The Administrative Law Judge denied the Petition, finding that Petitioners failed to sustain their burden of proof that the Association violated state statute or community documents. The Association's Architectural Review Committee (ARC) refusal to approve the wall modification request was deemed reasonable because Petitioners failed to provide the supplemental information requested by the ARC.
Why this result: The record did not establish violation(s) of ARIZ. REV. STAT. § 33-1817(B)(3) or CC&Rs Article VII, Section 2 by a preponderance of the evidence. Petitioners did not provide sufficient and/or requisite information necessary for the ARC to make a reasonably objective determination, nor did they attempt to cure the deficient application.
Key Issues & Findings
Arbitrary and capricious denial of architectural request to move garage-side yard block wall and install a double-wide gate.
Petitioners alleged the Association (ARC) arbitrarily and capriciously rejected their request to move their garage-side yard wall eight (8) feet forward on their property, using the same materials as the existing wall, except replacing the single-wide gate with a double-wide gate previously approved by Respondent.
This administrative law decision outlines a legal dispute between homeowners Arthur and Viktoriya Fisenko and the Bellvue Homeowners Association regarding property modifications. The petitioners alleged that the association’s Architectural Committee unfairly rejected their request to extend a boundary wall and install a double-wide gate. While the parties resolved disagreements over landscaping materials like artificial grass and pavers before the hearing, the conflict regarding the wall remained. The Administrative Law Judge ultimately ruled in favor of the Homeowners Association, finding that the residents failed to provide the specific plans and technical data required for approval. Consequently, the court determined the association did not act arbitrarily or capriciously in its refusal, leading to the formal denial of the petition.
What was the core legal dispute between the Fisenkos and the HOA?
Why did the Administrative Law Judge ultimately rule against the homeowners?
How do Arizona statutes regulate the architectural approval process for HOAs?
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This administrative law decision outlines a legal dispute between homeowners Arthur and Viktoriya Fisenko and the Bellvue Homeowners Association regarding property modifications. The petitioners alleged that the association’s Architectural Committee unfairly rejected their request to extend a boundary wall and install a double-wide gate. While the parties resolved disagreements over landscaping materials like artificial grass and pavers before the hearing, the conflict regarding the wall remained. The Administrative Law Judge ultimately ruled in favor of the Homeowners Association, finding that the residents failed to provide the specific plans and technical data required for approval. Consequently, the court determined the association did not act arbitrarily or capriciously in its refusal, leading to the formal denial of the petition.
What was the core legal dispute between the Fisenkos and the HOA?
Why did the Administrative Law Judge ultimately rule against the homeowners?
How do Arizona statutes regulate the architectural approval process for HOAs?
Thursday, February 12
Save to note
Today • 11:01 AM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
Arthur Fisenko(petitioner) Testified on behalf of Petitioners
Viktoriya Tkach-Fisenko(petitioner)
Laurence Stevens(petitioner attorney) Stevens & Van Cott, PLLC
Respondent Side
Jamie Palfai(HOA attorney) O’Hagan Meyer LLC
Samuel Truett(witness) Bellvue Homeowners Association Witness for Bellvue Homeowners Association
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
17F-H1717034-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2018-02-26
Administrative Law Judge
Tammy L. Eigenheer
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
John L. Shields
Counsel
—
Respondent
Will Rogers Equestrian Ranch
Counsel
Maria R. Kupillas
Alleged Violations
CC&R § 6.2(A)
Outcome Summary
The Administrative Law Judge dismissed the petition. It was determined that the Respondent (HOA) did not err in approving the neighbor's wall extension proposal, as the responsibility for obtaining adjoining owner approval under CC&R § 6.2(A) lay solely with the neighboring owner, not the HOA. The HOA's approval under CC&R § 7.2 only required considering aesthetic compliance.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent erroneously approved the neighbor's proposal. The HOA was only required by CC&R § 7.2 to consider aesthetics when approving alterations, and neighbor approval (required by CC&R § 6.2(A)) was the sole responsibility of the building owner, not the HOA.
Key Issues & Findings
Respondent improperly approved a block wall extension built by a neighbor without securing Petitioner's required adjoining owner approval.
Petitioner alleged the HOA violated its CC&Rs by formally approving a neighbor's block wall extension (approximately 5' long x 6' high) because Petitioner, the adjoining property owner, had not approved the wall as required by CC&R § 6.2(A).
Orders: The petition was dismissed, and no action was required of Respondent.
Briefing Document: Shields v. Will Rogers Equestrian Ranch HOA
Executive Summary
This document synthesizes the findings from two administrative law hearings concerning a dispute between homeowner John Shields (Petitioner) and the Will Rogers Equestrian Ranch Homeowners’ Association (Respondent). The core of the dispute is a 5-foot by 6-foot common block wall extension constructed by the Petitioner’s neighbor, Joe Johnson. The Petitioner alleged the Respondent violated its own Covenants, Conditions, and Restrictions (CC&Rs) by approving the wall alteration without the Petitioner’s required consent as the adjoining property owner.
Following an initial hearing and a subsequent rehearing, the Office of Administrative Hearings dismissed the Petitioner’s claims. The decisions established several critical legal and procedural points:
• Distinct HOA Obligations: The HOA’s architectural approval role, governed by CC&R § 7.2, is distinct from the neighbor-approval requirement in CC&R § 6.2(A). The HOA’s approval is based solely on aesthetic and community consistency standards and does not obligate it to verify or enforce separate homeowner-to-homeowner agreements or approvals.
• Homeowner Responsibility: The responsibility to obtain an adjoining owner’s approval for a shared wall alteration rests entirely with the homeowner undertaking the construction (in this case, Mr. Johnson), not with the HOA.
• Discretionary Enforcement: The HOA’s power to enforce CC&R violations is discretionary, not mandatory. CC&R § 8.1 uses the permissive term “may,” granting the board latitude in deciding whether to pursue enforcement actions, particularly in cases with conflicting evidence.
• Alternative Remedy: The Petitioner is not without a remedy. The same CC&R section that grants the HOA enforcement power also explicitly authorizes individual owners to bring a private action against another owner to enforce the CC&Rs.
Ultimately, the HOA was found to have acted within its authority as defined by the governing documents, and both petitions against it were dismissed.
I. Case Overview
This matter concerns a petition filed on May 3, 2017, by John Shields with the Arizona Department of Real Estate against his HOA, Will Rogers Equestrian Ranch. The case was referred to the Office of Administrative Hearings for adjudication.
Entity
Details
John Shields
Petitioner
Homeowner at 20431 E. Bronco Drive, Queen Creek, Arizona.
Will Rogers Equestrian Ranch
Respondent
The Homeowners’ Association (HOA) for the development.
Joe and Sandy Johnson
Adjoining Neighbor
Constructed the disputed wall extension between their property and the Petitioner’s.
The Disputed Structure
Wall Extension
An approximately 5-foot long by 6-foot high common block wall extension.
The dispute was adjudicated in two separate hearings:
1. Initial Hearing: Held on September 27, 2017, before Administrative Law Judge (ALJ) Diane Mihalsky. A decision dismissing the petition was issued on October 11, 2017.
2. Rehearing: Granted on December 5, 2017, and held on February 5, 2018, before ALJ Tammy L. Eigenheer. A final decision, again dismissing the petition, was issued on February 26, 2018.
II. Petitioner’s Claim and Central Issue
The Petitioner’s central claim was that the Respondent HOA violated CC&R § 6.2(A) by approving the wall extension built by his neighbor, Joe Johnson, without first securing or verifying the Petitioner’s approval.
• Core Allegation: Any alteration to a shared “Party Wall” requires the approval of both the HOA’s Architectural Control Committee (“the Committee”) and the adjoining owner. The Petitioner asserted he never gave his approval.
• Petitioner’s Testimony: He steadfastly denied ever approving the wall, stating that he expressed his disapproval to the Johnsons on October 16, 2016, three days after its construction. He submitted a photograph and testified the wall “looked like crap” and was an “eyesore.”
• Evolving Argument:
◦ In the first hearing, the Petitioner argued that the HOA was responsible for enforcing the CC&Rs by compelling Mr. Johnson to remove the unapproved wall.
◦ In the rehearing, the Petitioner “vacillated” before firmly asserting his issue was that the HOA had improperly approved Mr. Johnson’s proposal in the first place.
III. Relevant Covenants, Conditions, and Restrictions (CC&Rs)
The decisions in this case hinged on the interpretation and interplay of three specific sections of the Will Rogers Equestrian Ranch CC&Rs.
Section
Key Provision
§ 6.2(A)
Fences as Party Walls
“Such Party Walls and Fences shall not be altered, or changed… without [the] approval of the adjoining Owner(s), if any, and the [Architectural Control] Committee.”
Review by the Committee
“No … fences … shall be commenced [or] erected … until the plans and specifications … have been submitted to and approved by the Committee. … the Committee shall have the right to refuse to approve any Alteration which is not suitable or desirable in their opinion for aesthetic or other reasons…” It also states the Committee’s approval is not an endorsement of compliance with laws or ordinances.
Effect of Declaration and Remedies
“In the event of any violation… they may be enforced by an action brought by [Respondent], the Committee or by the Owner or Owners… at law or in equity…”
IV. Chronology of Events and Factual Evidence
1. Prior to Oct 13, 2016: Mr. Johnson discussed his plans to build the wall extension to hide his RV on multiple occasions with the Petitioner present.
◦ Conflicting Testimony: A.J. Denardo testified he was present for at least three such conversations and that the Petitioner voiced no objection, even stating the wall “looked good” immediately after it was built. Sandy Johnson testified the Petitioner was present for at least ten discussions and never disapproved, sometimes nodding in apparent approval. The Petitioner denied ever giving approval.
2. On/About Oct 13, 2016: Mr. Johnson constructed the wall extension without prior approval from the Committee.
3. On/About Oct 16, 2016: The Petitioner expressed his disapproval of the wall to Mr. and Mrs. Johnson.
4. On/About Nov 2, 2016: Mr. Johnson retroactively submitted plans for the wall extension and a proposal to move his gate forward to the Committee for approval.
5. Nov 16, 2016: The newly elected HOA board, acting as the Committee, met and verbally approved Mr. Johnson’s wall. They specifically advised him that “he will need to seek neighboring property owner’s approval.”
6. December 2016: The board held an executive session to obtain legal advice on enforcement issues.
7. Jan 18, 2017: At a regular board meeting, the board formally approved Mr. Johnson’s proposal, resolving “to ratify the unanimous written consent received outside this regular meeting.”
8. Post-Approval: The City of Queen Creek notified Mr. Johnson that he could not move his gate forward as proposed, as it violated city codes.
V. Legal Analysis and Rulings
Both administrative law judges ultimately concluded that the HOA had not violated its CC&Rs and dismissed the petition. The reasoning in each decision focused on different facets of the HOA’s duties.
A. First Hearing Decision (ALJ Diane Mihalsky)
The initial ruling focused on the HOA’s role in enforcement.
• Discretionary Power: The decision centered on the word “may” in CC&R § 8.1. Citing case law (Walker v. Wilkinson), the judge found that “may” indicates a permissive intent, while “shall” indicates a mandatory one. Therefore, the CC&Rs gave the Respondent board the option to bring an enforcement action, but did not require it to do so.
• No Abuse of Discretion: The board was aware of the dispute and the conflicting testimony from multiple witnesses regarding the Petitioner’s prior approval (or lack of objection). The board determined it was not its “job to decide who was telling the truth.” Given this conflicting evidence, the judge found that the board’s decision not to pursue enforcement against Mr. Johnson was not an abuse of its discretion.
• Petitioner’s Remedy: The decision explicitly noted that the Petitioner was not without a remedy, as CC&R § 8.1 also authorizes him to file his own action directly against the Johnsons for their alleged violation of CC&R § 6.2(A).
B. Rehearing Decision (ALJ Tammy L. Eigenheer)
The rehearing focused on the Petitioner’s clarified claim that the HOA’s approval of the plans was improper.
• Separate and Distinct Obligations: The judge ruled that CC&R § 6.2(A) and CC&R § 7.2 create separate obligations for separate parties.
◦ § 6.2(A) requires the homeowner (Mr. Johnson) to obtain the adjoining neighbor’s approval.
◦ § 7.2 requires the HOA Committee to review the proposal based only on aesthetic criteria and consistency with the development.
• Limited Scope of Committee Review: The decision states, “Nothing in CC&R § 7.2 requires Respondent to consider whether the adjoining neighbor had approved the block wall extension.” The board’s role was to evaluate if the wall was “aesthetically pleasing and consistent” with other structures, which it did.
• No Erroneous Approval: Because the HOA’s approval process is defined and limited by § 7.2, its decision to approve the wall based on those criteria was not erroneous. The HOA had “no obligation under CC&R § 6.2(A) to obtain or ensure Petitioner approved the block wall extension.”
VI. Final Outcome
The Petitioner’s petition against the Will Rogers Equestrian Ranch HOA was dismissed. The final order from the February 26, 2018, rehearing, which is binding on the parties, concluded that no action was required of the Respondent. The Petitioner failed to establish by a preponderance of the evidence that the HOA had violated its governing documents in either its approval of the wall extension or its decision not to pursue enforcement.
Study Guide – 17F-H1717034-REL-RHG
Study Guide: Shields v. Will Rogers Equestrian Ranch
This guide provides a comprehensive review of the administrative legal dispute between John Shields and the Will Rogers Equestrian Ranch homeowners’ association. It is based on the findings of fact, conclusions of law, and evidence presented in two separate hearings before the Office of Administrative Hearings.
Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, drawing exclusively from the information provided in the case documents.
1. Who are the primary parties involved in this legal dispute, and what is their relationship?
2. What specific structure is at the center of the dispute, when was it built, and by whom?
3. According to CC&R § 6.2(A), what two distinct approvals are required before a party wall can be altered?
4. Why did the Respondent’s board state it was unsure whether the Petitioner had approved the wall extension before it was constructed?
5. What criteria did the Architectural Control Committee use when it formally approved the wall extension, as outlined in CC&R § 7.2?
6. Explain the legal significance of the word “may” in CC&R § 8.1 regarding the homeowners’ association’s enforcement duties.
7. On what grounds was the Petitioner, John Shields, granted a rehearing after the initial decision was issued?
8. During the rehearing, what did the Petitioner clarify was his single, primary complaint against the Respondent?
9. What was the final recommended order in both the initial hearing and the subsequent rehearing?
10. According to the first judge’s decision, what other legal remedy is available to the Petitioner to address his grievance against his neighbor?
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Answer Key
1. The primary parties are John Shields (the Petitioner) and the Will Rogers Equestrian Ranch homeowners’ association (the Respondent). Mr. Shields is a homeowner and member of the association, and his dispute concerns the association’s handling of a wall built by his next-door neighbor, Joe Johnson.
2. The structure is an approximately 5-foot long by 6-foot high common block wall extension. It was built on or about October 13, 2016, by the Petitioner’s neighbor, Joe Johnson, between their two properties.
3. CC&R § 6.2(A) requires that any alteration to a party wall must have the approval of the adjoining owner(s), if any, as well as the approval of the Architectural Control Committee. Both approvals are necessary.
4. The board was unsure about the Petitioner’s prior approval because at least four witnesses stated they heard the Petitioner either actually approve of the wall or fail to object while Mr. Johnson was discussing plans to build it in his presence. This created a conflict between the Petitioner’s claims and the testimony of others.
5. According to testimony from board member Kristi Hancock, the Committee’s approval was based solely on whether the wall was aesthetically pleasing and consistent with other wall extensions in the development. The Committee’s review under CC&R § 7.2 did not require it to confirm whether the adjoining neighbor had given approval.
6. The first decision concluded that the word “may” in CC&R § 8.1 indicates permissive intent, not a mandatory requirement. This means the association had the discretion, but not the obligation, to bring an enforcement action against Mr. Johnson.
7. A rehearing was granted by Commissioner Judy Lowe because the Petitioner claimed there were errors in the admission or rejection of evidence, other errors of law during the proceeding, and misconduct by the Administrative Law Judge that deprived him of a fair hearing.
8. After some vacillation, the Petitioner firmly asserted during the rehearing that his single issue was that the Respondent had improperly approved Mr. Johnson’s proposal to build the block wall extension and move his gate forward.
9. In both hearings, the recommended order was that no action was required of the Respondent and that the petition should be dismissed.
10. The first decision points out that under CC&R § 8.1, the Petitioner is not without a remedy. This section authorizes an owner, not just the association, to file an action against another owner for an alleged violation of the CC&Rs.
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Essay Questions
Instructions: The following questions are designed to test a deeper understanding of the case. Formulate a comprehensive response to each, citing specific facts, testimony, and CC&R provisions from the source documents.
1. Analyze the differing responsibilities of the homeowner (Mr. Johnson), the adjoining neighbor (Mr. Shields), and the homeowners’ association (the Respondent) as outlined in CC&Rs § 6.2(A), § 7.2, and § 8.1. How do these distinct roles and responsibilities intersect and conflict in this case?
2. Compare and contrast the evidence and testimony presented in the first hearing (before ALJ Diane Mihalsky) with the focus of the second hearing (before ALJ Tammy L. Eigenheer). How did the Petitioner’s framing of his central argument change between the two proceedings?
3. Discuss the legal standard “preponderance of the evidence” as it is defined and applied in this case. Explain how the conflicting testimony regarding the Petitioner’s “tacit approval” influenced the Respondent’s decision-making and, ultimately, the Administrative Law Judges’ conclusions.
4. Evaluate the Respondent’s decision-making process regarding the approval of the wall extension. Consider the timeline of events from the wall’s unapproved construction in October 2016 to the formal ratification in January 2017, the conditional verbal approval, and the rationale provided by board members for their actions.
5. The first decision explicitly states that CC&R § 8.1 gives the Petitioner a separate remedy against his neighbor. Based on the information in both documents, construct the legal argument the Petitioner could make in a direct action against Mr. and Mrs. Johnson for their alleged violation of CC&R § 6.2(A).
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, takes evidence, and makes decisions or recommendations on legal and factual issues. In this case, Diane Mihalsky and Tammy L. Eigenheer served as ALJs.
Architectural Control Committee (The Committee)
A body within the homeowners’ association responsible for reviewing and approving or disapproving proposed alterations to properties, such as fences, based on aesthetic and other considerations as outlined in the CC&Rs. In this case, the board itself acted as the Committee.
Arizona Department of Real Estate (The Department)
The state agency with which the Petitioner initially filed his petition concerning violations of planned community documents. The Department then referred the matter to the Office of Administrative Hearings.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this matter, the Petitioner bore the burden of proof to establish that the Respondent violated the CC&Rs.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing legal documents that set out the rights and obligations of the homeowners’ association and its members. The key sections referenced are 6.2(A), 7.2, and 8.1.
Office of Administrative Hearings
The independent state agency responsible for conducting evidentiary hearings for disputes referred by other state agencies, such as the one between Shields and the Will Rogers Equestrian Ranch.
Party Wall
A wall built on the boundary line between two adjoining properties, for the common benefit of both owners. CC&R § 6.2(A) governs the alteration of such walls.
Permissive Intent
A legal interpretation of language, such as the word “may,” which indicates that an action is allowed or discretionary but not required. This was central to the interpretation of CC&R § 8.1.
Petitioner
The party who initiates a legal action or petition. In this case, John Shields is the Petitioner.
Preponderance of the Evidence
The standard of proof in this civil administrative case, defined as evidence that is more convincing and has superior weight, making it more probable that a contention is true than not.
Rehearing
A second hearing of a case, granted in this instance because the Petitioner alleged errors of law and misconduct by the judge in the first proceeding.
Respondent
The party against whom a petition is filed. In this case, the Will Rogers Equestrian Ranch homeowners’ association is the Respondent.
Tacit Approval
Approval that is implied or inferred from actions or from a failure to state an objection, rather than being explicitly stated. Witnesses claimed the Petitioner gave tacit approval to the wall before it was built.
Blog Post – 17F-H1717034-REL-RHG
4 Surprising Lessons From a Neighbor’s Ugly Wall and the HOA That Did Nothing
Introduction: The Homeowner’s Dilemma
In the world of community governance, the gap between homeowner expectation and contractual reality is a fertile ground for conflict. Most people assume their Homeowners’ Association (HOA) exists to be their first line of defense in a neighbor dispute; when a rule is broken, the HOA is expected to step in. But what happens when the HOA decides to do nothing?
This was the exact situation faced by homeowner John Shields, who was appalled when his neighbor, Joe Johnson, built a block wall extension he considered an eyesore. Mr. Shields turned to his HOA, Will Rogers Equestrian Ranch, expecting them to force its removal. The legal battle that followed provides a fascinating case study, revealing surprising realities about the power and obligations of an HOA. For any homeowner in a planned community, the takeaways are as counter-intuitive as they are crucial.
1. Your HOA Isn’t Obligated to Be Your Enforcer
Mr. Shields’s primary argument rested on a common but often mistaken assumption: that an HOA has a strict mandate to enforce every rule. His logic was straightforward: the community’s Covenants, Conditions, and Restrictions (CC&Rs) required his approval for the wall extension. Since he never gave it, he believed the HOA was responsible for forcing his neighbor to tear the wall down.
The court, however, pointed to a different section of the CC&Rs (§ 8.1) which stated that the rules may be enforced by the HOA. This single word was the linchpin of the case. The Administrative Law Judge highlighted the critical legal distinction between a permissive option and a mandatory duty.
“[The] use of the word ‘may’ generally indicates permissive intent . . . while ‘shall’ generally indicates a mandatory provision.”
This gave the HOA discretion on whether to act. Because there was conflicting testimony about whether Mr. Shields had given tacit approval beforehand, the court found that the HOA “did not abuse its discretion by declining to bring an enforcement action.” The lesson is clear: your HOA’s governing documents might grant it the right to enforce rules without creating an obligation to do so in every single case.
2. The HOA’s “Approval” Might Not Mean What You Think
Adding another layer to the conflict, Mr. Johnson submitted plans for the wall and a related gate relocation to the HOA’s Architectural Control Committee after the wall was already built. The Committee ultimately approved it. To Mr. Shields, this seemed like the HOA was siding with his neighbor and ignoring his rights.
But the Committee’s review was far narrower than he assumed. According to CC&R § 7.2, their analysis was limited to whether the wall was “esthetically pleasing and consistent with other wall extensions that had been built in the Will Rogers Equestrian Ranch development.” The Committee wasn’t tasked with policing neighbor-to-neighbor agreements.
A formal rehearing—granted after the petitioner alleged “errors of law”—clarified this crucial point. The judge found that under CC&R § 6.2(A), it was Mr. Johnson’s responsibility to get his neighbor’s approval, not the HOA’s. As the decision stated, “Respondent had no obligation under CC&R § 6.2(A) to obtain or ensure Petitioner approved the block wall extension.” This separation of duties is common in governing documents, as it strategically shields the HOA from liability in member disputes while allowing it to maintain aesthetic control over the community.
3. Your Silence Can Be Used Against You
The case devolved into a classic “he said, she said” scenario that ultimately weakened Mr. Shields’s position. He testified that he never approved the wall and, on October 16, 2016—three days after it was built—told his neighbors he disapproved, calling it an “eyesore” that “looked like crap.”
However, other witnesses told a different story. One, Mr. Denardo, testified that Mr. Shields “did not voice any objection” before the wall was constructed and even said it “looked good” immediately after. The neighbor’s wife, Mrs. Johnson, testified that Mr. Shields was present for at least ten discussions about the wall, “had never voiced any disapproval,” and had “sometimes nodded, apparently indicating his approval.”
This conflicting testimony was the direct basis for the board invoking its discretionary power. A board member testified that because of the conflicting accounts, the board “was less sure about whether Petitioner had actually or tacitly approved the block wall extension before it was built.” This uncertainty was the key factor that led them not to intervene. When it comes to property matters, clear, timely, and preferably documented communication is your strongest asset; ambiguity and silence can be interpreted as consent.
4. When the HOA Steps Aside, the Fight Might Be Yours Alone
While the court dismissed the petition against the HOA, it did not leave Mr. Shields without a path forward. The judge pointed to the very same rule that gave the HOA its discretion—CC&R § 8.1—as a source of the homeowner’s power. This rule proved to be a double-edged sword.
The judge’s first decision stated that CC&R § 8.1 “authorizes Petitioner to file an action against Mr. and Mrs. Johnson for their alleged violation of CC&R § 6.2(A).” The same clause that gave the HOA the discretion to step aside also explicitly empowered individual homeowners to act in the HOA’s stead.
When an association chooses to stay out of a member-to-member dispute, the responsibility—and the power—to enforce the community’s rules can fall directly to the affected homeowner. The HOA’s inaction does not mean a rule can’t be enforced; it just means you may have to be the one to do it by bringing a private legal action against your neighbor.
Conclusion: Read Your Fine Print
The story of the ugly wall serves as a powerful reminder that a homeowner’s assumptions about their HOA’s power can be miles apart from the legal reality written into the CC&Rs. This case perfectly illustrates the interplay between an HOA’s discretionary enforcement powers (Lesson 1), its carefully separated procedural duties (Lesson 2), the critical importance of homeowner communication and proof (Lesson 3), and the ultimate empowerment of members to enforce rules themselves (Lesson 4). These documents are not just a list of rules; they are a legal framework that dictates who has the power to act, when they are obligated to do so, and what recourse you have when a conflict arises.
You might know your community’s rules on trash cans and lawn care, but do you know who is truly responsible for enforcing them when a real dispute arises?
Case Participants
Petitioner Side
John Shields(petitioner)
Respondent Side
Maria R. Kupillas(HOA attorney) Law Offices of Farley Choate & Bergin Represented Respondent Will Rogers Equestrian Ranch
Dean Kabanuk(board president) Will Rogers Equestrian Ranch Board Testified for Petitioner via subpoena; elected President Nov 2016
Kristi Hancock(board member/witness) Will Rogers Equestrian Ranch Board Served as Vice President (Nov 2016-Nov 2017) and President (since Nov 2017)
Brenda Campbell(community manager) Will Rogers Equestrian Ranch Witness for Respondent
A.J. Denardo(witness) Not a member of Respondent; lives near Petitioner
Sandy Johnson(witness/neighbor) Wife of Joe Johnson; Petitioner's next-door neighbor
Joe Johnson(neighbor/homeowner) Will Rogers Equestrian Ranch Built the block wall extension in question
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings Issued initial ALJ Decision
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings Issued ALJ Decision following rehearing
Judy Lowe(Commissioner) Arizona Department of Real Estate Granted Petitioner's request for rehearing
The ALJ denied the petition, concluding that the homeowner failed to meet the burden of proof demonstrating the HOA violated community documents by refusing the requested block wall. The wall was prohibited by CC&Rs and ALC Guidelines because it was planned for just inside the property line and excluded the adjacent owner from use, potentially leading to prohibited parallel walls.
Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated the CC&Rs and ALC Guidelines.
Key Issues & Findings
Refusal to approve construction of a 10’ long, 6’ high block wall for privacy
Petitioner sought approval for a 10’ long, 6’ high block wall for privacy, built a foot or so inside his property line, designed to prevent adjacent neighbors (the Rohlmans) from using it. Respondent denied the wall based on community documents restricting such constructions to avoid parallel walls and requiring party walls to be on or immediately adjacent to the property line, granting contiguous owners the right to use them.
Briefing: Case No. 17F-H1717037-REL, Long v. Pebble Creek Resort Community
Executive Summary
This document provides a comprehensive analysis of the administrative hearing and final decision concerning a dispute between homeowner Richard Long (“Petitioner”) and the Pebble Creek Resort Community homeowners’ association (“Respondent”). The core of the dispute was the Petitioner’s request to build a 10-foot long, 6-foot high block privacy wall approximately one foot inside his property line, which the Respondent’s Architectural Landscape Committee (ALC) denied.
The Administrative Law Judge (ALJ) ultimately denied the petition, a decision that was subsequently adopted as a Final Order by the Arizona Department of Real Estate. The central finding was that the Respondent’s governing documents—specifically the Covenants, Conditions, and Restrictions (CC&Rs) and ALC Guidelines—unequivocally prohibit the proposed wall. The ALJ concluded that a wall built so close to a property line is defined as a “Party Wall,” which must be constructed “on or immediately adjacent to” the boundary and be usable by both property owners. The Petitioner’s proposal violated these foundational rules by being set back from the property line with the explicit intent of preventing neighbor access and use.
The Respondent had offered a conditional variance for a wall to be built directly on the property line, but this required a mutual “Party Wall/Fence Agreement” with the adjacent neighbor, who refused to sign, citing concerns over property value and the legal complexity of a perpetual easement. The final ruling affirmed the Respondent’s authority to enforce its governing documents as written.
Case Overview
The matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed by the Petitioner with the Arizona Department of Real Estate. The Petitioner alleged that the Respondent HOA had violated its own governing documents by refusing to approve his proposed wall.
Case Detail
Information
Case Name
Richard Long, Petitioner, v. Pebble Creek Resort Community, Respondent
Case Number
No. 17F-H1717037-REL / HO 17-17/037
Office of Administrative Hearings (Phoenix, Arizona)
Petitioner
Richard Long (Appeared on his own behalf)
Respondent
Pebble Creek Resort Community (Represented by Jack Sarsam, SVP for Robson Communities)
Administrative Law Judge
Diane Mihalsky
Real Estate Commissioner
Judy Lowe
Hearing Date
August 30, 2017
ALJ Decision Date
September 6, 2017
Final Order Date
September 14, 2017
Core Dispute and Party Positions
Petitioner’s Proposal and Argument (Richard Long)
• Project: A 10-foot long, 6-foot high block wall intended to provide privacy between his patio and the patio of his adjacent neighbors, the Rohlmans.
• Proposed Location: “A foot or so inside his side of the property line.”
• Stated Intent: To construct a wall to which his neighbors could not attach or otherwise use. The Petitioner testified that if the Rohlmans later wanted their own wall (e.g., for a pool or pet), they could build a separate, parallel wall on their property.
• Rejection of Alternatives: The Petitioner acknowledged that the ALC would approve a “privacy panel wall” made of alumawood or lattice, but he rejected this option, deeming it “unsightly and flimsy.”
• Core Claim: The Petitioner argued that the Respondent’s CC&Rs and ALC Guidelines did not explicitly prohibit the construction of his proposed block wall at its intended location inside his property line.
Respondent’s Position and Actions (Pebble Creek HOA)
• Initial Action: The ALC denied the Petitioner’s request.
• Rationale for Denial: The Respondent explained that walls near lot lines can become problematic, particularly if they result in “two parallel walls.” This situation can create a narrow, inaccessible space between the walls that is difficult to maintain and “becomes filled with refuse, leaves, insects, nests and rodents.”
• Conditional Variance: On May 1, 2017, the Respondent offered to approve a variance with several key conditions:
1. The wall must be constructed directly on the property line.
2. Both the Petitioner and the Rohlmans must sign a written “Party Wall/Fence Agreement” (Form ALC 48).
3. This agreement must grant current and future owners permission to “extend/complete the wall” and must be disclosed upon the sale of either home.
4. The signed agreement would be kept in the ALC files for both properties.
Neighbor’s Position (The Rohlmans)
• The Rohlmans declined to sign the Party Wall/Fence Agreement proposed by the Respondent.
• In an email submitted as evidence, they outlined their reasons for refusal:
◦ Property Value: They believed a wall on the property line would negatively affect the “current and future value” of both properties.
◦ Legal Complexity: The agreement would require granting a perpetual easement, which they identified as a legal document entailing legal expenses.
◦ Disclosure upon Sale: The easement would have to be disclosed to future buyers, which they argued “lowers the value of the property.”
◦ Future Construction: A wall on the property line could be extended by either party or future owners “without the agreement of the other party.”
◦ They concluded that “All of these requirements are onerous.”
Analysis of Governing Documents
The ALJ’s decision rested on a direct interpretation of four key sections of the community’s CC&Rs and ALC Guidelines.
• CC&R § 1(Hh) – Definition of “Party Walls”
◦ This section defines a party wall as: “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.”
◦ The ALJ found that the Petitioner’s proposal for a wall “a foot or so inside” the property line did not meet this definition.
• CC&R § 2(P)(i) – Use of Party Walls
◦ This rule states: “Each Owner shall have the right to use the Party Wall, provided that such use does not interfere with the other Owner’s use and enjoyment thereof.”
◦ This directly contradicted the Petitioner’s goal of building a wall that his neighbors would be prohibited from using.
• ALC Guideline SS(4)(a) – Parallel Walls
◦ This guideline explicitly states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.”
◦ The Petitioner’s own testimony acknowledged the possibility of his neighbor building a parallel wall in the future, a scenario the guidelines are designed to prevent.
• ALC Guideline JJ – “Privacy Panel Wall”
◦ This section details the pre-approved alternative for privacy screening. Such a wall must be:
▪ Free-standing alumawood.
▪ Six feet in height and no more than sixteen feet in length.
▪ Located “at least three (3) feet from the property line.”
◦ This demonstrates a clear distinction in the rules between a shared “Party Wall” near the boundary and a private “Privacy Panel” set significantly back from it.
Administrative Law Judge’s Decision and Rationale
The ALJ, Diane Mihalsky, concluded that the Petitioner failed to meet his burden of proof to establish that the Respondent had violated its governing documents.
• Key Findings of Law:
1. A block wall built “a foot inside the property line” does not conform to CC&R § 1(Hh), which requires a party wall to be “on or immediately adjacent to” the boundary.
2. The Petitioner’s intent to deny his neighbor the use of the wall violates CC&R § 2(P)(i), which grants both owners rights to use a party wall.
3. The Petitioner’s proposal creates the potential for prohibited parallel walls, violating ALC Guideline SS(4)(a).
• Conclusion: The ALJ stated that the community’s documents “unequivocally prohibit Respondent from building a 6’ high, 10’ long block wall a foot from his property line that the Rohlmans are not permitted to use.”
• Recommended Order: On September 6, 2017, the ALJ issued a recommended order that the Petitioner’s petition be denied.
Final Order and Subsequent Actions
• Adoption of Decision: On September 14, 2017, Judy Lowe, Commissioner of the Arizona Department of Real Estate, issued a Final Order adopting the ALJ’s decision in its entirety.
• Effect of Order: The denial of the petition became final, binding, and effective immediately.
• Conditions for Rehearing: The Final Order stipulated that a rehearing could be granted pursuant to A.R.S. § 32-2199.04, but only for one of the following reasons:
1. Irregularity in proceedings or abuse of discretion by the ALJ.
2. Misconduct by the Department, ALJ, or prevailing party.
3. Accident or surprise that could not have been prevented.
4. Newly discovered material evidence.
5. Excessive or insufficient penalties.
6. Error in the admission or rejection of evidence.
7. The decision is arbitrary, capricious, or an abuse of discretion.
8. The findings of fact are not supported by the evidence or are contrary to law.
• Judicial Review: The order is subject to judicial review through the filing of a complaint pursuant to state law.
The ALJ denied the petition, concluding that the homeowner failed to meet the burden of proof demonstrating the HOA violated community documents by refusing the requested block wall. The wall was prohibited by CC&Rs and ALC Guidelines because it was planned for just inside the property line and excluded the adjacent owner from use, potentially leading to prohibited parallel walls.
Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated the CC&Rs and ALC Guidelines.
Key Issues & Findings
Refusal to approve construction of a 10’ long, 6’ high block wall for privacy
Petitioner sought approval for a 10’ long, 6’ high block wall for privacy, built a foot or so inside his property line, designed to prevent adjacent neighbors (the Rohlmans) from using it. Respondent denied the wall based on community documents restricting such constructions to avoid parallel walls and requiring party walls to be on or immediately adjacent to the property line, granting contiguous owners the right to use them.
Briefing: Case No. 17F-H1717037-REL, Long v. Pebble Creek Resort Community
Executive Summary
This document provides a comprehensive analysis of the administrative hearing and final decision concerning a dispute between homeowner Richard Long (“Petitioner”) and the Pebble Creek Resort Community homeowners’ association (“Respondent”). The core of the dispute was the Petitioner’s request to build a 10-foot long, 6-foot high block privacy wall approximately one foot inside his property line, which the Respondent’s Architectural Landscape Committee (ALC) denied.
The Administrative Law Judge (ALJ) ultimately denied the petition, a decision that was subsequently adopted as a Final Order by the Arizona Department of Real Estate. The central finding was that the Respondent’s governing documents—specifically the Covenants, Conditions, and Restrictions (CC&Rs) and ALC Guidelines—unequivocally prohibit the proposed wall. The ALJ concluded that a wall built so close to a property line is defined as a “Party Wall,” which must be constructed “on or immediately adjacent to” the boundary and be usable by both property owners. The Petitioner’s proposal violated these foundational rules by being set back from the property line with the explicit intent of preventing neighbor access and use.
The Respondent had offered a conditional variance for a wall to be built directly on the property line, but this required a mutual “Party Wall/Fence Agreement” with the adjacent neighbor, who refused to sign, citing concerns over property value and the legal complexity of a perpetual easement. The final ruling affirmed the Respondent’s authority to enforce its governing documents as written.
Case Overview
The matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed by the Petitioner with the Arizona Department of Real Estate. The Petitioner alleged that the Respondent HOA had violated its own governing documents by refusing to approve his proposed wall.
Case Detail
Information
Case Name
Richard Long, Petitioner, v. Pebble Creek Resort Community, Respondent
Case Number
No. 17F-H1717037-REL / HO 17-17/037
Office of Administrative Hearings (Phoenix, Arizona)
Petitioner
Richard Long (Appeared on his own behalf)
Respondent
Pebble Creek Resort Community (Represented by Jack Sarsam, SVP for Robson Communities)
Administrative Law Judge
Diane Mihalsky
Real Estate Commissioner
Judy Lowe
Hearing Date
August 30, 2017
ALJ Decision Date
September 6, 2017
Final Order Date
September 14, 2017
Core Dispute and Party Positions
Petitioner’s Proposal and Argument (Richard Long)
• Project: A 10-foot long, 6-foot high block wall intended to provide privacy between his patio and the patio of his adjacent neighbors, the Rohlmans.
• Proposed Location: “A foot or so inside his side of the property line.”
• Stated Intent: To construct a wall to which his neighbors could not attach or otherwise use. The Petitioner testified that if the Rohlmans later wanted their own wall (e.g., for a pool or pet), they could build a separate, parallel wall on their property.
• Rejection of Alternatives: The Petitioner acknowledged that the ALC would approve a “privacy panel wall” made of alumawood or lattice, but he rejected this option, deeming it “unsightly and flimsy.”
• Core Claim: The Petitioner argued that the Respondent’s CC&Rs and ALC Guidelines did not explicitly prohibit the construction of his proposed block wall at its intended location inside his property line.
Respondent’s Position and Actions (Pebble Creek HOA)
• Initial Action: The ALC denied the Petitioner’s request.
• Rationale for Denial: The Respondent explained that walls near lot lines can become problematic, particularly if they result in “two parallel walls.” This situation can create a narrow, inaccessible space between the walls that is difficult to maintain and “becomes filled with refuse, leaves, insects, nests and rodents.”
• Conditional Variance: On May 1, 2017, the Respondent offered to approve a variance with several key conditions:
1. The wall must be constructed directly on the property line.
2. Both the Petitioner and the Rohlmans must sign a written “Party Wall/Fence Agreement” (Form ALC 48).
3. This agreement must grant current and future owners permission to “extend/complete the wall” and must be disclosed upon the sale of either home.
4. The signed agreement would be kept in the ALC files for both properties.
Neighbor’s Position (The Rohlmans)
• The Rohlmans declined to sign the Party Wall/Fence Agreement proposed by the Respondent.
• In an email submitted as evidence, they outlined their reasons for refusal:
◦ Property Value: They believed a wall on the property line would negatively affect the “current and future value” of both properties.
◦ Legal Complexity: The agreement would require granting a perpetual easement, which they identified as a legal document entailing legal expenses.
◦ Disclosure upon Sale: The easement would have to be disclosed to future buyers, which they argued “lowers the value of the property.”
◦ Future Construction: A wall on the property line could be extended by either party or future owners “without the agreement of the other party.”
◦ They concluded that “All of these requirements are onerous.”
Analysis of Governing Documents
The ALJ’s decision rested on a direct interpretation of four key sections of the community’s CC&Rs and ALC Guidelines.
• CC&R § 1(Hh) – Definition of “Party Walls”
◦ This section defines a party wall as: “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.”
◦ The ALJ found that the Petitioner’s proposal for a wall “a foot or so inside” the property line did not meet this definition.
• CC&R § 2(P)(i) – Use of Party Walls
◦ This rule states: “Each Owner shall have the right to use the Party Wall, provided that such use does not interfere with the other Owner’s use and enjoyment thereof.”
◦ This directly contradicted the Petitioner’s goal of building a wall that his neighbors would be prohibited from using.
• ALC Guideline SS(4)(a) – Parallel Walls
◦ This guideline explicitly states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.”
◦ The Petitioner’s own testimony acknowledged the possibility of his neighbor building a parallel wall in the future, a scenario the guidelines are designed to prevent.
• ALC Guideline JJ – “Privacy Panel Wall”
◦ This section details the pre-approved alternative for privacy screening. Such a wall must be:
▪ Free-standing alumawood.
▪ Six feet in height and no more than sixteen feet in length.
▪ Located “at least three (3) feet from the property line.”
◦ This demonstrates a clear distinction in the rules between a shared “Party Wall” near the boundary and a private “Privacy Panel” set significantly back from it.
Administrative Law Judge’s Decision and Rationale
The ALJ, Diane Mihalsky, concluded that the Petitioner failed to meet his burden of proof to establish that the Respondent had violated its governing documents.
• Key Findings of Law:
1. A block wall built “a foot inside the property line” does not conform to CC&R § 1(Hh), which requires a party wall to be “on or immediately adjacent to” the boundary.
2. The Petitioner’s intent to deny his neighbor the use of the wall violates CC&R § 2(P)(i), which grants both owners rights to use a party wall.
3. The Petitioner’s proposal creates the potential for prohibited parallel walls, violating ALC Guideline SS(4)(a).
• Conclusion: The ALJ stated that the community’s documents “unequivocally prohibit Respondent from building a 6’ high, 10’ long block wall a foot from his property line that the Rohlmans are not permitted to use.”
• Recommended Order: On September 6, 2017, the ALJ issued a recommended order that the Petitioner’s petition be denied.
Final Order and Subsequent Actions
• Adoption of Decision: On September 14, 2017, Judy Lowe, Commissioner of the Arizona Department of Real Estate, issued a Final Order adopting the ALJ’s decision in its entirety.
• Effect of Order: The denial of the petition became final, binding, and effective immediately.
• Conditions for Rehearing: The Final Order stipulated that a rehearing could be granted pursuant to A.R.S. § 32-2199.04, but only for one of the following reasons:
1. Irregularity in proceedings or abuse of discretion by the ALJ.
2. Misconduct by the Department, ALJ, or prevailing party.
3. Accident or surprise that could not have been prevented.
4. Newly discovered material evidence.
5. Excessive or insufficient penalties.
6. Error in the admission or rejection of evidence.
7. The decision is arbitrary, capricious, or an abuse of discretion.
8. The findings of fact are not supported by the evidence or are contrary to law.
• Judicial Review: The order is subject to judicial review through the filing of a complaint pursuant to state law.
The ALJ denied the petition, concluding that the homeowner failed to meet the burden of proof demonstrating the HOA violated community documents by refusing the requested block wall. The wall was prohibited by CC&Rs and ALC Guidelines because it was planned for just inside the property line and excluded the adjacent owner from use, potentially leading to prohibited parallel walls.
Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated the CC&Rs and ALC Guidelines.
Key Issues & Findings
Refusal to approve construction of a 10’ long, 6’ high block wall for privacy
Petitioner sought approval for a 10’ long, 6’ high block wall for privacy, built a foot or so inside his property line, designed to prevent adjacent neighbors (the Rohlmans) from using it. Respondent denied the wall based on community documents restricting such constructions to avoid parallel walls and requiring party walls to be on or immediately adjacent to the property line, granting contiguous owners the right to use them.
Briefing: Case No. 17F-H1717037-REL, Long v. Pebble Creek Resort Community
Executive Summary
This document provides a comprehensive analysis of the administrative hearing and final decision concerning a dispute between homeowner Richard Long (“Petitioner”) and the Pebble Creek Resort Community homeowners’ association (“Respondent”). The core of the dispute was the Petitioner’s request to build a 10-foot long, 6-foot high block privacy wall approximately one foot inside his property line, which the Respondent’s Architectural Landscape Committee (ALC) denied.
The Administrative Law Judge (ALJ) ultimately denied the petition, a decision that was subsequently adopted as a Final Order by the Arizona Department of Real Estate. The central finding was that the Respondent’s governing documents—specifically the Covenants, Conditions, and Restrictions (CC&Rs) and ALC Guidelines—unequivocally prohibit the proposed wall. The ALJ concluded that a wall built so close to a property line is defined as a “Party Wall,” which must be constructed “on or immediately adjacent to” the boundary and be usable by both property owners. The Petitioner’s proposal violated these foundational rules by being set back from the property line with the explicit intent of preventing neighbor access and use.
The Respondent had offered a conditional variance for a wall to be built directly on the property line, but this required a mutual “Party Wall/Fence Agreement” with the adjacent neighbor, who refused to sign, citing concerns over property value and the legal complexity of a perpetual easement. The final ruling affirmed the Respondent’s authority to enforce its governing documents as written.
Case Overview
The matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed by the Petitioner with the Arizona Department of Real Estate. The Petitioner alleged that the Respondent HOA had violated its own governing documents by refusing to approve his proposed wall.
Case Detail
Information
Case Name
Richard Long, Petitioner, v. Pebble Creek Resort Community, Respondent
Case Number
No. 17F-H1717037-REL / HO 17-17/037
Office of Administrative Hearings (Phoenix, Arizona)
Petitioner
Richard Long (Appeared on his own behalf)
Respondent
Pebble Creek Resort Community (Represented by Jack Sarsam, SVP for Robson Communities)
Administrative Law Judge
Diane Mihalsky
Real Estate Commissioner
Judy Lowe
Hearing Date
August 30, 2017
ALJ Decision Date
September 6, 2017
Final Order Date
September 14, 2017
Core Dispute and Party Positions
Petitioner’s Proposal and Argument (Richard Long)
• Project: A 10-foot long, 6-foot high block wall intended to provide privacy between his patio and the patio of his adjacent neighbors, the Rohlmans.
• Proposed Location: “A foot or so inside his side of the property line.”
• Stated Intent: To construct a wall to which his neighbors could not attach or otherwise use. The Petitioner testified that if the Rohlmans later wanted their own wall (e.g., for a pool or pet), they could build a separate, parallel wall on their property.
• Rejection of Alternatives: The Petitioner acknowledged that the ALC would approve a “privacy panel wall” made of alumawood or lattice, but he rejected this option, deeming it “unsightly and flimsy.”
• Core Claim: The Petitioner argued that the Respondent’s CC&Rs and ALC Guidelines did not explicitly prohibit the construction of his proposed block wall at its intended location inside his property line.
Respondent’s Position and Actions (Pebble Creek HOA)
• Initial Action: The ALC denied the Petitioner’s request.
• Rationale for Denial: The Respondent explained that walls near lot lines can become problematic, particularly if they result in “two parallel walls.” This situation can create a narrow, inaccessible space between the walls that is difficult to maintain and “becomes filled with refuse, leaves, insects, nests and rodents.”
• Conditional Variance: On May 1, 2017, the Respondent offered to approve a variance with several key conditions:
1. The wall must be constructed directly on the property line.
2. Both the Petitioner and the Rohlmans must sign a written “Party Wall/Fence Agreement” (Form ALC 48).
3. This agreement must grant current and future owners permission to “extend/complete the wall” and must be disclosed upon the sale of either home.
4. The signed agreement would be kept in the ALC files for both properties.
Neighbor’s Position (The Rohlmans)
• The Rohlmans declined to sign the Party Wall/Fence Agreement proposed by the Respondent.
• In an email submitted as evidence, they outlined their reasons for refusal:
◦ Property Value: They believed a wall on the property line would negatively affect the “current and future value” of both properties.
◦ Legal Complexity: The agreement would require granting a perpetual easement, which they identified as a legal document entailing legal expenses.
◦ Disclosure upon Sale: The easement would have to be disclosed to future buyers, which they argued “lowers the value of the property.”
◦ Future Construction: A wall on the property line could be extended by either party or future owners “without the agreement of the other party.”
◦ They concluded that “All of these requirements are onerous.”
Analysis of Governing Documents
The ALJ’s decision rested on a direct interpretation of four key sections of the community’s CC&Rs and ALC Guidelines.
• CC&R § 1(Hh) – Definition of “Party Walls”
◦ This section defines a party wall as: “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.”
◦ The ALJ found that the Petitioner’s proposal for a wall “a foot or so inside” the property line did not meet this definition.
• CC&R § 2(P)(i) – Use of Party Walls
◦ This rule states: “Each Owner shall have the right to use the Party Wall, provided that such use does not interfere with the other Owner’s use and enjoyment thereof.”
◦ This directly contradicted the Petitioner’s goal of building a wall that his neighbors would be prohibited from using.
• ALC Guideline SS(4)(a) – Parallel Walls
◦ This guideline explicitly states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.”
◦ The Petitioner’s own testimony acknowledged the possibility of his neighbor building a parallel wall in the future, a scenario the guidelines are designed to prevent.
• ALC Guideline JJ – “Privacy Panel Wall”
◦ This section details the pre-approved alternative for privacy screening. Such a wall must be:
▪ Free-standing alumawood.
▪ Six feet in height and no more than sixteen feet in length.
▪ Located “at least three (3) feet from the property line.”
◦ This demonstrates a clear distinction in the rules between a shared “Party Wall” near the boundary and a private “Privacy Panel” set significantly back from it.
Administrative Law Judge’s Decision and Rationale
The ALJ, Diane Mihalsky, concluded that the Petitioner failed to meet his burden of proof to establish that the Respondent had violated its governing documents.
• Key Findings of Law:
1. A block wall built “a foot inside the property line” does not conform to CC&R § 1(Hh), which requires a party wall to be “on or immediately adjacent to” the boundary.
2. The Petitioner’s intent to deny his neighbor the use of the wall violates CC&R § 2(P)(i), which grants both owners rights to use a party wall.
3. The Petitioner’s proposal creates the potential for prohibited parallel walls, violating ALC Guideline SS(4)(a).
• Conclusion: The ALJ stated that the community’s documents “unequivocally prohibit Respondent from building a 6’ high, 10’ long block wall a foot from his property line that the Rohlmans are not permitted to use.”
• Recommended Order: On September 6, 2017, the ALJ issued a recommended order that the Petitioner’s petition be denied.
Final Order and Subsequent Actions
• Adoption of Decision: On September 14, 2017, Judy Lowe, Commissioner of the Arizona Department of Real Estate, issued a Final Order adopting the ALJ’s decision in its entirety.
• Effect of Order: The denial of the petition became final, binding, and effective immediately.
• Conditions for Rehearing: The Final Order stipulated that a rehearing could be granted pursuant to A.R.S. § 32-2199.04, but only for one of the following reasons:
1. Irregularity in proceedings or abuse of discretion by the ALJ.
2. Misconduct by the Department, ALJ, or prevailing party.
3. Accident or surprise that could not have been prevented.
4. Newly discovered material evidence.
5. Excessive or insufficient penalties.
6. Error in the admission or rejection of evidence.
7. The decision is arbitrary, capricious, or an abuse of discretion.
8. The findings of fact are not supported by the evidence or are contrary to law.
• Judicial Review: The order is subject to judicial review through the filing of a complaint pursuant to state law.
Study Guide – 17F-H1717037-REL
Study Guide: Long v. Pebble Creek Resort Community (Case No. 17F-H1717037-REL)
This study guide provides a review of the administrative hearing decision concerning a dispute between homeowner Richard Long and the Pebble Creek Resort Community homeowners’ association. It covers the facts of the case, the arguments presented, the relevant community rules, and the final legal outcome.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, based on the information provided in the case documents.
1. What was the specific structure that the Petitioner, Richard Long, proposed to build, and what was its intended purpose?
2. On what grounds did the Respondent, Pebble Creek Resort Community, justify its restrictions against the type of wall the Petitioner proposed?
3. What conditional variance did the Respondent offer to the Petitioner on May 1, 2017?
4. What were the primary concerns expressed by the Petitioner’s neighbors, the Rohlmans, which led them to decline the proposed wall agreement?
5. According to ALC Guideline JJ, what alternative structure could the Petitioner have built for privacy, and what were its key requirements?
6. How do the CC&Rs define a “Party Wall,” and what right does CC&R § 2(P)(i) grant to contiguous property owners regarding such a wall?
7. What rule from the ALC Guidelines prohibits the construction of two parallel walls side-by-side, and why is this rule in place?
8. What is the legal standard of “preponderance of the evidence” as defined in the hearing decision?
9. Who held the burden of proof to establish that the homeowners’ association violated its governing documents?
10. What was the final, binding outcome of the case after the Administrative Law Judge’s decision was reviewed?
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Answer Key
1. The Petitioner proposed to build a 10-foot long, 6-foot high block wall for privacy between his patio and his neighbor’s patio. The wall was to be located a foot or so inside his side of the property line, so his neighbors could not attach to it.
2. The Respondent explained that walls built near, but not on, the property line can lead to problems. This can result in two parallel walls being built, creating an unmaintainable space between them that collects refuse, leaves, insects, nests, and rodents.
3. The Respondent approved a variance on the condition that the wall be built on the property line. Both the Petitioner and his neighbors (the Rohlmans) had to agree in writing that current or future owners could extend the wall, with this agreement being disclosed upon sale of either house.
4. The Rohlmans declined because they believed a wall on the property line would negatively affect their property’s value. They were also concerned about the legal expense and perpetual nature of an easement, and the possibility that future owners could lengthen the wall without consent.
5. ALC Guideline JJ permits a “privacy panel wall,” which is a free-standing alumawood wall. This wall must be 6 feet high, no longer than 16 feet, and located at least 3 feet from the property line. The Petitioner rejected this option, feeling it was “unsightly and flimsy.”
6. CC&R § 1(Hh) defines a “Party Wall” as a wall constructed on or immediately adjacent to the common boundary of lots. CC&R § 2(P)(i) states that each owner of a contiguous property has the right to use the Party Wall, provided it does not interfere with the other owner’s use.
7. ALC Guideline SS(4)(a) states that an existing party wall along a joint property line “precludes any adjacent parallel party wall.” This rule is in place to prevent the negative situation described by the Respondent where a difficult-to-maintain space is created between two walls.
8. A “preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. It is also described as “the greater weight of the evidence” that is sufficient to incline a fair mind to one side of an issue over the other.
9. The Petitioner, Richard Long, bore the burden of proof. He had to establish by a preponderance of the evidence that the Respondent violated the CC&Rs and ALC Guidelines.
10. The Administrative Law Judge (ALJ) denied the Petitioner’s petition, and this decision was adopted by the Commissioner of the Department of Real Estate, becoming a Final Order. The Order is binding on the parties unless a rehearing is granted.
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Essay Questions
Instructions: The following questions are designed for a longer, essay-style response. Use the case documents to formulate a comprehensive answer supported by specific facts and citations to the community’s governing documents.
1. Analyze the conflict between the Petitioner’s desire for a specific type of privacy structure and the Respondent’s interpretation of the community’s CC&Rs and ALC Guidelines. How did the governing documents prioritize community standards and potential future problems over an individual homeowner’s preference?
2. Discuss the role and reasoning of the Petitioner’s neighbors, the Rohlmans. Evaluate their concerns regarding property value, easements, and future modifications as presented in their email, and explain how their refusal to sign the agreement was a critical factor in the dispute.
3. Explain the legal reasoning used by Administrative Law Judge Diane Mihalsky to reach her decision. Detail which specific sections of the CC&Rs and ALC Guidelines were most influential and how she applied them to unequivocally deny the Petitioner’s request.
4. Compare and contrast the two types of structures discussed for ensuring privacy: the block wall proposed by the Petitioner and the “privacy panel wall” permitted by ALC Guideline JJ. What are the key differences in their material, specifications, placement, and the implications of those differences within the community’s rules?
5. Trace the procedural path of this dispute, from the initial petition to the Final Order. Describe the distinct roles and authority of the Arizona Department of Real Estate, the Architectural Landscape Committee (ALC), the Office of Administrative Hearings, the Administrative Law Judge, and the Commissioner.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over hearings at an administrative agency (in this case, the Office of Administrative Hearings) and makes decisions on disputes. In this case, the ALJ was Diane Mihalsky.
Architectural Landscape Committee (ALC)
The committee within the homeowners’ association responsible for reviewing and approving or denying proposed changes to properties, such as walls and fences, based on the community’s guidelines.
Burden of Proof
The obligation to prove one’s assertion. In this case, the Petitioner bore the burden of proof to establish that the Respondent violated the community documents.
Covenants, Conditions and Restrictions. These are the governing legal documents that set out the guidelines for a planned community or homeowners’ association.
The Department
The Arizona Department of Real Estate, which is authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations.
Homeowners’ Association (HOA)
The organization that creates and enforces rules for the properties within its jurisdiction. In this case, the Pebble Creek Resort Community homeowners’ association was the Respondent.
Party Wall
As defined in CC&R § 1(Hh), “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.” CC&R § 2(P)(i) grants each owner the right to use the Party Wall.
Petitioner
The party who files a petition initiating a legal action. In this case, the homeowner Richard Long.
Preponderance of the Evidence
The standard of proof in this civil case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and “[t]he greater weight of the evidence.”
Respondent
The party against whom a petition is filed. In this case, the Pebble Creek Resort Community homeowners’ association.
Blog Post – 17F-H1717037-REL
Why Your HOA Can Control a Wall Built Entirely on Your Property
Introduction: The Privacy Paradox
Imagine you want a bit more privacy from your next-door neighbor. The solution seems simple: build a wall. To avoid any disputes, you decide to build it entirely on your land, a good foot inside your property line. It’s your property, your wall, your right. But what if your Homeowners’ Association (HOA) tells you that you can’t? This is not a hypothetical scenario; it’s precisely what happened to homeowner Richard Long when he tried to build a 10’ long, 6’ high block wall.
Mr. Long proposed building the wall just one foot inside his property line, believing this would make it a private structure, free from the shared-property rules that often complicate neighborly relations. The HOA denied his request, sparking a legal dispute. The outcome of this case provides surprising and counter-intuitive lessons that every homeowner in a planned community should understand about property rights, community rules, and the hidden logic that governs them.
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1. The Hidden Logic: Preventing the “Rodent Run”
At first glance, the HOA’s rule might seem like arbitrary overreach. Why should they care if a wall is on the property line or one foot away from it? The answer reveals a practical, long-term logic designed to prevent a specific, unpleasant problem: two parallel walls built side-by-side.
The HOA’s governing documents were written to avoid a scenario where a small, unmaintainable gap is created between two separate walls on adjacent properties. If Mr. Long built his wall a foot inside his line, and his neighbor later decided to do the same, a narrow dead space would be created between the homes. In its official written answer, the HOA vividly described the issue this creates:
This is not a good situation in that there often isn’t room between the walls to properly maintain either wall, and the area in between the two walls becomes filled with refuse, leaves, insects, nests and rodents.
This reveals a core principle of planned community management: rules are often designed not to restrict current owners, but to mitigate future risks and liabilities for the entire community. This preventative governance aims to protect the community from future blight, sanitation issues, and pest infestations.
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2. The “Immediately Adjacent” Rule: Your Property Isn’t an Island
The homeowner’s central argument was that by building the wall a foot inside his property, it was his private wall, not a shared “party wall” subject to joint rules. It was a clever attempt to circumvent the regulations, but it failed because of the precise wording in the community’s Covenants, Conditions, and Restrictions (CC&Rs).
Here, the dispute hinged on two seemingly innocuous words. The community’s CC&Rs define a “Party Wall” as a wall constructed “on or immediately adjacent to the common boundary.” The Administrative Law Judge interpreted a wall built only a foot away as falling under the definition of “immediately adjacent.” This single phrase effectively negated the homeowner’s entire strategy.
The judge’s determination that the wall qualified as “immediately adjacent” was critical. By legally defining it as a Party Wall, another rule from the CC&Rs automatically kicked in: the adjoining neighbor’s explicit right to use it. This completely undermined the homeowner’s central goal of creating a purely private structure.
As if that weren’t definitive enough, another, even more explicit rule served as the final nail in the coffin. ALC Guideline SS(4)(a) states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.” This rule directly forbids the exact “rodent run” scenario, showing that the governing documents had multiple, overlapping prohibitions against his plan.
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3. The Neighbor’s Veto: It’s a Three-Party Problem
In an attempt to find a middle ground, the HOA offered a potential compromise. They would approve the wall, but only if it were built directly on the property line and if both Mr. Long and his neighbors, the Rohlmans, signed a formal “Party Wall/Fence Agreement.” This solution, however, revealed another layer of complexity. The neighbors refused to sign.
The Rohlmans explained their reasoning in an email, highlighting concerns that went beyond simple aesthetics. They worried about the financial and legal implications of a shared wall on the property line.
[We] declined to have a wall built on the property line between our homes because it affects the current and future value of our property – and yours. Furthermore, each of us would have to grant the other an easement in perpetuity, which is a legal document… Upon the sale of our home, we would have to inform the purchaser of the easement, which lowers the value of the property.
This demonstrates a common blind spot for homeowners: disputes are rarely bilateral. The rights and financial interests of adjacent property owners create a complex, multi-party dynamic. More often than not, an HOA dispute is a three-party negotiation, and a neighbor’s consent—or lack thereof—can be the deciding factor.
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Conclusion: The Rules You Don’t Know Can Hurt You
The final outcome was decisive. The Administrative Law Judge upheld the HOA’s decision, and the homeowner’s petition was denied. The judge concluded that the community’s governing documents “unequivocally prohibit” the proposed wall. However, this was not a total denial of privacy. Mr. Long did have an approved option: a free-standing “alumawood” privacy panel, provided it was located three feet from the property line. He rejected this alternative because he felt it was “unsightly and flimsy.”
This case serves as a powerful reminder that an HOA’s governing documents are not mere suggestions; they are legally binding contracts. The conflict was ultimately not between a homeowner’s right to privacy and the HOA, but between the homeowner’s specific aesthetic preference and the community’s established architectural standards. What you can do on your own land is deeply intertwined with the collective rules you agreed to when you purchased your home.
Before your next home improvement project, does your plan align not just with your vision, but also with the shared vision encoded in your community’s rules?
Case Participants
Petitioner Side
Richard Long(petitioner) Appeared on his own behalf
Petitioner's wife(interested party) Required, along with Petitioner, to agree in writing to the wall conditions for variance approval (Unit 39 Lot 12)
Respondent Side
Jack Sarsam(executive/witness) Robson Communities Senior Vice President for Robson Communities, overseeing Respondent's operations; testified for Respondent
Neutral Parties
Diane Mihalsky(ALJ) Administrative Law Judge who issued the decision
Judy Lowe(Commissioner) Arizona Department of Real Estate Commissioner who adopted the ALJ decision in the Final Order
Dan Gardner(HOA Coordinator) Contact for rehearing requests; listed as HOA Coordinator
Other Participants
The Rohlmans(neighbor/interested party) Adjacent neighbors (Unit 39 lot 11) whose refusal to sign the party wall agreement was central to the dispute
The ALJ denied the petition, concluding that the homeowner failed to meet the burden of proof demonstrating the HOA violated community documents by refusing the requested block wall. The wall was prohibited by CC&Rs and ALC Guidelines because it was planned for just inside the property line and excluded the adjacent owner from use, potentially leading to prohibited parallel walls.
Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated the CC&Rs and ALC Guidelines.
Key Issues & Findings
Refusal to approve construction of a 10’ long, 6’ high block wall for privacy
Petitioner sought approval for a 10’ long, 6’ high block wall for privacy, built a foot or so inside his property line, designed to prevent adjacent neighbors (the Rohlmans) from using it. Respondent denied the wall based on community documents restricting such constructions to avoid parallel walls and requiring party walls to be on or immediately adjacent to the property line, granting contiguous owners the right to use them.
Briefing: Case No. 17F-H1717037-REL, Long v. Pebble Creek Resort Community
Executive Summary
This document provides a comprehensive analysis of the administrative hearing and final decision concerning a dispute between homeowner Richard Long (“Petitioner”) and the Pebble Creek Resort Community homeowners’ association (“Respondent”). The core of the dispute was the Petitioner’s request to build a 10-foot long, 6-foot high block privacy wall approximately one foot inside his property line, which the Respondent’s Architectural Landscape Committee (ALC) denied.
The Administrative Law Judge (ALJ) ultimately denied the petition, a decision that was subsequently adopted as a Final Order by the Arizona Department of Real Estate. The central finding was that the Respondent’s governing documents—specifically the Covenants, Conditions, and Restrictions (CC&Rs) and ALC Guidelines—unequivocally prohibit the proposed wall. The ALJ concluded that a wall built so close to a property line is defined as a “Party Wall,” which must be constructed “on or immediately adjacent to” the boundary and be usable by both property owners. The Petitioner’s proposal violated these foundational rules by being set back from the property line with the explicit intent of preventing neighbor access and use.
The Respondent had offered a conditional variance for a wall to be built directly on the property line, but this required a mutual “Party Wall/Fence Agreement” with the adjacent neighbor, who refused to sign, citing concerns over property value and the legal complexity of a perpetual easement. The final ruling affirmed the Respondent’s authority to enforce its governing documents as written.
Case Overview
The matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed by the Petitioner with the Arizona Department of Real Estate. The Petitioner alleged that the Respondent HOA had violated its own governing documents by refusing to approve his proposed wall.
Case Detail
Information
Case Name
Richard Long, Petitioner, v. Pebble Creek Resort Community, Respondent
Case Number
No. 17F-H1717037-REL / HO 17-17/037
Office of Administrative Hearings (Phoenix, Arizona)
Petitioner
Richard Long (Appeared on his own behalf)
Respondent
Pebble Creek Resort Community (Represented by Jack Sarsam, SVP for Robson Communities)
Administrative Law Judge
Diane Mihalsky
Real Estate Commissioner
Judy Lowe
Hearing Date
August 30, 2017
ALJ Decision Date
September 6, 2017
Final Order Date
September 14, 2017
Core Dispute and Party Positions
Petitioner’s Proposal and Argument (Richard Long)
• Project: A 10-foot long, 6-foot high block wall intended to provide privacy between his patio and the patio of his adjacent neighbors, the Rohlmans.
• Proposed Location: “A foot or so inside his side of the property line.”
• Stated Intent: To construct a wall to which his neighbors could not attach or otherwise use. The Petitioner testified that if the Rohlmans later wanted their own wall (e.g., for a pool or pet), they could build a separate, parallel wall on their property.
• Rejection of Alternatives: The Petitioner acknowledged that the ALC would approve a “privacy panel wall” made of alumawood or lattice, but he rejected this option, deeming it “unsightly and flimsy.”
• Core Claim: The Petitioner argued that the Respondent’s CC&Rs and ALC Guidelines did not explicitly prohibit the construction of his proposed block wall at its intended location inside his property line.
Respondent’s Position and Actions (Pebble Creek HOA)
• Initial Action: The ALC denied the Petitioner’s request.
• Rationale for Denial: The Respondent explained that walls near lot lines can become problematic, particularly if they result in “two parallel walls.” This situation can create a narrow, inaccessible space between the walls that is difficult to maintain and “becomes filled with refuse, leaves, insects, nests and rodents.”
• Conditional Variance: On May 1, 2017, the Respondent offered to approve a variance with several key conditions:
1. The wall must be constructed directly on the property line.
2. Both the Petitioner and the Rohlmans must sign a written “Party Wall/Fence Agreement” (Form ALC 48).
3. This agreement must grant current and future owners permission to “extend/complete the wall” and must be disclosed upon the sale of either home.
4. The signed agreement would be kept in the ALC files for both properties.
Neighbor’s Position (The Rohlmans)
• The Rohlmans declined to sign the Party Wall/Fence Agreement proposed by the Respondent.
• In an email submitted as evidence, they outlined their reasons for refusal:
◦ Property Value: They believed a wall on the property line would negatively affect the “current and future value” of both properties.
◦ Legal Complexity: The agreement would require granting a perpetual easement, which they identified as a legal document entailing legal expenses.
◦ Disclosure upon Sale: The easement would have to be disclosed to future buyers, which they argued “lowers the value of the property.”
◦ Future Construction: A wall on the property line could be extended by either party or future owners “without the agreement of the other party.”
◦ They concluded that “All of these requirements are onerous.”
Analysis of Governing Documents
The ALJ’s decision rested on a direct interpretation of four key sections of the community’s CC&Rs and ALC Guidelines.
• CC&R § 1(Hh) – Definition of “Party Walls”
◦ This section defines a party wall as: “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.”
◦ The ALJ found that the Petitioner’s proposal for a wall “a foot or so inside” the property line did not meet this definition.
• CC&R § 2(P)(i) – Use of Party Walls
◦ This rule states: “Each Owner shall have the right to use the Party Wall, provided that such use does not interfere with the other Owner’s use and enjoyment thereof.”
◦ This directly contradicted the Petitioner’s goal of building a wall that his neighbors would be prohibited from using.
• ALC Guideline SS(4)(a) – Parallel Walls
◦ This guideline explicitly states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.”
◦ The Petitioner’s own testimony acknowledged the possibility of his neighbor building a parallel wall in the future, a scenario the guidelines are designed to prevent.
• ALC Guideline JJ – “Privacy Panel Wall”
◦ This section details the pre-approved alternative for privacy screening. Such a wall must be:
▪ Free-standing alumawood.
▪ Six feet in height and no more than sixteen feet in length.
▪ Located “at least three (3) feet from the property line.”
◦ This demonstrates a clear distinction in the rules between a shared “Party Wall” near the boundary and a private “Privacy Panel” set significantly back from it.
Administrative Law Judge’s Decision and Rationale
The ALJ, Diane Mihalsky, concluded that the Petitioner failed to meet his burden of proof to establish that the Respondent had violated its governing documents.
• Key Findings of Law:
1. A block wall built “a foot inside the property line” does not conform to CC&R § 1(Hh), which requires a party wall to be “on or immediately adjacent to” the boundary.
2. The Petitioner’s intent to deny his neighbor the use of the wall violates CC&R § 2(P)(i), which grants both owners rights to use a party wall.
3. The Petitioner’s proposal creates the potential for prohibited parallel walls, violating ALC Guideline SS(4)(a).
• Conclusion: The ALJ stated that the community’s documents “unequivocally prohibit Respondent from building a 6’ high, 10’ long block wall a foot from his property line that the Rohlmans are not permitted to use.”
• Recommended Order: On September 6, 2017, the ALJ issued a recommended order that the Petitioner’s petition be denied.
Final Order and Subsequent Actions
• Adoption of Decision: On September 14, 2017, Judy Lowe, Commissioner of the Arizona Department of Real Estate, issued a Final Order adopting the ALJ’s decision in its entirety.
• Effect of Order: The denial of the petition became final, binding, and effective immediately.
• Conditions for Rehearing: The Final Order stipulated that a rehearing could be granted pursuant to A.R.S. § 32-2199.04, but only for one of the following reasons:
1. Irregularity in proceedings or abuse of discretion by the ALJ.
2. Misconduct by the Department, ALJ, or prevailing party.
3. Accident or surprise that could not have been prevented.
4. Newly discovered material evidence.
5. Excessive or insufficient penalties.
6. Error in the admission or rejection of evidence.
7. The decision is arbitrary, capricious, or an abuse of discretion.
8. The findings of fact are not supported by the evidence or are contrary to law.
• Judicial Review: The order is subject to judicial review through the filing of a complaint pursuant to state law.
Study Guide – 17F-H1717037-REL
Study Guide: Long v. Pebble Creek Resort Community (Case No. 17F-H1717037-REL)
This study guide provides a review of the administrative hearing decision concerning a dispute between homeowner Richard Long and the Pebble Creek Resort Community homeowners’ association. It covers the facts of the case, the arguments presented, the relevant community rules, and the final legal outcome.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, based on the information provided in the case documents.
1. What was the specific structure that the Petitioner, Richard Long, proposed to build, and what was its intended purpose?
2. On what grounds did the Respondent, Pebble Creek Resort Community, justify its restrictions against the type of wall the Petitioner proposed?
3. What conditional variance did the Respondent offer to the Petitioner on May 1, 2017?
4. What were the primary concerns expressed by the Petitioner’s neighbors, the Rohlmans, which led them to decline the proposed wall agreement?
5. According to ALC Guideline JJ, what alternative structure could the Petitioner have built for privacy, and what were its key requirements?
6. How do the CC&Rs define a “Party Wall,” and what right does CC&R § 2(P)(i) grant to contiguous property owners regarding such a wall?
7. What rule from the ALC Guidelines prohibits the construction of two parallel walls side-by-side, and why is this rule in place?
8. What is the legal standard of “preponderance of the evidence” as defined in the hearing decision?
9. Who held the burden of proof to establish that the homeowners’ association violated its governing documents?
10. What was the final, binding outcome of the case after the Administrative Law Judge’s decision was reviewed?
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Answer Key
1. The Petitioner proposed to build a 10-foot long, 6-foot high block wall for privacy between his patio and his neighbor’s patio. The wall was to be located a foot or so inside his side of the property line, so his neighbors could not attach to it.
2. The Respondent explained that walls built near, but not on, the property line can lead to problems. This can result in two parallel walls being built, creating an unmaintainable space between them that collects refuse, leaves, insects, nests, and rodents.
3. The Respondent approved a variance on the condition that the wall be built on the property line. Both the Petitioner and his neighbors (the Rohlmans) had to agree in writing that current or future owners could extend the wall, with this agreement being disclosed upon sale of either house.
4. The Rohlmans declined because they believed a wall on the property line would negatively affect their property’s value. They were also concerned about the legal expense and perpetual nature of an easement, and the possibility that future owners could lengthen the wall without consent.
5. ALC Guideline JJ permits a “privacy panel wall,” which is a free-standing alumawood wall. This wall must be 6 feet high, no longer than 16 feet, and located at least 3 feet from the property line. The Petitioner rejected this option, feeling it was “unsightly and flimsy.”
6. CC&R § 1(Hh) defines a “Party Wall” as a wall constructed on or immediately adjacent to the common boundary of lots. CC&R § 2(P)(i) states that each owner of a contiguous property has the right to use the Party Wall, provided it does not interfere with the other owner’s use.
7. ALC Guideline SS(4)(a) states that an existing party wall along a joint property line “precludes any adjacent parallel party wall.” This rule is in place to prevent the negative situation described by the Respondent where a difficult-to-maintain space is created between two walls.
8. A “preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. It is also described as “the greater weight of the evidence” that is sufficient to incline a fair mind to one side of an issue over the other.
9. The Petitioner, Richard Long, bore the burden of proof. He had to establish by a preponderance of the evidence that the Respondent violated the CC&Rs and ALC Guidelines.
10. The Administrative Law Judge (ALJ) denied the Petitioner’s petition, and this decision was adopted by the Commissioner of the Department of Real Estate, becoming a Final Order. The Order is binding on the parties unless a rehearing is granted.
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Essay Questions
Instructions: The following questions are designed for a longer, essay-style response. Use the case documents to formulate a comprehensive answer supported by specific facts and citations to the community’s governing documents.
1. Analyze the conflict between the Petitioner’s desire for a specific type of privacy structure and the Respondent’s interpretation of the community’s CC&Rs and ALC Guidelines. How did the governing documents prioritize community standards and potential future problems over an individual homeowner’s preference?
2. Discuss the role and reasoning of the Petitioner’s neighbors, the Rohlmans. Evaluate their concerns regarding property value, easements, and future modifications as presented in their email, and explain how their refusal to sign the agreement was a critical factor in the dispute.
3. Explain the legal reasoning used by Administrative Law Judge Diane Mihalsky to reach her decision. Detail which specific sections of the CC&Rs and ALC Guidelines were most influential and how she applied them to unequivocally deny the Petitioner’s request.
4. Compare and contrast the two types of structures discussed for ensuring privacy: the block wall proposed by the Petitioner and the “privacy panel wall” permitted by ALC Guideline JJ. What are the key differences in their material, specifications, placement, and the implications of those differences within the community’s rules?
5. Trace the procedural path of this dispute, from the initial petition to the Final Order. Describe the distinct roles and authority of the Arizona Department of Real Estate, the Architectural Landscape Committee (ALC), the Office of Administrative Hearings, the Administrative Law Judge, and the Commissioner.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over hearings at an administrative agency (in this case, the Office of Administrative Hearings) and makes decisions on disputes. In this case, the ALJ was Diane Mihalsky.
Architectural Landscape Committee (ALC)
The committee within the homeowners’ association responsible for reviewing and approving or denying proposed changes to properties, such as walls and fences, based on the community’s guidelines.
Burden of Proof
The obligation to prove one’s assertion. In this case, the Petitioner bore the burden of proof to establish that the Respondent violated the community documents.
Covenants, Conditions and Restrictions. These are the governing legal documents that set out the guidelines for a planned community or homeowners’ association.
The Department
The Arizona Department of Real Estate, which is authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations.
Homeowners’ Association (HOA)
The organization that creates and enforces rules for the properties within its jurisdiction. In this case, the Pebble Creek Resort Community homeowners’ association was the Respondent.
Party Wall
As defined in CC&R § 1(Hh), “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.” CC&R § 2(P)(i) grants each owner the right to use the Party Wall.
Petitioner
The party who files a petition initiating a legal action. In this case, the homeowner Richard Long.
Preponderance of the Evidence
The standard of proof in this civil case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and “[t]he greater weight of the evidence.”
Respondent
The party against whom a petition is filed. In this case, the Pebble Creek Resort Community homeowners’ association.
Blog Post – 17F-H1717037-REL
Why Your HOA Can Control a Wall Built Entirely on Your Property
Introduction: The Privacy Paradox
Imagine you want a bit more privacy from your next-door neighbor. The solution seems simple: build a wall. To avoid any disputes, you decide to build it entirely on your land, a good foot inside your property line. It’s your property, your wall, your right. But what if your Homeowners’ Association (HOA) tells you that you can’t? This is not a hypothetical scenario; it’s precisely what happened to homeowner Richard Long when he tried to build a 10’ long, 6’ high block wall.
Mr. Long proposed building the wall just one foot inside his property line, believing this would make it a private structure, free from the shared-property rules that often complicate neighborly relations. The HOA denied his request, sparking a legal dispute. The outcome of this case provides surprising and counter-intuitive lessons that every homeowner in a planned community should understand about property rights, community rules, and the hidden logic that governs them.
——————————————————————————–
1. The Hidden Logic: Preventing the “Rodent Run”
At first glance, the HOA’s rule might seem like arbitrary overreach. Why should they care if a wall is on the property line or one foot away from it? The answer reveals a practical, long-term logic designed to prevent a specific, unpleasant problem: two parallel walls built side-by-side.
The HOA’s governing documents were written to avoid a scenario where a small, unmaintainable gap is created between two separate walls on adjacent properties. If Mr. Long built his wall a foot inside his line, and his neighbor later decided to do the same, a narrow dead space would be created between the homes. In its official written answer, the HOA vividly described the issue this creates:
This is not a good situation in that there often isn’t room between the walls to properly maintain either wall, and the area in between the two walls becomes filled with refuse, leaves, insects, nests and rodents.
This reveals a core principle of planned community management: rules are often designed not to restrict current owners, but to mitigate future risks and liabilities for the entire community. This preventative governance aims to protect the community from future blight, sanitation issues, and pest infestations.
——————————————————————————–
2. The “Immediately Adjacent” Rule: Your Property Isn’t an Island
The homeowner’s central argument was that by building the wall a foot inside his property, it was his private wall, not a shared “party wall” subject to joint rules. It was a clever attempt to circumvent the regulations, but it failed because of the precise wording in the community’s Covenants, Conditions, and Restrictions (CC&Rs).
Here, the dispute hinged on two seemingly innocuous words. The community’s CC&Rs define a “Party Wall” as a wall constructed “on or immediately adjacent to the common boundary.” The Administrative Law Judge interpreted a wall built only a foot away as falling under the definition of “immediately adjacent.” This single phrase effectively negated the homeowner’s entire strategy.
The judge’s determination that the wall qualified as “immediately adjacent” was critical. By legally defining it as a Party Wall, another rule from the CC&Rs automatically kicked in: the adjoining neighbor’s explicit right to use it. This completely undermined the homeowner’s central goal of creating a purely private structure.
As if that weren’t definitive enough, another, even more explicit rule served as the final nail in the coffin. ALC Guideline SS(4)(a) states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.” This rule directly forbids the exact “rodent run” scenario, showing that the governing documents had multiple, overlapping prohibitions against his plan.
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3. The Neighbor’s Veto: It’s a Three-Party Problem
In an attempt to find a middle ground, the HOA offered a potential compromise. They would approve the wall, but only if it were built directly on the property line and if both Mr. Long and his neighbors, the Rohlmans, signed a formal “Party Wall/Fence Agreement.” This solution, however, revealed another layer of complexity. The neighbors refused to sign.
The Rohlmans explained their reasoning in an email, highlighting concerns that went beyond simple aesthetics. They worried about the financial and legal implications of a shared wall on the property line.
[We] declined to have a wall built on the property line between our homes because it affects the current and future value of our property – and yours. Furthermore, each of us would have to grant the other an easement in perpetuity, which is a legal document… Upon the sale of our home, we would have to inform the purchaser of the easement, which lowers the value of the property.
This demonstrates a common blind spot for homeowners: disputes are rarely bilateral. The rights and financial interests of adjacent property owners create a complex, multi-party dynamic. More often than not, an HOA dispute is a three-party negotiation, and a neighbor’s consent—or lack thereof—can be the deciding factor.
——————————————————————————–
Conclusion: The Rules You Don’t Know Can Hurt You
The final outcome was decisive. The Administrative Law Judge upheld the HOA’s decision, and the homeowner’s petition was denied. The judge concluded that the community’s governing documents “unequivocally prohibit” the proposed wall. However, this was not a total denial of privacy. Mr. Long did have an approved option: a free-standing “alumawood” privacy panel, provided it was located three feet from the property line. He rejected this alternative because he felt it was “unsightly and flimsy.”
This case serves as a powerful reminder that an HOA’s governing documents are not mere suggestions; they are legally binding contracts. The conflict was ultimately not between a homeowner’s right to privacy and the HOA, but between the homeowner’s specific aesthetic preference and the community’s established architectural standards. What you can do on your own land is deeply intertwined with the collective rules you agreed to when you purchased your home.
Before your next home improvement project, does your plan align not just with your vision, but also with the shared vision encoded in your community’s rules?
Case Participants
Petitioner Side
Richard Long(petitioner) Appeared on his own behalf
Petitioner's wife(interested party) Required, along with Petitioner, to agree in writing to the wall conditions for variance approval (Unit 39 Lot 12)
Respondent Side
Jack Sarsam(executive/witness) Robson Communities Senior Vice President for Robson Communities, overseeing Respondent's operations; testified for Respondent
Neutral Parties
Diane Mihalsky(ALJ) Administrative Law Judge who issued the decision
Judy Lowe(Commissioner) Arizona Department of Real Estate Commissioner who adopted the ALJ decision in the Final Order
Dan Gardner(HOA Coordinator) Contact for rehearing requests; listed as HOA Coordinator
Other Participants
The Rohlmans(neighbor/interested party) Adjacent neighbors (Unit 39 lot 11) whose refusal to sign the party wall agreement was central to the dispute
