, § 4.2
3. Unauthorized Meeting Call: A September 2022 meeting called by the Manager without Board authority. Bylaws Art. III, § B; Art. IV, § 6.7(b); Agency Law
4. Recording Prohibition: Prohibiting residents from recording the open session of the October 2022 meeting. A.R.S. § 33-1804
5. Unfair Muting: Silencing the Petitioner during a Zoom meeting, preventing the "opposing side" from being heard. A.R.S. § 33-1804

Victory for Transparency: The Right to Record

A primary flashpoint of the dispute occurred during the October 24, 2022, board meeting. Testimony revealed that Mandy Rogers, acting for the Association, prohibited residents from recording the session. The Association argued that they required advance notice for recording and cited concerns regarding privacy.

Administrative Law Judge (ALJ) Velva Moses-Thompson found this to be a clear violation of A.R.S. § 33-1804. The statute is unambiguous: homeowners have a statutory right to record any portion of a meeting that is open to the membership. Boards cannot use "privacy concerns" or "proprietary technology" as a pretext to bypass the Arizona Planned Communities Act.

Pro-Tips for Homeowners and Boards:

  • No Advance Notice Needed: Associations are legally barred from requiring homeowners to provide notice before recording an open session.
  • Open vs. Closed: Recording rights apply strictly to open sessions. Boards maintain the right to prohibit recording during executive (closed) sessions where sensitive legal or personnel matters are discussed.
  • Rule Limitations: While boards may adopt "reasonable rules" for recording (such as tripod placement), they cannot preclude it unless the board provides its own unedited recording to members upon request.

The Letter of the Law: Why Meeting Dates Matter

The dispute over the 2022 Annual Meeting date highlights a common pitfall for HOAs: the "lack of harm" defense. The Artesian Ranch Bylaws require the annual meeting to be held on the second Wednesday of April; however, the Association held it in May.

The Association’s defense—that the violation was "technical," driven by a schedule push from the COVID-19 pandemic, and resulted in no harm—was flatly rejected. While A.R.S. § 10-3701(e) ensures that corporate actions remain valid even if a meeting is late, the ALJ clarified that this statute does not grant boards a "free pass" to ignore specific timing requirements.

The Expert Insight: Compliance is not optional based on the perceived scale of the error. When governing documents dictate a date, the board is legally bound to it. Deviating because of "convenience" or "past practice" invites litigation and erodes the community's trust in the rule of law.

Where the Board Prevailed: Authority and "Combative" Conduct

The Association was deemed the prevailing party on Issues 2, 3, and 5, largely due to the Petitioner’s failure to meet the burden of proof.

The Meeting Call and the Agency Lesson

The Petitioner argued that Mandy Rogers (AAM) called the September 22 meeting without authority. However, the court found the call legitimate because the manager acted as an agent for Board President Susanne Roskens. For boards, the lesson is clear: a manager can legally call a meeting on the President’s behalf, but the agency relationship must be clear. Documentation of such authorizations is the ultimate shield against claims of "ultra vires" (unauthorized) actions.

The "Mute Button" and the Human Cost

The debate over Zoom conduct provided a window into the breakdown of community trust. Manager Mandy Rogers defended the use of the mute button by stating:

"Mute is an option that is utilized when we have combative board members and members of the association in attendance."

While the ALJ found that the Petitioner failed to prove he was silenced unfairly—noting he had multiple opportunities to speak—the testimony of witness Shelly Nelson provided a sobering contrast. Nelson described the muting as "antagonistic," noting it felt particularly egregious when the board prioritized "aesthetics" (overseeding) while residents were trying to address "health and safety" (a mosquito and dry well crisis). This illustrates that even when a board’s use of technology is legally defensible, its use to stifle dissent can make a community feel silenced.

Bylaw Ambiguity

Regarding Issue 2, the Respondent’s counsel argued that the Petitioner's interpretation of a January 1st start date for directors failed the "common sense test." These bylaws, drafted by a developer who later went bankrupt, were poorly constructed. The takeaway for boards is that when governing documents are ambiguous or outdated, legal interpretation should be sought before a dispute arises, rather than as a defense during a hearing.

The Final Verdict: Financial and Governance Outcomes

ALJ Velva Moses-Thompson issued a balanced final order:

  • Petitioner Prevails: On Issue 1 (Annual Meeting timing) and Issue 4 (Recording rights).
  • Respondent Prevails: On Issue 2 (Organizational meetings), Issue 3 (Meeting calls), and Issue 5 (Muting/Conduct).
  • Financial Reimbursement: The Association was ordered to reimburse the Petitioner $1,000 for his filing fees.
  • No Civil Penalty: The Judge determined that an additional civil penalty was not appropriate, as the reimbursement of fees served as a sufficient remedy.

Conclusion: Three Pillars of Better HOA Governance

The Artesian Ranch case provides a definitive set of guidelines for associations moving forward:

  1. Bylaws are Not Suggestions: Procedural rules regarding timing and elections must be followed strictly. A "technical violation" is a legal liability, regardless of whether a homeowner can prove "harm."
  2. Technology as a Tool, Not a Shield: Zoom features like the "mute" button should facilitate order, not serve as a weapon to shut down unpopular dialogue. Prioritizing aesthetics over safety concerns in a public forum is a recipe for toxic community relations.
  3. Transparency is a Statutory Right: The right to record is a cornerstone of Arizona law. Managers and boards must be educated on A.R.S. § 33-1804 to ensure they do not inadvertently infringe upon homeowner rights.

Boards and residents are encouraged to review their own governing documents and meeting protocols immediately to ensure alignment with Arizona law and prevent similar, costly litigation.

Case Participants

Petitioner Side

  • Senol Pekin (Petitioner)
    Appeared on behalf of himself
  • Shelley Nelson (Witness)
    Resident, testified on behalf of Petitioner
  • Sherry Swanson (Witness)
    Homeowner, testified on behalf of Petitioner
  • Julie Willowby (Witness)
    Testified on behalf of Petitioner

Respondent Side

  • Ashley N. Moscarello (Attorney)
    goodlaw.legal
    Appeared on behalf of Respondent Artesian Ranch Community Association
  • Mandy Rogers (Witness / Community Manager)
    AAM, LLC
    Employee of Respondent's Community Manager
  • Susanne Easterday Roskens (Witness / Board Director)
    Artesian Ranch Community Association
    Board President
  • Dennis Berger (Board Director)
    Artesian Ranch Community Association

Neutral Parties

  • Velva Moses-Thompson (Administrative Law Judge)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Emery Herbert v. Lakebrook Villas II Homeowners Association INC

Posted on by

Case Summary

Case ID 22F-H2222047-REL
Agency —
Tribunal —
Decision Date 2022-08-18
Administrative Law Judge —
Outcome Dismissed
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Emery Herbert Counsel Pro Se
Respondent Lakebrook Villas II Homeowners Association Inc. Counsel Maria G. McKee and Josh Bolen (Carpenter Hazelwood Delgado & Bolen LLP)

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

22F-H2222047-REL Decision – 979855.pdf

Uploaded 2026-04-24T11:52:17 (46.3 KB)

22F-H2222047-REL Decision – 981946.pdf

Uploaded 2026-04-24T11:52:23 (49.0 KB)

22F-H2222047-REL Decision – 993566.pdf

Uploaded 2026-04-24T11:52:27 (207.3 KB)

Briefing Document: Herbert v. Lakebrook Villas II Homeowners Association

Executive Summary

This briefing document analyzes the consolidated administrative cases (No. 22F-H2222047-REL and No. 22F-H2222052-REL) heard on July 11, 2022, before the Arizona Office of Administrative Hearings. The dispute involved Emery Herbert (Petitioner) and the Lakebrook Villas II Homeowners Association Inc. (Respondent/Association) regarding two primary issues: the Association’s alleged failure to promptly repair a roof leak and the legality of a significant monthly dues increase to fund a community-wide roof replacement project.

Following a deep analysis of testimonies and evidence, the Administrative Law Judge (ALJ) issued a decision on August 18, 2022, dismissing both petitions. The ALJ concluded that the Association acted within its discretionary authority to manage common areas and that the Petitioner’s interpretation of "prompt repair" under Arizona law was contextually incorrect.

Case Overview and Participants

Role Entity Key Individuals
Petitioner Homeowner (Unit 212) Emery Herbert
Respondent HOA Lakebrook Villas II HOA
Management Property Management Peterson Company (Lindsay Sherwin)
Contractor Roofing Experts Desert Canyon Roofing (Edwin Escobardia Diaz)
Adjudicator Administrative Law Judge Kay A. Abramsohn

Analysis of Key Themes

1. Maintenance vs. Capital Improvement

A central conflict was whether the total "rip and replacement" of the community’s 44-year-old roofs constituted "maintenance" or a "capital improvement."

  • Petitioner’s Position: Based on IRS definitions and the scale of the $362,586 project, the Petitioner argued the work was a capital improvement. Under Section 9 of the Declaration, any capital expenditure exceeding $2,500 requires a 75% vote of the owners.
  • Respondent’s Position: The Association argued the roofs had reached the end of their shelf life and that "patching" was no longer a viable professional recommendation. They framed the project as necessary maintenance to restore the common elements to their original functional state.
  • Legal Outcome: The ALJ ruled that the Association exercised its authority under Section 13 of the Declaration. This section provides broad discretionary power to the Board to determine "cash requirements" necessary to manage and operate the condominium, including repairs and renovations to common areas.
2. Statutory Interpretation of "Prompt Repair"

The Petitioner alleged a violation of A.R.S. § 33-1247(A), claiming the Association failed to provide a "prompt repair" for a leak reported in March 2022.

  • The "Access" Proviso: The Association argued—and the ALJ agreed—that the "prompt repair" requirement in A.R.S. § 33-1247(A) applies specifically to damage caused by the Association when they are granted access to a unit to perform work.
  • General Upkeep: For general maintenance of common elements, the statute requires the Association to be responsible for upkeep, but the ALJ found that the timing and deliberation of a community-wide replacement project (begun in late 2021) constituted reasonable action by the Board.
3. Drainage vs. Foam Roofing Failure

There was significant technical disagreement regarding the cause of the leaks in Building M.

  • The Drain Theory: Petitioner provided evidence (including a 2019 report and a plumber's statement) suggesting that clogged internal cast-iron drains were the true cause of the leaks, meaning a roof surface replacement would not solve the problem.
  • The Foam Theory: The Association’s roofing contractor testified that the polyurethane foam was deteriorated and separating from the pipes, allowing water intrusion. He stated that while drains might be clogged, the roof surface failure was the primary issue. He committed to water-testing drains once the roof was "opened up" and involving a plumber if damage was found.

Significant Quotes with Context

On Statutory Obligations

"The association is responsible for maintenance, repair and replacement of the common elements and each unit owner is responsible for maintenance, repair and replacement of the unit… If damage is inflicted on the common elements or any unit through which access is taken, the unit owner… or the association… is liable for the prompt repair of the damage."

  • Context: A.R.S. § 33-1247(A). This was the foundation of Petitioner's first claim. The ALJ eventually determined the "prompt" requirement was limited to damage occurring during unit access.
On HOA Funding Strategy

"This is NOT a special assessment; it is an increase to your regular monthly HOA fees."

  • Context: Association Notification Letter (April 20, 2022). The HOA raised monthly fees from $303 to $885 for seven months to fund the $362,586 project, intentionally avoiding the "special assessment" label to bypass a membership vote.
On Board Discretion

"The Management Committee shall have discretionary powers to prescribe the manner of maintaining and operating the Condominium Project and to determine the cash requirements… Every such reasonable determination… shall, as against the owner, be deemed necessary and properly made."

  • Context: Declaration Section 13. This language was cited by the ALJ as the legal basis for the Board's authority to raise dues for the roof project without a 75% vote.
On Necessary Maintenance

"At this time, repairs can't be done… you're still going to get leaks… they're going to spend a lot more money than what they are right now. So that’s why… we highly recommended repairs not to be done."

  • Context: Testimony of Edwin Escobardia Diaz (Desert Canyon Roofing). He justified the full replacement over patching, which helped the HOA argue that the project was "maintenance" rather than an "improvement."

Actionable Insights

For Homeowners
  • Context of "Promptness": Under Arizona condominium law (A.R.S. § 33-1247), an HOA’s duty to perform "prompt" repairs is specifically linked to damage they cause while accessing a unit. General maintenance of common elements is subject to the Board’s reasonable deliberation and timeline.
  • Evidence of Causation: In disputes involving leaks, having a written expert report (from a plumber or roofer) is critical. The Petitioner’s experts refused to provide written statements, which weakened her argument that the HOA's roof replacement would not fix the underlying drainage issue.
For HOA Governance
  • Regular vs. Special Assessments: The distinction between "maintenance" and "capital improvement" is vital. This case confirms that Boards have broad discretion to classify large-scale replacements (like roofs) as maintenance, allowing them to fund the project via regular assessment increases (Section 13) rather than special assessments (Section 10/9) that require community votes.
  • Master vs. Sub-Association Rules: The Association successfully argued that certain restrictive amendments (limiting fee increases to 5%) belonged to a Master Association (Lake Biltmore Village) and did not apply to the specific sub-association’s internal dues for its own roofs.
  • Deliberation Records: The HOA’s victory was supported by a paper trail showing they began discussing the roof condition and seeking bids as early as 2019, demonstrating "reasonable deliberation" rather than negligence.

Case Study Guide: Herbert v. Lakebrook Villas II Homeowners Association

This study guide provides a comprehensive analysis of the consolidated legal matters between Petitioner Emery Herbert and Respondent Lakebrook Villas II Homeowners Association Inc. (HOA), as heard before the Arizona Office of Administrative Hearings in July 2022.

1. Case Overview

  • Petitioner: Emery Herbert (Unit owner since February 2022).
  • Respondent: Lakebrook Villas II Homeowners Association Inc.
  • Administrative Law Judge: Kay A. Abramsohn.
  • Docket Numbers:
  • 22F-H2222047-REL (Petition1): Focused on roof leaks, maintenance of common elements, and the interpretation of "prompt repair."
  • 22F-H2222052-REL (Petition2): Focused on the categorization of a $362,586 roof replacement project and the legality of increasing monthly dues without a membership vote.

2. Key Legal Framework

The proceedings centered on the interpretation of Arizona statutes and the HOA’s governing documents:

Authority Specific Provision Content/Application
A.R.S. § 33-1247(A) Upkeep of the Condominium Establishes that the association is responsible for the maintenance, repair, and replacement of common elements.
HOA Declaration Section 1(e) Defines "common areas and facilities" to include roofs, exterior walls, and pipes.
HOA Declaration Section 1(g) Defines the "unit" as the space enclosed by the interior surfaces of the finished perimeter walls, floors, and ceilings.
HOA Declaration Section 9 Outlines assessments. Requires a 75% membership vote for "capital improvements" exceeding $2,500. Provides an exception for reconstruction due to fire or "other casualty."
HOA Declaration Section 13 Grants the Board discretionary power to determine the "cash requirement" needed to manage, operate, and maintain the project.

3. The Core Disputes

Issue A: Roof Leak and Maintenance (Petition1)

Petitioner Emery Herbert discovered a leak in her second bedroom on March 29, 2022, following a rainstorm. She argued the HOA violated A.R.S. § 33-1247(A) by failing to provide a "prompt repair."

  • Petitioner’s Position: The HOA neglected the drains for years (citing a 2019 report). The delay in repair caused the spread of black mold (Stachybotrys) behind the drywall and in the roof insulation.
  • HOA’s Position: The 40-year-old foam roofs had reached the end of their life and could no longer be patched effectively. The HOA was already implementing a comprehensive community-wide replacement plan.
  • Legal Finding: The Judge ruled that the "prompt repair" clause in A.R.S. § 33-1247(A) specifically applies to damage the HOA causes to a unit while accessing it to perform repairs. Because the HOA was acting on a broad plan for 40-year-old roofs, it did not violate the statute.
Issue B: Assessment Increase vs. Special Assessment (Petition2)

In April 2022, the HOA increased monthly dues from $303 to $885 for the remainder of the year to fund a $362,586 roof project ($4,074 per unit).

  • Petitioner’s Position: Ripping off and replacing a roof is a "capital improvement" under IRS and accounting standards. Per Section 9, any capital expenditure over $2,500 requires a 75% vote. The HOA called it "maintenance" simply to bypass the vote and gain the power to place liens for non-payment.
  • HOA’s Position: Replacing a roof to its original state to prevent water intrusion is "maintenance," not an improvement or upgrade. Section 13 grants the Board authority to increase regular assessments to cover necessary repairs and renovations.
  • Legal Finding: The Judge concluded the HOA properly exercised its authority under Section 13 to determine cash requirements for repairs and renovations. Petitioner failed to prove the project was a capital improvement requiring a vote under Section 9.

4. Short-Answer Practice Questions

  1. On what date did the Petitioner first report the roof leak, and how much time elapsed before the hearing?
  • The leak was reported on March 29, 2022. The hearing took place on July 11, 2022, approximately 104 days later.
  1. According to the HOA's roofer, Edwin Escobardia Diaz, why were patch repairs no longer recommended for the community?
  • He testified that the foam was deteriorated to the point where patches would still result in leaks, and a full tear-off was necessary to inspect for underlying rotten wood.
  1. What was the specific amount of the monthly HOA fee increase, and how many months was it scheduled to last?
  • The fee increased by $582 (from $303 to $885) for seven months.
  1. How did the Judge interpret the term "prompt repair" in A.R.S. § 33-1247(A)?
  • The Judge interpreted it as applying to damage caused by the association or a unit owner during the process of taking access through a unit to perform repairs.
  1. Which building was used as a comparison because its roof was already replaced by February 2022?
  • Building "C."
  1. What did witness Colton Hoover testify regarding the classification of the roof project?
  • As an audit associate and accountant, he testified that a total rip-and-replace project should be classified as a capital improvement rather than maintenance.

5. Essay Prompts for Deeper Exploration

  1. Maintenance vs. Capital Improvement: Evaluate the arguments presented by both the Petitioner and the Respondent regarding the classification of the roof replacement. Discuss how the IRS and Cornell Law definitions provided in the source context conflict with the HOA’s interpretation of "maintenance" under Section 13.
  2. Statutory Interpretation: Analyze the Judge’s decision to dismiss Petition1. Do you agree with the narrow interpretation of "prompt repair" in A.R.S. § 33-1247(A)? Consider the implications for homeowners if an HOA delays repairs for common elements that cause ongoing damage to private units.
  3. Fiduciary Discretion vs. Member Rights: Discuss the balance of power between an HOA Board and its members as evidenced in the Petition2 dispute. Examine the Board’s use of Section 13 (regular assessment) to fund a large-scale project versus the membership’s right to a vote under Section 9 (special assessment).

6. Glossary of Important Terms

Term Definition Based on Source Context
A.R.S. § 33-1247 The Arizona statute governing the upkeep of condominiums and the responsibilities of the association versus unit owners.
Capital Improvement Defined by the Petitioner (via Cornell/IRS) as an alteration or repair that increases a structure's useful life or value by at least $10,000.
Common Elements Parts of the condominium property (like roofs, exterior walls, and pipes) that are not part of individual units and are maintained by the HOA.
Declaration (CC&Rs) The legal document that establishes the rules, responsibilities, and assessment powers of the Homeowners Association.
Maintenance Defined by the HOA as actions taken to preserve property or restore it to its original condition to prevent failure, such as the roof replacement.
Petitioner The party who files a petition or complaint; in this case, Emery Herbert.
Respondent The party against whom a petition is filed; in this case, Lakebrook Villas II HOA.
Special Assessment A one-time or specific charge for a major project (like a capital improvement) which, under this HOA’s Section 9, may require a 75% membership vote.
Stachybotrys A genus of molds, referred to in the documents as "black mold," found in the Petitioner’s unit/roof cavity following the leak.

The $350,000 Roof Dispute: Key Lessons from a Recent HOA Legal Battle

1. Introduction: When Maintenance Meets the Law

In a high-stakes consolidated hearing before the Arizona Office of Administrative Hearings (Case Nos. 22F-H2222047-REL and 22F-H2222052-REL), a fundamental conflict erupted between homeowner Emery Herbert (Petitioner) and the Lakebrook Villas II Homeowners Association (Respondent). The dispute serves as a landmark case study in the tension between a homeowner's right to "prompt" repairs and an HOA board’s authority to manage aging infrastructure through community-wide capital projects.

The judicial inquiry hinged on the distinction between routine maintenance and capital improvements, the technical realities of 40-year-old infrastructure, and the expansive discretionary powers granted to boards under their governing documents. At the heart of the battle was a $362,586 roof replacement project that saw monthly assessments skyrocket from $303 to $885.

2. The "Prompt Repair" Paradox: Interpreting A.R.S. § 33-1247

The Petitioner’s first challenge (Petition1) alleged that the Association failed to provide a "prompt repair" for a leak discovered on March 29, 2022. The Petitioner argued that the leak—which caused significant interior damage and mold—was a maintenance failure related to clogged drainage systems. To support this, the Petitioner cited a 2019 roof inspection report that ranked her specific building (Building M) as being in the "Best Condition" in the community, with no blistering.

However, the Administrative Law Judge (ALJ) clarified that the statutory requirement for "promptness" is far more narrow than many homeowners realize.

Legal Nuance: A.R.S. § 33-1247(A) The term "prompt" in this statute specifically applies to damage inflicted on a unit or common element during the act of the Association accessing a unit to perform repairs. It is an access-based liability trigger. Because the Association did not damage the Petitioner’s unit while attempting to reach a common element, the "prompt repair" clock under this specific statute never legally started ticking.

While the Petitioner viewed the delay as negligence, the Association demonstrated that they had been deliberating on a community-wide solution since December 2021. The ALJ ruled that the timing of repairs and replacements remains within the Association’s discretionary authority.

3. Maintenance or Capital Improvement? The $2,500 Trigger

The second petition (Petition2) challenged the funding of the $362,586 project. The Petitioner argued that a total roof replacement constituted a "capital improvement" under Section 9 of the Declaration. This section contains a critical "trigger": no single improvement in the nature of a capital expenditure exceeding $2,500 shall be made without a 75% vote of the owners.

Additionally, the Petitioner argued that an amendment to the Lake Biltmore Village master declarations capped fee increases at 5% without a vote.

Feature Petitioner’s Claim Board’s Legal Stance
Classification Capital Improvement (New Asset) Necessary Maintenance (Restoring Asset)
Voting Trigger Section 9: 75% vote for costs over $2,500 Section 13: Discretionary Board Power
Fee Cap 5% Cap (Master Association Amendment) No Cap (Specific Lakebrook II Declaration)
Technical View "Best Condition" building needs patch only 40-year roofs are beyond their functional life

The ALJ found that the project was not a "new" improvement but a necessary restoration of the common elements to their original functional state. Crucially, the judge determined that the Board's authority under Section 13 superseded the Petitioner’s arguments regarding the $2,500 threshold and the 5% cap.

4. The Power of the Board: Understanding Section 13 Discretion

The Association’s victory rested on the broad language of Section 13 of the Lakebrook Villas II Declaration. This section acts as a "wild card" for Board authority, granting the Management Committee the power to:

  • Determine Cash Requirements: Decide the aggregate sum necessary to manage and operate the project.
  • Adjust Assessments: Increase or diminish assessment amounts throughout the year as needed to meet estimated expenses.
  • Prescribe Maintenance Standards: Determine the manner in which the buildings and common areas are maintained.

The ruling highlighted a powerful blockquote from the Declaration:

"Every such reasonable determination by the Management Committee within the bounds of the Act and this Declaration shall, as against the owner, be deemed necessary and properly made."

This "reasonableness" standard allows boards to bypass membership votes for massive expenditures if the work is deemed essential for the continued operation and maintenance of the community.

5. Reality Check: 40-Year-Old Roofs and Technical Necessity

Expert testimony from Edwin Escobardia of Desert Canyon Roofing provided the technical justification for the Board’s "maintenance" classification. Escobardia testified that the 40-year-old foam roofs had reached the end of their functional life, making professional patching impossible.

Key technical findings included:

  • The Patching Failure: On aged, deteriorated foam, new patch material will not bond. Attempting patches would be a waste of Association funds as they would not stop the leaks.
  • Sub-Surface Inspection: Full removal is necessary to inspect the underlying wood structure for rot and damage—a critical step that surface-level patches cannot accomplish.
  • Mitigation Limits: The Association’s "inaction" regarding tarps was explained as a technical limitation; in the Petitioner's case, the leak was near a plumbing pipe where the foam was too deteriorated to support a tarp or a "band-aid" fix.
6. Conclusion: Takeaways for Homeowners and Boards

In the Final Administrative Law Judge Decision ordered on August 18, 2022, the ALJ dismissed both petitions. The ruling confirmed that the Association did not violate the law or its governing documents by implementing the $362,586 project via a massive assessment increase without a vote.

Lessons Learned:

  • Statutory Limits: A.R.S. § 33-1247(A) is not a general "speed of repair" law. It is specifically tied to damage caused by the Association during unit access.
  • Governing Docs Override Definitions: While the IRS or a dictionary might define "replacement" as a capital improvement, the specific wording of a Declaration (like Section 13) can legally reclassify it as "necessary maintenance."
  • The Discretionary Power Clause: Homeowners must look for "Discretionary Power" clauses in their CC&Rs. These clauses often nullify voting requirements (like the $2,500 Section 9 cap) if the Board can show the expense is for the "operation and management" of the community.
  • Technical Evidence Matters: Expert testimony regarding the "functional life" of infrastructure can override even a recent inspection report (like the 2019 "Best Condition" ranking for Building M) if the expert proves a community-wide emergency exists.

Homeowners are strongly advised to review the specific "Discretionary Power" and "Common Expense" sections of their CC&Rs before initiating legal action against a board's financial decisions.

Case Participants

Petitioner Side

  • Emery Herbert (Petitioner)
    Represented herself
  • Colton Hoover (Witness)
    Walker and Armstrong CPAs
    Homeowner and Audit Associate
  • Hildelu Sandoval (Witness)
    Homeowner at Lakebrook Villas II
  • Luv Brito (Witness)
    Homeowner at Lakebrook Villas II

Respondent Side

  • Maria G. McKee (Attorney)
    Carpenter Hazelwood Delgado & Bolen LLP
    Represented Respondent Lakebrook Villas II Homeowners Association Inc.
  • Josh Bolen (Attorney)
    Carpenter Hazelwood Delgado & Bolen LLP
    Represented Respondent Lakebrook Villas II Homeowners Association Inc.
  • Lindsay Sherwin (Witness)
    Peterson Company
    Community manager for Lakebrook Villas II
  • Edwin Escobar Diaz (Witness)
    Desert Canyon Roofing
    Half owner of Desert Canyon Roofing

Neutral Parties

  • Kay A. Abramsohn (Administrative Law Judge)
    Office of Administrative Hearings
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate

Steven Schmidt v. Catalina Ridge Community Association, Inc.

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Case Summary

Case ID 22F-H2222040-REL
Agency Arizona Department of Real Estate
Tribunal —
Decision Date 2022-07-13
Administrative Law Judge JC
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Steven J. Schmidt Counsel Pro Se
Respondent Catalina Ridge Community Association, Inc. Counsel Michael S. Shupe, Esq. (Goldschmidt Shupe, PLLC)

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

22F-H2222040-REL Decision – 2022 04 22 ADRE Response HO22-22040.pdf

Uploaded 2026-04-24T11:49:43 (95.9 KB)

22F-H2222040-REL Decision – 973190.pdf

Uploaded 2026-04-24T11:49:46 (45.6 KB)

22F-H2222040-REL Decision – 975956.pdf

Uploaded 2026-04-24T11:49:50 (54.8 KB)

22F-H2222040-REL Decision – 983362.pdf

Uploaded 2026-04-24T11:49:53 (165.5 KB)

22F-H2222040-REL Decision – Date of Hearing Recieved.pdf

Uploaded 2026-04-24T11:49:57 (169.0 KB)

22F-H2222040-REL Decision – HO22-22040_Notice_Petition.pdf

Uploaded 2026-04-24T11:50:03 (521.1 KB)

22F-H2222040-REL Decision – Notice of Hearing .pdf

Uploaded 2026-04-24T11:50:09 (1792.3 KB)

22F-H2222040-REL Decision – Response to Petition – 4.22.22.pdf

Uploaded 2026-04-24T11:50:22 (127.2 KB)

Briefing Document: Steven Schmidt v. Catalina Ridge Community Association, Inc.

Executive Summary

This briefing document analyzes the administrative hearing and subsequent decision regarding a dispute between Steven Schmidt (Petitioner) and the Catalina Ridge Community Association, Inc. (Respondent/Association). The central conflict involved the interpretation of the Association's Covenants, Conditions, and Restrictions (CC&Rs) specifically concerning the allowable square footage of a detached accessory structure.

The Petitioner sought to construct a 1,441-square-foot detached garage, arguing that the CC&Rs allowed for a size based on 40% of his "Dwelling Unit," which he interpreted as the total structure including his existing attached garage and porches. The Association denied the application, contending that "Dwelling Unit" refers only to the livable square footage of the home. Following a formal hearing on June 23, 2022, Administrative Law Judge (ALJ) Jenna Clark ruled in favor of the Association, concluding that the Petitioner failed to prove a violation of the CC&Rs.

Case Overview and Procedural History

Item Details
Case Number 22F-H2222040-REL (ADRE Case # HO22-22/040)
Petitioner Steven Schmidt (Homeowner, Lot 9)
Respondent Catalina Ridge Community Association, Inc.
Administrative Law Judge Jenna Clark
Primary Issue Interpretation of CC&Rs Article 7, Section 7 (Accessory Structure size)
Petition Date March 21, 2022
Hearing Date June 23, 2022
Decision Date July 13, 2022
Background

In May 2019, the Petitioner submitted plans to the Architectural Review Committee (ARC) for a detached garage project. The Association issued three separate denial letters between July 2019 and February 2020. The primary reason for denial was that the proposed 1,441-square-foot structure exceeded the allowable size limits dictated by the CC&Rs.

Analysis of Key Themes

1. The Definition of "Dwelling Unit"

The crux of the legal dispute was the definition of the term "Dwelling Unit" as used in CC&Rs Article 7, Section 7.

  • The Provision: "Accessory structures shall be limited to 5% of the lot area or forty percent (40%) of the main Dwelling Unit, whichever is less."
  • Petitioner's Interpretation: Argued that a "Dwelling Unit" is the entire physical structure. Under this view, his dwelling unit totaled 4,438 square feet (2,820 livable + 1,002 attached garage + 616 porches). This would allow an accessory structure of up to 1,775 square feet.
  • Respondent's Interpretation: Maintained that "Dwelling Unit" is a defined term separate from garages and porches. Under this view, the Petitioner’s dwelling unit was only the 2,820 square feet of livable space, limiting the accessory structure to 1,128 square feet.
2. Contractual Hierarchy and Internal Consistency

The Association’s counsel, Michael Shupe, argued that the CC&Rs must be read as a whole. He pointed to specific definitions in Article I:

  • Section 1.15: Defines "Dwelling Unit" as a building or portion of a building designed for use as a "Residence."
  • Section 1.29: Defines "Residence" as a lot together with the "residential Dwelling Unit, garage, patio and other Improvements."

By listing "Dwelling Unit" separately from "garage" and "patio" in the definition of "Residence," the Association argued the drafters intended these to be distinct categories.

3. Lay Interpretation vs. Legal Precision

The Petitioner, appearing on his own behalf, emphasized a "lay interpretation" of the documents. He argued that as a non-lawyer, he perceived the dwelling unit to be the total structure. He contended that if "Dwelling Unit" only meant livable space, other sections of the CC&Rs—such as those regarding solar panels or antennas being permitted on a "Dwelling Unit"—would imply those items could not be placed on garages or porches, which he deemed "nonsense."

Important Quotes with Context

From Petitioner Steven Schmidt

"The clear intent of the CC&Rs is to treat the dwelling unit as an entire structure, including the garage and porches… The Association has ignored the language of their own CC&Rs and design guidelines."

  • Context: Closing argument during the June 23 hearing, where Schmidt emphasized that the physical architecture of the home should dictate the calculation.

"I read the CC&Rs. I perceive them in good taste to mean what I have defined that they mean… The CC&Rs do not begin by [saying] 'you must get a contract expert to read and interpret for you, Mr. Owner.'"

  • Context: Rebuttal argument addressing the Association's reliance on technical legal definitions found in the "Definitions" section of the CC&Rs.
From Respondent’s Counsel (Michael Shupe)

"As a matter of contract interpretation, you look at the entire contract… one of the principal ideas is to look at the express language and find out if there's any ambiguity."

  • Context: Arguments made during the hearing to justify why the ARC looked at the "Definitions" section of the CC&Rs rather than just Section 7.7.
From Administrative Law Judge Jenna Clark

"It is clear from the record that a 'Dwelling Unit' can only consist of a portion of a building that is distinct from other structures and improvements like garages and patios."

  • Context: Found in the "Conclusions of Law" section of the final decision, explaining why the Petitioner’s calculation was rejected.

Data Points and Square Footage Calculations

The following table reflects the data used by the ALJ to reach the final decision:

Structure Component Square Footage
Livable Area (Home) 2,820
Attached Garage 1,002
Covered Front Porch 289
Covered Rear Porch 327
Petitioner's Claimed "Dwelling Unit" Total 4,438
Calculated "Dwelling Unit" per ALJ Decision 2,820 (Livable Only)
Petitioner's Proposed Detached Garage 1,441
Max Allowable Size (40% of 2,820) 1,128 (Approx.)

Note: The ALJ decision explicitly noted that with a livable area of 2,820, the maximum allowable square footage for an accessory structure is capped at 1,141.2 (though 40% of 2,820 is 1,128, the decision mentions 2,853 as a figure in one instance, leading to the 1,141.2 cap).

Actionable Insights

  • Definition Primacy: Homeowners and Associations must prioritize the "Definitions" section of their governing documents. Even if a specific section (like Article 7.7) seems clear in isolation, defined terms carry their specific meaning throughout the entire document.
  • Burden of Proof: In administrative hearings of this nature, the Petitioner bears the burden of proving a violation by a "preponderance of the evidence." Lay interpretations, however logical they may seem from a spatial or architectural perspective, often fail to overcome specific contractual definitions.
  • Consistency in Denials: The Association's success in this matter was supported by their consistent application of the 2,500-square-foot minimum livable space requirement (Section 7.6) and the consistent separation of "livable" space from "garages/patios" in both the CC&Rs and Design Guidelines.
  • Administrative Process: The case highlights the utility of prehearing conferences to identify stipulated facts, which streamlined this hearing by removing factual disputes and focusing solely on the legal interpretation of terms.

Case Analysis Study Guide: Schmidt v. Catalina Ridge Community Association

This study guide provides a comprehensive overview of the administrative hearing regarding the dispute between Steven Schmidt (Petitioner) and the Catalina Ridge Community Association, Inc. (Respondent). It is designed to assist in understanding the nuances of contract interpretation within the context of homeowners' association (HOA) governance.

I. Case Overview and Key Concepts

Central Legal Issue

The primary conflict in this case is the interpretation of Article 7, Section 7 of the Covenants, Conditions, and Restrictions (CC&Rs). Specifically, the parties disagreed on the method for calculating the allowable square footage of an "accessory structure" (in this instance, a detached garage).

The Mathematical Conflict

The CC&Rs state that an accessory structure is limited to 5% of the lot area or 40% of the main Dwelling Unit, whichever is less. While the lot area was not in dispute, the definition of "Dwelling Unit" was the crux of the case.

Component Petitioner’s Calculation Respondent’s Calculation
Livable Square Footage 2,820 2,820
Covered Front Porch 289 Excluded
Covered Rear Porch 327 Excluded
Attached Garage 1,002 Excluded
Total "Dwelling Unit" Base 4,438 sq. ft. 2,820 sq. ft.
Allowable Accessory Size (40%) 1,775 sq. ft. 1,128 sq. ft.
Key Legal Principles
  • Absolute Source Fidelity: The Administrative Law Judge (ALJ) must interpret terms based on the definitions provided within the governing documents (CC&Rs and Design Guidelines).
  • Contract as a Whole: Under legal principles of contract interpretation, a document must be read in its entirety to ensure no provision is rendered meaningless or contrary to another.
  • Burden of Proof: In these proceedings, the Petitioner bears the burden of proving by a preponderance of the evidence that the Association violated the community documents.

II. Short-Answer Practice Questions

1. On what date did the Association issue the initial denial letter for the Petitioner's detached garage project? Answer: July 25, 2019.

2. According to CC&R Article 7, Section 7, what is the maximum height allowed for an accessory structure? Answer: Twenty (20) feet.

3. What was the square footage of the detached garage proposed by Steven Schmidt? Answer: 1,441 square feet.

4. The Association’s Design Guidelines (Section 3.2.2) require a minimum livable square footage of 2,500. What specific areas are explicitly excluded from this minimum requirement? Answer: Garages, porches, Guest Houses, and patios.

5. Why did the ALJ strike "Stipulated Finding of Fact number 11" during the hearing? Answer: There was a point of contention regarding a typographical error in the date (noting February 5, 2022, instead of 2020), meaning it was no longer a stipulated (agreed-upon) fact.

6. What was the final decision rendered by Administrative Law Judge Jenna Clark on July 13, 2022? Answer: The petition was denied because the Petitioner failed to establish that the Respondent violated the CC&Rs.

7. How much was the filing fee paid by the Petitioner to the Department of Real Estate to initiate the dispute? Answer: $500.00.

III. Essay Prompts for Deeper Exploration

1. The Conflict of Definitions

Compare the Petitioner's "lay interpretation" of the term "Dwelling Unit" with the Respondent's "contractual interpretation." How did the inclusion of Section 1.15 and Section 1.29 of the CC&Rs influence the ALJ's final decision? In your answer, address why the ALJ concluded that a "Dwelling Unit" must be distinct from structures like garages and patios.

2. Procedural Requirements of Administrative Hearings

The pre-hearing conference established several strict deadlines for both parties. Discuss the importance of the Subpoena deadline, the Disclosure deadline, and the Pre-hearing memorandum. How do these procedural steps ensure a fair hearing, and what are the consequences of failing to adhere to them (e.g., the admission of exhibits or the calling of witnesses)?

3. Demonstrative Evidence vs. Formal Record

During the hearing, the Petitioner utilized "demonstrative evidence" (large-scale plans on easels). Explain the ALJ's ruling on why these large visual aids were not admitted into the formal evidentiary record. Discuss the practical challenges of "spatial arguments" in a recorded administrative setting and the alternative solutions suggested by the court.

IV. Glossary of Important Terms

  • Accessory Structure: Structures including, but not limited to, detached garages and guest homes, which are subject to specific size and height limitations under the CC&Rs.
  • ARC (Architectural Review Committee): The body within the Association responsible for reviewing and approving or denying construction and modification applications on lots.
  • Bates Stamps: Numerical page labels used on exhibits to ensure that all parties and the court can easily reference specific pages during testimony and deliberation.
  • CC&Rs (Covenants, Conditions, and Restrictions): The enforceable contract between an HOA and its property owners that governs property use and community standards.
  • Dwelling Unit: As defined in CC&R Section 1.15, any building or portion of a building situated upon a lot designed and intended for use and occupancy as a residence by a single family.
  • In Limine (Motions in Limine): Housekeeping issues or motions raised at the onset of a hearing to limit or prevent certain evidence from being presented.
  • Livable Square Footage: The interior residential space of a home, which, according to the Association’s guidelines, excludes non-livable areas such as garages, porches, and patios.
  • Preponderance of the Evidence: The standard of proof in civil and administrative matters, meaning the evidence shows that a contention is "more probably true than not."
  • Stipulated Facts: Facts that both the Petitioner and Respondent agree are true before the hearing begins, allowing the court to focus only on the remaining points of legal or factual dispute.

Building by the Numbers: Lessons from a 1,441-Square-Foot Garage Dispute

Introduction: The High Stakes of Home Improvements

For many homeowners, the ultimate property goal is the addition of a sprawling detached workshop or a custom multi-car garage. However, in communities governed by Homeowners Associations (HOAs), these architectural dreams are often tethered to the cold, hard math of Covenants, Conditions, and Restrictions (CC&Rs). Navigating these rules requires more than just a set of blueprints; it requires a surgical understanding of how your community defines its building limits.

The case of Steven Schmidt v. Catalina Ridge Community Association, Inc., adjudicated before the Arizona Office of Administrative Hearings (OAH), serves as a cautionary tale for any homeowner. What began as a request for a 1,441-square-foot detached garage devolved into a multi-year legal battle over a single mathematical definition. The central conflict? The specific method used to determine the allowable size of an accessory structure.

The Core Conflict: The "40% Rule" Explained

The dispute originated when Petitioner Steven Schmidt proposed a 1,441-square-foot standalone garage. The Catalina Ridge Architectural Review Committee (ARC) denied the project, asserting it exceeded the size limitations set forth in CC&R Article 7.7.

To understand the denial, one must look at the community's "lesser of" formula for accessory structures. Under Article 7.7, a structure is limited to:

  • 5% of the total lot area; or
  • 40% of the "main Dwelling Unit," whichever is less.

In this case, the Petitioner's lot was approximately 46,300 square feet. A 5% calculation would have allowed for a massive 2,315-square-foot structure. Consequently, the "40% of the main Dwelling Unit" rule became the controlling—and far more restrictive—cap. The entire case hinged on two opposing interpretations of what "Dwelling Unit" actually means:

  • The Petitioner’s View: The "Dwelling Unit" should encompass the home's total physical footprint, including livable space, the attached garage, and porches.
  • The Association’s View: The "Dwelling Unit" is a legal term referring strictly to the livable, conditioned square footage of the home.

The Calculation Clash: Homeowner Math vs. HOA Math

The following table highlights the significant gap created by these two interpretations. While the Petitioner used a base of 4,438 square feet to justify his project, the ALJ ultimately adopted the Association's more conservative figures.

Component Petitioner’s Calculation (Total Footprint) Association’s Calculation (Livable Only)
Livable Area 2,820 sq. ft. 2,853 sq. ft.*
Front Porch 289 sq. ft. (Excluded)
Rear Porch 327 sq. ft. (Excluded)
Attached Garage 1,002 sq. ft. (Excluded)
Total Base Area 4,438 sq. ft. 2,853 sq. ft.
Allowable 40% Cap 1,775.2 sq. ft. 1,141.2 sq. ft.

\Note: While the Petitioner estimated his livable space at 2,820 sq. ft., the ALJ utilized the Association's calculated figure of 2,853 sq. ft. to determine the final legal cap. Under the HOA's math, the proposed 1,441 sq. ft. garage exceeded the limit by nearly 300 square feet.*

The Legal Deep Dive: Definitions Matter

In the courtroom, "common sense" interpretations of space often fail when compared to the specific language of a contract. To resolve the dispute, ALJ Jenna Clark performed a deep dive into the Article I definitions of the CC&Rs, specifically contrasting Section 1.15 (Dwelling Unit) with Section 1.29 (Residence).

The ruling relied on the legal principle of Expressio Unius est Exclusio Alterius—the idea that the express mention of one thing excludes others. The ALJ highlighted Section 1.29, which defines a "Residence" as:

“'Residence' means any subdivided Lot shown on the Plat, together with the residential Dwelling Unit, garage, patio and other Improvements thereon…"

By listing "Dwelling Unit," "garage," and "patio" as separate items in a series, the contract legally establishes them as distinct, mutually exclusive entities. If the "Dwelling Unit" already included the garage and patio, listing them separately would make those words redundant—a violation of standard contract interpretation rules. Furthermore, the Association pointed to Section 7.6, which explicitly excludes garages and porches when establishing minimum livable square footage requirements (2,500 sq. ft.).

The Petitioner argued that if you exclude garages and porches, the community's minimum size requirements become "nonsense" because a house cannot exist as livable space alone. The ALJ rejected this functionalist view, favoring a textualist approach: the document says what it says, regardless of the homeowner's personal logic.

The Final Verdict: Why the ALJ Ruled for the HOA

On July 13, 2022, the Arizona Office of Administrative Hearings (OAH) issued its final decision. ALJ Jenna Clark ruled in favor of the Catalina Ridge Community Association.

The ALJ concluded that under the governing documents, a "Dwelling Unit" is a specific portion of a building intended for residential occupancy and is legally distinct from improvements like garages and patios. Because the Petitioner bore the burden of proof to show the HOA had violated the CC&Rs, and failed to do so, the Association's denial was upheld. The 1,441-square-foot garage was officially denied for exceeding the 1,141.2-square-foot cap.

Key Takeaways for Homeowners

As a consultant, I see these disputes frequently. Here are the strategic lessons to take from the Schmidt case:

  1. Livable Area $\neq$ Physical Footprint: In the world of HOAs, your "house" may be 4,000 square feet of stucco and roof, but its "Dwelling Unit" size—the number used for regulatory caps—is likely limited to your conditioned, livable square footage.
  2. Definitions Overrule Reality: Do not rely on dictionary definitions or "common sense." Always check the "Definitions" section of your CC&Rs first. If a term like "Residence" or "Improvement" is defined there, that definition is the only one that matters in court.
  3. The Burden of Proof Bias: In an administrative hearing, the burden of proof rests on the homeowner. If the contract language is even slightly in favor of the Association’s interpretation, the "tie" effectively goes to the Board unless you can prove a clear, express violation of the rules.

Conclusion: Navigating Your Next Project

The Schmidt case is a sobering reminder that a difference of just 300 square feet can lead to a multi-year legal battle and thousands of dollars in wasted planning. Precise language in community documents exists to maintain neighborhood character and consistency, even when that language leads to difficult math for the individual homeowner.

Before you invest in professional plans or architectural renderings, consult with your Architectural Review Committee (ARC). Ask them specifically for their "base calculation" of your dwelling unit. Understanding the community’s "rules of the road" and their specific definitions is the only way to ensure your project moves from the drawing board to the backyard without a legal detour.

Case Participants

Petitioner Side

  • Steven J. Schmidt (Petitioner)
    Catalina Ridge Community Association
    Homeowner of Lot 9

Respondent Side

  • Michael S. Shupe (Counsel for Respondent)
    Goldschmidt Shupe, PLLC
  • Susan Workman (President)
    Catalina Ridge Community Association, Inc.
  • Phyllis Kapellen (Vice-President)
    Catalina Ridge Community Association, Inc.
  • Gina Batali (Secretary)
    Catalina Ridge Community Association, Inc.
  • Jason Boyd (Director)
    Catalina Ridge Community Association, Inc.

Neutral Parties

  • Jenna Clark (Administrative Law Judge)
    Office of Administrative Hearings
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Daniel Y. Jones (Division Manager)
    Arizona Department of Real Estate
  • Abby Hansen (HOA Coordinator)
    Arizona Department of Real Estate
  • Miranda Alvarez (Legal Secretary)
    Office of Administrative Hearings

Thomas W Sweeney v. Warner Ranch Landing Association

Posted on by

Case Summary

Case ID 21F-H2120027-REL
Agency Arizona Department of Real Estate
Tribunal —
Decision Date 2021-02-04
Administrative Law Judge —
Outcome Petition dismissed.
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Thomas W. Sweeney Counsel Pro Se
Respondent Warner Ranch Landing Association Counsel Austin Baillio, Esq.

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

21F-H2120027-REL Decision – 852845.pdf

Uploaded 2026-04-24T11:31:56 (102.5 KB)

Briefing Document: Sweeney vs. Warner Ranch Landing Association (Case No. 21F-H2120027-REL)

Executive Summary

On February 4, 2021, Administrative Law Judge Sondra J. Vanella issued a decision in the matter of Thomas W. Sweeney vs. Warner Ranch Landing Association. The dispute centered on whether the Warner Ranch Landing Association (the Respondent) violated community CC&Rs (Covenants, Conditions, and Restrictions) by increasing annual assessments in 2021. The Petitioner, Thomas W. Sweeney, contended that a 10% assessment increase exceeded the allowable limit defined in the community documents.

The Administrative Law Judge (ALJ) ruled in favor of the Association, dismissing the petition. The ruling established that the Board of Directors acted within its authority under Article 8, Section 8.1.5 of the CC&Rs and complied with Arizona statutory limits (A.R.S. § 33-1803(A)). The decision clarifies the distinction between the "Maximum Annual Assessment"—a calculated ceiling that grows annually—and the actual assessment levied by the Board.

Detailed Analysis of Key Themes

1. Interpretation of Section 8.1.5 (Maximum Annual Assessment)

The core of the dispute was the interpretation of how the "Maximum Annual Assessment" (MAA) is calculated and applied. Under Section 8.1.5, the MAA for 1987 was set at $840.00. For every subsequent year, the MAA increases by the greater of:

  • The percentage increase in the Consumer Price Index (CPI); or
  • Five percent (5%).

The Board is not required to levy the full amount of the MAA each year. However, the document specifies that choosing not to levy the full amount does not prevent the Board from raising assessments to the full MAA in future years. The Respondent demonstrated that if the MAA had increased by 5% annually since 1988, the allowable maximum in 2021 would have been $4,412.81—far exceeding the actual 2021 assessment.

2. Statutory vs. Contractual Limits

The case highlighted the interplay between community-specific CC&Rs and Arizona state law.

  • CC&R Section 8.1.5: Allows for an annual increase in the Maximum assessment ceiling by at least 5%.
  • A.R.S. § 33-1803(A): A state statutory safeguard that prevents Homeowners Associations (HOAs) from imposing a regular assessment more than 20% greater than the previous fiscal year’s assessment.

The Association's 10% increase in 2021 was found to be legally permissible because it was both below the calculated MAA ceiling and well within the 20% statutory limit.

3. Board Discretion and Financial Obligations

The Association provided testimony that the 10% increase was necessary to address inadequately funded reserves for community projects, specifically road improvements. The ALJ noted that Section 8.1.5 explicitly allows the Board to meet increases in utility and insurance obligations without member approval, provided they stay within the statutory 20% limit.

4. Burden of Proof in Administrative Hearings

A significant factor in the dismissal was the Petitioner’s failure to meet the "preponderance of the evidence" standard. The Petitioner offered personal interpretations of the CC&Rs but provided no external evidence or data to support the claim that the Association had exceeded its authority.

Important Quotes with Context

On the Calculation of Assessments

"The Maximum Annual Assessment for any fiscal year shall be equal to the Maximum Annual Assessment for the immediately preceding fiscal year increased at a rate equal to the greater of: (a) the percentage increase… in the Consumer Price Index… or (b) five percent (5%)."

— Context: This excerpt from Section 8.1.5 of the CC&Rs defines the formula used to determine the legal "ceiling" for assessments.

On Board Authority

"Nothing herein shall obligate the Board to levy, in any fiscal year, Annual Assessments in the full amount of the Maximum Annual Assessment… and the election by the Board not to levy… shall not prevent the Board from levying Annual Assessments in subsequent fiscal years in the full amount of the Maximum Annual Assessment."

— Context: This provision protects the Board’s right to increase dues significantly in a single year (up to the MAA) even if they have kept dues low in prior years.

On the Burden of Proof

"Petitioner bears the burden of proof to establish by a preponderance of the evidence that Respondent violated Article 8.1.5 of its CC&Rs… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'"

— Context: The ALJ explains that the Petitioner must prove the violation is more likely than not; simply disagreeing with the Board's math or interpretation is insufficient.

Actionable Insights

Stakeholder Insight/Action
HOA Boards Maintain Historical MAA Records: Boards should keep a continuous record of the "Maximum Annual Assessment" calculations dating back to the community's inception to justify current increases.
HOA Boards Reserve Funding Transparency: Communicating that increases are tied to specific projects (e.g., road improvements) provides a clear rationale for exercising the right to increase assessments.
Homeowners Distinguish MAA from Actual Levies: Homeowners should understand that the "Maximum Annual Assessment" in many CC&Rs is a theoretical ceiling that grows every year, regardless of whether the actual dues collected grow at the same rate.
Homeowners Evidentiary Requirements: When filing a petition with the Department of Real Estate, petitioners must provide concrete evidence (financial records, professional audits, or data) rather than relying solely on personal interpretations of community documents.
Legal Counsel Statutory Overlays: Always evaluate assessment increases against the 20% statutory cap (A.R.S. § 33-1803(A)), as this often serves as the practical limit even if the CC&Rs allow for a higher "Maximum" ceiling.

Study Guide: Sweeney vs. Warner Ranch Landing Association

This study guide provides a comprehensive overview of the administrative hearing between Thomas W. Sweeney and the Warner Ranch Landing Association (No. 21F-H2120027-REL). It covers the legal frameworks, key arguments, and the interpretation of community documents that shaped the Administrative Law Judge's decision.

I. Core Case Overview

The case centers on a dispute regarding the legality of a 10% increase in annual homeowner association (HOA) assessments for the year 2021. The Petitioner, Thomas W. Sweeney, alleged that the Respondent, Warner Ranch Landing Association, violated Article 8, Section 8.1.5 of the Covenants, Conditions, and Restrictions (CC&Rs) by implementing this increase.

Key Legal Frameworks
  • Article 8, Section 8.1.5 of the CC&Rs: Governs the calculation of the "Maximum Annual Assessment." It establishes a base rate ($840.00 in 1987) and allows for annual increases based on the greater of the Consumer Price Index (CPI) or 5%.
  • A.R.S. § 33-1803(A): An Arizona statute that prohibits an HOA from imposing a regular assessment that is more than 20% greater than the immediately preceding fiscal year's assessment.
  • A.R.S. § 32-2199: Grants the Arizona Department of Real Estate the authority to hear petitions concerning violations of planned community documents.

II. Summary of Arguments

The Petitioner’s Position

Thomas W. Sweeney argued that the Respondent exceeded the allowable assessment increase. His primary points included:

  • Interpretation of 8.1.5: He asserted that the 5% increase mentioned in the CC&Rs only applies if the Consumer Price Index no longer exists.
  • Assessment History: He noted that assessments remained flat at $820.00 semi-annually from 2011 to 2017, increased by 5% in 2018, and reached $925.40 semi-annually in 2020. He contended the 2021 increase should have been limited to a lower amount ($962.70 semi-annually).
  • Motive: He suggested the 10% increase was a response to the membership rejecting a special assessment.
The Respondent’s Position

The Warner Ranch Landing Association argued that the increase was well within both contractual and statutory limits:

  • The "Greater Of" Clause: The Association interpreted Section 8.1.5 as allowing an automatic increase in the "Maximum Annual Assessment" by the greater of the CPI or 5% each year, regardless of whether the Board actually levied that full amount.
  • Cumulative Maximum: Testimony indicated that if the 5% increase had been applied annually since 1988, the 2021 Maximum Annual Assessment would have been $4,412.81.
  • Actual vs. Maximum: The 2021 assessment was set at a level significantly lower than the calculated maximum allowable assessment ($2,324.00 less than the maximum).
  • Statutory Compliance: The 10% increase from the 2020 assessment was lower than the 20% cap mandated by A.R.S. § 33-1803(A).

III. Short-Answer Practice Questions

  1. What was the original Maximum Annual Assessment for each lot in 1987?
  • Answer: Eight Hundred Forty Dollars ($840.00).
  1. According to Section 8.1.5, what two metrics are compared to determine the annual increase of the Maximum Annual Assessment?
  • Answer: The percentage increase in the Consumer Price Index (CPI) and five percent (5%). The Board uses whichever is greater.
  1. Under what specific circumstances can the Board increase the Maximum Annual Assessment without member approval, even if it exceeds the standard rate?
  • Answer: To meet increases in premiums for required insurance coverage or charges for utility services necessary for the Association's performance.
  1. What is the statutory limit for annual assessment increases according to A.R.S. § 33-1803(A)?
  • Answer: The increase cannot be more than 20% greater than the immediately preceding fiscal year's assessment.
  1. Who bears the burden of proof in this administrative hearing, and what is the required evidentiary standard?
  • Answer: The Petitioner bears the burden of proof by a "preponderance of the evidence."
  1. Why did the Association Board decide to raise the 2021 assessment by 10%?
  • Answer: Because the Association's reserves were not adequately funded for planned projects, such as road improvements.

IV. Essay Prompts for Deeper Exploration

  1. The Difference Between "Levied Assessments" and "Maximum Annual Assessments": Analyze the Board's authority to levy assessments at a rate lower than the maximum allowable limit. How does the election not to levy the full maximum in one year affect the Board's ability to levy the full maximum in subsequent years according to Section 8.1.5?
  2. Statutory vs. Contractual Limits: Discuss the interplay between A.R.S. § 33-1803(A) and the community's CC&Rs. If a community's CC&Rs allow for a certain increase, but state law sets a different cap, which takes precedence in the context of this case?
  3. The Role of Judicial Interpretation in CC&R Disputes: The Administrative Law Judge relied on a "plain reading" of Section 8.1.5. Evaluate the Petitioner's interpretation that the 5% increase was a contingency for the disappearance of the CPI versus the Judge's interpretation of the word "or." How do specific grammatical structures influence the outcome of HOA disputes?

V. Glossary of Important Terms

Term Definition
A.R.S. Arizona Revised Statutes; the codified laws of the state of Arizona.
Administrative Law Judge (ALJ) A judge who serves as the trier of fact in hearings conducted by government agencies.
Annual Assessment Regular fees collected from homeowners to fund the operations and maintenance of a planned community.
CC&Rs Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and operations of a common-interest community.
Consumer Price Index (CPI) A measure published by the Bureau of Labor Statistics that examines the weighted average of prices of a basket of consumer goods and services.
Maximum Annual Assessment The theoretical ceiling for regular assessments as calculated by the formula provided in the CC&Rs.
Petition A formal written request to a government authority (in this case, the Department of Real Estate) for a hearing on a specific dispute.
Preponderance of the Evidence The standard of proof in most civil cases, meaning the evidence shows that the claim is "more probably true than not."
Respondent The party against whom a petition is filed (in this case, the Warner Ranch Landing Association).
Special Assessment A one-time fee levied by an HOA for a specific project or emergency, often requiring a membership vote.

Understanding HOA Assessment Limits: Lessons from Sweeney v. Warner Ranch Landing Association

1. Introduction: The Shock of the Assessment Increase

For many homeowners, the arrival of the annual HOA budget is met with a sense of trepidation. When that notice arrives with a significant hike—perhaps 10% or more—the immediate reaction is often one of disbelief. Residents frequently ask: "Can they really do this without a vote?"

The case of Thomas W. Sweeney vs. Warner Ranch Landing Association (No. 21F-H2120027-REL), adjudicated in the Arizona Office of Administrative Hearings, serves as a masterclass in the mechanics of community association finance. In my experience reviewing HOA litigation, these disputes rarely stem from malice, but rather from a fundamental misunderstanding of "Maximum Annual Assessments." This post explores the legal boundaries of board authority and how a decades-old formula can create a surprising "ceiling" for modern dues.

2. The Case Profile: A Dispute Over the Numbers

The conflict began when homeowner Thomas W. Sweeney filed a petition with the Arizona Department of Real Estate. He alleged that his association had overstepped its bounds by imposing a 10% increase for the 2021 fiscal year.

  • Petitioner: Thomas W. Sweeney
  • Respondent: Warner Ranch Landing Association
  • The Document in Question: Article 8, Section 8.1.5 of the community’s Covenants, Conditions, and Restrictions (CC&Rs).
  • The Allegation: The Petitioner asserted that the Association increased annual assessments in violation of the specific mathematical limits established in the CC&Rs.
3. The 1987 Legacy: How a Decades-Old Formula Dictates Today's Dues

To understand why the homeowner lost this case, one must look at the "latent power" hidden in the community’s governing documents. Section 8.1.5 of the Warner Ranch CC&Rs establishes a "Maximum Annual Assessment" (MAA) that began at $840.00 in 1987.

The Compounding Formula Unless two-thirds of the membership votes for a higher amount, the MAA for any given year is the previous year’s maximum increased by the greater of:

  • (a) The percentage increase in the Consumer Price Index (CPI); or
  • (b) Five percent (5%).

The "Math Gap" and Latent Power What many homeowners miss—and what I always emphasize to boards—is that this 5% increase is compounded annually. Because the Association did not levy the full 5% increase every year since 1987, they effectively built a "bank" of authorized but unlevied assessment power.

A critical distinction exists between the Maximum Allowable Assessment (the legal ceiling) and the Actual Assessment (what you pay). The Board is never obligated to levy the full maximum. However, their restraint in past years does not forfeit their right to "catch up" toward that cumulative ceiling in the future.

4. Homeowner’s Misconception vs. The Legal Reality

The Petitioner’s case rested on a restrictive reading of the CC&Rs, whereas the Board relied on the compounding math of the last 30 years.

Homeowner’s Misconception The Board's Legal Reality
Argued the 5% increase only applied if the Consumer Price Index (CPI) ceased to exist. The "plain reading" of the word "or" allows the Board to choose whichever rate is higher (CPI or 5%).
Believed a 10% increase was an illegal overreach because members had previously rejected a special assessment. Provided expert testimony showing that since the CPI rarely exceeded 5% since 1987, the 5% compounding rule was the valid benchmark.
Claimed the 2021 semi-annual assessment should have been capped at $962.70. Demonstrated that the 2021 "ceiling" could have legally reached $4,412.81. The actual 2021 assessment was just $1,898.50—a massive $2,324.00 "cushion" below the maximum.
5. The Statutory Safety Net: Arizona's 20% Rule

While the CC&R formula establishes the internal "ceiling," state law provides an overriding "safety net" that prevents boards from utilizing their latent power too aggressively in a single year.

Under A.R.S. § 33-1803(A), an Arizona HOA is prohibited from imposing a regular assessment that is more than 20% greater than the assessment from the immediately preceding fiscal year. In the Sweeney case, the Community Manager testified that while the CC&R cumulative ceiling was over $4,000, the Board was still bound by this 20% year-over-year statutory cap. Since the Board only implemented a 10% increase to address underfunded reserves for road improvements, they remained well within both the community's internal limits and the state's statutory protections.

6. The Verdict: Why the Judge Dismissed the Petition

Administrative Law Judge Sondra J. Vanella dismissed the petition, ruling that the Association had acted entirely within its authority. The ruling highlighted three key points:

  • The "Plain Reading" Principle: The judge found the language in Section 8.1.5 unambiguous. The word "or" creates a choice, and the Board was entitled to use the 5% compounding method to determine the maximum ceiling.
  • The Insurance/Utility Exception: The judge noted that the Board can even exceed the standard formula (though still remaining subject to the 20% statutory cap) to meet rising costs for insurance premiums and utilities without a member vote.
  • The Burden of Proof: Most importantly, the judge noted the Petitioner offered no evidence or expert data to support his claims, relying solely on his personal interpretation of the text.
7. Key Takeaways for Homeowners and HOA Boards

The Sweeney decision offers several actionable insights for navigating community finances:

  1. Calculate the Cumulative Ceiling: Understand that your "Maximum Assessment" likely grows every year regardless of what you are currently paying. This "latent power" allows boards to implement increases without a vote as long as they stay under that compounded total.
  2. Respect the Statutory Cap: Remember that A.R.S. § 33-1803(A) is your primary protection. Even if a 30-year-old CC&R formula suggests a massive increase is "legal," the 20% annual cap serves as the ultimate check on the Board's year-over-year power.
  3. Establish the Burden of Proof: For homeowners considering a legal challenge, personal disagreement is not evidence. To win an administrative hearing, you must provide data or expert testimony that proves the Board exceeded both the cumulative CC&R ceiling and the statutory cap.
  4. Communicate Reserve Funding Needs: Boards should be transparent about the "why" behind an increase. In this case, the Board justified the hike by citing underfunded reserves for road improvements—a prudent move that usually withstands judicial scrutiny.
8. Final Summary

The tension between maintaining a community’s infrastructure and keeping assessments low is a constant challenge for HOA boards. As Sweeney v. Warner Ranch Landing Association demonstrates, boards often have significantly more "latent" authority to raise dues than homeowners realize. To avoid the expense and stress of administrative hearings, boards should prioritize clear communication about how their "maximum" is calculated, while homeowners should recognize that a 10% increase—while painful—is often a legally sound exercise of the board’s duty to protect the association’s long-term financial health.

Case Participants

Petitioner Side

  • Thomas W. Sweeney (Petitioner)
    Appeared on his own behalf

Respondent Side

  • Austin Baillio (Counsel)
    Warner Ranch Landing Association
    Esq., represented Respondent
  • Christopher Reynolds (Community Manager / Witness)
    Warner Ranch Landing Association
    Provided testimony on behalf of Respondent
  • Michael Goldberg (Vice-president of the Board / Witness)
    Warner Ranch Landing Association
    Provided testimony on behalf of Respondent

Neutral Parties

  • Sondra J. Vanella (Administrative Law Judge)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Myron H Colvin v. Tierra Del Sol RV Resort Association

Posted on by
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 19F-H1919064-REL
Agency —
Tribunal —
Decision Date 2020-01-09
Administrative Law Judge —
Outcome Petition dismissed
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Myron H. Colvin Counsel Pro se
Respondent Tierra Del Sol RV Resort Association Counsel Nicholas Nogami, Esq. and Lydia A. Peirce Linsmeier

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

19F-H1919064-REL-RHG Decision – 763086.pdf

Uploaded 2026-04-24T11:20:53 (86.2 KB)

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

Executive Summary

This briefing document analyzes the administrative law decision in the matter of Myron H. Colvin v. Tierra Del Sol RV Resort Association (Case No. 19F-H19190064-REL-RHG). The case centered on a dispute regarding the installation of concrete pavers within a lot setback area and the interpretation of the association's Covenants, Conditions, and Restrictions (CC&Rs).

The Petitioner, Myron H. Colvin, alleged that the Tierra Del Sol RV Resort Association violated its own CC&Rs by issuing him a notice of violation. Following a rehearing on December 20, 2019, Administrative Law Judge Velva Moses-Thompson determined that the Petitioner failed to meet the burden of proof required to establish a violation by the Association. Furthermore, the judge ruled that the Office of Administrative Hearings (OAH) lacked the jurisdiction to issue a declaratory judgment regarding the Petitioner’s alleged violation. The petition was dismissed in its entirety.

Procedural History and Case Context

The dispute progressed through several administrative stages before reaching a final decision:

  • Initial Petition: On September 12, 2018, Mr. Colvin filed a petition with the Arizona Department of Real Estate alleging a violation of Section 4.3 of the CC&Rs.
  • Request for Hearing: On May 16, 2019, Mr. Colvin requested a hearing before the full Board of Directors concerning his alleged violation.
  • Original Hearing: The first hearing was conducted on August 7, 2019. Following the decision, Mr. Colvin requested a rehearing.
  • Rehearing: The Department of Real Estate set the matter for rehearing on December 20, 2019, at the OAH in Phoenix, Arizona.

Key Themes and Analysis

Interpretation of CC&R Section 4.3 (Lot Setbacks)

The core of the dispute involved the physical requirements for improvements within lot setbacks. Section 4.3 of the CC&Rs establishes specific setback areas:

  • Front: 5 feet
  • Sides: 3 feet
  • Rear: 3 feet

The provision prohibits permanent or temporary structures and improvements in these areas, with the exception of landscaping. However, landscaping is only permitted if it consists of "features which can be moved by one person unassisted by mechanical devices."

The Association issued a violation notice because Mr. Colvin’s installed pavers were not small enough to be removed by a single person without mechanical assistance. The Association suggested a remedy of cutting the concrete into small 100-pound sections.

Burden of Proof and Legal Standards

The decision highlights the evidentiary requirements in administrative hearings:

  • Preponderance of the Evidence: The Petitioner carries the burden of proving that the Respondent violated the CC&Rs by a "preponderance of the evidence." This is defined as evidence that is "more probably true than not" or possesses the "most convincing force."
  • Petitioner's Failure to Allegue: The judge noted a fundamental flaw in the Petitioner's argument: Mr. Colvin did not allege that the Association had placed a structure or improvement in the setback. Rather, he used the petition to argue that his own actions did not constitute a violation.
Jurisdictional Boundaries

A critical theme in the decision is the limitation of the OAH’s authority. The judge clarified that the tribunal’s role is to hear petitions concerning violations of planned community documents under A.R.S. § 32-2199(B). The tribunal does not have the jurisdiction to issue a "declaratory judgment"—a legal determination of a party's rights or status—regarding whether a homeowner's specific actions violated the CC&Rs.

Important Quotes and Context

Quote Context
"Each Lot shall be subject to a setback area… in no event shall 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." Source: CC&R Section 4.3. This quote defines the specific physical constraints that led to the violation notice against the Petitioner.
"Mr. Colvin did not even allege that Tierra Del Sol placed a structure, vehicle, or landscaping in the setback of a Lot. Mr. Colvin asserted that he did not violate Section 4.3 of the CC&Rs." Source: Conclusions of Law ¶ 4. This highlights the disconnect between the Petitioner's claim and the legal requirements for a successful petition against an association.
"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." Source: Conclusions of Law ¶ 5. This confirms the procedural limitation that the OAH cannot rule on a petitioner's "innocence" regarding a violation notice.
"A preponderance of the evidence is… 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." Source: Conclusions of Law ¶ 3. This provides the legal standard used to evaluate the evidence presented during the hearing.

Actionable Insights

For Property Owners
  • Understand Petition Requirements: When filing a petition against a Homeowners Association (HOA), the owner must provide evidence that the Association violated a specific provision of the community documents.
  • Clarify "Moveable" Standards: Before installing landscaping in setback areas, owners should verify that the materials meet the "one person, unassisted" rule to avoid mechanical device requirements and subsequent violations.
  • Jurisdictional Awareness: Owners should be aware that the OAH is a venue for addressing association violations, not necessarily a venue for obtaining a declaration that they are in compliance with rules after receiving a violation notice.
For Community Associations
  • Consistent Enforcement: The Association’s enforcement of Section 4.3 was based on a specific, measurable standard (size/weight of pavers and the need for mechanical assistance). Maintaining such clear standards aids in defending enforcement actions.
  • Remediation Options: Providing specific methods for compliance (e.g., "cutting the concrete… into small 100 pound sections") can be a useful component of a violation notice.
  • Jurisdictional Defense: In administrative hearings, associations can successfully argue for dismissal if the petitioner seeks a remedy (like a declaratory judgment) that the tribunal is not authorized to provide.

Case Analysis: Colvin v. Tierra Del Sol RV Resort Association (No. 19F-H19190064-REL-RHG)

This study guide provides a comprehensive overview of the administrative law proceedings regarding a dispute between a property owner and a homeowners association. It focuses on the interpretation of Covenants, Conditions, and Restrictions (CC&Rs), the burden of proof in administrative hearings, and the jurisdictional limits of the Office of Administrative Hearings (OAH).

Key Concepts and Case Summary

Case Background

The case involves a dispute between Myron H. Colvin (Petitioner) and Tierra Del Sol RV Resort Association (Respondent). Mr. Colvin, a property owner within the resort, filed a petition alleging that the Association violated Section 4.3 of its own CC&Rs.

The conflict originated from Mr. Colvin’s installation of concrete pavers in the setback area of his lot. While the Association initially approved the request, it later issued a Notice of Violation on May 8, 2019. The Association contended that the installed pavers were too large to be moved by one person without mechanical assistance, thus violating the specific mobility requirements for improvements in setback areas.

Legal Provisions: CC&R Section 4.3 (Lot Setbacks)

Section 4.3 of the Tierra Del Sol CC&Rs defines the physical boundaries and restrictions for lot setbacks:

Setback Location Required Distance
Front Five (5) feet
Sides Three (3) feet
Rear Three (3) feet

Core Restrictions within Setbacks:

  • Prohibited Items: No permanent or temporary structures, improvements (except landscaping), vehicles (except golf carts and car dollies), or Park Models/RVs may be located in these areas.
  • The "One-Person" Rule: Any improvement or landscaping feature in the setback must be capable of being moved by one person unassisted by mechanical devices.
  • Encroachment: No structure, slide-out, or improvement may encroach on or overhang the designated setback area unless it meets the mobility criteria.
The Burden of Proof and Legal Standards

Under Arizona law, specific standards of evidence apply to administrative hearings:

  • Petitioner's Burden: The Petitioner (Colvin) bears the burden of proof to establish that the Respondent (Association) violated the CC&Rs.
  • Respondent's Burden: The Respondent bears the burden of establishing any affirmative defenses.
  • Standard of Evidence: Both parties must prove their claims by a preponderance of the evidence.

Defining "Preponderance of the Evidence": As cited in the decision via Black’s Law Dictionary and Udall on Evidence, this standard means:

  1. The contention is "more probably true than not."
  2. Evidence that possesses the "most convincing force" and "superior evidentiary weight."
  3. It does not require the total absence of reasonable doubt, but rather enough evidence to incline an impartial mind toward one side of the issue.
Jurisdictional and Interpretive Rulings

The Administrative Law Judge (ALJ) reached two primary legal conclusions:

  1. Restrictive Covenant Interpretation: In Arizona, unambiguous covenants are enforced to give effect to the intent of the parties and must be construed as a whole.
  2. Lack of Jurisdiction for Declaratory Judgments: The OAH has the authority to hear petitions regarding violations of community documents under A.R.S. § 32-2199(B). However, the tribunal determined it does not have the jurisdiction to issue a declaratory judgment regarding whether a specific owner's actions constitute a violation; its focus is on whether the Association violated the documents.

Short-Answer Practice Questions

1. What was the primary allegation made by Myron H. Colvin in his petition? Answer: Colvin alleged that the Tierra Del Sol RV Resort Association violated Section 4.3 of its CC&Rs.

2. According to CC&R Section 4.3, what is the weight/size limit for landscaping features in a setback? Answer: There is no specific weight listed in the CC&R text, but the feature must be able to be moved by one person unassisted by mechanical devices. (Note: The Association suggested cutting concrete into 100-pound sections to meet this intent).

3. What are the specific dimensions of the setbacks for the front, sides, and rear of a lot? Answer: Front: 5 feet; Sides: 3 feet; Rear: 3 feet.

4. Why did the Administrative Law Judge dismiss Mr. Colvin’s petition? Answer: The Petitioner failed to establish that the Association violated Section 4.3. Furthermore, the tribunal ruled it lacked jurisdiction to provide a declaratory judgment on whether Colvin himself was in violation.

5. Which Arizona Revised Statute permits an owner to file a petition regarding violations of planned community documents? Answer: A.R.S. § 32-2199(B).

Essay Prompts for Deeper Exploration

  1. The Nature of Association Violations: The Association argued that Section 4.3 can only be violated if an entity places an unapproved object in a setback. Analyze the distinction between an Association failing to enforce a rule and an Association "violating" a rule. Based on the Source Context, why was Colvin’s argument fundamentally misaligned with the tribunal's jurisdictional scope?
  1. Interpreting "Unambiguous" Covenants: The decision notes that restrictive covenants must be construed as a whole to give effect to the intent of the parties. Discuss the potential challenges in interpreting the phrase "moved by one person unassisted by mechanical devices." How does such a subjective standard complicate enforcement for both homeowners and Boards of Directors?
  1. The Standard of Evidence in Administrative Law: Compare and contrast "preponderance of the evidence" with other legal standards (such as "beyond a reasonable doubt"). Using the definitions provided in the text, explain why the ALJ found that Colvin failed to meet this standard in his claim against the Association.

Glossary of Important Terms

  • Administrative Law Judge (ALJ): A judge who moves to resolve disputes between government agencies and people or between private parties under the authority of statutory law.
  • A.R.S. § 32-2199(B): The Arizona Revised Statute that grants the Department of Real Estate the authority to hear disputes regarding planned community violations.
  • CC&Rs (Covenants, Conditions, and Restrictions): The legal documents that lay out the rules for a planned community or homeowners association.
  • Declaratory Judgment: A binding adjudication that establishes the rights or legal status of the parties without necessarily awarding damages or ordering specific action.
  • Mechanical Device: In the context of CC&R 4.3, any tool or machine (such as a forklift or hoist) used to assist in moving objects that a person cannot move alone.
  • OAH (Office of Administrative Hearings): The agency responsible for conducting independent administrative hearings for the state.
  • Petitioner: The party who presents a petition to a court or tribunal (in this case, Myron H. Colvin).
  • Preponderance of the Evidence: The evidentiary standard where the proof shows that a fact is more likely to be true than not.
  • Respondent: The party against whom a petition is filed (in this case, Tierra Del Sol RV Resort Association).
  • Setback: The minimum distance which a building or other structure must be set back from a street, road, or lot boundary.

When Landscaping Leads to Legal Limbo: Lessons from the Tierra Del Sol RV Resort Dispute

1. Introduction: The High Cost of a Three-Foot Setback

What begins as a minor aesthetic modification can swiftly evolve into a protracted legal battle within the Office of Administrative Hearings (OAH). For Myron H. Colvin, a homeowner at the Tierra Del Sol RV Resort, the installation of concrete pavers triggered a dispute that spanned nearly a year and a half, beginning with a petition filing on September 12, 2018, and concluding only after a formal rehearing in early 2020.

The conflict centered on an alleged violation of Section 4.3 of the community’s Covenants, Conditions, and Restrictions (CC&Rs). This case highlights the precarious nature of property setbacks—specifically, how a three-foot strip of land can dictate the technical specifications of landscaping materials and the procedural hurdles a homeowner must clear when challenging an Association’s enforcement actions.

2. The Rule: Understanding CC&R Section 4.3

The governing documents of Tierra Del Sol RV Resort Association establish rigid "setback areas" intended to maintain safety and utility access between lots. Section 4.3 governs the placement of all structures, vehicles, and improvements within these zones.

CC&R § 4.3 Lot Setbacks: Restrictions "Each Lot shall be subject to a setback area across the front five (5) feet, on both sides three (3) feet, and the rear three (3) feet of each Lot. No permanent or temporary structures, improvements (other than landscaping), vehicles (other than golf carts and car dollies), Park Models or Recreational Vehicles shall be located within such setback area. A Recreational Vehicle, Park Model, Arizona Room, awning, shed, or any other permitted structure must be located on a Lot in compliance with setback requirements and rules of the Board, and 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."

Under this provision, the Association enforces three distinct setback requirements:

  • Front: 5 feet
  • Sides: 3 feet
  • Rear: 3 feet

As a specialist, it is vital to note that Section 4.3 applies the same "manual movability" standard to pavers as it does to "Arizona Rooms" and "Recreational Vehicle slide-outs." The core requirement is the "one-person" rule: any improvement in these areas must be capable of being moved by a single individual without mechanical assistance. This ensures that the Association or utility providers can clear the setback area quickly if emergency access to underground lines or property boundaries is required.

3. The Conflict: Pavers, Permits, and "Mechanical Devices"

While the Association initially granted approval for Mr. Colvin to install concrete pavers, the Association initiated formal enforcement proceedings following the actual installation. On May 8, 2019, the Association issued a Notice of Violation, asserting that the installed pavers were too large and heavy to comply with the "unassisted" movement requirement of CC&R § 4.3.

To resolve the non-compliance, the Board offered a compromise designed to bring the improvement within the "one-person" rule:

  • Complete removal of the concrete pavers from the setback areas; or
  • Sectioning the material: Cutting the concrete within the three-foot setback into small, 100-pound sections that a single person could theoretically move.

Mr. Colvin contested the violation, mounting a defense based on a prior alleged approval. He contended that the Association had previously sanctioned his plan to place concrete pavers cut into 3×5 foot pieces within the setback. This disagreement led to an initial hearing on August 7, 2019, and a subsequent rehearing on December 20, 2019, after Mr. Colvin challenged the initial decision.

4. The Legal Breakdown: Why the Petition Was Dismissed

The matter was adjudicated by an Administrative Law Judge (ALJ) under the authority of A.R.S. § 32-2199(B). Despite the lengthy proceedings, the ALJ sustained the Respondent's jurisdictional objections and dismissed the petition based on two fundamental legal failures.

A "Dead on Arrival" Legal Strategy

Under Arizona law, the Petitioner bears the preponderance of the evidence burden. This requires the Petitioner to prove that their contention is "more probably true than not" or carries the "most convincing force."

Mr. Colvin’s strategy was fundamentally flawed. Under A.R.S. § 32-2199(B), a petitioner must allege and prove that the Association violated the community documents. Instead, Mr. Colvin’s arguments were focused entirely on proving that he had not violated the CC&Rs. Because he failed to allege or prove a specific violation committed by the Association, he failed to meet his evidentiary burden.

The Jurisdictional Trap: No Declaratory Judgments

A critical takeaway for any homeowner is that the Office of Administrative Hearings is a venue of limited jurisdiction. The Association argued, and the ALJ confirmed, that the tribunal does not have the authority to issue a "declaratory judgment."

In practical terms, the OAH cannot provide "clearance" for a homeowner’s project or issue a ruling simply stating that a homeowner’s pavers are compliant. The tribunal’s power is restricted to determining if the Association’s actions—such as the issuance of a fine or a notice—violated the CC&Rs. By asking the court to rule on the status of his own improvements rather than the illegality of the Association's enforcement, the Petitioner sought a remedy the court had no power to give.

5. Conclusion: 3 Essential Takeaways for Homeowners

The petition was officially dismissed on January 9, 2020, with the ALJ noting that the order was binding as it resulted from a rehearing. This case serves as a vital case study in procedural correctness:

  1. Frame the Petition Correctly: In administrative law, being "right" about your landscaping is insufficient. You must frame the dispute as a violation committed by the Association. Do not defend your actions; instead, prove the Association’s enforcement action contradicts the CC&Rs.
  2. The "Unassisted" Standard is Absolute: When CC&Rs specify "manual movability," they create a technical threshold. If an improvement requires a dolly, crowbar, or a second person to move, it is a violation. The Board's offer of "100-pound sections" is a common benchmark for what constitutes "one person unassisted."
  3. Respect the Finality of Rehearings: The OAH process is exhaustive. This dispute lasted from September 2018 to January 2020. Once a rehearing decision is issued, it is binding, and the path to appeal through the Superior Court is narrow and time-sensitive.

Before engaging in a legal battle over setbacks, homeowners must realize that the tribunal is there to police the Association, not to validate the homeowner. Review the fine print—and your procedural strategy—before the first stone is laid.

Case Participants

Petitioner Side

  • Myron H. Colvin (Petitioner)
    Appeared on behalf of himself

Respondent Side

  • Nicholas Nogami (Attorney)
    Appeared on behalf of Respondent Tierra Del Sol RV Resort Association
  • Lydia A. Peirce Linsmeier (Attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Received copy of decision via US mail

Neutral Parties

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

Larry Kline vs. The Foothills Community Association

Posted on by

Case Summary

Case ID 20F-H2019012-REL
Agency Arizona Department of Real Estate
Tribunal —
Decision Date 2020-01-02
Administrative Law Judge —
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Larry Kline Counsel Pro se
Respondent The Foothills Community Association Counsel Austin Baillio, Esq.

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

20F-H2019012-REL Decision – 761847.pdf

Uploaded 2026-04-24T11:23:16 (150.9 KB)

Administrative Law Judge Decision: Kline vs. The Foothills Community Association

Executive Summary

On January 2, 2020, Administrative Law Judge Jenna Clark issued a decision in the matter of Larry Kline vs. The Foothills Community Association (No. 20F-H2019012-REL). The dispute centered on whether the Foothills Community Association (the "Association") was contractually obligated to repair a failing retaining wall located at the rear of Petitioner Larry Kline’s property.

The Petitioner alleged that the Association violated Article IV, Section 4.2(p) of the Association Bylaws by failing to maintain the wall, which separates his lot from the Foothills Golf Course. The Association denied liability, arguing the wall is not located within a "Common Area" and that no recorded instrument transfers maintenance responsibility to the Association. Following an evidentiary hearing on December 19, 2019, the Judge ruled in favor of the Association, concluding that the Petitioner failed to meet the burden of proof required to establish the Association's responsibility for the wall.

Analysis of Key Themes

1. Definition and Scope of Common Areas

A central theme of the dispute was the legal definition of "Common Area" as prescribed by the Association’s governing documents. Under Bylaws Article I, Section N, Common Areas are defined as Association-owned land, land intended for future conveyance to the Association, or specific easements granted for maintenance.

The evidence established that:

  • The retaining wall is located on the boundary of Petitioner's Lot 22 and the Foothills Golf Course.
  • The Association does not own the land underneath the retaining wall.
  • The Golf Course land is explicitly excluded from the Common Area per Bylaws Article IV, Section 4.5.
  • Tract A, a known Common Area, is located thirteen lots away from the Petitioner’s residence and has no physical or legal relationship to the wall in question.
2. Maintenance Liability for Party Walls and Fences

The Petitioner relied on Bylaws Article IV, Section 4.2(p) to argue for Association liability. This section dictates the rights and duties regarding "Party Walls" or "Party Fences." While the Association is responsible for maintenance in cases where fences are located between Common Areas and Lots or constructed by the Declarant on Common Areas, this responsibility does not extend to private walls between individual lots and non-Association land (such as the golf course).

3. Successorship and Easement Validity

The Petitioner presented a "Reservation of Easement" (1988) and a "Special Warranty Deed" (1995) to support his claim. However, the legal analysis found two critical gaps:

  • Successorship: The Petitioner could not establish that the Association was the successor or assign of the "Declarant" or "Dell E. Webb," the entities originally involved in the easement agreements.
  • Recorded Instruments: The 1995 Deed conveyed Tract A to the Association but did not convey an easement for the maintenance of the wall on Lot 22.
4. Technical Failure and Causation

The retaining wall's failure was attributed to water damage and a design flaw, with repairs estimated between $30,000 and $40,000. While the Petitioner cited failing anchors and a leaning structure, the Association raised the possibility that a leak from the Petitioner's in-ground pool may have compromised the wall's integrity. The engineering report provided by the Petitioner was noted to have omitted an underground inspection of the area between the pool and the wall.

Important Quotes with Context

On Common Area Definitions

"‘Common Area and Common Areas’ shall mean (a) all Association Land; (b) all land within The Foothills which the Declarant… makes available for use by Members… and (e) areas on a Lot or Parcel within easements granted to the Association… for the location, construction, maintenance, repair and replacement of a wall or fence."

— Bylaws Article I, Section N

Context: This definition serves as the baseline for determining whether the Association has any jurisdictional responsibility over a physical structure within the community.

On Maintenance Responsibility

"In the case of Party Fences (1) between Common Areas and Lots or Parcels, or (2) constructed by the Declarant or the Association on Common Areas within a Lot or Parcel, the Association shall be responsible for all maintenance thereof…"

— Bylaws Article IV, Section 4.2(p)(vi)

Context: The Petitioner argued this clause mandated the Association to fix his wall, but the court found the wall did not meet the "Common Area" criteria required to trigger this obligation.

On the Burden of Proof

"Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document… A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not."

— Conclusions of Law ¶ 3-4

Context: This establishes the legal standard used by the Administrative Law Judge to determine that the Petitioner's evidence was insufficient to hold the Association liable.

Summary of Findings and Ruling

The Administrative Law Judge made the following determinations:

Factor Finding
Wall Location Private property/Golf course boundary; not a Common Area.
Easement Connectivity No legal or physical relationship between the Association's Tract A and Lot 22.
Successorship No evidence that the Association is the successor to the original Declarant's easement duties.
Liability No recorded instrument imparts a maintenance requirement on the Association for this wall.

Final Order: The Petitioner’s request for the Association to cover repair costs was denied.

Actionable Insights

  • Documentation of Successorship: When claiming rights under old easement agreements, homeowners must provide recorded instruments that explicitly link the current homeowners' association to the original Declarant's specific obligations and powers.
  • Verification of Common Area Boundaries: Property owners should consult Plat Maps and Tract Declarations to confirm whether a structure (like a retaining wall) is legally classified as a Common Area before initiating a petition for Association maintenance.
  • Evidence of Causation: In disputes involving structural failure, comprehensive engineering reports—including underground inspections where applicable (e.g., near pools)—are vital to rule out owner negligence or "willful or negligent acts" that would shift costs back to the member under Bylaw Article X, Section 10.3.
  • Burden of Proof Requirements: A petitioner must prove it is "more probably true than not" that a violation occurred. Mere interpretation of ambiguous language without supporting recorded deeds or specific bylaws is generally insufficient in administrative hearings.

Study Guide: Kline v. The Foothills Community Association

This study guide provides a comprehensive overview of the administrative law case Larry Kline vs. The Foothills Community Association (No. 20F-H2019012-REL). It examines the legal dispute regarding the maintenance responsibilities of a homeowners' association versus an individual property owner.

Key Concepts and Case Summary

1. Case Overview

The case involves a dispute between Petitioner Larry Kline and Respondent Foothills Community Association. Petitioner alleged that the Association violated its governing documents—specifically Bylaws Article IV, Section 4.2(p)—by failing to repair a failing retaining wall located at the back of his property.

2. Governing Documents and Definitions

The relationship between the parties is governed by several legal instruments that form an enforceable contract:

  • Declaration of Covenants, Conditions and Restrictions (CC&Rs): Recorded on April 10, 1987, these empower the Association to control property use.
  • Common Areas: Defined in Bylaws Article I, Section N as Association Land or areas within easements granted to the Association for maintenance and repair.
  • Declarant: Refers to the Foothills Joint Venture or its successors/assigns who have been granted rights via recorded instruments.
  • Party Walls/Fences: Shared structures between lots or between a lot and a common area.
3. The Central Dispute

The Petitioner’s property (Lot 22) features a retaining wall separating his land from the Foothills Golf Course. The wall is leaning due to a design flaw and water damage, with repair costs estimated between $30,000 and $40,000.

  • Petitioner’s Argument: The Association is liable for maintenance based on an Easement Agreement (1988) and a Special Warranty Deed (1995).
  • Respondent’s Argument: The wall is not in a Common Area; the Association is not a successor to the original "Declarant" of the easement; and the wall sits on private property, making maintenance the owner’s responsibility.
4. Legal Standards
  • Jurisdiction: The Arizona Department of Real Estate has the authority to decide disputes between homeowners and associations regarding violations of community documents.
  • Burden of Proof: The Petitioner bears the burden of proving a violation by a preponderance of the evidence (meaning the claim is more probably true than not).

Short-Answer Practice Questions

1. What specific section of the Bylaws did the Petitioner claim the Association violated?

Answer: Bylaws Article IV, Section 4.2(p).

2. According to Bylaws Article IV, Section 4.5, is "Golf Course Land" considered part of the Common Area?

Answer: No. The Bylaws explicitly state that Golf Course Land is not part of the Common Area.

3. What was the estimated cost for the remediation of the retaining wall?

Answer: Between $30,000.00 and $40,000.00.

4. Why did the Administrative Law Judge (ALJ) conclude that the Association was not responsible for the wall under the Easement Agreement?

Answer: The Petitioner failed to establish that the Association was a successor or assign of the "Declarant" who signed the original Easement Agreement.

5. What is the definition of "Preponderance of the Evidence" used in this case?

Answer: Evidence that has the most convincing force and superior evidentiary weight, making a contention "more probably true than not."

6. What physical feature of Lot 22 did the Association’s witness suggest might have contributed to the wall's damage?

Answer: An in-ground pool, which may have leaked and impacted the wall's anchor support system.

7. Is Tract A related to the Petitioner’s property on Lot 22?

Answer: No. Tract A is a Common Area throughway located thirteen lots away from Lot 22, with no legal or physical relationship to Lot 22's retaining wall.

Essay Prompts for Deeper Exploration

  1. Contractual Obligations in Planned Communities: Analyze how CC&Rs and Bylaws function as an enforceable contract between an Association and its members. Discuss the importance of "recorded instruments" in determining which party is responsible for the maintenance of specific structures like party walls.
  2. The Role of the "Declarant" and Successorship: Explain the legal significance of the term "Declarant" in this case. Why was the Petitioner's inability to prove the Association was a "successor or assign" of the original Declarant fatal to his claim regarding the Easement Agreement?
  3. Evidentiary Burdens in Administrative Hearings: Discuss the "preponderance of evidence" standard. In the context of this case, what specific types of evidence (e.g., engineering reports, deeds, plat maps) were most influential in the Judge’s final decision, and where did the Petitioner’s evidence fall short?

Glossary of Important Terms

Term Definition
Administrative Law Judge (ALJ) A judge who over-sees evidentiary hearings and makes findings of fact and conclusions of law for state agencies.
CC&Rs Declaration of Covenants, Conditions and Restrictions; the primary governing documents for a homeowners' association.
Common Area Land owned by the Association or specifically designated for Association use and maintenance in recorded documents.
Declarant The original developer of a community (Foothills Joint Venture) or a party to whom their rights have been officially assigned.
Easement A legal right to use another person's land for a specific purpose (e.g., maintenance of a wall or landscaping).
Party Wall / Fence A wall or fence located on or at the division line between contiguous lots or between a lot and a common area.
Preponderance of the Evidence The standard of proof in civil cases; evidence that is more convincing than the evidence offered in opposition.
Recorded Instrument A legal document (like a deed or declaration) that has been officially filed with the County Recorder's Office to provide public notice.
Shotcrete Wall A reinforcement method mentioned in the remediation proposal for the failing retaining wall.
Tract Declaration A recorded document that defines specific sections or subdivisions within a larger development.

thought Master Writer and Editor. Legal Consultant specializing in Planned Community Disputes and HOA Governance. Rewrite an initial draft into a final, publication-ready document. Larry Kline vs. The Foothills Community Association (No. 20F-H2019012-REL). Outline, Expert Critique, Initial Draft, Source Context.

  • Tone: Professional, accessible, consultant-level nuance (strategic, not just reporting).
  • Fidelity: Prioritize Source Context (Arizona Department of Real Estate case).
  • Critique Point 1 (Persona): Frame Association strategy as a "defensive masterclass." Highlight Petitioner's lack of geotechnical due diligence regarding the pool.
  • Critique Point 2 (Successorship): Identify Dell E. Webb. Explain the failure to link the Association via a recorded instrument.
  • Critique Point 3 (Common Area/Tract A): Include "Tract A" details (13 lots away, only land in the 1995 Deed).
  • Critique Point 4 (Markdown Table): Add Bylaw Article IV, Section 4.5 (Golf Course Land is NOT Common Area).
  • Critique Point 5 (Synthesis): Add "Consultant's Notes" to the three missing links.
  • Critique Point 6 (Conclusion): Reference the Plat Map (no easement on Lot 22) and distinguish Special Warranty Deed vs. Easement Agreement.
  • Critique Point 7 (Bolding): Bold CC&Rs, Bylaws, Tract Declaration, Special Warranty Deed, Preponderance of the Evidence, Common Area.
  • Critique Point 8 (Venue): Mention the Arizona Department of Real Estate.
  • Critique Point 9 (Geography): Wall is on boundary of Lot 22 and Golf Course; HOA does not own the land.
  • Title: # The $40,000 Wall: Lessons in HOA Liability and Homeowner Responsibility
  • Section 1: Introduction.
  • Hook: Financial risks of boundary disputes.
  • The Case: Larry Kline vs. The Foothills Community Association (20F-H2019012-REL).
  • Venue: Arizona Department of Real Estate.
  • Question: Who is responsible for perimeter structures?
  • Section 2: The Conflict.
  • Description of Lot 22 and the wall (leaning toward golf course).
  • Bullet points on physical state: Design flaws, failing anchors, leaning, water damage.
  • Cost: $30,000-$40,000.
  • Legal hook: Bylaws Article IV, Section 4.2(p).
  • Association refusal: Demanded evidence of liability.
  • Section 3: Decoding the Governing Documents.
  • Define Common Area (Bylaws Article I, Section N). Mention Tract A (13 lots away).
  • Section 4.2(p) (Party Fences/Walls).
  • Section 4.5 (Golf Course Land is NOT Common Area).
  • Markdown Table: Compare Arguments. Ensure Section 4.5 is the "smoking gun."
  • Section 4: The Hearing.
  • Standard: Preponderance of the Evidence.
  • Association's "defensive masterclass."
  • Patricia Ann Wontor's testimony: Tract A vs. Lot 22.
  • Rebuttal/Due Diligence failure: The in-ground pool. Mention Kline's water bill justification as insufficient.
  • Section 5: The Verdict.
  • Judge Jenna Clark's decision.
  • The Three Missing Links with Consultant's Notes.
  • Link 1: Dell E. Webb / Successorship.
  • Link 2: Recorded Instrument / Mandate.
  • Link 3: Land Ownership (Private/Golf course vs. HOA).
  • Section 6: Conclusion.
  • Actionable insights.
  • Know Your Boundaries: Plat Map details (Lot 22 exclusion).
  • Documentation is King: Special Warranty Deed vs. Easement Agreement.
  • The Burden of Proof: Preponderance of the Evidence.
  • Final thought: Legal review and property inspection.
  • Check bolding: CC&Rs, Bylaws, Tract Declaration, Special Warranty Deed, Common Area, Preponderance of the Evidence.
  • Verify facts: Tract A is 13 lots away. Original party was Dell E. Webb. Wall is on private/golf course land.
  • Tone check: Ensure it sounds like a consultant advising a client/reader. Avoid passive language.
  • Formatting: H1 title, H2/H3 headers, Markdown table, no conversational filler.
  • Critique: Frame pool leak as failure of due diligence. (Included).
  • Critique: Mention Tract A is 13 lots away. (Included).
  • Critique: Mention Section 4.5 in the table. (Included).
  • Critique: Mention Dell E. Webb and the "recorded instrument" link. (Included).
  • Critique: "Consultant's Note" for missing links. (Included).
  • Critique: Bold specific terms. (Done).

(Self-Correction during drafting): Make sure the table shows the "smoking gun" of Section 4.5 clearly.

(Source Check): The source says "Petitioner has not established that the Association is a successor or assign of the Declarant who signed the Easement Agreement." The original party to the 1988 agreement was Dell E. Webb (mentioned in the Findings of Fact #22).

(Source Check): The 1995 Special Warranty Deed conveyed Tract A to the Association. Tract A is 13 lots away.

(Final Formatting Check): Only Markdown H1 at start. No preamble.# The $40,000 Wall: Lessons in HOA Liability and Homeowner Responsibility

1. Introduction: The High Stakes of Property Maintenance

In the world of planned communities, the boundary between a private lot and a common area is more than a line on a map—it is a high-stakes financial divide. When a perimeter structure begins to fail, homeowners often assume the homeowners’ association (HOA) is naturally responsible for the repair. However, as one Phoenix homeowner discovered, making that assumption without a rock-solid legal foundation can lead to a costly defeat.

The case of Larry Kline vs. The Foothills Community Association (No. 20F-H2019012-REL), heard by the Arizona Department of Real Estate, serves as a masterclass in the complexities of community governance. At the heart of the dispute was a failing retaining wall and a potential $40,000 repair bill. The central question of the hearing: Who is truly responsible for structures sitting on the edge of private property and common areas?

2. The Conflict: A Leaning Wall and a Denied Request

The dispute centered on a massive retaining wall located along the back perimeter of Larry Kline’s property (Lot 22), which separates his residence from the Foothills Golf Course. The physical state of the wall was dire:

  • Design Flaws: A latent defect in the original wall design.
  • Structural Failure: Failing internal anchors causing the wall to lose its integrity.
  • Physical Displacement: The structure was visibly leaning toward the golf course.
  • Water Damage: Significant damage caused by prolonged water accumulation and soil pressure.

After consulting with engineering firms, Kline estimated the cost for reinforcement and remediation to be between $30,000 and $40,000. Relying on his interpretation of the community’s governing documents—specifically Bylaws Article IV, Section 4.2(p)—Kline demanded that the Association cover the repairs. The Association refused, maintaining that they held no liability for structures located on the perimeter of a private lot, and challenged Kline to provide a recorded mandate for such maintenance.

3. Decoding the Governing Documents: CC&Rs vs. Reality

To resolve the dispute, the Administrative Law Judge had to dissect the CC&Rs and Bylaws, specifically regarding the definitions of "Common Area" and "Party Walls."

Under the Bylaws, Common Area is strictly defined as land owned by the Association or land the "Declarant" intended to convey via a Recorded instrument. A critical piece of evidence was the Special Warranty Deed from 1995, which conveyed "Tract A" to the Association. However, "Tract A" was a drainage throughway located thirteen lots away from Kline’s property, with no physical or legal connection to Lot 22.

The following table highlights the strategic clash between the Petitioner's assumptions and the Association’s textual defense:

Petitioner’s Argument Association’s Defense
Legal Basis: Relied on a 1988 Reservation of Easement and a 1995 Special Warranty Deed. Legal Basis: Relied on the Plat Map, Tract Declaration, and Bylaws Section 4.5.
Liability: Argued the Association was a successor to the original developer and held maintenance duties in perpetuity. The "Smoking Gun": Bylaws Article IV, Section 4.5 explicitly states that "Golf Course Land shall not be part of the Common Area."
Interpretation: Interpreted Section 4.2(p) as mandating HOA repair for any boundary "Party Fence" or wall. Ownership: Proved the wall sat entirely on land owned by the Petitioner and the golf course, neither of which is Common Area.

4. The Hearing: A Defensive Masterclass

The December 2019 hearing hinged on the Preponderance of the Evidence. This standard required Mr. Kline to prove it was "more probably true than not" that the Association violated a community document.

The Association executed a defensive masterclass by highlighting the Petitioner’s failure to conduct proper due diligence. While Kline argued that the wall failed due to design defects, the Association suggested a more localized cause: Kline’s in-ground pool. They argued that an underground leak from the pool could have compromised the wall's anchor system.

In a pivotal moment, Kline conceded he had not commissioned a geotechnical soil evaluation or checked for pool leaks because he "did not notice any abnormal increases to his monthly water bill." From a consultant’s perspective, relying on a water bill instead of a professional inspection in a $40,000 dispute left the Petitioner’s case fatally vulnerable to rebuttal.

5. The Verdict: Why the Petition was Denied

Administrative Law Judge Jenna Clark concluded that the Petitioner failed to sustain his burden of proof. The denial rested on three "missing links":

  1. Failure to Establish Successor Status: The Petitioner could not prove the Association was the legal successor or assign of Dell E. Webb (the original party to the 1988 Easement Agreement).
  • Consultant’s Note: Without a recorded instrument expressly linking the Association to the original developer’s specific obligations, the "chain of authority" is broken.
  1. Lack of a Recorded Mandate: No Deed or Tract Declaration was presented that explicitly required the Association to maintain that specific wall on Lot 22.
  • Consultant’s Note: In HOA law, verbal "understandings" or historical assumptions are legally irrelevant compared to what is written in the recorded title.
  1. Private Property Location: It was undisputed that the wall sat on private land and golf course property.
  • Consultant’s Note: Because the wall was not on a Common Area, the maintenance protections of Bylaws Section 4.2(p) simply did not apply.

6. Conclusion: Key Takeaways for Every Homeowner

This case provides a sobering reminder that "common sense" in a neighborhood is rarely the same as "legal fact" in a courtroom.

  • Know Your Boundaries: Never assume a boundary wall is an HOA responsibility. Consult your subdivision's Plat Map specifically. In this case, the Plat Map showed "no easement listed for Lot 22," which was a decisive factor in the ruling.
  • Documentation is King: Understand the difference between a Special Warranty Deed and an Easement Agreement. A Deed conveying one specific area (like Tract A) does not automatically transfer maintenance duties to every other perimeter structure in the community.
  • The Burden of Proof: In administrative hearings, the responsibility lies entirely with the petitioner to provide a Preponderance of the Evidence. If the governing documents—the CC&Rs, Bylaws, and Tract Declaration—do not explicitly grant you a right, the tribunal cannot create one for you.

Before escalating a dispute involving high-cost repairs, homeowners should invest in professional property inspections and a rigorous legal review of their CC&Rs to ensure their claims are built on recorded evidence, not expensive assumptions.

Case Participants

Petitioner Side

  • Larry Kline (Petitioner)
    The Foothills Community Association
    Property owner of Lot 22, Club House Estates; appeared on his own behalf.

Respondent Side

  • Austin Baillio (Attorney)
    Maxwell & Morgan, P.C.
    Appeared on behalf of The Foothills Community Association. Also spelled B. Austin Baillo.
  • Patricia Ann Wontor (Witness)
    The Foothills Community Association
    Onsite Community Manager for the Association.

Neutral Parties

  • Joe Robinson (Observer)
    Observed the hearing.
  • Sandra Salvo (Observer)
    Observed the hearing.
  • Jenna Clark (Administrative Law Judge)
    Office of Administrative Hearings
    Presiding judge.
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of the order and decision.

Lawrence M. Stewart v. Canyon Gate Condominium Association, Inc.

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Case Summary

Case ID 18F-H1818052-REL
Agency Arizona Department of Real Estate
Tribunal —
Decision Date 9/14/2018
Administrative Law Judge TS
Outcome complete
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Lawrence M. Stewart Counsel Pro Se
Respondent Canyon Gate Condominium Association, Inc. Counsel Mark K. Sahl, Esq., Nicolas C. S. Nogami, Esq.

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

18F-H1818052-REL Decision – 683622.pdf

Uploaded 2026-04-24T11:13:55 (95.5 KB)

18F-H1818052-REL Decision – 694095.pdf

Uploaded 2026-04-24T11:13:58 (90.8 KB)

18F-H1818052-REL Decision – 660026.pdf

Uploaded 2026-04-24T11:14:03 (91.5 KB)

18F-H1818052-REL Decision – 720468.pdf

Uploaded 2026-04-24T11:14:06 (103.5 KB)

Administrative Decision Briefing: Stewart v. Canyon Gate Condominium Association, Inc.

This briefing document provides a comprehensive analysis of the legal proceedings and final administrative decisions regarding the dispute between Lawrence M. Stewart and the Canyon Gate Condominium Association, Inc. (Case No. 18F-H1818052-REL and 18F-H1818052-REL-RHG).

Executive Summary

The matter originated from a petition filed by Lawrence M. Stewart on May 21, 2018, alleging that the Canyon Gate Condominium Association, Inc. violated Association Bylaws, specifically Section 5.4, regarding the denial of a variance for unauthorized changes made to common or limited common areas.

Mr. Stewart, while serving as a Board member, modified areas around his unit without prior authorization. Upon being notified of a violation of Section 5.1 of the Covenants, Conditions, and Restrictions (CC&Rs), he sought a formal variance. The Board, consisting of two other members, denied this request on February 18, 2018, leading to Mr. Stewart's resignation and subsequent legal action.

Across two hearings—an initial hearing on September 6, 2018, and a rehearing on January 2, 2019—Administrative Law Judge Thomas Shedden consistently ruled in favor of the Association. The central legal finding was that Bylaw Section 5.4 serves as a "shield" against liability for Board members rather than a "sword" for petitioners to challenge Board decisions. Consequently, the petition was dismissed, and the Association was deemed the prevailing party.

Detailed Analysis of Key Themes

1. Interpretation of Bylaw Section 5.4 (Indemnification and Liability)

The crux of the Petitioner's argument rested on Section 5.4 of the Association Bylaws. Mr. Stewart used this section to assert a "good faith" requirement for Board decisions.

  • The Provision: Section 5.4 states that as long as a Board member acts in "good faith on the basis of information actually possessed," they shall not be liable for damages or loss related to the approval or disapproval of plans or any act/failure to act by the Association.
  • The Legal Conflict: The Association argued that Section 5.4 was inapplicable because no Board member had been charged with an act requiring indemnity.
  • The Ruling: The Administrative Law Judge (ALJ) determined that Section 5.4 does not impose a duty on the Board to act in a specific way toward owners; rather, it is a liability shield. Mr. Stewart eventually acknowledged that Section 5.4 acts as a "shield" and not a "sword," admitting he cited it only because he could find no other "good faith" reference in the governing documents.
2. Allegations of Bias and Lack of Good Faith

Mr. Stewart contended that the Board's decision was not made in good faith and that Board member David Larson was specifically biased against him.

  • Evidence of Bias: Stewart cited Mr. Larson’s biography, meeting notes from November 2017 regarding "Fair Notice" of enforcement (towing, violation notices), and a letter Larson wrote in October 2018 urging members not to vote for Stewart in an election.
  • Evidence of Bad Faith: Stewart testified that the Board members were unwilling to physically inspect his changes and only took a "cursory look" at his photographs.
  • The Ruling: The ALJ found the evidence insufficient to prove bias or bad faith by a preponderance of the evidence. Regarding the meeting notes, Larson’s refusal to discuss Board business in driveways or his intent to enforce CC&Rs did not constitute legal bias against Mr. Stewart’s specific variance request.
3. "Pandora's Box" and Reasonable Enforcement

A significant theme was the Board's rationale for denying the variance.

  • The Association's Defense: The Board denied the request on the basis that granting it would "open a Pandora’s Box," encouraging other owners to request similar variances for common areas.
  • Selective Enforcement Claims: Mr. Stewart argued he was treated unfairly, presenting photos of other units allegedly not in conformity with the CC&Rs.
  • The Ruling: The ALJ determined that the Board's fear of a "Pandora's Box" was a reasonable position for a condominium association. Furthermore, the specifics of Stewart’s changes were deemed not germane to the decision if the Board's policy was to prevent a precedent of common area modifications. The evidence of other non-conforming units was dismissed because there was no proof those owners had requested or been denied variances, nor was it known if they had received prior approval.

Important Quotes with Context

Quote Context
"Mr. Stewart appeared to acknowledge that section 5.4 acts as a 'shield' and not a 'sword,' but he testified to the effect that that was the only section that included a 'good faith' requirement." Findings of Fact, Para 21 (Initial Decision). This highlights the Petitioner's struggle to find a legal basis for his claim within the governing documents.
"The Board disapproved his changes because they were fearful of opening a Pandora’s Box of people requesting changes to the common area. This was not an unreasonable position for the Board of a condominium association." Conclusions of Law, Para 7. The Judge validates the Association’s right to deny variances based on the risk of setting a precedent.
"A preponderance of the evidence is… evidence that has the most convincing force; 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." Conclusions of Law, Para 3. This defines the standard of proof Mr. Stewart failed to meet in his allegations of bias.
"Bylaws Section 5.4 does not impose any duty on the Board members, but rather shields them from liability if they have acted in good faith." Conclusions of Law, Para 5 (Rehearing). This is the definitive legal interpretation that led to the dismissal of the petition.

Actionable Insights

For Homeowners and Board Members
  • Prior Authorization is Mandatory: Modifications to common or limited common areas must receive written approval before work begins. Attempting to secure a "variance" after the fact (as Mr. Stewart did) places the owner in a precarious legal position where the Board has broad discretion to deny the request to prevent setting a precedent.
  • Understanding Bylaw Limitations: General "good faith" clauses found in indemnification sections are typically intended to protect the Association and its officers from lawsuits; they do not necessarily provide a cause of action for an owner to overturn a Board's discretionary decision.
  • Evidence Standards in Administrative Hearings: To prove bias or "bad faith," a petitioner must provide specific, probative evidence that links the bias directly to the decision in question. General disagreements or a Board member’s rigorous enforcement of rules do not legally equate to bias.
  • Burden of Proof: In these administrative matters, the petitioner bears the burden of proof by a "preponderance of the evidence." If the evidence is equally balanced or insufficient to "incline a fair and impartial mind" to the petitioner's side, the case will be dismissed.
For Association Governance
  • Consistency in Rationale: The Board's use of a consistent rationale (preventing a "Pandora's Box") was viewed as reasonable by the court. Boards should document the policy-based reasons for denying variances to withstand legal scrutiny.
  • Recusal Protocols: While Mr. Stewart disputed whether he had agreed to recuse himself, the case underscores the importance of clear, documented recusal when a Board member has a personal interest in a matter before the Board.

Study Guide: Stewart v. Canyon Gate Condominium Association, Inc.

This study guide provides a comprehensive overview of the administrative law cases between Lawrence M. Stewart (Petitioner) and the Canyon Gate Condominium Association, Inc. (Respondent). It explores the legal disputes regarding condominium governance, homeowners' association (HOA) board conduct, and the interpretation of association bylaws.

Case Overview and Entities

The conflict arose when Lawrence M. Stewart, a condominium owner and former board member, made unauthorized changes to the common or limited common areas surrounding his unit. The resulting legal proceedings focused on whether the Association Board acted in good faith and within its authority when it denied Mr. Stewart's request for a variance to keep those changes.

Key Entities and Figures
Entity/Figure Role
Lawrence M. Stewart Petitioner; unit owner and former Board member of Canyon Gate Condominium Association.
Canyon Gate Condominium Association, Inc. Respondent; the homeowners' association governing the condominium complex.
Thomas Shedden Administrative Law Judge (ALJ) who presided over the hearings and issued the decisions.
David Larson Board member of the Association; accused of bias by Mr. Stewart.
Sandra Fernandez Board member of the Association during the dispute.
Arizona Department of Real Estate The state agency with authority over the matter under Ariz. Rev. Stat. Title 32.

Core Themes and Legal Principles

1. The Nature of Association Bylaws

Bylaws are legally viewed as a contract between the Association and the owners. Both parties are required to comply with the terms of this contract. When exercising authority under these bylaws, the Association must act reasonably.

2. The "Shield vs. Sword" Interpretation of Section 5.4

A central point of contention was Bylaws Article V, Section 5.4 (Liability).

  • The Provision: It states that Board members are not liable for damages or prejudice resulting from their acts (including approval or disapproval of plans) as long as they act in good faith based on information they possess.
  • The Interpretation: The court determined that Section 5.4 acts as a "shield" (protecting board members from liability) rather than a "sword" (a provision that owners can use to sue the board for lack of good faith in administrative decisions).
3. Standards of Evidence
  • Burden of Proof: The Petitioner (Mr. Stewart) carries the burden of proving his claims.
  • Preponderance of the Evidence: The standard of proof required. This is defined as evidence with the most "convincing force" or "superior evidentiary weight," sufficient to incline an impartial mind toward one side of the issue.
4. Board Reasonableness: The "Pandora’s Box" Defense

The Board denied Mr. Stewart’s variance request because they believed granting it would open a "Pandora’s Box," leading other owners to demand similar changes to common areas. The ALJ ruled this was a reasonable position for a condominium association board to take.

Procedural History

Date Event
November 15, 2017 Association counsel informs Mr. Stewart he is in violation of CC&Rs Section 5.1.
December 27, 2017 Association attorney erroneously writes that Mr. Stewart recused himself from the matter.
February 18, 2018 Board meeting held. Mr. Stewart resigns. The Board votes to deny the variance and orders restoration of the area.
May 21, 2018 Mr. Stewart files his petition with the Arizona Department of Real Estate.
September 6, 2018 Initial hearing conducted at the Office of Administrative Hearings.
September 14, 2018 ALJ issues decision dismissing the petition.
January 2, 2019 Rehearing conducted.
January 17, 2019 Final ALJ decision issued, again dismissing the petition and affirming the Association as the prevailing party.

Short-Answer Practice Questions

1. What specific section of the CC&Rs did the Association claim Mr. Stewart violated?

Answer: Section 5.1, by making changes to common or limited common areas without prior written permission.

2. Why did the ALJ conclude that the specific details of Mr. Stewart’s changes were not "germane" to the Board's decision?

Answer: Because the Board's denial was based on the policy of not wanting to set a precedent ("opening a Pandora’s Box") for common area modifications, the physical specifics of the changes were irrelevant to that policy-based refusal.

3. What evidence did Mr. Stewart provide to suggest David Larson was biased against him?

Answer: Mr. Stewart cited a biography of Larson, meeting notes where Larson gave "Fair Notice" of enforcement actions, Larson's refusal to discuss board business in driveways, and an October 2018 letter Larson wrote urging members not to vote for Stewart in an election.

4. Why was Mr. Stewart’s evidence regarding other non-conforming units deemed not probative?

Answer: Mr. Stewart could not prove those units had requested and been granted variances (as opposed to having pre-approval or being older than two years), meaning their status did not prove the Board treated him unfairly regarding his specific variance request.

5. How did the ALJ define "Preponderance of the Evidence"?

Answer: It is the greater weight of evidence that has the most convincing force; it is superior evidentiary weight that inclines a fair mind to one side even if it doesn't free the mind of all reasonable doubt.

Essay Prompts for Deeper Exploration

Prompt 1: The Scope of Good Faith and Liability

Analyze the Association’s Bylaw Section 5.4. Discuss the legal distinction between a provision that shields a director from personal liability and a provision that creates an actionable duty of "good faith" toward individual homeowners. Why did the ALJ determine that Mr. Stewart could not use Section 5.4 as a "sword"?

Prompt 2: Fairness in HOA Enforcement

Mr. Stewart argued that he was treated unfairly because other units were not in conformity with the CC&Rs. Evaluate the evidentiary requirements for a "selective enforcement" claim based on the case text. What must a petitioner prove to demonstrate that the board is acting inconsistently or in bad faith when denying a variance?

Prompt 3: Judicial Deference to Board Decisions

The ALJ found the Board’s "Pandora’s Box" argument to be a "reasonable position." Explore the balance of power between individual property rights and the collective authority of a homeowners' association. Under what circumstances should an Administrative Law Judge overrule the discretionary decision of a community board?

Glossary of Important Terms

  • Administrative Law Judge (ALJ): An official who presides over hearings and makes decisions regarding disputes involving government agencies (in this case, the Department of Real Estate).
  • CC&Rs: Covenants, Conditions, and Restrictions; the governing documents that dictate the rules for a planned community or condominium.
  • Common Area: Spaces within a condominium project that are owned or used by all members of the association.
  • Good Faith: An honest intent to act without taking an unfair advantage over another person; acting on the basis of information actually possessed.
  • Indemnification: A legal agreement to provide financial protection against loss or liability.
  • Limited Common Area: A portion of the common area reserved for the exclusive use of one or more (but fewer than all) of the units (e.g., a patio or walkway directly outside a unit).
  • Preponderance of the Evidence: The standard of proof in civil and administrative cases requiring that a fact be more likely true than not.
  • Recusal: The act of a person (like a board member) disqualifying themselves from participating in a decision due to a potential conflict of interest.
  • Variance: An official deviation from the set rules or bylaws granted by the governing body (the Board).

The "Pandora’s Box" Dilemma: Lessons from the Stewart vs. Canyon Gate HOA Dispute

1. Introduction: When Home Improvements Meet HOA Realities

Imagine the satisfaction of completing a home improvement project, only to receive a cease-and-desist letter from your HOA Board. This is the nightmare scenario for many homeowners: you’ve modified a common area or balcony, believing it was your right, only to find you have bypassed the Association’s governing documents. What follows is often a high-stakes legal chess match over board authority and the elusive definition of "good faith."

The dispute in Lawrence M. Stewart vs. Canyon Gate Condominium Association, Inc. serves as a masterclass in this conflict. When Mr. Stewart implemented unauthorized changes to the common areas around his unit, he triggered a legal battle that reached the Arizona Office of Administrative Hearings—not once, but twice. This case provides a critical look at why a Board’s decision to deny a variance is often legally fortified and illustrates the steep uphill climb homeowners face when alleging "bad faith."

2. The Conflict: Unauthorized Changes and the Request for a Variance

The friction began when Mr. Stewart modified common or limited common areas without securing prior Board approval. On November 15, 2017, the Association’s legal counsel issued a stark ultimatum: submit a written request for a variance or face a civil lawsuit to compel the restoration of the area.

At the time, the situation was complicated by the fact that Mr. Stewart was a sitting member of the Board. During a tense Board meeting on February 18, 2018, the atmosphere soured. Sensing that his colleagues, Sandra Fernandez and David Larson, had already made up their minds, Mr. Stewart resigned his position mid-meeting. Immediately following his resignation, the remaining two members voted unanimously to deny the variance.

Perhaps the most telling aspect of the legal proceedings that followed was that the Association presented no witnesses. They did not need to. By relying purely on the legal interpretation of the governing documents and the Petitioner’s failure to meet his burden of proof, the Association successfully defended its position without a single person taking the stand on its behalf.

3. The Legal Tug-of-War: Is Good Faith a "Shield" or a "Sword"?

Mr. Stewart’s primary legal gambit rested on Bylaw Section 5.4, which he argued required the Board to act in "good faith." However, the Association dismantled this argument by clarifying that the bylaw was never intended to be a "sword" used to overturn Board votes. Instead, it is an indemnification provision—a "shield" designed to protect Board members from personal financial liability.

The Administrative Law Judge (ALJ) emphasized that Section 5.4 protects members from damages or monetary loss. Because Mr. Stewart was seeking to validate a variance rather than suing for money, the "shield" was legally irrelevant to his cause of action.

Petitioner’s Interpretation (Mr. Stewart) Association’s Interpretation (Successful Argument)
Argued Section 5.4 imposes a performance duty on the Board to act in "good faith" when denying variances. Argued Section 5.4 is an indemnification provision protecting members from personal liability.
Attempted to use the section as a "sword" to invalidate the Board’s vote. Successfully used the section as a "shield" against liability for damages, not a standard for voting.
4. Proving Bias: Why the "Preponderance of Evidence" Matters

In administrative law, the "burden of proof" is the Petitioner's heaviest lift. Mr. Stewart was required to prove his case by a "Preponderance of Evidence." As defined in Black’s Law Dictionary 1373, this means:

"The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force… sufficient to incline a fair and impartial mind to one side of the issue rather than the other."

Mr. Stewart alleged that Board member David Larson was personally biased against him. To support this, he presented three pieces of evidence across the initial hearing and a subsequent rehearing:

  • A Professional Biography: A bio of Mr. Larson prepared by the property manager.
  • Meeting Notes: Notes from November 2017 where Mr. Larson used the term "Fair Notice" regarding towing and enforcement, and stated he was too busy to discuss Board business in driveways.
  • Election Correspondence (Rehearing Evidence): A letter from October 2018 where Mr. Larson urged members not to vote for Mr. Stewart in an upcoming election.

The ALJ found these "feelings" of bias legally insufficient. The judge noted that the "Fair Notice" comments were standard enforcement language, and the election letter—though part of a contentious rehearing process—did not prove the original variance denial was made in bad faith. Mr. Stewart could not point to any specific biased information, and the court ruled that personal friction does not automatically equate to a legal breach of duty.

5. The "Pandora’s Box" Defense and Selective Enforcement

The Association’s most potent defense was the "Pandora’s Box" argument. They argued that granting a variance for unauthorized work would set a community-wide precedent, effectively stripping the Board of its ability to enforce standards in the future.

Citing the legal precedent of Tierra Ranchos Homeowners Ass'n v. Kitchukov, the ALJ noted that an Association must act "reasonably." The judge found the "Pandora's Box" concern to be a quintessential example of reasonableness. Even if Mr. Stewart’s changes were not "readily seen by others," the Board’s duty is to the long-term integrity of the governing documents, not the aesthetics of a single unit.

Mr. Stewart also claimed "selective enforcement," providing photos of other non-conforming units. The ALJ rejected this evidence for three reasons:

  1. Lack of History: Stewart could not prove if those units had received variances more than two years prior.
  2. Pre-approval Unknown: He could not confirm if those changes had been pre-approved, rendering a variance unnecessary.
  3. No Probative Value: The photos were legally irrelevant because Stewart failed to show those owners had actually gone through the same variance process and been granted an exception.
6. Conclusion: Navigating HOA Disputes with Clarity

The final ruling was clear: the petition was dismissed, and the Canyon Gate Condominium Association was deemed the prevailing party. This case reinforces that Boards are afforded significant discretion when they act to prevent a "Pandora's Box" of non-compliance. Consistency is a Board's greatest defense, and the burden of overturning a decision is a high bar that requires more than just a sense of unfairness.

Key Takeaways for Homeowners
  • [ ] Prior Approval is Non-Negotiable: Always secure written approval from the Board before modifying common or limited common areas.
  • [ ] The "Shield" is Not a "Sword": Understand that bylaws regarding "good faith" are often designed to protect Board members from personal liability, not to provide a path to overturn their votes.
  • [ ] Evidence Over Emotion: To win an administrative hearing, you must provide a "preponderance of evidence." Personal feelings of bias or animosity are rarely enough.
  • [ ] Respect the Precedent: A Board’s primary responsibility is to the Governing Documents. Decisions based on preventing a negative community-wide precedent are almost always viewed as "reasonable" by the courts.

By adhering strictly to the governing documents and ensuring all approvals are in hand before a single hammer swings, homeowners can avoid the "Pandora’s Box" of costly, protracted litigation.

Case Participants

Petitioner Side

  • Lawrence M. Stewart (Petitioner)
    Appeared on his own behalf

Respondent Side

  • Mark K. Sahl (Counsel for Respondent)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
  • Nichols C. S. Nogami (Counsel for Respondent)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Also listed as Nicolas C. S. Nogami in related rehearing documents
  • Sandra Fernandez (Board Member)
    Canyon Gate Condominium Association, Inc.
  • David Larson (Board Member)
    Canyon Gate Condominium Association, Inc.

Neutral Parties

  • Thomas Shedden (Administrative Law Judge)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • F. Del Sol (Administrative Staff)
    Office of Administrative Hearings