Charles P Mandela vs. Blue Ridge Estates Homeowners’ Association

Posted on April 27, 2021 by [email protected]

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

Case Summary

Case ID	20F-H2020042-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2021-04-27
Administrative Law Judge	Adam D. Stone
Outcome	The Administrative Law Judge, following a rehearing, affirmed the original decision, concluding that the Petitioner failed to sustain the burden of proof that the Respondent HOA violated CC&R Article X regarding the denial of an architectural modification request for a patio shade. The Respondent was found to have acted in compliance with the community documents, and the appeal was dismissed.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Charles P Mandela	Counsel	—
Respondent	Blue Ridge Estates Homeowners' Association	Counsel	Nicholas Nogami, Esq.

Alleged Violations

CC&R Article X; CC&R Section 10.3

Outcome Summary

The Administrative Law Judge, following a rehearing, affirmed the original decision, concluding that the Petitioner failed to sustain the burden of proof that the Respondent HOA violated CC&R Article X regarding the denial of an architectural modification request for a patio shade. The Respondent was found to have acted in compliance with the community documents, and the appeal was dismissed.

Why this result: Petitioner failed to meet the burden of proof to establish a violation of the CC&R's and failed to follow the procedural requirements necessary to appeal a deemed disapproval under CC&R Section 10.3.

Key Issues & Findings

Denial of request for patio shade structure and alleged violation of response timeline

Petitioner challenged the HOA's denial of his application for a patio shade, arguing the denial was improper because the shade would be attached (not a separate structure) and that the HOA missed the 30-day response deadline. The ALJ determined that the HOA's denial based on the 'only one structure other than the residence' rule (since a shed already existed) complied with the non-exhaustive Architectural Committee Standards (Article X, 10.2). Regarding the delayed response, the ALJ noted that Section 10.3 mandated that a late response results in the request being 'deemed disapproved,' and the Petitioner failed to subsequently request the required appeal meeting.

Orders: The Administrative Law Judge concluded that Petitioner failed to sustain the burden of proof that the Respondent violated Article X of the CC&R’s. The Respondent was declared the prevailing party, and the Petitioner's appeal (rehearing) was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 32-2199(B)
A.R.S. § 41-2198.01
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(2)
A.R.S. § 32-2199.02(A)
CC&R Article X
CC&R Section 10.3

Analytics Highlights

Topics: HOA, CC&R, Architectural Review, Denial, Rehearing, Burden of Proof, Deemed Disapproved

Additional Citations:

A.R.S. § 32-2199(B)
A.R.S. § 41-2198.01
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(2)
A.R.S. § 32-2199.02(A)

Video Overview

Audio Overview

Decision Documents

20F-H2020042-REL-RHG Decision – 876009.pdf

Uploaded 2026-01-23T17:31:30 (118.9 KB)

20F-H2020042-REL-RHG Decision – ../20F-H2020042-REL/850032.pdf

Uploaded 2026-01-23T17:31:33 (113.4 KB)

Briefing on Mandela v. Blue Ridge Estates Homeowners’ Association

Executive Summary

This document synthesizes the findings from two administrative law judge decisions concerning a dispute between homeowner Charles P. Mandela and the Blue Ridge Estates Homeowners’ Association (“Blue Ridge”). The core issue was Blue Ridge’s denial of Mr. Mandela’s request to build a patio shade structure.

In the initial hearing on January 13, 2021, Mr. Mandela argued the denial was erroneous because the shade would be attached to his house, not a separate structure, and that similar structures existed in the community. Blue Ridge defended its decision based on Article X of its Covenants, Conditions, and Restrictions (CC&Rs), which limits properties to one structure besides the main residence. The Administrative Law Judge (ALJ) denied Mr. Mandela’s petition, finding that Blue Ridge acted within the authority granted by its CC&Rs, as its architectural standards were not exhaustive and it provided a reasonably detailed written reason for the denial.

Following this decision, Mr. Mandela was granted a rehearing, which took place on April 16, 2021. During this second hearing, he introduced a new argument that Blue Ridge had violated Article 10.3 of the CC&Rs by failing to respond to his request within the stipulated 30-day timeframe. However, the ALJ found that the same article specifies that a failure to respond results in the request being “deemed disapproved.” The ALJ concluded that Mr. Mandela had failed to follow the subsequent appeal procedures outlined in the CC&Rs and again failed to meet his burden of proof. Consequently, the appeal was dismissed, and Blue Ridge was declared the prevailing party. Notably, during the rehearing, Mr. Mandela testified that his request for the patio shade had since been approved by the Blue Ridge board.

Initial Hearing and Decision (Case No. 20F-H2020042-REL)

The first evidentiary hearing was held on January 13, 2021, before Administrative Law Judge Adam D. Stone to address Mr. Mandela’s petition alleging Blue Ridge violated its CC&Rs.

The Core Dispute

• Petitioner’s Request: On August 28, 2019, Charles P. Mandela submitted a request to build a “patio shade less than 200 sq. feet,” described as a four-post structure he intended to attach to the east wall of his residence.

• Respondent’s Denial: On October 25, 2019, Blue Ridge denied the request, stating: “Only one structure other than the residence may be placed on the property. The site plan that was given for review shows the residence and also a shed on property already existing, this would be the allowable limit per the Architectural Standards.”

Arguments Presented

• Petitioner (Charles P. Mandela):

◦ Argued passionately that the denial was erroneous because the patio shade was to be attached to the house, not a separate, stand-alone structure.

◦ Presented photographs of other properties within Blue Ridge Estates that had multiple structures and stand-alone patio shades similar to his proposal.

• Respondent (Blue Ridge Estates HOA):

◦ Contended it properly followed Article X of the CC&Rs in its denial.

◦ At the hearing, Blue Ridge pointed to Article III of the CC&Rs as justification, classifying the proposed shade as an additional structure on the property.

Judge’s Findings and Conclusions

The Administrative Law Judge (ALJ) denied Mr. Mandela’s petition, concluding he had not established by a preponderance of the evidence that Blue Ridge violated Article X of the CC&Rs.

• Interpretation of CC&R Section 10.2: The judge found that the architectural standards listed in this section were explicitly not exhaustive. The text states standards “may include, without limitation, provisions regarding” aspects like size, design, and placement. This allowed the architectural committee to deny the request based on the “one additional structure” rule, even if not explicitly listed.

• Compliance with CC&R Section 10.3: This section requires the committee to provide “reasonably detailed written reasons for such disapproval.” The judge found that the denial email of October 25, 2019, fulfilled this requirement. The email did not need to cite a specific CC&R section, only to provide an explanation.

• On Precedent and Fairness: The ALJ acknowledged Mr. Mandela’s evidence of similar structures on other properties. However, the decision noted: “While those properties may have had their shades approved by different members of the Blue Ridge Architectural Committee that does not follow that Mr. Mandela’s request was improperly denied under Article X.”

• Final Ruling: The petition was denied in a decision dated January 29, 2021.

Rehearing and Final Decision (Case No. 20F-H2020042-REL-RHG)

Mr. Mandela filed for a rehearing on February 5, 2021, on the grounds that the decision was arbitrary, capricious, or not supported by evidence. The Arizona Department of Real Estate Commissioner granted the request, and a new hearing was held on April 16, 2021.

New Testimony and Arguments

• Petitioner (Charles P. Mandela):

◦ Subsequent Approval: Testified that since the January 29, 2021 decision, his request for the patio shade had been approved by the Blue Ridge board.

◦ Procedural Violation: Argued that Blue Ridge violated CC&R Section 10.3 by failing to respond to his August 28, 2019, request within the required 30-day period, as the denial was not issued until October 25, 2019.

◦ History of Denials: Stated he had made several previous requests in 2018 and 2019 that were either denied or ignored.

◦ Discrimination: Claimed he had been discriminated against due to the previous denials.

• Respondent (Blue Ridge Estates HOA):

◦ Interpretation of Section 10.3: Argued that while the section may be “confusingly drafted,” it stipulates that if the committee fails to respond within 30 days, the request is “deemed disapproved.” Therefore, the board acted within its authority.

◦ Failure to Appeal: Contended that Mr. Mandela failed to follow the proper appeal procedure outlined in the CC&Rs, as he never specifically requested a meeting to discuss the denial.

Judge’s Final Findings and Conclusions

The ALJ affirmed the original decision, finding for the Respondent as the prevailing party and dismissing Mr. Mandela’s appeal.

• Scope of Rehearing: The judge determined that the rehearing was limited to the August 28, 2019, request and its subsequent denial, as that was the sole focus of the original petition. Mr. Mandela’s arguments about prior denials were not considered new evidence relevant to the specific violation alleged.

• Interpretation of the 30-Day Rule: The ALJ sided with the HOA’s interpretation of Section 10.3. While acknowledging that Blue Ridge took more than thirty days to issue a written denial, the judge ruled that the CC&R’s provision for a “deemed disapproved” status meant the request was properly denied under the rules.

• Petitioner’s Failure to Follow Procedure: The judge noted that Mr. Mandela admitted he did not formally request a meeting with the Architectural Committee after the denial, which was the required next step in the appeal process under Section 10.3.

• Final Ruling: The final decision, dated April 27, 2021, concluded that Mr. Mandela failed to sustain his burden of proof. The HOA was found to have acted in compliance with the CC&Rs, and the appeal was dismissed. This order was declared binding on the parties.

Timeline of Key Events

August 28, 2019

Charles Mandela submits his request to build a patio shade.

October 25, 2019

Blue Ridge HOA denies the request via email, citing the one-additional-structure limit.

January 13, 2020

Mandela files a petition with the Arizona Department of Real Estate.

January 13, 2021

The first evidentiary hearing is held before the Office of Administrative Hearings.

January 29, 2021

The Administrative Law Judge (ALJ) issues a decision denying Mandela’s petition.

February 5, 2021

Mandela files a request for a rehearing.

March 15, 2021

The Commissioner of the Department of Real Estate grants the rehearing request.

April 16, 2021

The rehearing is conducted.

April 27, 2021

The ALJ issues a final decision, finding for the HOA and dismissing Mandela’s appeal.

Central CC&R Provision: Article X, Section 10.3

The most heavily debated provision was Section 10.3 of the Blue Ridge Estates CC&Rs, which outlines the procedure for architectural requests. Its language was central to the outcome of the rehearing.

Key text from Section 10.3:

“The Architectural Committee shall have thirty (30) days after receipt of such plans, specifications, and elevations to approve or disapprove of the proposed construction… In the event the Architectural Committee fails either to approve or disapprove the proposed construction… within said thirty (30) day period, such proposed construction… shall be deemed disapproved and the Owner can then request a meeting with the Architectural Committee to discuss the reasons for such disapproval…”

This clause was interpreted by the ALJ to mean that the HOA’s failure to provide a written response within 30 days automatically constituted a denial, shifting the burden to the homeowner to request a follow-up meeting, a step Mr. Mandela did not take.

Study Guide: Mandela v. Blue Ridge Estates Homeowners’ Association

This study guide provides a comprehensive review of the administrative legal dispute between homeowner Charles P. Mandela and the Blue Ridge Estates Homeowners’ Association, as detailed in the Administrative Law Judge Decisions from January 29, 2021, and April 27, 2021. The case centers on the denial of an architectural request and the interpretation of the association’s governing documents (CC&Rs).

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Quiz: Key Facts and Arguments

Answer the following questions in 2-3 sentences each, based on the provided legal decisions.

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

2. What specific structure did Charles P. Mandela request approval to build on August 28, 2019?

3. What was the initial reason given by the Blue Ridge Estates HOA for denying Mr. Mandela’s request on October 25, 2019?

4. What was Mr. Mandela’s central argument during the first hearing on January 13, 2021?

5. According to the decision from the first hearing, why did the Administrative Law Judge rule that the HOA’s denial was in compliance with Section 10.2 of the CC&Rs?

6. On what grounds did Mr. Mandela file his Homeowner’s Association (HOA) Dispute Rehearing Request on February 5, 2021?

7. During the rehearing, what new argument did Mr. Mandela raise concerning the timeline of the HOA’s denial of his August 28, 2019 request?

8. How did the HOA’s legal counsel counter Mr. Mandela’s argument regarding the 30-day response time outlined in Section 10.3?

9. What procedural step, outlined in Section 10.3, did Mr. Mandela admit he failed to take after his request was deemed denied?

10. What was the final outcome of the rehearing on April 16, 2021, and what was the judge’s conclusion regarding the HOA’s actions?

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Answer Key

1. The primary parties were Petitioner Charles P. Mandela, a homeowner, and Respondent Blue Ridge Estates Homeowners’ Association of Coconino County. Mr. Mandela filed the petition against the HOA after it denied his request to build a patio shade.

2. On August 28, 2019, Mr. Mandela requested approval to build a “patio shade less than 200 sq. feet.” The structure was a four-post shade that he intended to attach to the east side wall of his residence.

3. The HOA denied the request based on Architectural Committee Standards Article X. The denial stated that only one structure other than the residence may be placed on the property, and Mr. Mandela already had a residence and a shed.

4. Mr. Mandela’s central argument was that the denial was erroneous because the patio shade was not a separate stand-alone structure. He planned to attach it to his house, and he presented photographs of other properties with similar structures.

5. The judge ruled the denial complied with Section 10.2 because the list of standards the Architectural Committee could enforce was “not an exhaustive one.” This meant the committee could properly deny the request based on the one-structure limit, even if it wasn’t explicitly enumerated.

6. Mr. Mandela requested a rehearing on the grounds that the findings of fact were arbitrary, capricious, or an abuse of discretion. He also claimed the decision was not supported by the evidence or was contrary to law.

7. During the rehearing, Mr. Mandela argued that the Board violated Section 10.3 of the CC&Rs. He contended that since he made his request on August 28, 2019, and the Board did not respond until October 25, 2019, it had failed to provide a written response within the required 30-day period.

8. The HOA’s counsel argued that while Section 10.3 may be “confusingly drafted,” it specifies that if the committee fails to approve or disapprove within the 30-day period, the request is “deemed disapproved.” Therefore, the Board was within its authority.

9. Mr. Mandela admitted that he did not formally request a meeting with the Architectural Committee to discuss the reasons for the disapproval. This is the procedural step required by Section 10.3 after a request is deemed denied.

10. The final outcome was that the petition was dismissed, and the Respondent (HOA) was declared the prevailing party. The judge concluded that the HOA had not violated the CC&Rs and had acted in compliance with its governing documents.

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Essay Questions for Further Study

The following questions are designed to promote a deeper analysis of the case. Formulate a comprehensive response to each, citing specific details from the legal decisions.

1. Analyze the interpretation of CC&R Section 10.3, specifically the “deemed disapproved” clause. Discuss how this clause functioned as a key legal defense for the HOA and ultimately shaped the outcome of the rehearing.

2. The legal standard in this case was “a preponderance of the evidence.” Define this standard as described in the legal text and evaluate the evidence Mr. Mandela presented in both hearings. Why did the Administrative Law Judge conclude that Mr. Mandela failed to meet his burden of proof?

3. Compare and contrast the arguments presented by the Petitioner and Respondent in the initial hearing (January 13, 2021) versus the rehearing (April 16, 2021). How did the focus of the legal arguments shift between the two proceedings?

4. Examine the authority and jurisdiction of the Architectural Committee as outlined in CC&R Section 10.2. Discuss the significance of the phrase “Such standards and procedures may include, without limitation, provisions regarding…” in the judge’s initial decision.

5. Trace the procedural history of this case, from Mr. Mandela’s initial request in August 2019 to the final order in April 2021. Identify at least four key procedural milestones and explain their significance to the case’s progression and ultimate resolution.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge, in this case Adam D. Stone, who presides over hearings at the Office of Administrative Hearings and makes decisions on petitions concerning disputes regulated by state agencies.

Architectural Committee

A body within the Blue Ridge Estates HOA established by Article X of the CC&Rs, with jurisdiction over all original construction and any modifications, additions, or alterations to the exterior of homes or properties.

Arizona Department of Real Estate

The state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations and the associations themselves in Arizona.

Burden of Proof

The obligation of a party in a legal proceeding to produce evidence that proves the facts it claims are true. In this case, the Petitioner (Mr. Mandela) bore the burden of proof.

An abbreviation for Covenants, Conditions, and Restrictions, which are the governing legal documents for a planned community like Blue Ridge Estates. This case centered on the interpretation of Article X of the Blue Ridge CC&Rs.

Homeowners’ Association (HOA)

The governing organization for a planned community. In this case, the Respondent was the Blue Ridge Estates Homeowners Association of Coconino County.

Motion to Dismiss

A formal request filed by a party asking for a lawsuit or petition to be dismissed. The Blue Ridge HOA filed a Motion to Dismiss, which was denied on October 7, 2020, allowing the case to proceed.

Office of Administrative Hearings

An independent state agency in Arizona where petitions related to disputes with HOAs are sent for an evidentiary hearing before an Administrative Law Judge.

Petitioner

The party who files a petition initiating a legal action. In this case, Charles P. Mandela was the Petitioner.

Preponderance of the Evidence

The standard of proof required in this case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” representing the greater weight of evidence.

Rehearing

A second hearing granted to review a legal decision. Mr. Mandela was granted a rehearing after the initial decision, based on his claim that the findings were arbitrary, capricious, or not supported by evidence.

Respondent

The party against whom a petition is filed. In this case, the Blue Ridge Estates Homeowners’ Association was the Respondent.

Tribunal

A term used in the documents to refer to the judicial body hearing the case, specifically the Office of Administrative Hearings and the presiding Administrative Law Judge.

He Fought the HOA Over a Patio and Lost. Here Are 5 Shocking Lessons Every Homeowner Needs to Learn.

Introduction: The Perils of a Simple Home Improvement Project

For any homeowner, the excitement of a new project—a deck, a fence, or a simple patio shade—can quickly turn to frustration when it collides with the dense rulebook of a Homeowners’ Association (HOA). What seems like a straightforward improvement can become a complex battle of bylaws and procedures.

This was the reality for Charles P. Mandela, a homeowner in the Blue Ridge Estates community. His plan to build a simple patio shade was denied by his HOA, sparking a legal challenge that went before an Administrative Law Judge. While Mr. Mandela ultimately lost his case on its legal merits, the details of his fight offer a masterclass in the surprising and often counter-intuitive world of HOA governance. This article distills the most shocking lessons from his case, providing critical insights for any homeowner living under an HOA.

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1. The “Deemed Disapproved” Clause: How an HOA’s Silence Becomes a Legal “No”

Mr. Mandela submitted his request to build a patio shade on August 28, 2019. He argued that the HOA, Blue Ridge Estates, violated its own rules, which required a response within 30 days. The HOA didn’t send its formal denial until October 25, 2019, well past the deadline. On the surface, it seemed like a clear procedural violation by the HOA.

However, a bizarre and “unartfully drafted” clause hidden in the HOA’s governing documents (CC&Rs) turned this logic on its head. The rule stated:

In the event the Architectural Committee fails either to approve or disapprove the proposed construction… within said thirty (30) day period, such proposed construction… shall be deemed disapproved…

Contrary to common sense, the rule meant that the HOA’s failure to respond on time resulted in an automatic denial, not a pending approval. The Administrative Law Judge was bound by this text, concluding that because the 30-day period had passed without a formal approval, the request was “properly deemed denied.”

2. The “My Neighbor Has One” Argument Is Weaker Than You Think

To support his case, Mr. Mandela presented photographs showing that “similar shades exist on other properties with additional structures.” He argued that the HOA was engaging in selective enforcement by denying his project while having approved others like it. This is one of the most frequent arguments homeowners make when they feel singled out by their HOA board.

The judge’s conclusion was a stunning reality check. The legal decision stated:

While those properties may have had their shades approved by different members of the Blue Ridge Architectural Committee that does not follow that Mr. Mandela’s request was improperly denied under Article X.

The legal reasoning here is crucial for homeowners to understand. Architectural committees are not static; members change, and so can their interpretation of aesthetic standards. Each application is legally considered a distinct request, evaluated under the rules in place at that moment. A previous committee’s approval—which may have even been a mistake or a variance granted under different circumstances—does not create a binding legal precedent that forces the current committee to repeat it.

3. Procedure is Everything: A Missed Step Can Cost You the Case

The HOA’s rules contained a specific process for appealing a denial. After a project is “deemed disapproved” because the 30-day clock ran out, the homeowner must then formally request a meeting with the committee to discuss the denial.

The judge found that Mr. Mandela had failed to take this critical next step. This procedural misstep, however small it might seem, became a key factor in the case against him. The decision hinged on this procedural failure, stating:

Further, Petitioner admitted that in his several email responses that he did not formally request a meeting with the Architectural Committee, thus he failed to follow the procedures in Section 10.3.

This highlights a crucial lesson: meticulously follow every single procedural step outlined in your HOA’s documents. Failure to do so, such as not using the correct language to request a meeting, can be used to dismiss your claim, regardless of its other merits.

4. “Unartfully Drafted” Rules Can Still Be Legally Binding

Even the Administrative Law Judge acknowledged the poor quality of the HOA’s rulebook. In the decision, the judge offered a candid assessment of the rule regarding the 30-day response time, stating, “Admittedly this section is unartfully drafted…”

Despite this observation, the rule was enforced exactly as written. The judge was bound by the text, however confusing, and concluded that “from the evidence presented, the request was properly deemed denied.”

This is perhaps the most sobering lesson. Homeowners often assume that a rule that is confusing or seems illogical won’t hold up under scrutiny. This case proves that the literal text of the governing documents possesses immense power. What a rule literally says is far more important than what one might assume it should mean.

5. The Final Twist: He Lost the Case But Got His Patio Anyway

After the initial decision was made against him, Mr. Mandela requested a rehearing. During this second hearing, a surprising fact emerged. Mr. Mandela testified that “since the decision on January 29, 2021, his request for the patio shade had been approved by the Board.”

This outcome highlights a crucial dynamic: while Mr. Mandela lost the legal argument based on procedural history, his persistent engagement in the process—including filing a formal appeal—likely created enough administrative and community pressure to compel the Board to find a practical, non-legal solution. It’s a powerful reminder that a legal loss on a technicality does not always foreclose a real-world victory.

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Conclusion: Do You Really Know Your HOA’s Rules?

The case of Charles Mandela serves as a powerful cautionary tale. It reveals that HOA disputes are rarely won on appeals to fairness or common sense. Instead, they are won or lost in the fine print of the governing documents—documents that can contain counter-intuitive clauses, procedural traps, and “unartfully drafted” rules that are nonetheless legally binding.

A homeowner’s best defense is not passion or conviction, but a deep and thorough understanding of the specific rules and procedures they agreed to live by. This case forces every homeowner to ask: Are you prepared to navigate the literal text of your community’s rules, where silence can mean “no” and a neighbor’s precedent is no precedent at all?

Case Participants

Petitioner Side

Charles P Mandela (petitioner)

Respondent Side

Nicholas Nogami (HOA attorney)
CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP

Neutral Parties

Adam D. Stone (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate

Douglas E Kupel v. Hidden Valley Association

Posted on October 30, 2020 by [email protected]

Case Summary

Case ID	21F-H2120006-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-10-30
Administrative Law Judge	Adam D. Stone
Outcome	The Administrative Law Judge concluded that the Association's conduct did not violate ARIZ. REV. STAT. § 33-1805 because the Petitioner did not prove by a preponderance of the evidence that the requested records were in existence and subject to disclosure.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Douglas E. Kupel	Counsel	—
Respondent	Hidden Valley Association	Counsel	Timothy Butterfield, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The Administrative Law Judge concluded that the Association's conduct did not violate ARIZ. REV. STAT. § 33-1805 because the Petitioner did not prove by a preponderance of the evidence that the requested records were in existence and subject to disclosure.

Why this result: Petitioner failed to establish that the requested records (communications) were in existence and subject to disclosure.

Key Issues & Findings

Failing to fulfill Petitioner’s records request

Petitioner claimed the HOA failed to provide copies of all communications (written/electronic) related to information requests, open meeting law compliance, and changes to bylaws, arguing they were not exempt from disclosure under ARIZ. REV. STAT. § 33-1805(B). The HOA asserted no disclosable records existed.

Orders: Petitioner's petition and request for civil penalty are denied. Respondent shall not reimburse Petitioner's filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: HOA Records Request, Records Disclosure, ARIZ. REV. STAT. 33-1805, Burden of Proof, Preponderance of Evidence

Additional Citations:

ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092

Video Overview

Audio Overview

Decision Documents

21F-H2120006-REL Decision – 834142.pdf

Uploaded 2026-04-24T11:29:50 (147.6 KB)

21F-H2120006-REL Decision – 834142.pdf

Uploaded 2026-01-23T17:34:55 (147.6 KB)

Administrative Law Judge Decision: Kupel vs. Hidden Valley Association

Executive Summary

The Administrative Law Judge (ALJ) for the Arizona Office of Administrative Hearings denied a petition filed by homeowner Douglas E. Kupel against the Hidden Valley Association (HVA). The core of the dispute was Kupel’s allegation that HVA violated Arizona statute ARIZ. REV. STAT. § 33-1805 by failing to completely fulfill a comprehensive records request. While HVA provided its records retention policy and legal invoices, it withheld two categories of electronic and hard copy communications, claiming no such disclosable records existed.

Kupel argued that statements made in emails by HVA Board President Gary Freed—specifically that certain communications would be “filed as an HVA business record”—proved the existence of the requested records. HVA countered that this statement was a mistake on Freed’s part, resulting from an initial misunderstanding of retention requirements, and that no records subject to disclosure actually existed.

The ALJ ultimately concluded that Kupel failed to meet the “preponderance of the evidence” standard required to prove his claim. The judge found that the evidence presented was not sufficient to prove that the requested records existed and were being improperly withheld. Consequently, the petition was denied, and Kupel’s requests for reimbursement of his filing fee and the imposition of a civil penalty against HVA were also denied.

Case Overview

Case Name

Douglas E Kupel, Petitioner, vs. Hidden Valley Association, Respondent

Case Number

21F-H2120006-REL

Jurisdiction

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Adam D. Stone

Hearing Date

October 22, 2020

Decision Date

October 30, 2020

Key Parties

Douglas E. Kupel (Petitioner), Hidden Valley Association (Respondent), Gary Freed (HVA Board President)

Core Dispute: The Records Request

The central issue of the hearing was whether the Hidden Valley Association violated ARIZ. REV. STAT. § 33-1805 by failing to fully comply with a records request submitted by Kupel on June 22, 2020. HVA, through its community manager HOAMCO, provided a partial response on July 1, 2020.

Breakdown of the Records Request:

• Request 1 (Fulfilled): A copy of the HVA records retention policy adopted on January 15, 2020.

• Request 2 (Denied): Copies of all communications (email and hard copy) to or from current and former HVA Board and committee members regarding “information requests or open meeting law compliance” from July 2019 to the present.

• Request 3 (Denied): Copies of all communications (email and hard copy) to or from current and former HVA Board and committee members regarding any proposed, discussed, or adopted changes to the Association bylaws from January 2019 to the present.

• Request 4 (Fulfilled): Copies of invoices, billing statements, and payment records for legal services associated with revisions to the Association bylaws from January 2019 to the present.

HVA and its President, Gary Freed, asserted that the denied communications were not subject to disclosure under the exceptions outlined in ARIZ. REV. STAT. § 33-1805(B).

Petitioner’s Position and Evidence (Douglas E. Kupel)

• Allegation: Kupel accused HVA of willfully failing to fulfill his request, alleging that non-exempt records did exist and should have been disclosed.

• Primary Evidence: Kupel submitted several email messages from HVA President Gary Freed which contained the statement: “This communication has been received, and will be filed as an HVA business record in the files maintained by HOAMCO for the benefit of HVA” or substantially similar language.

• Argument: Kupel testified that these emails proved the existence of communications that did not meet the statutory exclusions and, therefore, HVA had failed to fully respond to his request.

• Requested Relief:

1. An order compelling HVA to abide by ARIZ. REV. STAT. § 33-1805.

2. Reimbursement of the $500 filing fee.

3. The levying of a civil penalty against HVA.

Respondent’s Position and Evidence (Hidden Valley Association)

• Witness Testimony: HVA Board President Gary Freed testified on behalf of the association.

• Core Defense: Freed testified that based on HVA’s records retention policy and his understanding of open meeting laws, “no records existed which were subject to disclosure.”

• Explanation of Contested Emails: Freed explained that his prior email statements about filing all communications were a mistake. He testified that he initially believed all communications needed to be retained but later learned this was incorrect.

• Search Process: Freed admitted that neither he nor other board members conducted a one-by-one search of every single email. However, he testified that he “may have scanned his personal e-mail” and did not dismiss the petitioner’s request “out-of-hand.”

• Association Practices: Freed asserted that HVA business was conducted via open meetings, with the exception of a single emergency situation, implying that no discoverable email correspondence regarding official business would exist.

Administrative Law Judge’s Analysis and Conclusion

The ALJ’s decision rested on the legal standard of “preponderance of the evidence,” defined as proof convincing the trier of fact that a contention is more probably true than not. The petitioner, Kupel, bore the burden of meeting this standard.

• Evaluation of Evidence: The judge found Kupel’s primary argument unpersuasive. The decision states, “Essentially, Petitioner is claiming that there must be other records in existence because of the language that Mr. Freed used… This is not persuasive as there was no evidence presented by Petitioner to prove that the records were in existence.”

• Credibility of Testimony: The judge gave weight to Freed’s testimony that he had been mistaken about record-keeping protocols. The decision also noted that HVA’s official records retention policy, adopted six months prior to the request, specifically outlined which communications were to be kept.

• Lack of Proof: The judge concluded that Freed believed any documents that might have existed were subject to statutory exemptions and that all relevant business was conducted in open meetings. Ultimately, Kupel failed to provide sufficient proof that discoverable records actually existed.

• Final Ruling: The ALJ concluded that “the Association’s conduct, as outlined above, did not violate the charged provisions of ARIZ. REV. STAT. § 33-1805.”

Final Order

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following orders:

Outcome

Petitioner’s Petition

Denied

Request for Civil Penalty

Denied

Reimbursement of Filing Fee

Denied (Respondent shall not reimburse Petitioner’s fee)

The decision is binding on the parties unless a request for rehearing is filed with the Commissioner of the Arizona Department of Real Estate within thirty days of the order’s service.

Study Guide: Kupel v. Hidden Valley Association, No. 21F-H2120006-REL

This study guide provides a review of the administrative hearing decision in the matter of Douglas E. Kupel versus the Hidden Valley Association. It includes a quiz with an answer key to test comprehension of the facts, a set of essay questions for deeper analysis, and a glossary of key terms.

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Quiz: Short-Answer Questions

Answer the following questions in 2-3 sentences based on the provided source document.

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

2. What was the specific violation alleged by the Petitioner in his petition to the Department of Real Estate?

3. What four categories of records did the Petitioner request from the Hidden Valley Association (HVA) on June 22, 2020?

4. Which parts of the Petitioner’s records request did the HVA fulfill, and which parts did it deny?

5. What was the Petitioner’s central piece of evidence to argue that the HVA was improperly withholding existing communications?

6. How did HVA Board President Gary Freed explain the discrepancy between his email statements and the association’s refusal to provide the requested communications?

7. What is the “preponderance of the evidence” standard, and which party was required to meet this standard?

8. According to Mr. Freed’s testimony, where was all official HVA business conducted?

9. What was the Administrative Law Judge’s final conclusion regarding the HVA’s conduct in this matter?

10. What three specific outcomes were mandated by the final ORDER issued on October 30, 2020?

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Answer Key

1. The primary parties were the Petitioner, Douglas E. Kupel, a property owner and member of the Hidden Valley Association, and the Respondent, the Hidden Valley Association (HVA). The Petitioner brought the complaint against the Respondent, alleging a violation of state law.

2. The Petitioner alleged that the Hidden Valley Association violated ARIZ. REV. STAT. § 33-1805 by failing to completely fulfill his records request. Specifically, he claimed the association improperly withheld communications records.

3. The Petitioner requested: (1) the records retention policy; (2) communications regarding information requests or open meeting law compliance; (3) communications regarding proposed changes to the association bylaws; and (4) legal invoices and payment records related to bylaw revisions.

4. The HVA fulfilled the request for the records retention policy and the legal invoices. It denied the two requests for communications between board and committee members, claiming the requested records were not subject to disclosure.

5. The Petitioner’s central evidence consisted of several emails from HVA Board President Gary Freed in which Mr. Freed stated, “[t]his communication has been received, and will be filed as an HVA business record.” The Petitioner argued this proved that such communications existed and were official records.

6. Mr. Freed testified that he was initially mistaken in his belief that all communications needed to be retained and that this was why he included that language in his emails. He clarified that based on the HVA’s records retention policy and open meeting laws, no disclosable records of the type requested existed.

7. “Preponderance of the evidence” is the standard of proof requiring the evidence to convince the trier of fact that a contention is more probably true than not. The Petitioner, Douglas E. Kupel, bore the burden of proving his case by this standard.

8. Mr. Freed testified that all HVA business was conducted via open meetings. He stated that there were no meetings conducted solely by email, with the exception of a single emergency situation.

9. The Administrative Law Judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the HVA was in violation of ARIZ. REV. STAT. § 33-1805. The judge found the HVA’s conduct did not violate the charged statute.

10. The final ORDER (1) denied the Petitioner’s petition, (2) denied the Petitioner’s request for a civil penalty against the Respondent, and (3) ordered that the Respondent shall not be required to reimburse the Petitioner’s $500.00 filing fee.

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Essay Questions

The following questions are designed for in-depth analysis and discussion. Answers are not provided.

1. Analyze the legal arguments presented by both the Petitioner, Douglas E. Kupel, and the Respondent, Hidden Valley Association. How did each party use the evidence and ARIZ. REV. STAT. § 33-1805 to support their position?

2. Discuss the significance of the “preponderance of the evidence” standard in this case. Explain how the Administrative Law Judge determined that the Petitioner failed to meet this burden of proof.

3. Evaluate the testimony of HVA Board President Gary Freed. How did his explanations regarding his email statements and the association’s record-keeping practices influence the judge’s final decision?

4. Examine ARIZ. REV. STAT. § 33-1805(B), which outlines the exceptions for withholding records. Based on the case details, explain why the communications requested by the Petitioner were ultimately deemed non-disclosable or non-existent under this statute.

5. Describe the complete procedural history of the case, from the initial filing of the petition to the final order. Include key dates, entities involved (such as the Department of Real Estate and the Office of Administrative Hearings), and the final remedies sought by the Petitioner versus the actual outcome.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings and makes decisions on behalf of a government agency. In this case, the ALJ was Adam D. Stone.

ARIZ. REV. STAT. § 33-1805

The Arizona Revised Statute that governs the examination and disclosure of a homeowners’ association’s financial and other records by its members. It outlines the process for requests, a ten-business-day fulfillment window, and specific exemptions allowing an association to withhold certain records.

ARIZ. REV. STAT. § 32-2199.01(A)

The Arizona Revised Statute cited by the Petitioner that allows an administrative law judge to levy a civil penalty against a party found to be in violation of the law.

Burden of Proof

The obligation on a party in a legal case to provide sufficient evidence to prove their allegations. In this case, the Petitioner bore the burden of proof.

Covenants, Conditions, and Restrictions (CC&Rs)

The official governing documents that establish the rules and obligations for a homeowners’ association and its members.

Department of Real Estate (“Department”)

The Arizona state agency authorized to receive and decide petitions for hearings involving disputes between homeowners and their associations.

Hidden Valley Association (HVA)

The Respondent in the case; a homeowners’ association for the Hidden Valley Ranch subdivision in Prescott, Arizona, governed by CC&Rs and a Board of Directors.

HOAMCO

The company that served as the Community Manager for the Hidden Valley Association and initially responded to the Petitioner’s records request.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona to which the Department of Real Estate referred this matter for an evidentiary hearing.

Petitioner

The party who files a petition to initiate a legal proceeding. In this case, the Petitioner was Douglas E. Kupel, a homeowner and member of the HVA.

Preponderance of the Evidence

The standard of proof required in this hearing. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of the issue rather than the other, making the contention more probably true than not.

Respondent

The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Respondent was the Hidden Valley Association.

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21F-H2120006-REL

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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings in Arizona, concerning a dispute between Petitioner Douglas E. Kupel and the Hidden Valley Association (HVA), a homeowners’ association. The core issue of the hearing, held on October 22, 2020, was whether the HVA violated ARIZ. REV. STAT. § 33-1805 by failing to fulfill Kupel’s records request for communications regarding open meeting law compliance and bylaw changes. Petitioner Kupel argued that undisclosed records existed based on emails sent by HVA Board President Gary Freed, while Freed testified that no disclosable records existed due to statutory exceptions and a mistaken belief about record retention. Ultimately, the Administrative Law Judge denied the Petitioner’s claim, concluding that Kupel failed to prove by a preponderance of the evidence that the Association violated the statute, thereby also denying his request for reimbursement and civil penalties.

What are the legal requirements governing homeowner association record disclosure in Arizona?

What was the core dispute between the petitioner and the homeowner association?

How did the Administrative Law Judge decide the outcome of this specific case?

Audio Overview

Video Overview

Mind Map Mind Map

Reports Reports

Flashcards

Quiz

00:00 / 00:00

Case Participants

Petitioner Side

Douglas E. Kupel (petitioner)
Appeared on his own behalf

Respondent Side

Timothy Butterfield (HOA attorney)
Hidden Valley Association
Represented Respondent
Gary Freed (board member)
Hidden Valley Association
Hidden Valley Ranch Association Board President and witness for HVA
Mark K. Sahl (HOA attorney)
CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Received service of the Order

Neutral Parties

Adam D. Stone (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Recipient of the Administrative Law Judge Decision

Laura B Ganer v. Vincenz Homeowners Association

Posted on September 16, 2020 by [email protected]

Case Summary

Case ID	20F-H2020060-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-09-16
Administrative Law Judge	Velva Moses-Thompson
Outcome	The petition was dismissed because the Petitioner failed to prove that the Respondent HOA violated its CC&Rs (Article 7 § 3, Article 10 § 10.11, and Article 12 § 2) when adopting the new parking policy.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Laura B Ganer	Counsel	—
Respondent	Vincenz Homeowners Association	Counsel	Mark B. Sahl, Esq.

Alleged Violations

VHA CC&Rs Article 10 § 11, Article 7 § 3, and Article 12 § 2

Outcome Summary

The petition was dismissed because the Petitioner failed to prove that the Respondent HOA violated its CC&Rs (Article 7 § 3, Article 10 § 10.11, and Article 12 § 2) when adopting the new parking policy.

Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated its CC&Rs by a preponderance of the evidence.

Key Issues & Findings

Challenge to new HOA parking policy adoption

Petitioner alleged the VHA's new parking policy was unreasonable and improperly adopted without an amendment, violating specific CC&R sections.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. § 32-2199(B)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Analytics Highlights

Topics: Parking Policy, CC&Rs, Board Authority, Burden of Proof, Dismissal

Additional Citations:

ARIZ. REV. STAT. § 32-2199(B)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Video Overview

Audio Overview

Decision Documents

20F-H2020060-REL Decision – 822882.pdf

Uploaded 2026-01-23T17:33:39 (108.6 KB)

Briefing Document: Ganer v. Vincenz Homeowners Association (Case No. 20F-H2020060-REL)

Executive Summary

This document provides an analysis of the Administrative Law Judge Decision in the case of Laura B. Ganer vs. the Vincenz Homeowners Association (VHA), case number 20F-H2020060-REL. The central dispute concerned a new on-street parking policy adopted by the VHA Board in 2020. The petitioner, Ms. Ganer, alleged this policy violated multiple articles of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs).

The Administrative Law Judge, Velva Moses-Thompson, ultimately dismissed the petition. The court concluded that the VHA Board acted within the explicit authority granted to it by the community’s governing documents, specifically CC&R Article 10, § 10.11.1, which empowers the Board to designate parking areas. The judge found that the petitioner failed to meet the burden of proof—a “preponderance of the evidence”—to establish that the VHA had violated its CC&Rs. The decision affirmed the Board’s right to establish rules and regulations for parking as outlined in the CC&Rs without requiring a full membership vote for an amendment.

Background of the Dispute

The case originated from a single-issue petition filed by homeowner Laura B. Ganer with the Arizona Department of Real Estate on or about May 20, 2020. The petition alleged that the Vincenz Homeowners Association violated its governing documents by adopting a new parking policy.

• Parties:

◦ Petitioner: Laura B. Ganer, a property owner within the VHA.

◦ Respondent: Vincenz Homeowners Association (VHA).

• Catalyst: The VHA Board of Directors adopted a new on-street parking policy in 2020.

• Alleged Violations: The petition claimed the new policy violated VHA CC&R Article 10, Section 11; Article 7, Section 3; and Article 12, Section 2.

• Legal Forum: The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing, which took place on August 27, 2020.

The Contested 2020 Parking Policy

The policy adopted by the VHA Board resolved to allow on-street parking for specific vehicles in designated areas, provided the parking complied with associated rules.

• Allowed Vehicles: Private passenger automobiles and pickup trucks that do not exceed one ton in capacity.

• Designated Parking Areas:

1. Immediately in front of a Lot, for vehicles associated with the owner, resident, or their guests, or with the lot owner’s consent.

2. Immediately in front of any Common Area park within the Association.

3. Along any public street within the Association that does not border a Lot (e.g., in front of a Common Area tract).

Core Legal Arguments and Cited CC&Rs

The dispute centered on whether the VHA Board had the authority to enact the new parking policy or if doing so violated the foundational CC&Rs.

Petitioner’s Position (Laura B. Ganer)

Ms. Ganer argued that the new policy fundamentally contradicted the intent and letter of the CC&Rs.

• Violation of Article 10: She asserted that the original intention of CC&R Article 10, Section 10.11.1 was to limit parking within the VHA.

• Violation of Article 7: She contended the policy violates Article 7, Section 3, because it is “unreasonable” by allowing parking “virtually everywhere” within the community.

• Implicit Amendment: The new policy was so expansive that it effectively constituted an amendment to the CC&Rs, which would require the procedure outlined in Article 12, Section 2 (a 67% member vote), not just a Board resolution.

Respondent’s Position (Vincenz HOA)

The VHA argued that its actions were a proper exercise of the authority explicitly granted to the Board in the CC&Rs.

• Authority from Article 10: VHA contended that CC&R Article 10, § 10.11.1 expressly allows the Board to create parking rules by permitting parking “within areas designated for such purpose by the Board.”

• Inapplicability of Article 7: The Association argued that Article 7, Section 3, which governs general “Association Rules,” did not apply because the parking policy was adopted under the specific authority of Article 10.

• No Amendment Required: VHA maintained that since Article 10 grants the Board the power to adopt parking rules and regulations, an amendment to the CC&Rs under Article 12, Section 2 was not necessary.

• Jurisdictional Argument: VHA also argued that the petition should be dismissed because Ms. Ganer failed to allege or provide facts that the VHA itself had improperly parked a vehicle in violation of the CC&Rs.

Relevant Articles from VHA CC&Rs

Article

Section

Provision Text

Article 10

§ 10.11.1

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

Article 10

§ 10.11.2

Governs restrictions on other vehicles like RVs, boats, and commercial vehicles, but allows the Board to designate areas and rules for them.

Article 7

“By a majority vote of the Board, the Association may… adopt, amend and repeal the Association Rules. The Association Rules shall be reasonable… and shall not be inconsistent with this Declaration…”

Article 12

“Except as otherwise provided in this Declaration, this Declaration may be amended only by the affirmative vote (in person or by proxy) or written consent of: (a) Members holding not less than sixty-seven percent (67%) of all Class A votes…”

Administrative Law Judge’s Findings and Decision

The Administrative Law Judge’s decision, issued on September 16, 2020, was based on a direct interpretation of the VHA’s governing documents and the evidence presented.

Legal Standard and Burden of Proof

• The petitioner, Ms. Ganer, bore the burden of proving her allegations by a “preponderance of the evidence,” defined as evidence that is more probably true than not.

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

Conclusions of Law

1. Interpretation of Article 10: The judge found that CC&R Article 10, Section 10.11.1 unambiguously forbids parking except in specified locations, including “in an area that has… been designated for parking by the Board.”

2. Board Authority: The court concluded that the VHA’s adoption of the parking policy was a valid exercise of the authority explicitly granted to the Board by Article 10.11.1 to designate such parking areas.

3. Failure to Meet Burden of Proof: Ms. Ganer failed to establish that the VHA violated any of the cited articles. The judge noted that Ganer did not even allege that the VHA itself had improperly parked a vehicle.

4. Overall Finding: The decision states, “Upon consideration of all of the evidence presented in this matter, the Administrative Law Judge concludes that VHA did not violate CC&R Article 7 § 3, Article 10 § 10.11, and CC&R Article 12 § 2 when it adopted the parking policy.”

Final Order

“IT IS ORDERED, the petition is dismissed.”

The decision is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

Study Guide: Ganer v. Vincenz Homeowners Association

This guide provides a detailed review of the administrative law case Laura B. Ganer v. Vincenz Homeowners Association, Case No. 20F-H2020060-REL. It is designed to test comprehension of the facts, legal arguments, and final decision as presented in the source documents.

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Quiz: Short-Answer Questions

Instructions: Please answer the following questions in two to three complete sentences, using only information provided in the case decision.

1. Who were the petitioner and the respondent in this case, and what was their relationship within the community?

2. What specific action did the Vincenz Homeowners Association (VHA) take in 2020 that initiated this legal dispute?

3. List the three specific articles of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs) that petitioner Laura Ganer alleged were violated.

4. According to VHA’s CC&R Article 10 § 10.11.1, under what three conditions are private passenger automobiles and pickup trucks permitted to be parked?

5. What was Ms. Ganer’s primary argument for why the VHA’s new parking policy was “unreasonable” as defined under Article 7 § 3?

6. Upon what grounds did the VHA argue that the petition should be dismissed, relating to the petitioner’s specific allegations?

7. Explain the legal standard of “preponderance of the evidence” as defined in the Administrative Law Judge’s decision.

8. How did the VHA defend its adoption of the new parking policy without obtaining the 67% member vote required for amendments under Article 12 § 2?

9. What was the core reason the Administrative Law Judge concluded that Ms. Ganer failed to prove a violation of CC&R Article 10 § 10.11.1?

10. What was the final order issued by the Administrative Law Judge in this case?

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Answer Key

1. The petitioner was Laura B. Ganer, a property owner. The respondent was the Vincenz Homeowners Association (VHA). Ganer owned property within the planned community governed by the VHA.

2. In 2020, the VHA’s Board of Directors adopted a new parking policy that formally allowed on-street parking for certain vehicles in designated areas, such as in front of lots and common areas. This new policy prompted Ms. Ganer to file her petition.

3. Ms. Ganer alleged that the VHA violated Article 10, section 11; Article 7, section 3; and Article 12, section 2 of its Covenants, Conditions, and Restrictions.

4. CC&R Article 10 § 10.11.1 permits these vehicles to be parked within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.

5. Ms. Ganer argued that the new policy was unreasonable because it allows for parking virtually everywhere within the VHA. She asserted that the original intention of the CC&Rs was to limit parking, not expand it so broadly.

6. The VHA argued for dismissal because Ms. Ganer did not contend, nor provide facts to establish, that the VHA had actually parked an automobile or pickup truck in any prohibited area. The VHA stated the Office of Administrative Hearings only had jurisdiction over alleged violations, not the mere adoption of a policy.

7. “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 described as the greater weight of evidence that is sufficient to incline a fair and impartial mind to one side of an issue over the other.

8. The VHA contended that an amendment was not required to adopt the parking policy. It argued that CC&R Article 10 § 10.11.1 already granted the Board the specific authority to designate parking rules and regulations.

9. The Judge concluded that Ms. Ganer failed to prove a violation because she did not allege that the VHA had actually parked a vehicle in a prohibited area. The Judge noted that the covenant forbids parking in a roadway or garage unless it is in an area designated by the Board.

10. The final order was that the petition is dismissed. This means the judge ruled in favor of the respondent, Vincenz Homeowners Association, and against the petitioner, Laura Ganer.

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Essay Questions

Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate a detailed essay response for each prompt, drawing evidence and arguments directly from the provided legal decision.

1. Analyze the conflicting interpretations of CC&R Article 10 § 10.11.1 presented by Laura Ganer and the Vincenz Homeowners Association. How did the Administrative Law Judge resolve this conflict, and what does this reveal about the judicial interpretation of restrictive covenants?

2. Discuss the legal concept of “burden of proof” as it applied in this case. Explain who held the burden, what the standard was, and why the petitioner ultimately failed to meet it according to the Judge’s findings.

3. Examine the VHA’s argument that CC&R Article 7 § 3 (regarding the adoption of “Association Rules”) was not applicable to its creation of the new parking policy. Based on the text, what is the distinction between a board-designated rule under Article 10 and a formal “Association Rule” under Article 7?

4. Evaluate the petitioner’s claim that the new parking policy constituted an amendment to the Declaration, thereby violating CC&R Article 12 § 2, which requires a 67% member vote. Why was this argument unsuccessful, and what does the decision imply about the scope of a homeowner association board’s power?

5. Using the facts of the case, explain the procedural journey of a homeowner’s dispute within a planned community in Arizona, from the initial filing to the final administrative order.

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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 legal decisions. The ALJ in this matter was Velva Moses-Thompson.

Allowed Vehicles

A term from the VHA’s 2020 parking policy defining the types of vehicles permitted for on-street parking: private passenger automobiles and pickup trucks not exceeding one ton in capacity.

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the petitioner bore the burden of proof.

An acronym for Covenants, Conditions, and Restrictions. These are the governing legal documents that set out the rules for a planned community or homeowners association.

Common Area

Land within a planned community owned by the association for the shared use and enjoyment of its members, such as a park.

Department

Refers to the Arizona Department of Real Estate, the state agency that received the initial petition from Ms. Ganer.

Notice of Hearing

A formal document issued by a legal body that sets the date, time, and location for a hearing and outlines the issues to be discussed. In this case, it was issued on July 1, 2020.

An acronym for the Office of Administrative Hearings, the state office where the evidentiary hearing for this case was held.

Petition

The formal written application filed by a party (the petitioner) to a legal body, initiating a case. Ms. Ganer filed her petition with the Department on or about May 20, 2020.

Petitioner

The party who initiates a lawsuit or files a petition seeking a legal remedy. In this case, Laura B. Ganer.

Planned Community

A real estate development that includes common property and is governed by a homeowners’ association, with rules established by CC&Rs.

Preponderance of the Evidence

The evidentiary standard required to win a civil case, defined as proof that a contention is “more probably true than not.” It is a lower standard than “beyond a reasonable doubt.”

Restrictive Covenant

A provision in a deed or CC&R that limits the use of real property. In Arizona, if unambiguous, such covenants are enforced to give effect to the intent of the parties.

Respondent

The party against whom a petition is filed or who is responding to a lawsuit. In this case, the Vincenz Homeowners Association.

3 Surprising Lessons from One Homeowner’s Fight Against Her HOA’s New Parking Rules

For millions of homeowners, the relationship with their Homeowners Association (HOA) is often defined by a single, persistent source of frustration: parking rules. Whether it’s restrictions on street parking, rules about commercial vehicles, or limits on guest parking, these regulations are a frequent flashpoint for community disputes. We tend to think of these fights as homeowners pushing back against ever-tightening restrictions.

But what happens when the script is flipped? In a fascinating legal case from Arizona, a homeowner named Laura Ganer took her HOA to court not because the rules were too strict, but because the board enacted a new, more permissive parking policy. She believed the board had overstepped its authority by allowing on-street parking that had previously been forbidden.

The resulting decision from the Administrative Law Judge provides a masterclass in HOA governance. It peels back the layers of community documents to reveal how power is delegated and exercised. The outcome holds several surprising lessons for any homeowner who thinks they understand the rules of their community.

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1. The Devil in the Details: How a “Restriction” Became a Permission Slip

At the heart of Ms. Ganer’s case was her belief that the community’s founding documents—the Covenants, Conditions, and Restrictions (CC&Rs)—were written to severely limit on-street parking. She pointed to what seemed like a clear and unambiguous rule in the Vincenz Homeowners Association (VHA) governing documents.

The rule, found in VHA CC&R Article 10 § 10.11.1, begins with a strong prohibition:

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

For many residents, the rule’s intent seemed clear: keep cars in garages and driveways. The critical turn, however, lay not in the prohibition but in the exceptions that followed. The power was vested in a single, potent phrase authorizing the Board to act: “…or within areas designated for such purpose by the Board.” This clause, tucked at the end of the sentence, transformed a restrictive rule into a grant of discretionary power. The judge found this language gave the VHA Board explicit authority to create its new policy. This is a classic example of how governing documents are drafted to provide operational flexibility, allowing a future board to adapt to changing community needs without undergoing the arduous process of a full membership vote to amend the CC&Rs. The Board wasn’t breaking the rules; it was using a specific power granted to it all along.

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2. A Board Rule Isn’t a Bylaw Amendment (And Why It Matters)

Ms. Ganer raised two additional legal arguments. First, she contended that such a fundamental change to the community’s parking landscape was effectively an amendment to the CC&Rs. If it were an amendment, it would have required a community-wide vote and approval of “not less than sixty-seven percent (67%) of all Class A votes,” as stipulated in Article 12 § 2.

The VHA countered, and the judge agreed, that the Board was not amending the CC&Rs. Instead, it was exercising a power the document had already granted it in Article 10: the power to “designate” parking areas. Because the mechanism for the board to act was already in the foundational document, no amendment—and therefore no membership vote—was necessary.

Critically, Ms. Ganer also alleged a violation of Article 7 § 3 of the CC&Rs, which states that any “Association Rules shall be reasonable.” The VHA’s response to this claim was a deft legal maneuver. It argued that Article 7 § 3 did not apply because the Board didn’t adopt the parking policy under its general authority to make rules; it acted under the specific authority granted in Article 10. This distinction is vital in HOA governance, as it illustrates how a specific grant of power can sometimes bypass the general requirements that apply to other board actions.

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3. An Opinion Isn’t Proof: The Heavy Burden on the Homeowner

Ms. Ganer’s claim that the new policy was “unreasonable” because it allowed “parking virtually everywhere” was her attempt to prove a violation of Article 7 § 3. To an outside observer, this might seem like a fair point. But in a legal setting, a personal feeling of unreasonableness is not evidence.

The Administrative Law Judge noted that as the petitioner, Ms. Ganer had the “burden of proof” to show the HOA violated the CC&Rs “by a preponderance of the evidence.” This legal standard requires convincing proof, not just a strong opinion. The court document provides a clear definition:

“The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Ultimately, the judge concluded that Ms. Ganer failed to meet this burden. Her assertion that the rule was unreasonable could not overcome the VHA’s argument that it had acted within the specific authority granted by Article 10. She did not provide convincing evidence of a violation, and the judge found in favor of the HOA, dismissing her petition entirely.

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Conclusion: The Ultimate Authority Is in the Fine Print

This case serves as a powerful lesson in HOA law, illustrating a key principle of document hierarchy. The ultimate authority is not what seems fair or what was historically done, but the exact wording in the community’s governing documents. A specific grant of authority will almost always override arguments based on general principles.

Here, the specific power to “designate” parking areas in Article 10 trumped both the general procedural requirement for a 67% vote for amendments in Article 12 and the general principle that rules must be “reasonable” under Article 7. Ms. Ganer’s challenge failed because the Board’s actions, while contrary to her expectations, were perfectly aligned with the powers the CC&Rs had given it from the start.

This case is a powerful reminder to read the fine print. When was the last time you read your community’s governing documents, and what powers might you be surprised to find your board already has?

Case Participants

Petitioner Side

Laura B Ganer (petitioner)
Appeared on behalf of herself.

Respondent Side

Mark B. Sahl (HOA attorney)
Vincenz Homeowners Association

Neutral Parties

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

Other Participants

Nicole Payne (recipient)
Received transmission of the decision via US Mail.

Susan E Abbass v. 10000 North Central Homeowners Assocciation

Posted on August 17, 2020 by [email protected]

Case Summary

Case ID	20F-H2020057-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-08-17
Administrative Law Judge	Adam D. Stone
Outcome	loss
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Susan E Abbass	Counsel	—
Respondent	10000 North Central Homeowners Association	Counsel	Blake Johnson, Esq.

Alleged Violations

CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4

Outcome Summary

The Administrative Law Judge denied the Petitioner's single-issue petition, finding that the Petitioner failed to meet the burden of proof required to establish that the Respondent HOA violated the governing CC&R provisions.

Why this result: Petitioner failed to prove the alleged CC&R violations; specifically, the HOA was found to have the right to enter property for certain conditions (including emergencies or maintenance) but was under no obligation to do so, and the situation was not determined to be a true emergency by the ALJ.

Key Issues & Findings

Whether 10000 North Central Homeowners Association violated the CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4.

Petitioner claimed the Association violated specified CC&R sections by refusing to grant access to the neighboring property to determine and resolve the source of a water leak. Petitioner requested an ORDER requiring the Association to allow access. The ALJ found that the CC&Rs grant the HOA the right to enter, but not the obligation, and Petitioner failed to prove an emergency situation or a violation of the CC&Rs.

Orders: Petitioner's petition in this matter was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092
CC&R Article XII Section 6
CC&R Article XIII Section 1(d)
CC&R Article XIII Section 4

Analytics Highlights

Topics: HOA, CC&R, Easement, Maintenance, Drainage, Property Access, Burden of Proof

Additional Citations:

ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092
ARIZ. REV. STAT. § 41-1092.09
ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
CC&R Article XII Section 6
CC&R Article XIII Section 1(d)
CC&R Article XIII Section 4

Video Overview

Audio Overview

Decision Documents

20F-H2020057-REL Decision – 839845.pdf

Uploaded 2026-01-23T17:32:59 (108.6 KB)

20F-H2020057-REL Decision – ../20F-H2020057-REL/815490.pdf

Uploaded 2026-01-23T17:33:02 (135.6 KB)

Briefing Document: Abbass vs. 10000 North Central Homeowners Association

Executive Summary

This document synthesizes the findings and final order from the Administrative Law Judge (ALJ) in case number 20F-H2020057-REL-RHG, a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the HOA to compel an inspection of a neighboring property, believed to be the source of a recurring water leak into her home.

The ALJ ultimately dismissed the Petitioner’s case, ruling in favor of the Respondent. The decision hinged on a critical distinction within the community’s governing documents (CCR’s): while the HOA possesses the right to enter a property under certain conditions, it does not have an explicit obligation to do so. The Petitioner failed to provide sufficient evidence to prove the HOA had violated the CCR’s. The ALJ concluded that the HOA acted reasonably by contacting the neighbor and reviewing the provided information, and that forcing access without more definitive proof could expose the HOA to legal risk. The decision suggests the Petitioner may be pursuing relief in an incorrect venue or against the incorrect party.

Case Overview

Case Name

Susan E Abbass vs. 10000 North Central Homeowners Association

Case Number

20F-H2020057-REL-RHG

Jurisdiction

In the Office of Administrative Hearings (Arizona)

Administrative Law Judge

Adam D. Stone

Petitioner

Susan E. Abbass

Respondent

10000 North Central Homeowners Association (represented by Blake Johnson, Esq.)

Hearing Date

November 24, 2020 (Rehearing)

Decision Date

December 1, 2020

Core Dispute and Allegations

Petitioner’s Central Claim

The Petitioner, Susan E. Abbass, alleged that the HOA violated its Covenants, Conditions, and Restrictions (CCR’s) by failing to authorize an inspection on a neighboring property. The Petitioner’s home was experiencing water intrusion every time it rained, and she believed the leak originated from the adjacent lot.

• Alleged Violations: The petition cited violations of the CCR’s Article XII, Section 6 and Article XIII, Sections 1(d) and 4.

• Argument: The Petitioner contended that the recurring water leak constituted an “emergency” situation, obligating the HOA to act.

Petitioner’s Position and Evidence

• Financial Responsibility: The Petitioner stated she was “ready, willing and able to be financially responsible for the cost of any inspections/surveys which needed to be performed on the neighboring property.”

• Due Diligence: Inspections and surveys conducted on her own property determined that the leak was not originating from there.

• Frustration: The Petitioner noted that over a year had passed since the leaking first occurred with no resolution from the HOA or the neighbor.

• Key Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”

Respondent’s Defense and Actions

Respondent’s Position

The HOA argued that it did not have sufficient evidence to justify compelling access to the neighboring property. The property manager, Robert Kersten, testified for the Respondent.

• Lack of Proof: The HOA determined that the information provided by the Petitioner did not meet the criteria for forcing entry onto the neighbor’s property.

• Legal Risk: The Respondent expressed concern that if it “overstepped its authority, it could open itself up to other causes of action.”

Actions Taken by the HOA

Despite denying the Petitioner’s request to force an inspection, the HOA took the following steps:

• It reached out to the neighboring property owner to request access.

• It sent a warning letter to the neighbor regarding “improper vegetation” on the property.

• It contacted the neighbor, who, upon information and belief, had her insurance company inspect the water flow. The insurance company reportedly determined the neighbor was not at fault.

• At the rehearing, the Respondent submitted photographic evidence (Exhibits K, L, and M) purportedly showing a fixed pipe and drainage moving away from the Petitioner’s property.

Procedural History and Rehearing

1. Petition Filed (May 5, 2020): Petitioner filed a single-issue petition with the Arizona Department of Real Estate.

2. Initial Hearing (July 28, 2020): The first hearing was conducted.

3. Initial Decision (August 17, 2020): The ALJ issued a decision concluding the Petitioner failed to meet her burden of proof, as the HOA only had the right to enter the property, not an obligation.

4. Rehearing Request (August 31, 2020): Petitioner requested a rehearing, claiming the decision was “arbitrary, capricious, or an abuse of discretion” and “not supported by the evidence or is contrary to law.”

5. Rehearing Granted (October 14, 2020): The Commissioner of the Arizona Department of Real Estate granted the rehearing request.

6. Rehearing Conducted (November 24, 2020): The ALJ conducted a new hearing to reconsider the evidence.

Administrative Law Judge’s Findings and Conclusions

Burden of Proof

The ALJ reiterated that the Petitioner bears the burden to prove the alleged violations by a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

• Conclusion on Evidence: The ALJ found that on rehearing, the “Petitioner failed to provide new evidence or witness testimony demonstrating that Respondent violated Article XII and Article XIII of the CCR’s.”

Key Judicial Determinations

• Right vs. Obligation: The central legal conclusion is that the HOA’s authority is discretionary. The CCR’s grant a right to enter property but do not impose an obligation to do so upon a homeowner’s request.

• HOA’s Conduct: The judge determined that the HOA had acted appropriately and in compliance with the CCR’s. The decision notes, “Respondent was receptive to the information provided by Petitioner and requested the neighboring property owners cooperation. While the neighboring owner may not have fully cooperated to the liking of Petitioner, Respondent still followed the CCR’s to the best of its ability at this point.”

• Statutory Limitations on ALJ: The ALJ is bound by Arizona statute A.R.S. § 32-2199.02(A), which limits the judge’s authority to ordering a party to “abide by the statutes, condominium documents, community documents or contract provision at issue.” The ALJ concluded, “it too cannot force the neighbor or the Respondent to grant access to the property.”

• Incorrect Venue: The decision strongly suggests the Petitioner is pursuing the wrong legal remedy: “While the possibility of future leaking is certainly frustrating, it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”

Final Order and Implications

• Ruling: The ALJ ordered that “the Respondent is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.”

• Binding Nature: As a result of a rehearing, the administrative law judge order is binding on the parties.

• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.

Study Guide: Abbass v. 10000 North Central Homeowners Association

This study guide provides a comprehensive review of the Administrative Law Judge Decision in case number 20F-H2020057-REL-RHG, involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It includes a short-answer quiz with an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.

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Short Answer Quiz

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

1. Who were the primary parties in this case, and what was the central dispute?

2. What specific articles of the community documents did the Petitioner allege the Respondent had violated?

3. What was the outcome of the initial administrative hearing held on July 28, 2020?

4. On what legal grounds did the Petitioner successfully request a rehearing of the case?

5. What was the Respondent’s main argument for not forcing an inspection of the neighboring property?

6. What key point regarding the Respondent’s authority did the Petitioner concede during the rehearing?

7. According to the decision, who bears the burden of proof, and what is the evidentiary standard required to meet it?

8. What evidence did the Respondent introduce during the rehearing on November 24, 2020?

9. What was the final ruling of the Administrative Law Judge, and what did the order state?

10. What specific limitation on the Administrative Law Judge’s power is cited in the Conclusions of Law?

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Answer Key

1. The primary parties were the Petitioner, Susan E. Abbass, and the Respondent, 10000 North Central Homeowners Association. The central dispute was the Petitioner’s claim that the Respondent failed to fulfill its duty by not allowing an inspection on a neighboring property to find the source of a water leak affecting the Petitioner’s home.

2. The Petitioner alleged that the Respondent had violated Article XII, Section 6 and Article XIII, Sections 1(d) and 4 of the Covenants, Conditions, and Restrictions (CCR’s).

3. Following the July 28, 2020 hearing, the Administrative Law Judge issued a decision on August 17, 2020, concluding that the Petitioner had failed to meet her burden of proof. The judge found that the Respondent only had the right to enter the neighboring property, not an obligation to do so.

4. The Petitioner’s request for rehearing was granted based on her claims that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”

5. The Respondent argued that the Petitioner had not provided sufficient proof of the neighbor’s fault to justify forcing access. The Respondent was also concerned that overstepping its authority could expose the association to other legal actions.

6. During the rehearing, the Petitioner agreed with the Respondent’s position that the association does not have an obligation to enter the neighboring property, only the right to do so.

7. The Petitioner bears the burden of proof. The evidentiary standard is “preponderance of the evidence,” which is defined as proof that convinces the trier of fact that a contention is more probably true than not.

8. At the rehearing, the Respondent introduced Exhibits K, L, and M. These were photographs that purportedly showed where a pipe was fixed and how drainage moves away from the Petitioner’s property.

9. The final ruling concluded that the Respondent had not violated the CCR’s and was the prevailing party. The order dismissed the Petitioner’s appeal.

10. The decision cites A.R.S. § 32-2199.02(A), which states that an Administrative Law Judge may only order a party to abide by the statutes, community documents, or contract provisions at issue. The judge cannot force the Respondent or the neighbor to grant access to the property.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, considers evidence, and issues a legal decision. In this case, the ALJ was Adam D. Stone.

A.R.S.

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

Arizona Department of Real Estate

The state agency authorized by statute to receive and decide petitions for hearings involving homeowners’ associations in Arizona.

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the burden of proof was on the Petitioner.

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

Office of Administrative Hearings

The government office where administrative law judges hear disputes concerning state agencies.

Order Granting Rehearing

A formal order issued by the Commissioner of the Arizona Department of Real Estate that approved the Petitioner’s request for a second hearing.

Petitioner

The party who initiates a legal action or files a petition. In this case, the Petitioner was Susan E. Abbass.

Planned Community

A real estate development that includes common property and is governed by a homeowners’ association.

Preponderance of the Evidence

The standard of proof required in this case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”

Prevailing Party

The party who wins a legal case or dispute. In the final decision, the Respondent was named the prevailing party.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the 10000 North Central Homeowners Association.

Tribunal

A body established to settle certain types of disputes. In this context, it refers to the Office of Administrative Hearings where the case was heard.

Briefing Document: Abbass vs. 10000 North Central Homeowners Association

Executive Summary

Case Overview

Case Name

Susan E Abbass vs. 10000 North Central Homeowners Association

Case Number

20F-H2020057-REL-RHG

Jurisdiction

In the Office of Administrative Hearings (Arizona)

Administrative Law Judge

Adam D. Stone

Petitioner

Susan E. Abbass

Respondent

10000 North Central Homeowners Association (represented by Blake Johnson, Esq.)

Hearing Date

November 24, 2020 (Rehearing)

Decision Date

December 1, 2020

Core Dispute and Allegations

Petitioner’s Central Claim

• Alleged Violations: The petition cited violations of the CCR’s Article XII, Section 6 and Article XIII, Sections 1(d) and 4.

• Argument: The Petitioner contended that the recurring water leak constituted an “emergency” situation, obligating the HOA to act.

Petitioner’s Position and Evidence

• Due Diligence: Inspections and surveys conducted on her own property determined that the leak was not originating from there.

• Frustration: The Petitioner noted that over a year had passed since the leaking first occurred with no resolution from the HOA or the neighbor.

• Key Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”

Respondent’s Defense and Actions

Respondent’s Position

The HOA argued that it did not have sufficient evidence to justify compelling access to the neighboring property. The property manager, Robert Kersten, testified for the Respondent.

• Lack of Proof: The HOA determined that the information provided by the Petitioner did not meet the criteria for forcing entry onto the neighbor’s property.

• Legal Risk: The Respondent expressed concern that if it “overstepped its authority, it could open itself up to other causes of action.”

Actions Taken by the HOA

Despite denying the Petitioner’s request to force an inspection, the HOA took the following steps:

• It reached out to the neighboring property owner to request access.

• It sent a warning letter to the neighbor regarding “improper vegetation” on the property.

• It contacted the neighbor, who, upon information and belief, had her insurance company inspect the water flow. The insurance company reportedly determined the neighbor was not at fault.

• At the rehearing, the Respondent submitted photographic evidence (Exhibits K, L, and M) purportedly showing a fixed pipe and drainage moving away from the Petitioner’s property.

Procedural History and Rehearing

1. Petition Filed (May 5, 2020): Petitioner filed a single-issue petition with the Arizona Department of Real Estate.

2. Initial Hearing (July 28, 2020): The first hearing was conducted.

5. Rehearing Granted (October 14, 2020): The Commissioner of the Arizona Department of Real Estate granted the rehearing request.

6. Rehearing Conducted (November 24, 2020): The ALJ conducted a new hearing to reconsider the evidence.

Administrative Law Judge’s Findings and Conclusions

Burden of Proof

Key Judicial Determinations

Final Order and Implications

• Ruling: The ALJ ordered that “the Respondent is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.”

• Binding Nature: As a result of a rehearing, the administrative law judge order is binding on the parties.

• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.

Case Participants

Petitioner Side

Susan E Abbass (petitioner)
Ronald Pick (witness)
Witness for Petitioner

Respondent Side

Blake Johnson (attorney)
Brown Olcott, PLLC
Represented Respondent
Robert Kersten (property manager)
Property manager, appeared as a witness for Respondent
Kelly Oetinger (attorney)
Brown Olcott, PLLC

Neutral Parties

Adam D. Stone (ALJ)
OAH
Judy Lowe (Commissioner)
ADRE
c. serrano (staff)
Electronic transmission sender

Ronna Biesecker, v. 6100 Fifth Condominium Homeowners Association,

Posted on June 26, 2020 by [email protected]

Case Summary

Case ID	20F-H2020050-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-06-25
Administrative Law Judge	Tammy L. Eigenheer
Outcome	The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs or Arizona statutes; therefore, the petition was dismissed.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Ronna Biesecker	Counsel	—
Respondent	6100 Fifth Condominium Homeowners Association	Counsel	—

Alleged Violations

A.R.S. § 33-1247 and CC&Rs § 10(c)

Outcome Summary

The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs or Arizona statutes; therefore, the petition was dismissed.

Why this result: Petitioner failed to meet the burden of proof, as evidence suggested the water leak was caused by the sliding glass door of the unit above, not a flaw in the common elements.

Key Issues & Findings

Failure to maintain all Common Elements (Water Leak Dispute)

Petitioner alleged the Respondent HOA failed to maintain Common Elements, leading to water leaks in her unit. Respondent denied the violation, asserting the leak originated from the upstairs unit’s sliding doors or track assemblies, which are the responsibility of that unit owner.

Orders: Petitioner’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1247
CC&Rs § 10(c)
Article II.E, Section 1 of the Bylaws
Article C of the CC&Rs

Analytics Highlights

Topics: condominium, maintenance dispute, common elements, water damage, burden of proof

Additional Citations:

A.R.S. § 33-1247
CC&Rs § 10(c)
A.R.S. § 32-2199.01
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Powell v. Washburn
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
Vazanno v. Superior Court

Video Overview

Audio Overview

Decision Documents

20F-H2020050-REL Decision – 802352.pdf

Uploaded 2026-04-24T11:26:08 (103.2 KB)

20F-H2020050-REL Decision – 802352.pdf

Uploaded 2026-01-23T17:32:09 (103.2 KB)

Administrative Hearing Brief: Biesecker v. 6100 Fifth Condominium HOA

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 20F-H2020050-REL, wherein Petitioner Ronna Biesecker alleged that the 6100 Fifth Condominium Homeowners Association (HOA) failed to fulfill its maintenance responsibilities. The Administrative Law Judge (ALJ) ultimately dismissed the petition, ruling that the Petitioner did not meet the burden of proof required to substantiate her claim.

The central conflict involved recurring water leaks in Ms. Biesecker’s condominium unit (A113). The Petitioner contended that the leaks originated from cracks in the building’s exterior stucco, which are defined as “Common Elements” and are therefore the HOA’s responsibility to repair under its governing documents and Arizona state law. In contrast, the HOA argued that the source of the water was the sliding door assembly of the upstairs unit, making its maintenance the responsibility of that unit’s owner.

The final decision rested on the weight of evidence presented. Multiple expert inspections, conducted by Olander’s and another inspector retained by the HOA, concluded that the leaks were attributable to the upstairs unit’s sliding doors. This evidence was deemed more convincing than the Petitioner’s own assessment regarding the stucco. The ALJ concluded that Ms. Biesecker failed to prove by a “preponderance of the evidence” that the damage was caused by a flaw in the common elements, leading to the dismissal of her case.

Case Overview

Case Name

Ronna Biesecker, Petitioner, vs. 6100 Fifth Condominium Homeowners Association, Respondent.

Case Number

20F-H2020050-REL

Office of Administrative Hearings (Arizona)

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Hearing Date

June 5, 2020

Decision Date

June 25, 2020

Petitioner

Ronna Biesecker, owner of unit A113

Respondent

6100 Fifth Condominium Homeowners Association, represented by Robert Eric Struse, Statutory Agent

Core Allegations and Defenses

Petitioner’s Claim (Ronna Biesecker)

• Core Allegation: The Petitioner filed a petition on March 10, 2020, alleging that the Respondent (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) § 10(c) and Arizona Revised Statutes (A.R.S.) § 33-1247 by failing to maintain the common elements of the condominium community.

• Specifics of Claim: Ms. Biesecker asserted that persistent water leaks into her unit were caused by cracks in the exterior stucco surrounding the sliding doors.

• Basis of Responsibility: She argued that because the exterior stucco is a “common element,” the HOA was legally responsible for its repair and any subsequent damage to her unit.

• Requested Action: The Petitioner had previously requested that the HOA repair the exterior leaks and had attempted to have the HOA mediate the issue with the owner of the upstairs unit.

Respondent’s Position (6100 Fifth Condominium HOA)

• Core Defense: The HOA denied any violation of its CC&Rs or state statutes.

• Specifics of Defense: The HOA maintained that the source of the water leaks was not a common element. Instead, it attributed the leaks to the sliding doors or track assemblies of the condominium unit located directly above the Petitioner’s.

• Basis of Responsibility: According to the HOA’s governing documents and state law, the maintenance of elements belonging to an individual unit (such as a sliding door) is the responsibility of that unit’s owner, not the association.

• Actions Taken: The HOA declined to “arbitrate, mediate, or serve as a third party” in the dispute between the Petitioner and the owner of the upstairs unit. It also conducted an inspection which supported its position.

Evidentiary Timeline and Key Findings

The decision was based on a sequence of events and expert assessments presented as evidence.

• January 5, 2019: Petitioner experiences the first water leak in her unit (A113) near the sliding glass door.

• January 18, 2019: An employee from Olander’s, a door installation company contacted by the Petitioner, inspects the unit. The employee’s opinion was that “the leak was coming from the unit above Petitioner and that the sliding door above Petitioner’s unit had large gaps under the threshold which allowed water to get in.”

• February 8, 2019: Nathan’s Handyman Service repairs plaster damage in the Petitioner’s unit and notes in a report that the damage was “the result of an old leak coming from above Petitioner’s unit.” The report also identified rusted wire mesh, indicating previous repairs to the area.

• March/April 2019: The HOA’s Property Manager formally refuses the Petitioner’s request to mediate the dispute with the owner of the upstairs unit.

• May 1, 2019: Petitioner emails the HOA, proposing that new cracks in the stucco pop-out at the roof level could be the source of the leak.

• October 28, 2019: A “Roof Opinion Report” from Roof Savers Locke Roofing states that no roof repairs are needed but notes the presence of “server [sic] cracking at the stucco.” The report recommends contacting a stucco or window contractor.

• November 27, 2019: Another leak occurs in the same area of the Petitioner’s unit.

• December 9, 2019: The HOA’s Property Manager and an inspector assess the water damage in the Petitioner’s unit.

• December 23, 2019: An invoice from the inspector states: “After inspecting the shared roof and building interior/exterior it appears the water damage to the lower unit is coming from the upstairs unit sliding doors or their track assemblies.”

• June 5, 2020 (Hearing Testimony):

◦ The Petitioner stated it was “obvious” the leak originated from the stucco crack.

◦ The HOA’s Statutory Agent, Robert Eric Struse, testified that the December 2019 inspection included the interior of the upstairs unit. He argued that if the stucco crack were the cause, the upstairs unit would also show internal water damage, which it did not.

Governing Documents and Statutes

The case revolved around the interpretation of responsibility as defined by the following legal framework:

• Bylaws (Article II.E, Section 1) & CC&Rs (Article C): These documents obligate the HOA to collect assessments to meet common expenses, including the “maintenance, upkeep, care, repair, [and] reconstruction… for the common elements.”

• A.R.S. § 33-1247: This Arizona statute codifies the division of maintenance responsibility. It states that “the association is responsible for maintenance, repair and replacement of the common elements and each unit owner is responsible for maintenance, repair and replacement of the unit.”

Conclusions of Law and Final Order

The Administrative Law Judge’s decision was based on the application of the legal standard of proof to the evidence presented.

• Burden of Proof: The ALJ established that the Petitioner bore the burden of proof to demonstrate, by a “preponderance of the evidence,” that the HOA violated the applicable statutes or CC&Rs. A preponderance of the evidence is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”

• Central Legal Finding: The judge determined that if the water damage was caused by a flaw in the common elements, the HOA would be responsible. However, the Petitioner failed to meet her burden of proof in establishing this causal link.

• Reasoning for Decision: The ruling states: “Petitioner failed to establish by a preponderance of the evidence that the water leak and damage was attributable to the condition of the common elements. Rather, the opinions of the companies that inspected the area concluded that the leak was coming from the sliding glass door of the unit above Petitioner’s.” The collective weight of the expert opinions from Olander’s and the HOA’s inspector outweighed the Petitioner’s personal theory about the stucco cracks.

• Final Order: Based on these findings, the judge issued a final order: “IT IS ORDERED that Petitioner’s petition is dismissed.” This order is binding unless a rehearing is granted.

Study Guide: Biesecker v. 6100 Fifth Condominium Homeowners Association

This guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 20F-H2020050-REL, concerning a dispute between condominium owner Ronna Biesecker and the 6100 Fifth Condominium Homeowners Association. The case centers on determining responsibility for water leaks affecting the Petitioner’s unit. Use the following sections to test and deepen your understanding of the facts, legal arguments, and final outcome.

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Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, using only information provided in the case document.

1. Who were the Petitioner and Respondent in this case, and what was their relationship?

2. What was the central claim made by the Petitioner against the Respondent?

3. According to the Respondent, what was the source of the water leaks and who was responsible for the repair?

4. What legal standard, or “burden of proof,” did the Petitioner need to meet to win her case?

5. What two key community documents, in addition to Arizona state law, define the Respondent’s responsibility for maintaining “common elements”?

6. Summarize the findings of the two inspection reports mentioned in the evidence (from Olander’s and the December 23, 2019 invoice).

7. What was the Petitioner’s theory about the source of the leak, as stated during the hearing?

8. How did Robert Eric Struse, the Respondent’s Statutory Agent, counter the Petitioner’s theory about the stucco crack?

9. What was the final ruling, or “Order,” issued by the Administrative Law Judge?

10. Why did the Administrative Law Judge conclude that the Petitioner failed to meet her burden of proof?

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Answer Key

1. The Petitioner was Ronna Biesecker, who owned condominium unit A113. The Respondent was the 6100 Fifth Condominium Homeowners Association, of which the Petitioner was a member.

2. The Petitioner filed a petition alleging the Respondent violated its CC&Rs (§ 10(c)) and Arizona statute A.R.S. § 33-1247 by failing to maintain the common elements, which she believed were the source of water leaks in her unit.

3. The Respondent argued that the source of the water leaks was the upstairs unit’s sliding doors or track assemblies. Therefore, the responsibility for maintenance and repair belonged to the owner of that specific unit, not the Homeowners Association.

4. The Petitioner had the burden of proof to establish her claim by a “preponderance of the evidence.” This legal standard requires providing proof that convinces the trier of fact that the contention is more probably true than not.

5. The Respondent’s responsibility is defined in Article II.E, Section 1 of the community Bylaws and Section C of the CC&Rs. Both documents state the association is responsible for the maintenance and repair of common elements using assessments paid by owners.

6. An employee from Olander’s opined that the leak was coming from the unit above Petitioner’s, specifically from large gaps under the sliding door’s threshold. Similarly, the inspector’s invoice from December 23, 2019, concluded that the water damage appeared to be coming from the upstairs unit’s sliding doors or their track assemblies.

7. During the hearing, the Petitioner stated that it was “obvious” the leak was coming from a crack in the stucco in the pop-out surrounding the sliding doors at the roof level. She posited this was a common element and therefore the Respondent’s responsibility to repair.

8. Mr. Struse testified that if water were leaking through the crack in the stucco, the upstairs unit would have also sustained internal damage. He confirmed that an inspection of the inside of the upstairs unit showed this was not happening, undermining the Petitioner’s theory.

9. The Administrative Law Judge ordered that the Petitioner’s petition be dismissed.

10. The judge concluded the Petitioner failed to meet her burden of proof because the credible evidence, particularly the opinions of the companies that inspected the area, concluded the leak was coming from the sliding glass door of the unit above. The Petitioner did not establish by a preponderance of the evidence that the leak was attributable to the condition of the common elements.

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Essay Questions

The following questions are designed for longer-form analysis. Formulate a detailed response for each, citing specific evidence and legal principles from the case document to support your arguments.

1. Analyze the distinction between “common elements” and an individual “unit” as defined by A.R.S. § 33-1247 and the community’s governing documents. How was this distinction central to the judge’s final decision in this case?

2. Discuss the role and weight of evidence presented during the hearing. Compare the Petitioner’s testimony and personal observations with the professional opinions from Olander’s and the inspector. Why did the judge find the professional opinions more convincing in determining the outcome?

3. Explain the legal standard of “preponderance of the evidence” as defined in the case document’s Conclusions of Law. Using specific examples from the hearing evidence, detail why Ronna Biesecker failed to meet this standard.

4. Based on the referenced community documents, what are the primary maintenance responsibilities of the 6100 Fifth Condominium Homeowners Association? How did the Respondent’s stated refusal to “arbitrate, mediate, or serve as a third party” in the dispute between unit owners align with or diverge from these responsibilities?

5. Imagine you are advising the Petitioner before the hearing. What additional evidence or types of expert testimony could she have presented to potentially change the outcome of the case and successfully prove the leak was the Respondent’s responsibility?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official (Tammy L. Eigenheer) from the Office of Administrative Hearings who presides over the evidentiary hearing and issues a legally binding decision and order.

A.R.S. (Arizona Revised Statutes)

The codified laws of the state of Arizona. The statutes referenced (e.g., § 33-1247) govern the responsibilities of condominium associations and the legal procedures for disputes.

Bylaws

A set of rules governing the internal operations of an organization. In this case, Article II.E, Section 1 of the Bylaws obligates the Association to maintain the common elements using assessments paid by owners.

CC&Rs (Covenants, Conditions, and Restrictions)

A legal document that outlines the rights and obligations of property owners and the homeowners association. Section C of the CC&Rs required the Association to maintain, repair, and care for the common elements.

Common Elements

Areas of the condominium property for which the homeowners association is responsible for maintenance, upkeep, care, and repair, as distinguished from an individual owner’s unit.

Petitioner

The party who initiates a legal action by filing a petition. In this case, Ronna Biesecker, the condominium owner who alleged the homeowners association violated its duties.

Preponderance of the Evidence

The standard of proof required in this hearing. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and is established by evidence with the most convincing force.

Respondent

The party against whom a petition is filed. In this case, the 6100 Fifth Condominium Homeowners Association.

Statutory Agent

An individual designated to receive legal notices and appear on behalf of a business entity. In this case, Robert Eric Struse appeared and testified on behalf of the Respondent association.

Your HOA Isn’t Your Landlord: 3 Surprising Lessons from a Condo Water Leak Lawsuit

Introduction: The Dreaded Drip

It’s a scenario that strikes fear into the heart of any condo owner: the tell-tale stain on the ceiling, the damp spot on the wall, the dreaded drip of a mysterious water leak. The immediate anxiety is followed by a pressing question: “Who is responsible for fixing this, and who pays for the damage?” Many assume the answer is straightforward, but as a recent lawsuit involving the 6100 Fifth Condominium Homeowners Association demonstrates, the lines of responsibility in a condominium community are often more complicated than they appear.

This article explores a real-life court case between a condo owner and her HOA to uncover three surprising truths about condo ownership, liability, and the true role of your HOA.

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1. It’s Not Where the Damage Is, It’s Where the Leak Starts

In the case, condo owner Ronna Biesecker experienced persistent water leaks in her unit (A113) around her sliding glass door. On May 1, 2019, after observing new cracks in the exterior stucco, she “posited that the cracks could be a source of the leak.” This became the foundation of her claim: if the water was coming from the stucco—a “Common Element”—then the HOA was responsible for the repairs.

However, a year-long trail of evidence pointed in a different direction. As early as January 18, 2019, an employee from the door installation company opined that the leak was “coming from the unit above.” On February 8, 2019, a handyman repairing plaster damage stated the issue was from “an old leak coming from above.” Even a roofing report from October 28, 2019, which noted the stucco cracking, stopped short of blaming it, instead recommending the owner contact a “stucco contractor or Window Company.”

This evidence culminated in a formal inspector’s report on December 23, 2019, which concluded the water was “coming from the upstairs unit sliding doors or their track assemblies.” Because the source of the leak originated from a part of the neighbor’s private unit, the legal responsibility shifted. Based on Arizona statute A.R.S. § 33-1247, the HOA was not liable. The key lesson here is unambiguous: legal responsibility follows the source of the problem, not the location of the resulting damage.

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2. “More Probably True Than Not”: The Burden of Proof Is on You

In any lawsuit, the person bringing the complaint—in this case, the homeowner—carries the “burden of proof.” This means she had to provide enough evidence to meet a specific legal standard, which the court defined as “preponderance of the evidence.” The legal decision offers a clear definition of this standard:

In simple terms, Ms. Biesecker had to convince the judge that her theory—that the leak came from the common element stucco—was more likely to be true than the HOA’s theory that it came from the neighbor’s door.

Her claim was undone by simple logic. The HOA’s Statutory Agent, Mr. Struse, provided devastating testimony, arguing that “if water was leaking through the crack in the stucco, the upstairs unit would have also had internal damage, which was not happening.” This single point made the petitioner’s theory far less probable. The judge ultimately ruled that the petitioner “failed to establish by a preponderance of the evidence that Respondent violated the provisions of the CC&Rs or Arizona statutes,” proving that an owner’s belief isn’t enough without convincing evidence.

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3. Your HOA Won’t (and Often Can’t) Settle Neighbor-to-Neighbor Fights

Before filing the lawsuit, the petitioner attempted to resolve the issue directly. On or about February 11, 2019, she contacted the owner of the unit above hers to request repairs but “did not receive a response.” Frustrated, she turned to the HOA for help. In March or April 2019, she asked the Property Manager to “help mediate the issue” between her and her neighbor.

The HOA’s response was direct and legally sound: the Property Manager “responded that it would not arbitrate, mediate, or serve as a third party to the dispute.” This is a crucial and often misunderstood takeaway for condo owners. While an HOA’s role is to manage common elements and enforce community-wide rules, it is not legally obligated—and often not permitted—to intervene in private disputes between two homeowners over damage originating from private property. Your HOA is not a landlord or a mediator for personal conflicts; it’s an administrative body with a specific and legally defined scope of authority.

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Conclusion: Know Your Lines

The lessons from this case are clear: condo living involves a complex web of overlapping responsibilities. The line between what constitutes a common element, your private property, and your neighbor’s property is legally significant and determines who is ultimately responsible when things go wrong. Understanding these distinctions isn’t just helpful—it’s essential for protecting your investment and resolving issues effectively.

Before the next problem arises, have you read your community documents to know exactly where your responsibility ends and your neighbor’s begins?

Case Participants

Petitioner Side

Ronna Biesecker (petitioner)
Appeared and testified on her own behalf.

Respondent Side

Robert Eric Struse (statutory agent)
6100 Fifth Condominium Homeowners Association
Appeared and presented testimony on behalf of Respondent.

Neutral Parties

Tammy L. Eigenheer (ALJ)
Office of Administrative Hearings
Judy Lowe (commissioner)
Arizona Department of Real Estate

Will Schreiber v. Cimarron Hills at McDowell Mountain Homeowners

Posted on March 16, 2020 by [email protected]

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

Case Summary

Case ID	20F-H2019003-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2020-03-16
Administrative Law Judge	Antara Nath Rivera
Outcome	The Administrative Law Judge decision, issued following a rehearing, dismissed the Petitioner's dispute petition, finding that the Petitioner failed to meet the burden of proof to show the HOA violated its governing documents by reasonably denying the retroactive application for the unapproved glass view fence.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Will Schreiber	Counsel	Aaron M. Green
Respondent	Cimarron Hills at McDowell Mountain Homeowners Association	Counsel	Mark K. Sahl

Alleged Violations

Design Guidelines HH Walls/View Fences and CC&R’s Article 12.3

Outcome Summary

The Administrative Law Judge decision, issued following a rehearing, dismissed the Petitioner's dispute petition, finding that the Petitioner failed to meet the burden of proof to show the HOA violated its governing documents by reasonably denying the retroactive application for the unapproved glass view fence.

Why this result: Petitioner installed the fence prior to seeking approval, failing to comply with the procedural requirements (Design Guidelines Section HH). Consequently, the HOA's denial based on consistency and maintenance concerns was deemed reasonable.

Key Issues & Findings

HOA's denial of Petitioner's glass view fence modification

Petitioner alleged the HOA improperly denied the retroactive approval of a glass view fence installed without prior permission. The ALJ found that Petitioner failed to establish by a preponderance of the evidence that he rightfully sought approval pursuant to Design Guidelines Section HH, and that the Respondent's denial was reasonable due to procedural failure, community inconsistency (Design Guidelines Section E), and liability/maintenance concerns (CC&R Article 12.3).

Orders: Petitioner Will Schreiber’s Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
CC&R’s Article 12.3
Design Guidelines Section HH
Design Guidelines Section E
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: Homeowner dispute, View fence, Architectural approval, Design Guidelines, CC&R's violation, Retroactive approval, Burden of Proof

Additional Citations:

A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Video Overview

Audio Overview

Decision Documents

20F-H2019003-REL-RHG Decision – 769789.pdf

Uploaded 2026-01-23T17:30:11 (42.2 KB)

20F-H2019003-REL-RHG Decision – 775433.pdf

Uploaded 2026-01-23T17:30:17 (123.4 KB)

Briefing Document: Schreiber v. Cimarron Hills HOA

Executive Summary

This document synthesizes the legal proceedings and outcome of the dispute between homeowner Will Schreiber (Petitioner) and the Cimarron Hills at McDowell Mountain Homeowners Association (Respondent) concerning an unapproved glass fence. The case, adjudicated by the Arizona Office of Administrative Hearings, centered on Mr. Schreiber’s retroactive application for a glass view fence he installed without prior permission, which replaced a wrought iron fence.

The Homeowners Association (HOA) denied the application, citing a lack of consistency with community design standards, as well as significant maintenance and liability concerns stipulated in the governing documents. The Petitioner argued the denial was unreasonable, asserting that a glass fence is visually similar to having no fence (an approved option), that the HOA failed to provide a valid reason for denial, and that safety concerns were unfounded.

The Administrative Law Judge (ALJ) ultimately dismissed Mr. Schreiber’s petition. The final decision concluded that the Petitioner failed to meet the burden of proof showing the HOA had violated its own rules. The ruling affirmed that the HOA’s denial was reasonable because the Petitioner did not follow the required procedure of seeking approval before installation, as mandated by the community’s Design Guidelines. The decision underscored the HOA’s right to enforce uniformity and manage its maintenance and liability responsibilities as defined in its Covenants, Conditions, and Restrictions (CC&Rs).

Case Identification and Participants

Detail

Information

Case Name

Will Schreiber, Petitioner, vs. Cimarron Hills at McDowell Mountain Homeowners Association, Respondent

Case Number

20F-H2019003-REL-RHG

Tribunal

Office of Administrative Hearings (Arizona)

Administrative Law Judge

Antara Nath Rivera

Petitioner

Will Schreiber

Petitioner’s Counsel

Aaron M. Green, Esq.

Respondent

Cimarron Hills at McDowell Mountain Homeowners Association (a subdivision of McDowell Mountain Ranch Homeowners Association)

Respondent’s Counsel

Nick Nogami, Esq. (at hearing); Mark K. Sahl, Esq. (on record)

Property Address

11551 East Caribbean Lane, Scottsdale, Arizona, 85255

Procedural History and Timeline

1. November 2017: Petitioner submitted an architectural form for backyard work, which was approved by the HOA’s Design Review Committee (DRC). This submission did not mention any changes to fencing.

2. January 2019: During a violation tour, the HOA discovered that Petitioner had replaced the pre-existing wrought iron view fencing with an unapproved glass fence.

3. January 24, 2019: After being contacted by the HOA, Petitioner submitted a second variance request seeking retroactive approval for the installed glass fence.

4. March 5, 2019: The HOA sent a letter to Petitioner requesting that the fence be returned to its original wrought iron condition.

5. May 10, 2019: The HOA officially notified Petitioner that his appeal was denied because the application was not filed in a timely manner (i.e., prior to installation).

6. July 2, 2019: Petitioner filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate, alleging violations of community documents.

7. August 9, 2019: The HOA filed its Answer, denying all claims, and a Motion to Dismiss.

8. October 2, 2019: The Administrative Law Judge (ALJ) granted the HOA’s Motion to Dismiss.

9. December 10, 2019: The Department of Real Estate issued a Notice of Rehearing.

10. January 30, 2020: A rehearing was held before the Office of Administrative Hearings.

11. February 4, 2020: The HOA’s counsel submitted a Posthearing Memorandum without leave from the tribunal.

12. February 14, 2020: The ALJ issued an order reopening the record solely to allow the Petitioner an opportunity to respond to the HOA’s unauthorized filing by February 24, 2020.

13. March 16, 2020: The ALJ issued the final decision, ordering that the Petitioner’s petition be dismissed.

Analysis of Arguments

Petitioner’s Position (Will Schreiber)

The Petitioner’s case rested on the argument that the HOA’s denial of his glass fence was arbitrary and unreasonable.

• Lack of Justification: Petitioner claimed the HOA’s Design Review Committee (DRC) met with him but failed to provide any verbal or written reasons for the initial disapproval.

• Aesthetic and Functional Equivalence: He argued a glass fence is “just as invisible” as having no fence at all, an option permitted by the HOA. He contended that since his neighbor did not have a wrought iron fence, denying his glass fence on grounds of consistency was illogical.

• Safety and Maintenance: Petitioner asserted that the safety glass used was comparable to that of the Grand Canyon Skywalk and had been inspected and approved by a Scottsdale City Inspector. He argued the HOA’s concerns about safety, fire barriers, and continuity were manufactured “excuses.” He also offered to waive the HOA’s maintenance responsibility for the fence.

• Procedural Failure: The core of the petition was the allegation that the HOA violated its own community documents, specifically “Design Guidelines HH Walls/View Fences and CC&R’s Article 12.”

Respondent’s Position (Cimarron Hills HOA)

The HOA’s defense, presented primarily through the testimony of Whitney Bostic, focused on procedural compliance, community uniformity, and non-negotiable maintenance responsibilities.

• Violation of Process: The HOA established that the Petitioner installed the glass fence prior to seeking approval, in direct violation of the Design Guidelines which require submission of detailed plans for any view fence modifications. His approved 2017 plans made no mention of fencing.

• Lack of Consistency: Ms. Bostic testified that out of 656 homes in the Cimarron Hills subdivision and 3,800 homes in the master McDowell Mountain Ranch association, none had a glass fence. The established design standard allows only for a wrought iron fence or no fence at all to maintain community conformity.

• Maintenance and Liability: The HOA argued that under Article 12.3 of the CC&Rs, it is legally responsible for maintaining the exterior half of all boundary view fences and the five-foot easement from the boundary wall. This responsibility cannot be waived by a homeowner. A glass fence introduces unique maintenance concerns and liability risks, such as shards of glass falling into an area of HOA responsibility.

• Multi-Level Review: The decision to deny the request was made after consideration by both the Cimarron Hills DRC and the master association (MMRHA), which weighed factors of consistency, responsibility, and maintenance before issuing a denial.

Governing Documents Cited

The decision in this case was based on the interpretation of several key sections of the community’s governing documents.

• CC&Rs Article 12.3 (Boundary Walls and Association Responsibility): This article explicitly states that the Association “shall be responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.” This formed the basis of the HOA’s argument regarding non-waivable liability and maintenance obligations.

• Design Guidelines Section HH (View Fencing): This section mandates that “The Owner shall submit for approval from the DRC including detailed drawings of proposed changes… for view fence modifications.” The Petitioner’s failure to do this prior to installation was a central fact in the case. It also specifies the approved paint color for fences, “MMR Brown Fence.”

• Design Guidelines Section E (General Principles): This section outlines the DRC’s goal to “maintain consistency of the community and of its decisions.” It notes that variances may be granted but “shall remain consistent with the architectural and neighborhood characteristics.” This supported the HOA’s argument against introducing a unique fence type.

• Design Guidelines Section GG (View Decks): While pertaining to decks, this section was cited to show the level of detail required in applications to the DRC, including materials, dimensions, and impact on views, underscoring the formal process the Petitioner bypassed.

Administrative Law Judge’s Decision and Rationale

The ALJ, Antara Nath Rivera, dismissed Will Schreiber’s petition, finding in favor of the Cimarron Hills HOA.

• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the HOA violated Article 12.3 of its CC&Rs.

• Failure to Follow Procedure: The judge concluded that the Petitioner “failed to establish by a preponderance of the evidence that he rightfully sought approval to change his existing fence, pursuant to Section HH of the Design Guidelines.” The key issue was not the aesthetics of the fence, but the Petitioner’s failure to abide by the required approval process before installation.

• Reasonableness of Denial: The ALJ found that the “Respondent was reasonable in its denial” and “did not violate any rules or regulations.” The evidence demonstrated that the HOA’s decision was based on established principles of uniformity, consistency, and its obligations under the CC&Rs.

• Final Order: The petition was formally dismissed. The order noted that as a decision from a rehearing, it is binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.

Study Guide: Schreiber v. Cimarron Hills HOA

This guide provides a detailed review of the administrative case between Will Schreiber and the Cimarron Hills at McDowell Mountain Homeowners Association, based on the provided legal documents. It is designed to test and reinforce understanding of the case’s facts, legal arguments, and procedural history.

Short-Answer Quiz

Answer each of the following questions in two to three sentences, drawing exclusively from the provided source documents.

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

2. What specific action did the Petitioner, Will Schreiber, take that initiated the dispute with the Homeowners Association?

3. According to the Respondent, what were the primary reasons for denying the Petitioner’s request for the glass fence?

4. What was the Petitioner’s core argument regarding the fairness of the Respondent’s denial, particularly in relation to his neighbor?

5. What was the legal standard of proof required for the Petitioner to win his case, and did he meet it?

6. Identify two specific governing documents that were central to the Respondent’s defense and the final ruling.

7. Who was Whitney Bostic, and what key information did her testimony provide during the rehearing?

8. What procedural event occurred on or about February 4, 2020, that prompted the Administrative Law Judge to issue the “Order Holding Record Open” on February 14, 2020?

9. According to the CC&Rs, who is responsible for maintaining the “Boundary Wall” that separates a lot from an “Area of Association Responsibility”?

10. What was the final outcome of the administrative rehearing held on January 30, 2020?

Answer Key

1. The primary parties were Will Schreiber, the Petitioner and homeowner, and the Cimarron Hills at McDowell Mountain Homeowners Association, the Respondent. Mr. Schreiber filed a petition against the HOA, alleging a violation of community documents after they denied his request for a fence modification.

2. Mr. Schreiber replaced his preexisting wrought iron view fencing with glass fencing without first receiving approval from the HOA’s Design Review Committee (DRC). He then submitted a variance request on January 24, 2019, seeking retroactive approval for the already-installed fence.

3. The Respondent denied the request based on several factors, including the need for design consistency across the community’s 656 homes, as no other home had a glass fence. They also cited maintenance concerns and potential liability, as the HOA is responsible for the exterior half of view fences and a five-foot easement from the boundary wall.

4. The Petitioner argued that the denial was unreasonable because his neighbor was allowed to have no fence at all. He contended that a glass fence was “just as invisible” as no fence and that the concept was essentially the same.

5. The Petitioner bore the burden of proof to establish his case by a “preponderance of the evidence,” which means convincing the judge that his contention was more probably true than not. The Administrative Law Judge concluded that the Petitioner failed to meet this burden.

6. The two central documents were the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills (CC&Rs) and the Cimarron Hills Design Guidelines For Community Living (Design Guidelines). The Respondent specifically cited Sections E (General Principles), GG (View Decks), and HH (Walls/View Fences) of the Design Guidelines.

7. Whitney Bostic testified on behalf of the Respondent HOA. She explained that the glass fence was unapproved, inconsistent with the 656 homes in the community, and posed maintenance and liability concerns for the HOA.

8. Counsel for the Respondent submitted a Posthearing Memorandum and Proposed Findings of Fact and Conclusions of Law without having been granted permission (leave) by the tribunal. Because the Petitioner did not have an opportunity to respond, the judge reopened the record to allow him to do so by February 24, 2020.

9. According to Article 12.3 of the CC&Rs, the resident is responsible for their side of the wall, but the Association is responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.

10. The Administrative Law Judge ordered that Petitioner Will Schreiber’s Petition be dismissed. The judge found that the Respondent HOA’s denial of the glass fence was reasonable and that it did not violate any of its rules or regulations.

Essay Questions

The following questions are designed for longer, more analytical responses. Formulate an argument using only the evidence and facts presented in the source documents.

1. Analyze the procedural timeline of the case from the initial filing of the petition on July 2, 2019, to the final decision on March 16, 2020. Discuss the significance of the initial dismissal, the subsequent rehearing, and the order to reopen the record.

2. Examine the concept of “consistency” as described in Section E of the Design Guidelines. How did this principle form the foundation of the Respondent’s case, and why was it a more compelling argument than the Petitioner’s claims about aesthetics and safety?

3. The Petitioner argued that since his neighbor was permitted to have no fence, his “invisible” glass fence should also be permitted. Deconstruct this argument and explain why it ultimately failed to persuade the Administrative Law Judge, citing the Respondent’s counterarguments regarding maintenance and responsibility.

4. Discuss the role of the governing community documents (the CC&Rs and Design Guidelines) in this dispute. Explain how specific articles, such as CC&R Article 12.3 and Design Guideline Section HH, were applied to the facts of the case to reach a final decision.

5. Define “preponderance of the evidence” as described in the legal decision. Detail the evidence presented by both the Petitioner and the Respondent at the rehearing and evaluate why the Judge concluded that the Petitioner failed to meet this evidentiary standard.

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The presiding judge (Antara Nath Rivera) at the Office of Administrative Hearings who heard the evidence and issued the final decision.

Answer

The formal written response filed by the Respondent on August 9, 2019, denying all complaint items in the Petition.

Areas of Association Responsibility

Areas that the Homeowners Association is responsible for maintaining, as defined in the CC&Rs. This includes the exterior side of boundary walls and a five-foot easement.

An acronym for the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills, a primary governing document for the community.

Design Guidelines

A document titled Cimarron Hills Design Guidelines For Community Living that supplements the CC&Rs and provides specific rules on community aesthetics, including fences.

Design Review Committee (DRC)

A committee within the HOA responsible for reviewing and approving or denying residents’ proposed architectural and landscape modifications.

Homeowners Association Dispute Process Petition

The formal document filed by Will Schreiber with the Arizona Department of Real Estate on July 2, 2019, to initiate the legal dispute.

McDowell Mountain Ranch Homeowners Association (MMRHA)

The master association of which the Cimarron Hills HOA is a subdivision. The MMRHA also considered and denied the Petitioner’s request.

Petitioner

The party who filed the petition initiating the legal action; in this case, the homeowner, Will Schreiber.

Preponderance of the evidence

The standard of proof required in the hearing. It is defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side of the issue rather than the other.

Respondent

The party against whom the petition was filed; in this case, the Cimarron Hills at McDowell Mountain Homeowners Association.

Retroactive Approval

Approval sought for a modification or construction that has already been completed without prior authorization.

Variance

A formal exception to the standard Design Guidelines that the DRC may grant on a case-by-case basis.

The Glass Fence Standoff: 4 Critical Lessons from a Homeowner’s Losing Battle with His HOA

Introduction: The Dream Project and the Unseen Rules

Will Schreiber had a vision for his Scottsdale, Arizona home: a sleek, modern property with an uninterrupted backyard view. To preserve that stunning vista, he installed an elegant glass fence—a choice that seemed perfect for the landscape. His neighbors didn’t complain; in fact, there’s no evidence the fence bothered anyone. But his Homeowners Association (HOA) denied the project, triggering a legal dispute that went before an administrative law judge. Mr. Schreiber ultimately lost.

The conflict wasn’t driven by neighborhood animosity, but by the impersonal application of community documents. This case offers a masterclass in the often counter-intuitive world of HOA governance. The reasons he lost reveal surprising and invaluable lessons for any homeowner considering a modification to their property.

1. The most critical mistake wasn’t the fence—it was the timing.

The core reason the homeowner lost his case had less to do with the aesthetics of glass versus wrought iron and everything to do with procedural failure. He installed the fence before getting formal approval from the HOA.

The timeline of events was fatal to his argument. In November 2017, the HOA approved Mr. Schreiber’s plan for backyard improvements, but this plan made no mention of fencing. At some point after, he installed the unapproved glass fence. It wasn’t until a routine violation tour in January 2019 that the HOA discovered the new fence. Only after being caught, on January 24, 2019, did the homeowner submit a request for retroactive approval.

In the end, the judge’s decision hinged on this sequence. The key question wasn’t whether a glass fence was a good idea, but whether the HOA’s denial was reasonable “because Petitioner failed to abide by the regulations to get approval for the glass fence prior to installing it.” In any dispute with an HOA, following the established process is paramount. Once you break the rules of that process, the merits of your project often become irrelevant.

2. A logical argument can lose to a written rule.

The homeowner presented a seemingly logical and compelling argument. He contended that his neighbor didn’t have a fence at all, and a glass fence was conceptually the same thing. In his words:

A glass fence was “just as invisible” as not having a fence. In essence, both were the same concept.

To add weight to his point, he made a powerful real-world comparison, arguing the safety glass he used was similar to that of the railing of the Grand Canyon Skywalk tourist attraction.

This “common sense” approach, however, failed to persuade the judge. The HOA’s decision wasn’t based on a subjective interpretation of “invisibility” or a comparison to national landmarks. It was based on the binding community documents. The Design Guidelines were written to promote uniformity and consistency. According to the HOA, the established rules were clear: a homeowner could have a wrought iron fence or no fence at all. A glass fence was not an approved option. The lesson here is stark: the governing documents create the binding reality for every member of the community. A personal, logical argument is not a valid defense against a clearly written rule you have contractually agreed to follow.

3. The HOA’s biggest concern wasn’t curb appeal; it was risk.

While the dispute appeared to be about aesthetics, the HOA’s defense focused on much more practical and significant concerns: consistency, maintenance, and liability. These arguments reveal the often-unseen function of an HOA, which is to manage shared risk for the entire community.

The HOA presented several key points:

• Consistency: Out of 3,800 homes in the master community and 656 in the sub-community, not a single one had a glass fence. Approving this one would set a precedent that could undermine the community’s uniform design.

• Maintenance: The community’s CC&Rs (Article 12.3) explicitly stated the Association was responsible for maintaining “the side of the Boundary Wall which faces the Area of Association Responsibility.” This meant the HOA would be financially and logistically on the hook for repairing and maintaining an unfamiliar and potentially costly material.

• Safety & Liability: The HOA raised a critical safety issue. If the glass fence were to break, “large amount of glass shards would fall onto an area of Respondent’s responsibility, causing additional liability for Respondent.”

Sensing the maintenance issue was a key obstacle, Mr. Schreiber made a reasonable offer: he was willing to waive the HOA’s responsibility to maintain the glass fence. However, this proactive solution came too late. Because he had already violated the approval process, his concession was not enough to overcome the HOA’s other concerns about precedent and liability, which remained firmly grounded in the community’s governing documents.

4. In a dispute, you are the one who has to prove the HOA is wrong.

When a homeowner takes their HOA to court, the legal scales are not perfectly balanced from the start. The legal decision in this case clearly states the principle: “Petitioner bears the burden of proof to establish that Respondent violated Article 12.3 of its CC&Rs.”

In simple terms, “burden of proof” meant it was Mr. Schreiber’s job to convince the judge with a “preponderance of the evidence”—meaning it was more likely true than not—that the HOA had broken its own rules when it denied his request. It was not the HOA’s job to prove it was right; it was his job to prove they were wrong.

The judge ultimately found that the homeowner “failed to establish by a preponderance of the evidence that he rightfully sought approval.” The conclusion was that the “Respondent was reasonable in its denial.” It is not enough to feel you have been wronged; in a legal setting, you must be able to demonstrate with convincing evidence that the organization violated its own governing documents.

Conclusion: The Unwritten Lessons of Community Living

HOA rules can be a source of frustration, but this case demonstrates that they form a complex web of process, liability, and shared responsibility that exists for reasons beyond simple aesthetics. The homeowner’s dream of a glass fence was shattered not by a neighbor’s complaint, but by a series of procedural missteps and a misunderstanding of the contract he was bound by.

This case wasn’t just about a fence; it was about the power of a contract you agree to when you buy a home. How well do you really know your own community’s rulebook?

Case Participants

Petitioner Side

Will Schreiber (petitioner)
Complainant
Aaron M. Green (petitioner attorney)
Law Office of Aaron Green, P.C.

Respondent Side

Nick Nogami (respondent attorney)
Represented Respondent at hearing
Mark K. Sahl (respondent attorney)
CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Whitney Bostic (witness)
Testified for Respondent

Neutral Parties

Antara Nath Rivera (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate

Other Participants

c. serrano (clerk)
Transmitting agent for Order
LDettorre (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission
AHansen (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission
djones (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission
DGardner (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission
ncano (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission

Jennie Bennett v. Catalina Del Rey Homeowners Association

Posted on February 26, 2020 by [email protected]

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

Case Summary

Case ID	20F-H2019002-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2020-02-26
Administrative Law Judge	Antara Nath Rivera
Outcome	The ALJ ordered the Petition dismissed because the Petitioner failed to prove by a preponderance of the evidence that the HOA violated the cited CC&R sections, as the malfunctioning backflow flap was located on the Petitioner's private property and was her responsibility.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Jennie Bennett	Counsel	Maxwell Riddiough
Respondent	Catalina Del Rey Homeowners Association	Counsel	Nathan Tennyson

Alleged Violations

CC&Rs Sections 12(c) and 12(h)(1)

Outcome Summary

The ALJ ordered the Petition dismissed because the Petitioner failed to prove by a preponderance of the evidence that the HOA violated the cited CC&R sections, as the malfunctioning backflow flap was located on the Petitioner's private property and was her responsibility.

Why this result: Petitioner failed to meet the burden of proof that the backflow flap was a common element maintenance responsibility under CC&Rs Sections 12(c) or 12(h)(1).

Key Issues & Findings

Violation of community documents regarding maintenance responsibility for sewage backflow flap.

Petitioner alleged the HOA violated CC&Rs by refusing to pay for repairs related to a malfunctioning backflow flap that caused a sewage overflow, arguing the item was a common element maintenance responsibility.

Orders: Petitioner Jennie Bennett’s Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

CC&Rs Section 12(c)
CC&Rs Section 12(h)(1)
CC&Rs Section 15

Analytics Highlights

Topics: HOA, CC&Rs, Maintenance Responsibility, Plumbing, Sewage Overflow, Burden of Proof

Additional Citations:

A.R.S. § 32-2199 et seq.
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A) and (B)(1)

Video Overview

Audio Overview

Decision Documents

20F-H2019002-REL-RHG Decision – 771959.pdf

Uploaded 2026-01-23T17:30:01 (103.3 KB)

Briefing Document: Jennie Bennett vs. Catalina Del Rey Homeowners Association

Executive Summary

This document synthesizes the findings, arguments, and conclusions from the Administrative Law Judge (ALJ) Decision in case number 20F-H2019002-REL-RHG, concerning a dispute between homeowner Jennie Bennett (Petitioner) and the Catalina Del Rey Homeowners Association (Respondent).

The core of the dispute was the financial responsibility for repairing a malfunctioning sewage backflow valve that caused an overflow at the petitioner’s residence. The petitioner argued that the HOA violated its Covenants, Conditions, Restrictions and Easements (CC&Rs), specifically Sections 12(c) and 12(h)(1), by refusing to cover the repair costs. The petitioner’s claim was complicated by the fact that the HOA had, just two weeks prior to the incident, rescinded a “Sewer Maintenance Policy” that had previously addressed such issues. The petitioner stated she was not notified of this rescission.

The respondent contended that the backflow valve was located on the petitioner’s private property, not in a common area, making its maintenance the petitioner’s responsibility under Section 15 of the CC&Rs. The HOA asserted that the 2017 policy was rescinded precisely because legal guidance confirmed this distinction. The HOA also maintained that notice of the rescission was sent to all homeowners.

The ALJ ultimately ruled in favor of the respondent, dismissing the petitioner’s petition. The decision concluded that the petitioner failed to meet the burden of proof—a preponderance of the evidence—to establish that the backflow valve was a common element covered by the cited CC&R sections. The evidence, including a plat map and photos, demonstrated the valve was on the petitioner’s private property. While the timing of the policy rescission was deemed “extremely unfortunate,” the ALJ found that once rescinded, the HOA was no longer obligated to share repair costs.

I. Case Overview

• Case Name: Jennie Bennett, Petitioner, vs. Catalina Del Rey Homeowners Association, Respondent.

• Case Number: 20F-H2019002-REL-RHG

• Forum: Arizona Office of Administrative Hearings

• Administrative Law Judge: Antara Nath Rivera

• Hearing Date: February 7, 2020

• Decision Date: February 26, 2020

• Core Allegation: The petitioner alleged that the HOA violated community documents, specifically Sections 12(c) and 12(h)(1) of the CC&Rs.

II. Central Dispute and Timeline of Events

The central issue was whether the HOA was responsible for the cost of repairing a malfunctioning sewage backflow flap on the petitioner’s property.

• March 2017: The HOA adopts a “Sewer Maintenance Policy” to outline processes for sewage maintenance.

• February 13, 2019: The HOA Board rescinds the Sewer Maintenance Policy.

• March 3, 2019: Petitioner Jennie Bennett experiences a sewage overflow at her residence due to a malfunctioning backflow valve.

• March – May 2019: The petitioner brings her concerns to the HOA board at multiple meetings but receives no response.

• May 22, 2019: The HOA responds to the petitioner after receiving a letter from her attorney.

• July 10, 2019: The petitioner files a Dispute Process Petition with the Arizona Department of Real Estate.

III. Petitioner’s Position and Arguments (Jennie Bennett)

The petitioner, a resident for 20 years, argued that the HOA was liable for the repair costs based on the following points:

• CC&R Violation: The refusal to pay for the repair constituted a violation of Sections 12(c) and 12(h)(1) of the CC&Rs, which pertain to the HOA’s duty to maintain sewer lines and common elements.

• Lack of Notice: The petitioner testified she was not notified of the policy rescission on February 13, 2019. The sewage overflow occurred just two weeks later, and upon reporting it, she was informed by a neighbor that the HOA had historically covered such issues.

• Procedural Failure: The HOA failed to address her concerns at the March, April, or May board meetings, only engaging after her attorney intervened.

• Community Support: The petitioner collected 97 signatures on a grassroots petition asking the HOA to cover the repair due to the short time frame between the policy rescission and the incident, and the lack of notice. The petition stated: “I am asking to be covered because of the 2 week time frame and no notice. I agree with being covered by the HOA for the flap.”

IV. Respondent’s Position and Arguments (Catalina Del Rey HOA)

The HOA, represented by community manager Vanessa Lubinsky of Cadden Community Management, presented a defense centered on the distinction between private and common property.

• Private Property Responsibility: The HOA’s primary argument was that the backflow flap was located on the petitioner’s private property and was therefore her responsibility to maintain under Section 15 of the CC&Rs, which governs utilities like plumbing within a homeowner’s lot.

• Evidence of Location: The respondent submitted a plat map and photographs as evidence. The photos illustrated that the backflow flap was located “next to Petitioner’s walk up to her front door,” well within her property lines and not on common elements.

• Plumbing vs. Sewer Issue: Ms. Lubinsky characterized the problem as a “plumbing issue, not a sewer issue,” because of its location on private property.

• Rationale for Policy Change: The 2017 Sewer Maintenance Policy was rescinded after the HOA received “additional legal guidance” confirming that backflow flaps were within homeowners’ units and thus their responsibility under Section 15.

• Notice and Procedure: Ms. Lubinsky testified that notice of the rescission was issued to homeowners via both email and postal mail (postcards). She clarified that the rescission was a board decision that did not require a homeowner vote, as it was not an amendment to the CC&Rs.

V. Relevant Sections of the CC&Rs

The dispute hinged on the interpretation of the following sections of the Declaration of Covenants, Conditions, Restrictions and Easements.

Section

Quoted Text from the Decision

Section 12(c)

“The Association shall maintain and landscape all front and side years open to the street, and shall maintain sewer lines, sidewalks, walkways, brick trim, streets and common recreation areas. …The words “repair or maintain” shall not be construed that the Association shall repair or maintain any individual lot owner’s roof or similar structure.”

Section 12(h)(1)

“Each such lot will be subject to assessments and the owner thereof shall pay to the Associations assessments as follows: Such lots pro rata share of the actual cost to the Association of all repair, maintenance, safety and control of common elements, including but not limited to maintenance of walkways, sidewalks, streets and sewers, care of lawns and landscaping in common areas and front and side yards of residences… .”

Section 15

(Described, not quoted) This section provides that the homeowner is responsible for the maintenance of utilities such as electricity and plumbing on their private property, similar to a single-family residence.

VI. Administrative Law Judge’s Findings and Ruling

The ALJ’s decision was based on the petitioner’s failure to meet the required burden of proof.

• Burden of Proof: The petitioner was required to establish the HOA’s violation by a “preponderance of the evidence,” meaning proof that convinces the trier of fact the contention is more probably true than not.

• Factual Determination: The judge found that the evidence, specifically the photos and plat map, demonstrated conclusively that the backflow flap was on the petitioner’s private property near her front door.

• Conclusion on CC&Rs: Because the flap was determined not to be located within a common area, the petitioner failed to establish that it fell under the purview of Sections 12(c) or 12(h)(1). Therefore, she failed to prove the HOA had a responsibility to repair it under those sections.

• Effect of Policy Rescission: The judge acknowledged, “It was extremely unfortunate that Petitioner experienced such a sewage overflow just after Respondent rescinded the Policy.” However, the ruling stated that once the policy was rescinded, the HOA “was not obligated to share the cost of repairs.”

• Final Order: “IT IS ORDERED that Petitioner Jennie Bennett’s Petition be dismissed.” The order is binding on the parties, with any appeal required to be filed with the superior court within thirty-five days of service.

Study Guide: Bennett v. Catalina Del Rey Homeowners Association

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the case text.

1. Who were the Petitioner and the Respondent in this case, and what was the legal case number?

2. What specific sections of the community documents did Petitioner Jennie Bennett allege the Respondent had violated?

3. Describe the incident that prompted the dispute and the date on which it occurred.

4. What was the “Sewer Maintenance Policy,” when was it adopted, and when was it rescinded?

5. According to the Respondent’s manager, Vanessa Lubinsky, why was the repair Jennie Bennett’s financial responsibility?

6. What evidence did the Respondent present to prove the location of the malfunctioning backflow flap?

7. What steps did Jennie Bennett take to rally support from her neighbors after the Respondent did not address her concerns?

8. What is the legal standard for the burden of proof in this case, and which party does it fall on?

9. According to Section 12(c) of the CC&Rs, what specific areas is the Homeowners Association responsible for maintaining?

10. What was the final ruling, or “Order,” issued by the Administrative Law Judge in this case?

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Answer Key

1. The Petitioner was Jennie Bennett, represented by attorney Maxwell Riddiough. The Respondent was the Catalina Del Rey Homeowners Association, represented by attorney Nathan Tennyson. The case number was 20F-H2019002-REL-RHG.

2. The Petitioner alleged that the Respondent violated Sections 12(c) and 12(h)(1) of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs). This was noted as a single-issue petition.

3. On or about March 3, 2019, the Petitioner experienced a sewage overflow into her house. The overflow was caused by malfunctioning backflow valves.

4. The Sewer Maintenance Policy was a policy adopted in March 2017 to outline the process for sewage maintenance issues. It was rescinded by the HOA Board on February 13, 2019, shortly before the Petitioner’s incident.

5. Vanessa Lubinsky testified that the issue was the Petitioner’s responsibility because the malfunctioning backflow flap was located on her private property. Under Section 15 of the CC&Rs, homeowners are responsible for the maintenance of their own plumbing, electricity, and other utilities.

6. The Respondent presented a plat map, which specified all property lines, and photos. This evidence illustrated that the backflow flap was located inside the lines of the Petitioner’s private property, next to the walk-up to her front door, and not on common elements.

7. The Petitioner obtained 97 signatures on a “Grassroots petition.” The petition explained her situation and argued that she should be covered by the HOA for the repair due to the short time between the policy rescission and her incident, and because she had not received written notice.

8. The legal standard is “preponderance of the evidence,” which means the proof must convince the trier of fact that the contention is more probably true than not. The burden of proof fell on the Petitioner, Jennie Bennett, to establish that the Respondent committed the alleged violations.

9. Section 12(c) states the Association is responsible for maintaining and landscaping front and side yards open to the street. It also specifies the Association’s duty to maintain sewer lines, sidewalks, walkways, brick trim, streets, and common recreation areas.

10. The Administrative Law Judge ordered that Petitioner Jennie Bennett’s Petition be dismissed. The judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent had violated the CC&Rs.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to test a deeper, analytical understanding of the case. Formulate a detailed essay response for each prompt, using specific evidence and arguments from the provided text to support your conclusions.

1. Analyze and contrast the core arguments presented by the Petitioner, Jennie Bennett, and the Respondent, Catalina Del Rey Homeowners Association. How did each party use the CC&Rs and the Sewer Maintenance Policy to support their position?

2. Discuss the significance of the Sewer Maintenance Policy’s rescission. Evaluate the timing of the rescission relative to the Petitioner’s incident and the arguments made regarding notification to homeowners.

3. Explain the legal concept of “preponderance of the evidence” as defined in the case document. How did Administrative Law Judge Antara Nath Rivera apply this standard to the evidence presented by both parties to reach a final decision?

4. Evaluate the role of physical evidence, specifically the plat map and photographs, in the outcome of this hearing. Why was determining the precise location of the backflow flap the central issue of the case?

5. From an ethical and community governance perspective, discuss the actions of the Catalina Del Rey Homeowners Association. Consider their decision to rescind the policy, the method of notification, and their initial responses (or lack thereof) to Ms. Bennett’s requests at the board meetings.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Antara Nath Rivera, who presides over hearings at the Office of Administrative Hearings and makes legal decisions and orders.

Burden of Proof

The obligation of a party in a legal case to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof.

Common Elements

Areas within the HOA community that are not part of an individual homeowner’s private property and are maintained by the Association. Examples from the text include walkways, sidewalks, streets, sewers, and recreation areas.

Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs)

The governing legal documents that outline the rules, obligations, and restrictions for a planned community. The Petitioner alleged a violation of Sections 12(c) and 12(h)(1) of these documents.

Homeowners Association (HOA)

The community organization, Catalina Del Rey Homeowners Association, responsible for managing and maintaining the common elements of a planned community as defined by the CC&Rs.

Petitioner

The party who initiates a legal action by filing a petition. In this case, the Petitioner was homeowner Jennie Bennett.

Plat Map

A map, drawn to scale, showing the divisions of a piece of land. In this case, it was used as evidence to specify all property lines, including the Petitioner’s.

Preponderance of the Evidence

The evidentiary standard required to win the case, defined as proof that convinces the trier of fact that a contention is “more probably true than not.” It is described as the “greater weight of the evidence.”

Rescission

The act of canceling or revoking a policy or decision. The HOA Board rescinded its Sewer Maintenance Policy on February 13, 2019.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the Catalina Del Rey Homeowners Association.

A Homeowner’s Sewage Nightmare: 5 Surprising Lessons from a Losing Battle with an HOA

Introduction: The Dreaded HOA Letter

For many homeowners, the greatest fear isn’t a storm or a failing appliance; it’s a sudden, catastrophic repair bill. This anxiety is often magnified for those living in a planned community, where another layer of complexity—the Homeowners Association (HOA)—governs every aspect of property maintenance. A dispute with the HOA can turn a straightforward repair into a frustrating and expensive legal battle.

The case of Jennie Bennett, a resident in her home for 20 years, and the Catalina Del Rey Homeowners Association is a stark cautionary tale. After a sewage overflow caused by a malfunctioning backflow valve, Ms. Bennett found herself in a dispute with her HOA over who should pay for the repair, claiming the association had violated Sections 12(c) and 12(h)(1) of its governing documents. The resulting legal decision reveals critical, and often surprising, insights into how HOA rules are interpreted and enforced. This article breaks down the five most impactful lessons from her losing battle.

1. Location is Everything: The Critical Line Between Private and Common Property

The single most important factor in the judge’s decision was the physical location of the broken part. The entire case hinged on a simple question: was the malfunctioning backflow flap on Jennie Bennett’s private property or in an HOA-maintained common area?

The HOA argued that the plat map and photos proved the flap was located “next to Petitioner’s walk up to her front door,” placing it squarely inside her private property line. While the homeowner claimed the HOA was responsible for “sewer lines” under Sections 12(c) and 12(h)(1) of the Covenants, Conditions, and Restrictions (CC&Rs), this argument failed. The HOA’s manager, Vanessa Lubinsky, perfectly synthesized the association’s legal position when she “opined that the backflow flap was a plumbing issue, not a sewer issue, because it was located on Petitioner’s private property.”

Because the backflow flap was deemed to be on private property, it fell under Section 15 of the CC&Rs. This clause stipulated that the homeowner was responsible for the maintenance of their own plumbing, electricity, and other utilities—much like the owner of a single-family residence. The specific location of the failure, not the general nature of the system it belonged to, determined financial responsibility.

2. An HOA ‘Policy’ Can Vanish Overnight

For nearly two years, from March 2017 to February 2019, the Catalina Del Rey HOA had a “Sewer Maintenance Policy” in place. This policy, which had been in effect for nearly two years, outlined a process for handling sewage maintenance; however, once rescinded, the HOA was no longer obligated to share in repair costs. The Board of Directors rescinded this policy on February 13, 2019. The petitioner’s sewage overflow occurred on March 3, 2019—less than three weeks later.

Crucially, the HOA’s action was not arbitrary. According to case testimony, the board rescinded the policy because, “After Respondent received additional legal guidance, it was determined that the backflow flaps were located within the homeowners’ units and on private property.” This reveals a critical insight: the HOA made a calculated, legally-informed decision to shift liability back to homeowners to align with the CC&Rs.

This also highlights the significant difference between a formal, recorded CC&R and a simple board policy. As the HOA manager clarified, rescinding the policy did not require a homeowner vote because it was not an amendment to the core CC&Rs. A board can unilaterally change a policy, altering the financial obligations of every resident without a community-wide vote.

3. The High Cost of “Extremely Unfortunate” Timing

The timing of the sewage backup, occurring just after the policy change, was a devastating coincidence for the homeowner. The administrative law judge acknowledged this directly in the final decision, stating:

It was extremely unfortunate that Petitioner experienced such a sewage overflow just after Respondent rescinded the Policy.

Compounding the issue was a dispute over communication. The petitioner claimed she “was not notified of the rescission.” In her efforts to be covered, she even gathered 97 signatures on a “Grassroots petition” from her neighbors. The petitioner claimed she received no substantive response from the board regarding her repair claim until her attorney sent a formal letter on May 22, 2019. The HOA countered this, stating that notice of the policy change had been sent to homeowners via both email and postcards.

This takeaway is impactful because it demonstrates how quickly a homeowner’s rights and financial obligations can change. A simple board decision, potentially missed in a stack of mail or an overlooked email, can result in thousands of dollars in unexpected costs.

4. The Burden of Proof Is on the Homeowner, Not the HOA

In any legal dispute, one side has the “burden of proof”—the responsibility to convince the judge that their claim is true. In this HOA case, that burden fell entirely on the petitioner, Jennie Bennett.

The legal standard required her to prove her case by a “preponderance of the evidence.” This standard is defined as evidence that is sufficient to persuade a judge that a claim is more likely true than not. The legal decision provides a clear definition:

“[t]he greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Ultimately, the judge concluded that the homeowner did not meet this standard. The final order states, “Petitioner failed to establish by a preponderance of the evidence that Respondent violated Sections 12(c) and 12(h)(1) of the CC&Rs.” This underscores a critical point: when a homeowner challenges an HOA, it is their responsibility to build the winning case with convincing evidence.

Conclusion: Know Your Documents, Know Your Property Lines

The overarching lesson from Jennie Bennett’s experience is that in an HOA, the fine print matters immensely. The precise wording of the governing documents and, as this case proves, the exact location of property lines are paramount. A board policy you rely on today could be gone tomorrow, and a repair you assume is a community responsibility could be deemed yours based on a measurement of inches.

This case serves as a powerful reminder for all homeowners to be proactive. Read your CC&Rs, pay attention to all communications from your board, and understand the difference between binding covenants and changeable policies. It all comes down to one final, critical question: Do you know exactly where your maintenance responsibilities end and your HOA’s begin?

Case Participants

Petitioner Side

Jennie Bennett (petitioner)
Testified at hearing
Maxwell Riddiough (petitioner attorney)

Respondent Side

Nathan Tennyson (respondent attorney)
Brown|Olcott, PLLC
Vanessa Lubinsky (property manager)
Cadden Community Management
Testified on behalf of Respondent
Daniel (staff)
Cadden
Informed Petitioner about policy rescission

Neutral Parties

Antara Nath Rivera (ALJ)
Judy Lowe (Commissioner)
Arizona Department of Real Estate

Other Participants

JC Niles (witness)
Mentioned in Petitioner's Grassroots petition

Mary J Bartle vs. Saguaro West Owner’s Association

Posted on January 30, 2020 by [email protected]

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

Case Summary

Case ID	19F-H1919059-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2020-01-30
Administrative Law Judge	Thomas Shedden
Outcome	The Administrative Law Judge affirmed the original conclusion and dismissed the petition, finding that the Petitioner failed to meet the burden of proof that the Association violated Bylaws Article VIII, section 8(d) regarding the contested $49,000.50 fund transaction.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Mary J Bartle	Counsel	—
Respondent	Saguaro West Owner's Association	Counsel	Nicole Payne, Esq.

Alleged Violations

Bylaws Article VIII, section 8(d)

Outcome Summary

The Administrative Law Judge affirmed the original conclusion and dismissed the petition, finding that the Petitioner failed to meet the burden of proof that the Association violated Bylaws Article VIII, section 8(d) regarding the contested $49,000.50 fund transaction.

Why this result: Petitioner failed to show by a preponderance of the evidence that the transactions violated the specific duties of the treasurer set out in Bylaws Article VIII, section 8(d).

Key Issues & Findings

Alleged violation of Treasurer duties regarding fund transactions

The petitioner alleged the Association violated Bylaws Article VIII, section 8(d) by withdrawing and redepositing $49,000.50 from the operating account. The ALJ concluded that Petitioner failed to show by a preponderance of the evidence that these transactions violated the specific duties of the treasurer set forth in that section.

Orders: Petitioner Mary J. Bartle’s petition is dismissed and Respondent is deemed the prevailing party in this matter.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section and title 12, chapter 7, article 6
ARIZ. REV. STAT. section 12-904(A)

Analytics Highlights

Topics: HOA, Bylaws, Treasurer Duties, Dismissal, Burden of Proof, Rehearing

Additional Citations:

ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section and title 12, chapter 7, article 6
ARIZ. REV. STAT. section 12-904(A)

Video Overview

Audio Overview

Decision Documents

19F-H1919059-REL-RHG Decision – 767041.pdf

Uploaded 2026-01-23T17:29:24 (94.6 KB)

Briefing Document: Bartle vs. Saguaro West Owner’s Association (Case No. 19F-H1919059-REL-RHG)

Executive Summary

This briefing document analyzes the Administrative Law Judge Decision in the matter of Mary J. Bartle vs. Saguaro West Owner’s Association. The final order, issued on January 30, 2020, dismissed the petition brought by Ms. Bartle. The core of the case revolved around a financial transaction where $49,000.50 was withdrawn from the Association’s operating account on October 22, 2018, and redeposited on November 30, 2018.

The petitioner, Ms. Bartle, alleged this transaction violated a specific provision of the Association’s bylaws—Article VIII, section 8(d)—which outlines the duties of the Treasurer. Despite two hearings, the Administrative Law Judge consistently concluded that Ms. Bartle failed to meet her burden of proof. The central finding was that while evidence suggested the transaction “may have been in violation of the law or otherwise improper,” the petitioner did not demonstrate, by a preponderance of the evidence, how this transaction specifically violated any of the enumerated duties of the Treasurer as set forth in the cited bylaw. The decision underscores a critical legal distinction between a potentially improper act and a proven violation of the specific bylaw under which the complaint was filed.

Case Overview

Case Name

Mary J. Bartle, Petitioner, vs. Saguaro West Owner’s Association, Respondent

Case Number

19F-H1919059-REL-RHG

Jurisdiction

Arizona Department of Real Estate, Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Thomas Shedden

Petitioner

Mary J. Bartle (representing herself)

Respondent

Saguaro West Owner’s Association (represented by Nicole Payne, Esq.)

Rehearing Date

January 14, 2020

Final Decision Date

January 30, 2020

Procedural History and Core Allegation

The case proceeded through an initial hearing and a subsequent rehearing, following a specific timeline of events:

• April 22, 2019: Ms. Bartle filed the initial petition with the Arizona Department of Real Estate.

• August 29, 2019: The first hearing was held. At the outset, a discussion was held to narrow the scope of the hearing. Ms. Bartle agreed to limit her petition to a single issue.

• The Single Issue: Whether the Association violated Bylaws Article VIII, section 8(d) through a withdrawal of $49,000.50 on October 22, 2018, and a redeposit of the same amount on November 30, 2018.

• September 18, 2019: The initial Administrative Law Judge Decision was issued, dismissing Ms. Bartle’s petition.

• October 23, 2019: Ms. Bartle filed a request for a rehearing, asserting an error in the admission of evidence.

• November 18, 2019: The Department of Real Estate granted the request for a rehearing.

• January 14, 2020: The rehearing was convened. Ms. Bartle testified, while the Respondent presented no witnesses.

• January 30, 2020: The final Administrative Law Judge Decision was issued, reaffirming the dismissal of the petition.

At the rehearing, Ms. Bartle testified “to the effect that laws must have been violated by the withdrawal and redepositing of the $49,000.50 without the Association’s members being provided any notice of these transactions.”

Analysis of Bylaw and Judicial Findings

Bylaw Article VIII, Section 8(d): The Treasurer’s Duties

The entirety of the petitioner’s case rested on proving a violation of the specific duties outlined for the Treasurer in the Association’s bylaws. The text of the bylaw is as follows:

The Treasurer shall receive and deposit in the Association’s bank accounts all monies received by the Association and shall disburse such funds as directed by resolution [of] the Board of Directors; shall properly prepare and sign all checks before presenting them to be co-signed; keep proper books of account; cause an annual audit of the Association’s books to be made by a public accountant at the completion of each fiscal year; and shall prepare an annual budget to be presented to the membership at the annual meeting; to cause all Federal and State reports to be prepared; and shall prepare all monthly statements of finance for the Board of Directors.

Key Judicial Findings and Conclusions

The Administrative Law Judge’s decision hinged on the petitioner’s failure to connect the disputed financial transaction to a specific violation of the duties listed above. The judge made a clear distinction between the potential impropriety of the transaction and the narrow scope of the legal claim.

• Initial Hearing Conclusion: The decision from the first hearing, which the judge took notice of in the rehearing, established the core finding:

• Rehearing Conclusion: The final decision after the rehearing reinforced this exact point, stating:

Ultimately, the case was dismissed because Ms. Bartle did not meet the legal standard required to prove her specific claim.

Legal Framework and Final Order

Applicable Legal Standards

The decision was grounded in several key legal principles cited by the Administrative Law Judge:

• Jurisdiction: The Arizona Department of Real Estate possesses authority over the matter pursuant to ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.

• Burden of Proof: Ms. Bartle, as the petitioner, bore the burden of proof on all issues.

• Standard of Proof: The standard was a “preponderance of the evidence,” defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

• Contractual Nature of Bylaws: Citing McNally v. Sun Lakes Homeowners Ass’n #1, Inc., the decision notes that “The Bylaws are a contract between the parties and the parties are required to comply with its terms.”

Final Order and Implications

Based on the failure to meet the burden of proof, the Administrative Law Judge issued a binding order with the following key points:

1. Dismissal: Petitioner Mary J. Bartle’s petition is dismissed.

2. Prevailing Party: The Respondent, Saguaro West Owner’s Association, is deemed the prevailing party.

3. Appeal Rights: A party wishing to appeal the order must seek judicial review with the superior court within thirty-five days from the date the order was served, as prescribed by ARIZ. REV. STAT. sections 12-904(A) and Title 12, Chapter 7, Article 6.

Study Guide: Bartle v. Saguaro West Owner’s Association

This guide provides a detailed review of the Administrative Law Judge Decision in case number 19F-H1919059-REL-RHG. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the legal matter.

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Quiz: Short-Answer Questions

Instructions: Answer the following questions in two to three complete sentences, drawing all information directly from the case document.

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

2. What specific financial transaction was the central subject of the petitioner’s complaint?

3. Which specific article and section of the Association’s Bylaws did the petitioner claim was violated?

4. What was the legal standard of proof that the petitioner was required to meet, and who had the burden of proof?

5. On what grounds did Ms. Bartle file her request for a rehearing after the initial decision?

6. According to the judge’s decision, what was the key failure in the petitioner’s argument regarding the financial transaction?

7. What was the final order issued by the Administrative Law Judge on January 30, 2020?

8. Although the judge dismissed the petition, what did the decision state about the nature of the financial transactions?

9. Which government department granted the request for a rehearing and has authority over this type of matter?

10. What options does a party have if they wish to appeal the final administrative law judge order?

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Answer Key

1. The primary parties were the Petitioner, Mary J. Bartle, and the Respondent, Saguaro West Owner’s Association. Ms. Bartle brought the petition against the Association, alleging a violation of its bylaws.

2. The central subject was the withdrawal of $49,000.50 from the Association’s operating account on October 22, 2018. The same amount was subsequently redeposited into the account on November 30, 2018.

3. The petitioner claimed the Association violated Bylaws Article VIII, section 8(d). This section outlines the specific duties and responsibilities of the Association’s Treasurer.

4. The standard of proof was a “preponderance of the evidence.” The burden of proof was on the petitioner, Ms. Bartle, to demonstrate that the Association had violated the bylaw.

5. Ms. Bartle filed her Rehearing Request on the grounds that there was an error in the admission of evidence. She specifically referenced documents dated July 5, August 6, and September 13, 2019, in her request.

6. The key failure was that Ms. Bartle did not show by a preponderance of the evidence that the withdrawal and redeposit specifically violated any of the treasurer’s duties as explicitly listed in Bylaws Article VIII, section 8(d). Her claim was too narrow for the evidence she presented.

7. The final order was that Petitioner Mary J. Bartle’s petition be dismissed. The Respondent, Saguaro West Owner’s Association, was deemed to be the prevailing party in the matter.

8. The decision stated that there was evidence to suggest that the withdrawal and redeposit of the $49,000.50 “may have been in violation of the law or otherwise improper.” However, this was not sufficient to prove a violation of the specific bylaw in question.

9. The Arizona Department of Real Estate granted the rehearing on November 18, 2019. This department has authority over the matter as established by ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.

10. A party wishing to appeal the order must seek judicial review as prescribed by Arizona Revised Statutes. The appeal must be filed with the superior court within thirty-five days from the date the order was served upon the parties.

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Essay Questions

Instructions: Consider the following questions for a deeper analysis of the case. Formulate a comprehensive response based solely on the information provided in the source document.

1. Analyze the concept of “preponderance of the evidence” as defined in the decision. Explain why Mary J. Bartle failed to meet this standard, despite the judge’s acknowledgment that the transaction may have been “improper” or in “violation of the law.”

2. Discuss the procedural significance of limiting the hearing to the single issue of Bylaws Article VIII, section 8(d). How might the case’s outcome have differed if the scope of the hearing had been broader?

3. Trace the complete timeline of the case from the initial petition filing in April 2019 to the final order in January 2020. What do the key events and dates reveal about the process of administrative hearings and rehearings?

4. Based on the full text of Bylaws Article VIII, section 8(d), what specific types of evidence would the petitioner have needed to present to successfully prove that the treasurer’s duties were violated by the $49,000.50 transaction?

5. Evaluate the distinction made by the Administrative Law Judge between a transaction that is potentially illegal or improper and a transaction that specifically violates the duties enumerated in Bylaws Article VIII, section 8(d). Why is this distinction critical to the final order of dismissal?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, weighs evidence, and issues decisions on matters under the jurisdiction of a government agency. In this case, the ALJ was Thomas Shedden.

ARIZ. ADMIN. CODE

The Arizona Administrative Code, a compilation of rules and regulations of Arizona’s state agencies. Section R2-19-119 is cited as establishing the standard of proof.

ARIZ. REV. STAT.

The Arizona Revised Statutes, which are the codified laws of the state of Arizona. Various sections are cited to establish jurisdiction and the appeals process.

Bylaws

A set of rules established by an organization, such as a homeowners’ association, to regulate itself. In this case, the bylaws are treated as a binding contract between the parties.

Conclusion of Law

The section of a legal decision where the judge applies legal principles and statutes to the established facts of the case.

Finding of Fact

The section of a legal decision that lists the factual determinations made by the judge based on the evidence presented during the hearing.

Judicial Review

The process by which a court of law reviews the decision of a lower court or an administrative agency to determine if the decision was legally sound.

Office of Administrative Hearings (OAH)

A state agency that provides a neutral forum for conducting administrative hearings for other state agencies. The hearings in this matter were held at the OAH.

Petitioner

The party who initiates a lawsuit or files a petition seeking a legal remedy. In this case, the petitioner was Mary J. Bartle.

Preponderance of the Evidence

The standard of proof in most civil cases. It is met when the evidence presented has the most convincing force and is sufficient to incline a fair and impartial mind to one side of an issue over the other.

Prevailing Party

The party in a legal dispute who is successful and in whose favor the judgment is rendered. In this case, the Respondent was deemed the prevailing party.

Rehearing

A second hearing of a case to consider new evidence or to argue against the original decision on the basis of an error. Ms. Bartle’s request for a rehearing was granted.

Respondent

The party against whom a petition is filed. In this case, the respondent was the Saguaro West Owner’s Association.

A Homeowner Found a Mysterious $49,000 Transaction in Her HOA’s Books. The Reason She Lost in Court Is a Lesson for Everyone.

Introduction: The David-vs-Goliath Fight That Didn’t Go as Planned

For many homeowners, dealing with a Homeowners’ Association (HOA) can feel like a constant battle for transparency and fairness. It’s a common story: a resident raises concerns about financial decisions made behind closed doors, only to be met with resistance or silence. But what happens when a homeowner pushes back and takes that fight to an administrative hearing?

After an initial hearing and a persistent request for a rehearing, the final decision in Mary J. Bartle’s case against the Saguaro West Owner’s Association seemed, on the surface, like a clear-cut quest for accountability. The dispute centered on a single, alarming event: the withdrawal and subsequent redeposit of $49,000.50 from the association’s operating account without any notice to the members. It appeared to be a straightforward case of a concerned resident demanding answers.

However, the ruling from the administrative hearing offers a surprising and crucial lesson in how the legal system operates. The outcome reveals that suspicion, no matter how justified, is not enough to win. This article breaks down the top counter-intuitive takeaways from the judge’s decision and what they mean for any homeowner considering a legal challenge against their HOA.

Takeaway 1: A “Suspicious” Act Isn’t a Guaranteed Win

Feeling Something Is Wrong Isn’t the Same as Proving It.

The core facts of the case were not in dispute. On October 22, 2018, $49,000.50 was withdrawn from the Saguaro West Owner’s Association’s operating account. On November 30, 2018, the exact same amount was redeposited. Members were not notified of these transactions. To any reasonable observer, this activity raises immediate questions.

Even the Administrative Law Judge presiding over the case acknowledged the questionable nature of the transaction. In his final decision, he validated Ms. Bartle’s initial concerns with a striking statement:

The evidence shows that $49,000.50 was withdrawn from the Association’s account in October 2018 and the same amount was deposited in November 2018, and there is evidence to suggest that the transactions may have been in violation of the law.

This is the most stunning part of the case: the judge agreed that the transaction looked suspicious and might have broken the law, yet Ms. Bartle still lost. This reveals a critical distinction in legal proceedings. A judge is not an arbiter of general fairness but an interpreter of specific laws and rules. The judge’s comment shows he understood the spirit of Ms. Bartle’s complaint, but his hands were tied by the letter of her petition. The legal system requires more than a gut feeling; it demands specific proof that a specific rule was violated, which leads directly to the next critical lesson.

Takeaway 2: You Must Prove theExactRule Was Broken

Specificity Is Your Only Weapon.

Ms. Bartle’s case was ultimately narrowed to a single, highly specific issue: whether the $49,000.50 transaction violated Article VIII, section 8(d) of the association’s bylaws. This is a crucial detail because courts and administrative bodies require this rigid specificity to ensure fairness, prevent “moving goalposts,” and keep proceedings focused on the actual claims filed, not a general feeling of grievance.

Her entire case hinged on proving a violation of that specific section and no other. The rule in question outlines the treasurer’s duties, which include the power to: “receive and deposit…all monies,” “disburse such funds as directed,” “sign all checks,” and “keep proper books of account.”

The judge’s conclusion was brutally precise. He found that Ms. Bartle had “not shown by a preponderance of the evidence” that the transaction violated any of those specific, listed duties. She couldn’t prove the treasurer failed to deposit money or keep proper books; she could only prove a strange transaction occurred that wasn’t explicitly forbidden by the rule she cited. This is a critical lesson: it doesn’t matter if an HOA’s action feels wrong; what matters is whether you can prove it violated the precise rule you cited in your petition.

Takeaway 3: The Burden of Proof Rests Entirely on the Accuser

It’s Your Job to Build the Case, Not Theirs to Disprove It.

In a civil administrative hearing like this, the petitioner—Ms. Bartle—carries the “burden of proof.” The standard she had to meet was the “preponderance of the evidence.” The legal definition for this is:

“superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

In simple terms, she had to present enough convincing evidence to make the judge believe that her version of events was more likely true than not. The judge’s decision explicitly states that Ms. Bartle bore this burden and ultimately failed to meet it.

One of the most powerful details from the case file illustrates this point perfectly: the Saguaro West Owner’s Association, though represented by legal counsel, “presented no witnesses.” They didn’t have to. They didn’t need to explain the transaction or justify their actions because Ms. Bartle failed to build a strong enough case to prove her specific claim. The onus was completely on her to prove her argument, and when it fell short, the case was dismissed.

Conclusion: A Sobering Reminder for Homeowners

The case of Mary Bartle is a sobering reminder that winning a legal fight against a well-resourced entity like an HOA is less about moral rightness and more about meticulous legal strategy and precision.

While the judge acknowledged that Ms. Bartle’s concerns about the $49,000.50 transaction were potentially valid, her petition was dismissed not on a simple technicality, but because of a core principle of law: the failure to prove that the specific rule cited had actually been broken. Her case highlights the immense challenge for individual homeowners seeking transparency. It leaves us asking, if the legal bar is this specific, what practical recourse do residents have when they feel something is fundamentally wrong?

Case Participants

Petitioner Side

Mary J Bartle (petitioner)
Appeared on her own behalf and testified

Respondent Side

Nicole Payne (attorney)
Carpenter, Hazlewood, Delgado & Bolen, PLC
Counsel for Saguaro West Owner's Association
Edith Rudder (attorney)
Carpenter, Hazlewood, Delgado & Bolen, PLC
Counsel for Saguaro West Owner's Association

Neutral Parties

Thomas Shedden (ALJ)
Judy Lowe (Commissioner)
Arizona Department of Real Estate

Jerry R. Collis vs. Laveen Meadows Homeowners Association

Posted on December 18, 2018 by [email protected]

Case Summary

Case ID	19F-H18020-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-12-20
Administrative Law Judge	Thomas Shedden
Outcome	The Petitioner's challenge against the HOA was dismissed because the Petitioner failed to prove by a preponderance of the evidence that the HOA violated the community documents or statutes when issuing citations.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Jerry R. Collis	Counsel	—
Respondent	Laveen Meadows HOA c/o Planned Development Services	Counsel	Chad Gallacher, Esq.

Alleged Violations

CC&Rs Sections 10.11.2, 10.11.4, and 10.16; A.R.S. § 32-2199.01(A)

Outcome Summary

The Petitioner's challenge against the HOA was dismissed because the Petitioner failed to prove by a preponderance of the evidence that the HOA violated the community documents or statutes when issuing citations.

Why this result: Petitioner failed to meet the burden of proof.

Key Issues & Findings

Challenge to HOA fine citations/improper enforcement of parking and nuisance rules

Petitioner claimed the Respondent HOA improperly issued citations against him for vehicle violations (inoperable vehicle, street parking, nuisance), asserting the HOA could not violate CC&R 10.11.4 but that the citations alleging the violation were unwarranted.

Orders: Petitioner Jerry R. Collis’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. REV. STAT. § 32-2199.01

Analytics Highlights

Topics: HOA Enforcement, CC&Rs, Vehicle Parking, Nuisance, Burden of Proof

Additional Citations:

ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. REV. STAT. § 32-2199.01

Video Overview

Audio Overview

Decision Documents

19F-H18020-REL Decision – 677244.pdf

Uploaded 2026-04-24T11:14:51 (97.6 KB)

19F-H18020-REL Decision – 677244.pdf

Uploaded 2026-01-23T17:25:31 (97.6 KB)

Briefing Document: Collis v. Laveen Meadows HOA (Case No. 19F-H18020-REL)

Executive Summary

This document synthesizes the findings and decision in the administrative hearing of Jerry R. Collis (Petitioner) versus the Laveen Meadows HOA (Respondent). The Administrative Law Judge dismissed Mr. Collis’s petition, which alleged the HOA had wrongly issued citations concerning his vehicle.

The central issue revolved around a series of violation notices issued to Mr. Collis for an “Inoperable Vehicle.” While Mr. Collis focused his argument on proving the vehicle was, in fact, operational, the HOA successfully argued that the citations were based on a broader set of violations. These included not only the vehicle’s condition under CC&R Section 10.11.4 but also violations for street parking (Section 10.11.2) and creating a nuisance (Section 10.16) due to its unsightly appearance, which included cobwebs, debris, a flat tire, and a covered window.

The Judge concluded that the petitioner, Mr. Collis, failed to meet the burden of proof. By only addressing the vehicle’s operability, he did not disprove the other valid grounds for the citations. Consequently, the Judge found that the HOA had not violated its own governing documents or state statutes, dismissing the petition and declaring the HOA the prevailing party.

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1. Case Overview and Core Dispute

• Case Number: 19F-H18020-REL

• Parties:

◦ Petitioner: Jerry R. Collis (representing himself)

◦ Respondent: Laveen Meadows HOA (represented by Chad Gallacher, Esq.)

• Adjudicator: Thomas Shedden, Administrative Law Judge

• Hearing Date: December 4, 2018

• Decision Date: December 20, 2018

The Petitioner’s Allegation

On September 17, 2018, Jerry R. Collis filed a petition with the Arizona Department of Real Estate. The initial Notice of Hearing framed the allegation as the Laveen Meadows HOA having violated Article 10, Section 10.11.4 of its Covenants, Conditions, and Restrictions (CC&Rs), which pertains to inoperable vehicles.

At the December 4, 2018 hearing, Mr. Collis clarified his position. He argued that the issue was not that the HOA itself could violate that section, but that the HOA had wrongly issued him citations alleging a violation of that provision when his vehicle was fully operational.

The Respondent’s Position

The Laveen Meadows HOA, represented by Community Manager Lisa Riesland, objected to this reframing of the issue. The HOA contended that the citations issued to Mr. Collis were justified under multiple sections of the CC&Rs, not solely the “inoperable vehicle” clause. The HOA’s actions were based on violations of Sections 10.11.2 (street parking), 10.11.4 (inoperable vehicle), and 10.16 (nuisance).

2. Relevant CC&R Provisions

The dispute centered on the interpretation and application of three specific sections within the Laveen Meadows HOA CC&Rs.

Section

Title / Subject

Description

10.11.4

Inoperable Vehicles

Prohibits any motor vehicle “which are not in operating condition” from being parked in unenclosed areas, including driveways. This section was amended in May 2013 to clarify the definition of “operating condition.”

10.11.2

Street Parking

Prohibits parking on the streets within the community.

Nuisances

Prohibits nuisances, which are defined to include conditions that are “unsightly or that could reasonably cause annoyance to other members of the Association.”

3. Analysis of Evidence and Timeline

Violation Notices and Fines

Between September 2016 and June 2017, the HOA sent seven notifications to Mr. Collis regarding his vehicle. A key finding from the hearing was that while all seven notices stated, “Violation: Vehicle Parking – Inoperable Vehicle,” none of them cited a specific provision of the CC&Rs.

The timeline of notifications and fines is as follows:

• September 19, 2016: Initial letter citing expired tags and an inoperable vehicle on the street. Given 10 days to correct.

• October 11, 2016: Letter warning of a potential $25 fine. Notified of appeal rights. No evidence of appeal by Collis.

• December 1, 2016: A $25 fine was charged to Mr. Collis’s account. Mr. Collis appealed this to the HOA Board.

• January 26, 2017: The HOA Board sent a letter to Mr. Collis denying his appeal.

• April 20, 2017: A $50 fine and a $10 mailing fee were charged. No evidence of appeal.

• May 9, 2017: A $100 fine and a $10 mailing fee were charged. No evidence of appeal.

• May 23, 2017: A $100 fine and a $10 mailing fee were charged. No evidence of appeal.

• June 8, 2017: A $100 fine and a $10 mailing fee were charged. No evidence of appeal.

• June 26, 2017: A $100 fine and a $10 mailing fee were charged. No evidence of appeal.

For each fine assessed from October 2016 onwards, the HOA’s letters informed Mr. Collis of his right to appeal to the Board and to request an administrative hearing. The record shows no evidence that Mr. Collis requested an administrative hearing for any of the fines prior to filing his petition in 2018.

Competing Testimonies

• Petitioner (Collis): Testified that his vehicle was never inoperable. He acknowledged that at the time of the June 2017 letters, the vehicle had a flat tire and a covered window, but explained this was the result of vandalism.

• Respondent (HOA): Community Manager Lisa Riesland provided testimony deemed “credible” by the Judge. She stated that the vehicle’s condition constituted a nuisance under Section 10.16. Specific details included:

◦ Cobwebs and debris on or beneath the vehicle.

◦ At various times, cobwebs extended from the vehicle to the ground, trapping leaves.

◦ The condition was deemed “unsightly.”

4. Legal Conclusions and Final Order

Burden of Proof

The Judge established that Mr. Collis, as the petitioner, bore the burden of proof. The standard required was a “preponderance of the evidence,” meaning evidence sufficient to incline a fair and impartial mind to one side of the issue over the other.

Judge’s Rationale

The decision rested on the following legal conclusions:

1. CC&Rs as a Contract: The CC&Rs constitute a binding contract between the homeowner and the HOA, requiring both parties to comply with its terms. The HOA must act reasonably in exercising its authority.

2. Multiple Grounds for Citations: The preponderance of evidence demonstrated that the HOA’s citations were based on violations of Sections 10.11.2 (street parking), 10.11.4 (inoperable vehicle), and 10.16 (nuisance).

3. Insufficiency of Petitioner’s Argument: Because the citations were multifaceted, Mr. Collis’s argument that his vehicle was in operating condition was insufficient to prove the citations were unwarranted. His claim did not address the evidence of street parking or the unsightly conditions that constituted a nuisance.

4. Failure to Meet Burden of Proof: Ultimately, the Judge concluded: “Mr. Collis has failed to show that the Respondent violated any of the CC&Rs, other community documents, or the statutes that regulate planned communities.”

Final Order

IT IS ORDERED that Petitioner Jerry R. Collis’s petition is dismissed.

The decision established the Laveen Meadows HOA as the prevailing party. This order is binding unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order (December 20, 2018).

Study Guide: Collis v. Laveen Meadows HOA

This guide provides a detailed review of the Administrative Law Judge Decision in the matter of Jerry R. Collis (Petitioner) versus Laveen Meadows HOA (Respondent), Case No. 19F-H18020-REL. It includes a short-answer quiz with an answer key, a set of essay questions for deeper analysis, and a glossary of key terms found within the legal document.

Short-Answer Quiz

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

1. Who were the primary parties involved in this administrative hearing, and who represented them?

2. What was the original violation Mr. Collis alleged against the Laveen Meadows HOA in his petition filed on September 17, 2018?

3. How did Mr. Collis clarify or reframe the issue he was raising during the December 4, 2018 hearing?

4. According to the HOA’s community manager, Lisa Riesland, what three CC&R sections were the basis for the citations issued to Mr. Collis?

5. What common phrase was used to describe the violation in all seven notifications sent to Mr. Collis, and what crucial detail did these notifications omit?

6. Describe the initial fine issued to Mr. Collis, including the date of the letter and the amount.

7. What physical evidence did the HOA present to support its claim that Mr. Collis’s vehicle created an “unsightly condition” under CC&R Section 10.16?

8. In addition to the unsightly conditions, what two other issues with the vehicle were noted around June 2017, and what was Mr. Collis’s explanation for them?

9. According to the “Conclusions of Law,” who bears the burden of proof in this matter, and what is the required standard of proof?

10. What was the final order issued by the Administrative Law Judge, and what was the legal consequence of this decision for the parties?

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Answer Key

1. The primary parties were Jerry R. Collis, the Petitioner, who appeared on his own behalf, and Laveen Meadows HOA, the Respondent. The Respondent was represented by Chad Gallacher, Esq.

2. Mr. Collis’s original petition, as shown in the Notice of Hearing, alleged that the Laveen Meadows HOA had violated Article 10, Section 10.11.4 of its own CC&Rs. This section pertains to parking motor vehicles that are not in operating condition in unenclosed areas.

3. At the hearing, Mr. Collis acknowledged the HOA could not violate its own rule and clarified that the real issue was that the HOA had wrongly issued him citations for violating Section 10.11.4. He argued that he was not, in fact, in violation of that provision.

4. Lisa Riesland testified that the citations were based not just on Section 10.11.4 (inoperable vehicles), but also on Section 10.11.2, which prohibits parking on the streets, and Section 10.16, which prohibits nuisances.

5. All seven notifications sent to Mr. Collis included the statement: “Violation: Vehicle Parking – Inoperable Vehicle.” However, none of the notifications listed a specific provision of the CC&Rs that had allegedly been violated.

6. The first fine was detailed in a letter dated December 1, 2016. The letter informed Mr. Collis that his account had been charged a $25 fine for the ongoing violation of storing an inoperable vehicle on the street.

7. The HOA presented credible testimony from Lisa Riesland that there were cobwebs and debris on or beneath the vehicle. At various times, these cobwebs extended from the vehicle to the ground and had trapped leaves, creating an unsightly condition.

8. Around June 2017, the vehicle also had a flat tire and a bag or cardboard covering one window. Mr. Collis acknowledged these facts and explained that the vehicle had been vandalized.

9. The “Conclusions of Law” state that Mr. Collis, the petitioner, bears the burden of proof. The standard of proof required to decide all issues in the matter is that of a “preponderance of the evidence.”

10. The Administrative Law Judge ordered that Mr. Collis’s petition be dismissed. This legally binding order deemed the Respondent (Laveen Meadows HOA) to be the prevailing party in the matter.

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Essay Questions

Instructions: The following questions are designed for longer, essay-style responses to encourage a deeper analysis of the case. Answers are not provided.

1. Analyze the discrepancy between Mr. Collis’s initial petition alleging a violation of Section 10.11.4 and the actual issue he raised at the hearing. How did this “reframing” of the issue affect his case, and how did the Respondent react?

2. Discuss the concept of “preponderance of the evidence” as defined in the document. Explain how the Administrative Law Judge applied this standard to the evidence presented by both Mr. Collis and the HOA to reach the final decision.

3. Trace the series of notifications and fines issued by the Laveen Meadows HOA, beginning with the September 19, 2016 letter. Evaluate the HOA’s process and communication based on the details provided in the letters. Did the HOA act reasonably, according to the legal standards cited in the decision?

4. The HOA cited three different CC&R sections (10.11.2, 10.11.4, and 10.16) as the basis for the citations, even though the notifications only stated “Vehicle Parking – Inoperable Vehicle.” Explore the significance of each of these sections and explain why Mr. Collis’s focus on his vehicle being operable was insufficient to win his case.

5. Examine the appeal options available to Mr. Collis at each stage of the violation process. Based on the “Findings of Fact,” what actions did he take or fail to take regarding his appeal rights, and how might this have impacted the overall trajectory of the dispute?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official (Thomas Shedden in this case) who presides over administrative hearings, weighs evidence, and makes legal rulings and decisions.

ARIZ. ADMIN. CODE

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

ARIZ. REV. STAT.

The Arizona Revised Statutes, which are the codified laws of the state of Arizona. Various sections are cited regarding homeowner association disputes and administrative procedures.

Appearances

A formal term for the individuals present and participating in the hearing. In this case, it was Jerry R. Collis and Chad Gallacher, Esq.

The governing body of the Laveen Meadows HOA, to which Mr. Collis had the right to appeal fines. He appealed one fine to the Board, which was denied.

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the burden of proof was on Mr. Collis.

CC&Rs (Covenants, Conditions & Restrictions)

The governing legal documents that set out the rules for a planned community or homeowners’ association. The decision establishes the CC&Rs as a contract between the HOA and its members.

Community Manager

An individual responsible for managing the operations of the HOA. Lisa Riesland served this role for the Respondent and testified at the hearing.

Conclusions of Law

The section of the decision where the Administrative Law Judge applies legal principles and statutes to the established facts to reach a judgment.

Findings of Fact

The section of the decision that lists the established, undisputed facts of the case based on evidence and testimony presented during the hearing.

Nuisance

A condition prohibited by CC&R Section 10.16. It is defined as a condition that is unsightly or could reasonably cause annoyance to other members of the Association.

Operating Condition

A term from CC&R Section 10.11.4, which was amended in May 2013 to clarify its meaning. Mr. Collis argued his vehicle was always in operating condition.

The final, legally binding ruling of the Administrative Law Judge. In this case, the Order was to dismiss the petitioner’s petition.

Petitioner

The party who initiates a legal action or files a petition. In this matter, Jerry R. Collis is the Petitioner.

Preponderance of the Evidence

The standard of proof required in this hearing. It is defined as “The greater weight of the evidence…sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Respondent

The party against whom a petition is filed. In this matter, Laveen Meadows HOA is the Respondent.

🏛️

19F-H18020-REL

1 source

The provided text consists of an Administrative Law Judge Decision from the Office of Administrative Hearings concerning a dispute between Petitioner Jerry R. Collis and the Laveen Meadows HOA, which is the Respondent. This decision addresses Mr. Collis’s petition alleging the HOA violated its CC&Rs by improperly issuing citations related to his vehicle. The Findings of Fact detail that Mr. Collis’s vehicle was cited for being inoperable, having expired tags, and creating an unsightly condition defined as a nuisance under multiple CC&R sections. Ultimately, the Conclusions of Law state that Mr. Collis failed to meet his burden of proof to show the HOA violated any community documents or statutes, leading to the dismissal of his petition.

Case Participants

Petitioner Side

Jerry R. Collis (petitioner)

Respondent Side

Chad Gallacher (HOA attorney)
Maxwell & Morgan, P.C.
Counsel for Respondent Laveen Meadows HOA
Lisa Riesland (community manager)
Laveen Meadows HOA
Testified for Respondent

Neutral Parties

Thomas Shedden (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate

Other Participants

f del sol (admin support)
Signed copy distribution notice

Brent J Mathews v. American Ranch Community Association

Posted on October 9, 2018 by [email protected]

Case Summary

Case ID	18F-H1818050-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-10-11
Administrative Law Judge	Tammy L. Eigenheer
Outcome	The Administrative Law Judge dismissed the Petition because the Petitioner failed to prove the Respondent Board violated the Bylaws. The Board was found to have the necessary authority under Bylaws Section 3.11 to enter into the Well Agreement 2 as a variance, and this action did not constitute an improper amendment of the CC&Rs.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Brent J. Mathews	Counsel	—
Respondent	American Ranch Community Association	Counsel	Lynn Krupnik and Timothy Krupnik

Alleged Violations

American Ranch Bylaws, Article 3.11

Outcome Summary

The Administrative Law Judge dismissed the Petition because the Petitioner failed to prove the Respondent Board violated the Bylaws. The Board was found to have the necessary authority under Bylaws Section 3.11 to enter into the Well Agreement 2 as a variance, and this action did not constitute an improper amendment of the CC&Rs.

Why this result: The Board was authorized to grant a variance to the CC&Rs regarding the well on Lot 2, a power delegated to the Association, meaning the Board did not exceed its authority under the Bylaws.

Key Issues & Findings

Alleged violation of the American Ranch Bylaws, Article 3.11, when the Board entered into the 'Well Agreement' (Well Agreement 2).

Petitioner asserted that the Board violated the Bylaws by entering into Well Agreement 2, claiming the Board lacked the authority to grant exceptions or variances to the CC&Rs regarding the use of a private water well on Lot 2. The Board agreed the well existed in violation of CC&Rs Section 3.26, but argued Well Agreement 2 constituted a variance, not an amendment.

Orders: The Petition was dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

A.R.S. § 41-2198.01
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09

Analytics Highlights

Topics: HOA authority, Bylaws 3.11, CC&Rs, Variance, Amendment, Well Agreement, Burden of Proof, Dismissal

Additional Citations:

A.R.S. § 41-2198.01
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

18F-H1818050-REL Decision – 664186.pdf

Uploaded 2026-04-24T11:13:46 (112.4 KB)

18F-H1818050-REL Decision – 664186.pdf

Uploaded 2026-01-23T17:24:56 (112.4 KB)

Briefing Document: Mathews v. American Ranch Community Association

Executive Summary

This briefing document outlines the findings and decision in case number 18F-H1818050-REL, a dispute between Petitioner Brent J. Mathews and the American Ranch Community Association (HOA). The Administrative Law Judge dismissed the petition, concluding that Mr. Mathews failed to prove his allegations by a preponderance of the evidence.

The central issue was whether the HOA’s Board of Directors violated Article 3.11 of its Bylaws by entering into a “Well Agreement” with the owners of Lot 2 on August 9, 2016. The Petitioner argued that this agreement constituted an unauthorized amendment to the community’s Covenants, Conditions, and Restrictions (CC&Rs) because the Board does not have the power to grant exceptions.

The judge found this argument “faulty,” determining that the agreement was not an amendment but a variance. The CC&Rs explicitly grant the authority to issue variances to the Architectural Review Committee. Per the Bylaws, the Board is empowered to exercise any authority delegated to the Association that is not specifically reserved for the general membership. Therefore, the judge concluded that the Board acted within its authority when it executed the agreement. The decision was based on the Board’s need to resolve a problematic prior agreement under time-sensitive circumstances related to a property sale.

1. Case Overview

Case Number

18F-H1818050-REL

Petitioner

Brent J. Mathews

Respondent

American Ranch Community Association

Hearing Date

September 21, 2018

Decision Date

October 11, 2018

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

The dispute originated from a petition filed by Brent J. Mathews on May 16, 2018, with the Arizona Department of Real Estate. The core of the complaint was an alleged Open Meeting Violation concerning an “Action Outside of Meeting” that resulted in a “Well Agreement” between the Association and homeowners Mark and Diane Kaplan.

2. Petitioner’s Core Allegation

After being directed to clarify his petition to a single issue, Mr. Mathews submitted the following statement on August 23, 2018:

“When the Board entered into the ‘Well Agreement’ they may have assumed they had the power to grant exceptions to the CC&R’s. The American Ranch Community Association Bylaws do not empower the Board to grant exceptions to the CC&R’s. Therefore the single complaint is an alleged violation of the American Ranch Bylaws, Article 3.11.”

The Petitioner’s legal argument was that the Board’s action in creating the “Well Agreement 2” was effectively an amendment of the CC&Rs. According to Section 9.3.1 of the CC&Rs, amendments require the written approval or affirmative vote of 75 percent of the total owners. Since this did not occur, the Petitioner concluded the Board lacked the authority to enter into the agreement.

3. Factual Background and Chronology of Events

The case revolves around a water well on Lot 2 of the American Ranch community, which was installed in violation of the governing documents.

A water well is installed on Lot 2. This installation violates Section 3.26 of the CC&Rs, which prohibits wells on all lots except Equestrian Lots and, even then, only with prior approval from the Architectural Review Committee (ARC) for specific purposes.

June 2011

The owners of Lot 2 and the HOA Board enter into the first “Well and Easement Agreement” (Well Agreement 1). This agreement permitted the continued use of the well for irrigation but required the owners to install a water meter and pay the HOA for water usage at the same rate as the local water district.

November 23, 2013

Lot 2 is sold to Steven and Frances Galliano.

July 30, 2016

Mark and Diane Kaplan, who are in escrow to purchase Lot 2, email the Community Manager, Tiffany Taylor. They express concern over Well Agreement 1 and state they cannot proceed with the purchase without clarity on the HOA’s position. They also note that the Gallianos told them they had never been charged for water from the well.

August 2016

Facing a time-sensitive situation due to the pending property sale, the HOA Board decides to enter into a new agreement to invalidate Well Agreement 1. The Board’s decision was based in part on the belief that it lacked the authority to enter into the original agreement, specifically because it had no power to bill residents for water usage—a function of the water district.

August 9, 2016

The HOA Board and the Kaplans execute a new “Well Agreement” (Well Agreement 2). This agreement permits the continued use of the well for irrigation purposes but explicitly states the owners will not be billed for the water used.

4. Administrative Law Judge’s Findings and Legal Reasoning

The Judge’s decision rested on a critical distinction between a CC&R amendment and a variance, and a detailed analysis of the powers granted to the Board by the governing documents.

A. Burden of Proof

The Petitioner, Brent J. Mathews, bore the burden of proof to establish that the HOA committed the alleged violation by a “preponderance of the evidence.” This standard requires proof that a contention is more probably true than not.

B. Variance vs. Amendment

The central point of the Judge’s legal conclusion was the rejection of the Petitioner’s argument.

• Petitioner’s Argument: Well Agreement 2 was an amendment to the CC&Rs.

• Judge’s Finding: The argument is “faulty.” The decision states, “A variance granted to an individual owner from a restriction under the CC&Rs does not constitute an amendment of the CC&Rs.”

The Judge found that the CC&Rs themselves, in Section 3.31, provide a specific mechanism for granting variances. The ARC is authorized to grant variances in “extenuating circumstances” if a restriction creates an “unreasonable hardship or burden” and the variance does not have a “substantial adverse effect” on the community.

C. The Board’s Delegated Authority

The Judge established a clear chain of authority that empowered the Board to act as it did:

1. CC&R Section 3.31: Delegates the power to grant variances to the Architectural Review Committee.

2. Bylaw Section 3.11.8: States the Board shall have the power to “Exercise for the Association all powers, duties and authority vested in or delegated to the Association and not reserved to the membership by other provisions of the Project Documents.”

3. Conclusion: Because the power to grant variances was delegated to the ARC (and thus to the Association) and not reserved for the membership, the Board had the authority to grant the variance embodied in Well Agreement 2.

5. Final Order

Based on the foregoing analysis, the Administrative Law Judge issued the following order:

• Decision: The Petition filed by Brent J. Mathews is dismissed.

• Reasoning: “Petitioner failed to establish by a preponderance of the evidence that the Board of Directors lacked the authority to enter into Well Agreement 2. Thus, Petitioner failed to sustain his burden to establish a violation of Section 3.11 of the Bylaws.”

The order was finalized and transmitted to the parties on October 11, 2018.

Study Guide: Mathews v. American Ranch Community Association (Case No. 18F-H1818050-REL)

This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Brent J. Mathews and Respondent American Ranch Community Association. It is designed to test and deepen understanding of the facts, legal arguments, and final ruling presented in the source document.

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Short-Answer Quiz

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

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

2. What was the initial, overarching subject of Brent J. Mathews’s complaint filed on May 16, 2018?

3. After being asked to clarify, what single issue did the Petitioner choose to proceed with for the hearing?

4. According to the CC&Rs, what are the specific rules regarding the use of water wells on lots within American Ranch?

5. What were the key terms of “Well Agreement 1,” established in June 2011 with the original owners of Lot 2?

6. Why did the American Ranch Board of Directors believe they lacked the authority to enforce “Well Agreement 1”?

7. What were the terms of “Well Agreement 2,” which was executed on August 9, 2016, with the new owners of Lot 2, the Kaplans?

8. What was Petitioner Mathews’s primary legal argument against the Board’s authority to enter into “Well Agreement 2”?

9. How did the Administrative Law Judge distinguish between a “variance” and an “amendment” to the CC&Rs in the final decision?

10. What was the final order issued by the Administrative Law Judge on October 11, 2018?

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Answer Key

1. The primary parties were Petitioner Brent J. Mathews, who filed the complaint, and Respondent American Ranch Community Association (HOA), which was the subject of the complaint. Mathews represented himself, while the Association was represented by Lynn Krupnik and Timothy Krupnik.

2. The initial complaint’s subject was an “Open Meeting Violation regarding an ‘Action Outside of Meeting’” that took place on August 6, 2016. This action concerned the Association entering into a “Well Agreement” with Mark and Diane Kaplan.

3. The Petitioner clarified his single issue was an alleged violation of the American Ranch Bylaws, Article 3.11. He argued that the Board entered into the “Well Agreement” assuming they had the power to grant exceptions to the CC&Rs, a power he claimed the Bylaws did not grant them.

4. Section 3.26 of the CC&Rs prohibits water wells on all lots except Equestrian Lots. On Equestrian Lots, wells are permitted only with prior written approval from the Architectural Review Committee and must be used solely to irrigate pasture land and provide drinking water for horses.

5. “Well Agreement 1” acknowledged that the owners of Lot 2 were using their well for irrigation in violation of the CC&Rs. The agreement allowed them to continue this use, provided they installed a water meter and paid the Association the same per-gallon charge as other owners paid to the water district.

6. The Board of Directors believed they did not have the authority to enter into “Well Agreement 1” because they had no ability or authority to bill the lot owners for water used from a private well. They reasoned that billing for water was the responsibility of the water district, not the HOA.

7. “Well Agreement 2” stated that the private water well on Lot 2 would continue to be used for irrigation purposes. Crucially, it specified that the owners (the Kaplans) would not be billed for the water used from this well.

8. Petitioner Mathews argued that “Well Agreement 2” constituted an amendment of the CC&Rs. He contended that under Section 9.3.1 of the CC&Rs, an amendment requires the written approval or affirmative vote of 75 percent of the total owners, and therefore the Board acted outside its authority.

9. The Judge ruled that “Well Agreement 2” was a variance granted to an individual owner, not an amendment to the CC&Rs. The CC&Rs specifically provide a method for granting variances via the Architectural Review Committee, and this power is delegated to the Association and thus exercisable by the Board.

10. The final order, issued on October 11, 2018, was that the Petition be dismissed. The Judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the Board of Directors lacked the authority to enter into “Well Agreement 2.”

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Essay Questions

Instructions: The following questions are designed for a more in-depth, essay-style response. Use the case document to construct a thorough and well-supported argument for each prompt. Answers are not provided.

1. Analyze the evolution of the dispute, from the initial installation of the well on Lot 2 to the final Administrative Law Judge Decision. Discuss the key events and agreements (Well Agreement 1 and Well Agreement 2) and explain how each contributed to the legal conflict.

2. Explain the legal reasoning used by the Administrative Law Judge to dismiss the Petitioner’s claim. Detail the specific sections of the Bylaws and CC&Rs cited (3.11, 3.26, 3.31, 9.3.1) and explain the distinction the Judge made between a “variance” and an “amendment.”

3. Discuss the concept of “burden of proof” as it applies to this case. Who held the burden of proof, what was the required standard (“preponderance of the evidence”), and why did the Petitioner ultimately fail to meet this standard?

4. Evaluate the actions of the American Ranch Community Association Board of Directors regarding Lot 2’s well. Discuss their reasoning for invalidating Well Agreement 1 and creating Well Agreement 2, and analyze whether their actions were consistent with the powers granted to them by the community’s governing documents.

5. Based on the procedural history outlined in the “Findings of Fact,” describe the process of an HOA dispute in this jurisdiction, from the initial filing of a petition to the final order from the Office of Administrative Hearings.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official (Tammy L. Eigenheer) who presides over administrative hearings and issues a decision on the matter.

A.R.S. (Arizona Revised Statutes)

The statutory laws of the state of Arizona, sections of which regulate planned communities and the administrative hearing process.

Architectural Review Committee

A body within the Association delegated the authority by the CC&Rs (Section 3.31) to grant variances from certain restrictions in extenuating circumstances.

Board of Directors

The governing body of the American Ranch Community Association, which has the powers and duties necessary for administering the Association’s affairs.

Burden of Proof

The obligation of a party in a legal case to prove their claims. In this case, the Petitioner had the burden to establish the alleged violations.

Bylaws

The rules governing the internal administration of the Association. Petitioner alleged a violation of Bylaw 3.11, which outlines the powers and duties of the Board.

Covenants, Conditions, and Restrictions. These are the governing documents that set rules for properties within the community, such as the prohibition of certain water wells (Section 3.26).

Department

Refers to the Arizona Department of Real Estate, the agency with which the initial Homeowners Association Dispute Process Petition was filed.

Office of Administrative Hearings

An independent state agency to which the Department refers HOA dispute cases for a formal hearing.

Petition

The formal document filed by Brent J. Mathews to initiate the HOA dispute process with the Arizona Department of Real Estate.

Petitioner

The party who brings the legal action or complaint. In this case, Brent J. Mathews.

Preponderance of the Evidence

The standard of proof required in this hearing. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”

Respondent

The party against whom the petition is filed. In this case, the American Ranch Community Association.

Variance

An officially granted exception from a restriction in the CC&Rs for an individual owner. The Judge determined Well Agreement 2 was a variance, not an amendment.

Well Agreement 1

A June 2011 agreement that allowed the owners of Lot 2 to use a non-compliant well for irrigation, provided they paid the Association for the water.

Well Agreement 2

An August 2016 agreement that invalidated Well Agreement 1 and allowed the new owners of Lot 2 (the Kaplans) to continue using the well for irrigation without being billed for the water.

Your HOA Board Might Be More Powerful Than You Think: 3 Lessons from a Legal Showdown

1.0 Introduction: The Predictable Fight with an Unpredictable Outcome

It’s a scenario familiar to many homeowners: you suspect your Homeowners Association (HOA) board is playing favorites, bending the rules for one resident while holding everyone else to the letter of the law. This feeling of frustration often leads to heated disputes, but what happens when a homeowner decides to take that fight to court? You might expect a simple verdict based on the community’s clear, written rules.

That’s exactly what homeowner Brent J. Mathews thought. He discovered his HOA board had made a special agreement with a neighbor, allowing a water well that clearly violated the community’s governing documents. He filed a formal complaint, arguing the board had illegally overstepped its authority.

The case that followed, however, didn’t turn on one obvious rule. Instead, the judge’s decision hinged on how different governing documents—the CC&Rs and the Bylaws—interact. The outcome reveals some surprising and counter-intuitive truths about where power really lies within an HOA, offering critical lessons for every homeowner.

2.0 Takeaway 1: A Special Exception Isn’t the Same as Changing the Rules for Everyone

Mr. Mathews’ central argument was straightforward and, on its face, perfectly logical. He contended that the board’s “Well Agreement 2” with his neighbor was effectively an amendment to the community’s Covenants, Conditions, and Restrictions (CC&Rs).

According to the community’s CC&Rs (Section 9.3.1), amending the rules is a serious undertaking that requires the written approval of 75 percent of all homeowners. The board clearly did not have this approval, so it seemed to be a clear-cut case of an illegal action. Many homeowners would have made the same reasonable assumption: the board can’t just change the rules on its own.

However, the judge found a critical distinction. The board’s action was not an “amendment”—a permanent change to the rules for the entire community. Instead, it was legally considered a “variance”—a one-time exception granted to a single homeowner. Because the CC&Rs contained a separate, specific process for granting variances (Section 3.31), the board was not illegally rewriting the rulebook; it was simply using a different, pre-existing tool in the governing documents.

3.0 Takeaway 2: The Board Can Wield Powers Given to Its Own Committees

This distinction raised another logical objection. The CC&Rs (Section 3.31) explicitly state that the power to grant variances belongs to the “Architectural Review Committee” (ARC), not the Board of Directors. It appeared Mr. Mathews had found his checkmate: even if the action was a variance, the wrong body had granted it.

This is where the case took its most surprising turn. The judge looked beyond the CC&Rs and consulted a different governing document: the Bylaws. This document contained a foundational clause about the board’s authority that proved decisive.

According to Bylaw 3.11.8, the Board of Directors is empowered to exercise any authority of the Association that is not specifically and exclusively reserved for the members themselves. Since the power to grant variances was delegated to a committee (the ARC) and not reserved for a vote by the general membership, the Board had the authority to step in and exercise that power itself. The judge’s decision made this clear.

“As the power to grant variances was delegated to the Architectural Review Committee and was not reserved to the membership, the Board had the authority to grant such a variance.”

This finding reveals a crucial principle of HOA governance: powers delegated to a committee are not the same as powers reserved for the entire membership. Unless a power is explicitly reserved for a member vote, the Bylaws can grant the Board ultimate authority over it.

4.0 Takeaway 3: A Messy History Can Justify an Unusual Solution

While the legal arguments are complex, the context behind the board’s decision is equally important. The board wasn’t making a special deal out of the blue; it was trying to solve a messy problem it had inherited.

The well on Lot 2 was originally installed around 2007 in violation of Section 3.26 of the CC&Rs. The board’s first attempt to fix this, “Well Agreement 1” in or about June 2011, allowed the well’s use but required the owner to pay the association for the water consumed. This arrangement, however, was deeply flawed.

When new buyers (the Kaplans) were in escrow to purchase the property in 2016, the situation came to a head. The Kaplans discovered the unusual agreement and informed the board they would be “unable to proceed with the purchase” unless its status was clarified. With the real estate deal on the line, the board recognized that “time was of the essence.”

The board’s decision to execute “Well Agreement 2” was driven by two realities. First, they believed the original agreement was legally invalid, as the board had no authority to bill a resident for water. Second, the agreement was a failure in practice; the Kaplans had been told by the prior owners that “they had never been charged for the water used from the well.” Facing an unenforceable and un-enforced agreement that was now threatening a home sale, the board acted pragmatically to resolve the decade-old violation once and for all.

5.0 Conclusion: Know the Rules—And Who Has the Power to Bend Them

The core lesson from this case is that HOA governance is a complex web of interlocking documents. The rules you read in the CC&Rs might not tell the whole story. Power and authority can be defined, and even transferred, by provisions buried in the Bylaws or other governing texts. What may seem like an obvious violation can be justified by a clause a homeowner might easily overlook.

This case is a powerful reminder for every homeowner. It’s not enough to know the rules of your community. You also need to understand the system of governance that enforces, interprets, and sometimes, grants exceptions to them. It prompts a critical question: Do you know not just the rules in your community, but who really has the authority to grant exceptions?

Case Participants

Petitioner Side

Brent J. Mathews (petitioner)
Appeared on his own behalf

Respondent Side

Lynn Krupnik (attorney)
Krupnik & Speas, PLLC
Represented Respondent
Timothy Krupnik (attorney)
Krupnik & Speas, PLLC
Represented Respondent
Tiffany Taylor (community manager)
American Ranch Community Association
Testified for Respondent
Brad Baker (board member)
American Ranch Community Association
Respondent Vice President; testified at hearing

Neutral Parties

Tammy L. Eigenheer (ALJ)
OAH
Judy Lowe (commissioner)
Arizona Department of Real Estate
Felicia Del Sol (administrative staff)
Signed transmission page
LDettorre (ADRE staff)
Arizona Department of Real Estate
Decision recipient
AHansen (ADRE staff)
Arizona Department of Real Estate
Decision recipient
djones (ADRE staff)
Arizona Department of Real Estate
Decision recipient
DGardner (ADRE staff)
Arizona Department of Real Estate
Decision recipient
ncano (ADRE staff)
Arizona Department of Real Estate
Decision recipient

Other Participants

Mark Kaplan (owner)
Lot 2
Executed Well Agreement 2
Diane Kaplan (owner)
Lot 2
Executed Well Agreement 2
Steven Galliano (former owner)
Lot 2
Frances Galliano (former owner)
Lot 2