Administrative Hearing Briefing: Berent v. Bell West Ranch Homeowners Association

Executive Summary

This document provides a comprehensive analysis of the administrative hearing decision in case number 18F-H1818047-REL, involving petitioners Michael and Nancy Berent and the respondent, Bell West Ranch Homeowners Association (HOA). The core of the dispute was the HOA’s 2015 approval of a driveway extension for the Berents’ neighbors, which the Berents alleged violated multiple HOA Covenants, Conditions, and Restrictions (CC&Rs) as well as Arizona state law.

On September 11, 2018, Administrative Law Judge (ALJ) Tammy L. Eigenheer issued a decision dismissing the Berents’ petition in its entirety. The judge concluded that the petitioners failed to meet their burden of proof—to establish their claims by a preponderance of the evidence—on all four of their central allegations. Specifically, the ALJ found no violation regarding the composition of the HOA’s Architectural Review Committee (ARC), the interpretation of CC&Rs concerning structures and easements, or the HOA’s discretionary authority to enforce its rules.

Notably, a subsequent “Minute Entry” filed on March 8, 2022, indicates that the Office of Administrative Hearings (OAH) had been receiving further documents from the petitioners years after the case was closed. The OAH clarified that it no longer had jurisdiction and would take no further action on the matter.

1. Case Overview

The dispute was adjudicated by the Arizona Office of Administrative Hearings after the petitioners filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate on April 26, 2018.

Case Detail

Information

Case Number

18F-H1818047-REL

Petitioners

Michael and Nancy Berent

Respondent

Bell West Ranch Homeowners Association

Office of Administrative Hearings (Phoenix, Arizona)

Tammy L. Eigenheer

Hearing Dates

August 15, 2018, and August 22, 2018

Decision Date

September 11, 2018

2. Central Allegations and Rulings

At the hearing, the petitioners’ claims were clarified into four distinct allegations of violation by the HOA. The ALJ ruled against the petitioners on every count, finding they failed to provide sufficient evidence.

2.1. Allegation 1: Violation of CC&R Section 6.02 (ARC Membership)

• Petitioner’s Claim: Ms. Berent argued that the Architectural Review Committee (ARC) was not properly composed of the required three members when it approved the neighbor’s driveway application. Her evidence consisted of Board of Directors meeting minutes from 2015 and 2016 that listed only a single individual (Ken Hawkins or Larry Bolton) as presenting the ARC report. She contended this proved the ARC had only one member at those times.

• Respondent’s Position: Regis Salazar of VISION Community Management testified that the ARC consisted of three members at all relevant times. She explained that the meeting minutes cited by the petitioner merely identified the individual presenting the committee’s report to the board, not the entire committee’s membership.

• ALJ’s Conclusion: No violation found. The petitioners failed to establish a violation. The respondent’s testimony provided a credible explanation for the format of the meeting minutes, which was the petitioners’ only evidence for this claim.

2.2. Allegation 2: Violation of CC&R Section 8.02 (Structures & Municipal Codes)

• Petitioner’s Claim: Ms. Berent testified that the ARC should not have approved the driveway application because it demonstrated a clear violation of City of Surprise municipal codes on its face, specifically asserting the 10-foot extension caused the driveway to exceed 50 percent of the front lot line. The CC&Rs require structures to comply with municipal regulations.

• Respondent’s Position: Ms. Salazar stated that the HOA places the responsibility on each homeowner to ensure their projects comply with all applicable municipal codes. The ARC does not independently verify compliance. The approval notice sent to the neighbor explicitly stated, “You also must follow all local building codes and setback requirements, if applicable.“

• ALJ’s Conclusion: No violation found. The petitioners failed to establish that the driveway qualified as a “structure” under the definition relevant to Section 8.02. Furthermore, the judge noted that even if it were considered a structure, the HOA did not have a duty or responsibility under this CC&R section to pre-emptively enforce municipal codes.

2.3. Allegation 3: Violation of CC&R Section 8.06 (Obstruction of Easements)

• Petitioner’s Claim: Ms. Berent testified that a fire hydrant located near the property line constituted a “public utility easement” and that the neighbor’s driveway extension was a structure placed upon it, interfering with its use in violation of the CC&Rs.

• Respondent’s Position: Ms. Salazar testified she was not aware of any public utility easement associated with the fire hydrant.

• ALJ’s Conclusion: No violation found. The petitioners failed on two points. First, they presented “no evidence to establish that the fire hydrant at issue constituted a public utility easement.” Second, even assuming it was an easement, they failed to prove the driveway obstructed it. This conclusion was decisively supported by Ms. Berent’s own testimony, in which she “acknowledged… that a residential fire occurred two houses away from her and the fire department had to use the fire hydrant… the fire hose was running across Neighbors’ driveway during that time.” This demonstrated the hydrant remained fully accessible and usable.

2.4. Allegation 4: Violation of A.R.S. § 33-1803(B) (Failure to Enforce)

• Petitioner’s Claim: Ms. Berent argued that “common sense” required the HOA to enforce its CC&Rs and penalize the neighbors for the violations, drawing a comparison to the HOA sending her notices for weeds in her yard.

• Respondent’s Position: The HOA argued that it chose not to pursue enforcement action against the neighbors because the City of Surprise, after issuing an initial Notice of Ordinance Violation, had itself “declined to pursue any further enforcement action.”

• ALJ’s Conclusion: No violation found. The judge pointed to the “plain language” of the statute, which states the board of directors may impose penalties, establishing this as a discretionary power, not a mandatory duty. Nothing in the statute required the HOA to take enforcement action. The HOA’s decision not to act, mirroring the city’s own lack of follow-up, was a valid exercise of its authority.

3. Key Chronology of Events

• July 7, 2015: The petitioners’ neighbors submit an “Application for Design Review” to install a 10-foot by 35-foot concrete driveway extension.

• July 15, 2015: The HOA’s Architectural Review Committee (ARC) approves the application.

• July 17, 2015: VISION Community Management sends an approval notice to the neighbors with conditions, including adherence to a 13-inch property line setback and all local building codes.

• August 2015: The neighbors begin construction. The petitioners email the HOA board to complain about the project, questioning city approval and raising concerns about a nearby fire hydrant.

• May 16, 2016: The City of Surprise issues a “Notice of Ordinance Violation” to the neighbors, stating a “driveway extension was added contrary to code requirements.”

• Post-May 2016: The City of Surprise takes no further enforcement action against the neighbors.

• April 26, 2018: The Berents file their HOA Dispute Petition.

• August 15 & 22, 2018: The administrative hearing is held.

• September 11, 2018: The ALJ issues the final decision, ordering that the petition be dismissed in its entirety.

• March 8, 2022: The ALJ issues a “Minute Entry – Document Reject,” noting that the OAH has no jurisdiction and will not consider further documents submitted by the petitioners.

4. Post-Decision Developments

On March 8, 2022, nearly three and a half years after the case was closed, ALJ Tammy L. Eigenheer issued a “Minute Entry – Document Reject.” This entry states:

“It is unclear why the Office of Administrative Hearings was sent these documents as the decision in this matter was issued on September 11, 2018, and the Office of Administrative Hearings has had no jurisdiction in this matter since that time.”

The entry advises the petitioners that no documents sent after the decision would be considered and that “no further response will be provided from the Office of Administrative Hearings” for any future filings.

5. Quoted Provisions and Statutes

The case revolved around the interpretation of the following sections of the Bell West Ranch Homeowners Association CC&Rs and Arizona Revised Statutes.

• CC&R Section 6.02 (Membership):

• CC&R Section 8.02 (Restrictions Apply to All Structures):

• CC&R Section 8.06 (No Obstruction of Easements):

• A.R.S. § 33-1803(B):