Tag Archives: CC&R

Harry G. Turner v. MountainGate Home Owners Association, Inc.

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Case Summary

Case ID 23F-H045-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-14
Administrative Law Judge Brian Del Vecchio
Outcome The Administrative Law Judge dismissed the petition, finding that Petitioner Harry G. Turner failed to meet his burden of proof to demonstrate that the Mountain Gate Home Owners Association, Inc. violated Article 10 Section 4 of the CC&Rs by planning drainage construction in Tract H.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Harry G. Turner Counsel —
Respondent Mountain Gate Home Owners Association, Inc. Counsel —

Alleged Violations

Article 10 Section 4 of the CC&Rs

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that Petitioner Harry G. Turner failed to meet his burden of proof to demonstrate that the Mountain Gate Home Owners Association, Inc. violated Article 10 Section 4 of the CC&Rs by planning drainage construction in Tract H.

Why this result: Petitioner failed to provide sufficient evidence to reconcile conflicting designations of Tract H in the plat map (Preserved/Active Open Space vs. Drainage), thus failing to prove that the drainage ditch constituted a prohibited change of use.

Key Issues & Findings

Required membership vote for common area use change (Tract H drainage ditch)

Petitioner alleged the HOA (Respondent) violated CC&Rs Article 10 Section 4 by planning to dig a drainage ditch in Tract H, arguing this was a change of use requiring a 2/3rds membership vote. Respondent argued Tract H was already designated for drainage in the 'Conveyance and Dedication' portion of the plat map, negating the need for a vote.

Orders: Petitioner's petition is dismissed. Petitioner's request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • Article 10 Section 4 of the Declaration of Covenants, Conditions, Restrictions and Easements for Mountain Gate Homes, a Townhouse Project

Analytics Highlights

Topics: HOA, CC&R, Drainage, Common Area, Change of Use, Burden of Proof, Planned Community, Plat Map
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • Article 10 Section 4 of the Declaration of Covenants, Conditions, Restrictions and Easements for Mountain Gate Homes, a Townhouse Project

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Video Overview

Audio Overview

Decision Documents

23F-H045-REL Decision – 1055488.pdf

Uploaded 2026-01-23T17:56:36 (49.7 KB)

23F-H045-REL Decision – 1057334.pdf

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23F-H045-REL Decision – 1083773.pdf

Uploaded 2026-01-23T17:56:42 (105.1 KB)

This summary addresses the Administrative Law Judge (ALJ) hearing in the matter of Harry G. Turner v. MountainGate Home Owners Association, Inc., Case No. 23F-H045-REL. The hearing was conducted by Administrative Law Judge Brian Del Vecchio on July 24, 2023.

Key Facts and Main Issue

The Petitioner, Harry G. Turner, a MountainGate Homes property owner and member of the Association, challenged the Respondent Home Owners Association's (HOA) plan, announced November 14, 2022, to dig a drainage ditch in Tract H of the subdivision. The core legal issue before the Office of Administrative Hearings (OAH) was whether the HOA violated Article 10 Section 4 of the CC&Rs (Declaration of Covenants, Conditions, Restrictions and Easements).

Article 10 Section 4 requires the Board to secure approval from not less than two-thirds (2/3rds) of the members voting if they adopt a resolution to change the use of a specified part of the Common Areas. The dispute centered on the established classification of Tract H: if Tract H was already designated for drainage, implementing the ditch would not be a change of use and would not require a vote; if it was designated solely as "open space," a vote would be required.

Key Arguments

Petitioner's Argument (Harry G. Turner):

The Petitioner argued that the Board violated the CC&Rs by moving forward with the ditch without a membership vote. Turner contended that Tract H was designated as "Preserved/Active Open Space" according to the "Tract Data" portion of the plat map and the Subdivision Disclosure Reports. He also presented evidence, including certified engineering reports, suggesting that the necessary drainage facilities were completed or certified as "as built" during the community's transition from condominiums to townhomes between 2006 and 2010. Turner shared a prior legal opinion recommending a membership vote due to the ambiguity surrounding whether the ditch constituted a "change of use". He asserted that the HOA was attempting new construction on common area designated as passive open space.

Respondent's Argument (MountainGate HOA, represented by Michael Luden and witness Brenda Anderson):

The Respondent denied violating the CC&Rs, arguing that no change protocols were needed because Tract H has always been dedicated for drainage. The HOA pointed to the "Conveyance and Dedication" portion of the plat maps (dating from 2006, 2008, and 2010), which explicitly listed Tract H as common area to be used for "open space, landscaping, and drainage". The HOA argued that the drainage plan approved by certified engineers was never fully implemented by the original developers, resulting in severe flooding experienced by neighbors along the northern edge of the property (Tract H). Therefore, the HOA was merely implementing an *original* intended use, not changing the use.

Final Decision and Legal Outcome

The ALJ determined that the Petitioner bore the burden of proving by a preponderance of the evidence that the Respondent violated Article 10 Section 4 of the CC&Rs.

The ALJ found that Petitioner failed to meet this burden. The evidence showed a conflict in the governing documents: the plat map described Tract H as "Preserved/Active Open Space" in the "Tract Data" section, but designated it for "drainage" in the "Conveyance and Dedication" section. Since neither party presented sufficient evidence to establish which description controlled the legal designation of Tract H, the Petitioner could not definitively prove that Tract H was *not* classified as drainage.

The ALJ concluded that the Respondent did not violate Article 10 Section 4 of the CC&Rs. Petitioner’s petition was dismissed, and the request to levy a civil penalty against the Respondent was denied.

Questions

Question

Who is responsible for proving that an HOA violated the community's CC&Rs in an administrative hearing?

Short Answer

The petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

In a hearing before the Office of Administrative Hearings, it is not the HOA's job to disprove the allegations initially. The homeowner must provide sufficient evidence to prove the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 10 Section 4 of the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

  • legal standards
  • procedure

Question

What is the legal standard of evidence required to win a case against an HOA?

Short Answer

The standard is a 'preponderance of the evidence,' meaning the claim is more probable than not.

Detailed Answer

The homeowner does not need to prove the violation beyond a reasonable doubt. They must simply show that their version of events or interpretation of the documents is more likely true than the HOA's version.

Alj Quote

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Legal Basis

Preponderance of Evidence

Topic Tags

  • evidence
  • legal definitions

Question

What happens if community documents (like a plat map) contain conflicting descriptions of a common area?

Short Answer

If the homeowner cannot prove why their preferred description should control, they fail to meet their burden of proof, and the case may be dismissed.

Detailed Answer

In this case, one section of the plat map described the land as 'Open Space' while another described it as 'Drainage.' Because the homeowner could not legally establish why the 'Open Space' description superseded the 'Drainage' description, the judge ruled against them.

Alj Quote

Neither party presented sufficient evidence to determine why their characterization of Tract “H” controlled. Petitioner bears the burden of proof and has failed to provide sufficient evidence to meet his burden.

Legal Basis

Burden of Proof

Topic Tags

  • document interpretation
  • common areas

Question

Does the Department of Real Estate have jurisdiction over CC&R disputes?

Short Answer

Yes, they have jurisdiction over disputes between owners and associations regarding violations of community documents or statutes.

Detailed Answer

Homeowners can petition the department for a hearing regarding alleged violations of the community's governing documents (CC&Rs) or state laws regulating planned communities.

Alj Quote

This matter lies within the Department’s jurisdiction… regarding a dispute between an owner and a planned community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • regulatory authority

Question

If an HOA modifies a common area (e.g., digging a ditch), does it always require a member vote?

Short Answer

Not necessarily. If the modification aligns with a designated use in the governing documents (like 'drainage'), it may not constitute a 'change of use' requiring a vote.

Detailed Answer

The homeowner argued a vote was required to change 'Open Space' to a drainage ditch. The HOA argued the land was already dedicated for 'drainage,' so no use change occurred. The judge dismissed the complaint because the homeowner failed to prove it wasn't already a drainage area.

Alj Quote

Respondent argued it did not violate the CC&Rs because it did not change the characteristic of the common area and therefore no change protocols needed to be observed… Petitioner failed to meet his burden.

Legal Basis

CC&R Interpretation

Topic Tags

  • common areas
  • voting rights

Question

Can I request a civil penalty be levied against my HOA?

Short Answer

You can request it, but it will be denied if you fail to prove the violation.

Detailed Answer

In this decision, the judge explicitly denied the petitioner's request for a civil penalty after dismissing the petition.

Alj Quote

IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

Administrative Order

Topic Tags

  • penalties
  • remedies

Case

Docket No
23F-H045-REL
Case Title
Harry G. Turner v Mountain Gate Home Owners Association, Inc.
Decision Date
2023-08-14
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

Who is responsible for proving that an HOA violated the community's CC&Rs in an administrative hearing?

Short Answer

The petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

In a hearing before the Office of Administrative Hearings, it is not the HOA's job to disprove the allegations initially. The homeowner must provide sufficient evidence to prove the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 10 Section 4 of the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

  • legal standards
  • procedure

Question

What is the legal standard of evidence required to win a case against an HOA?

Short Answer

The standard is a 'preponderance of the evidence,' meaning the claim is more probable than not.

Detailed Answer

The homeowner does not need to prove the violation beyond a reasonable doubt. They must simply show that their version of events or interpretation of the documents is more likely true than the HOA's version.

Alj Quote

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Legal Basis

Preponderance of Evidence

Topic Tags

  • evidence
  • legal definitions

Question

What happens if community documents (like a plat map) contain conflicting descriptions of a common area?

Short Answer

If the homeowner cannot prove why their preferred description should control, they fail to meet their burden of proof, and the case may be dismissed.

Detailed Answer

In this case, one section of the plat map described the land as 'Open Space' while another described it as 'Drainage.' Because the homeowner could not legally establish why the 'Open Space' description superseded the 'Drainage' description, the judge ruled against them.

Alj Quote

Neither party presented sufficient evidence to determine why their characterization of Tract “H” controlled. Petitioner bears the burden of proof and has failed to provide sufficient evidence to meet his burden.

Legal Basis

Burden of Proof

Topic Tags

  • document interpretation
  • common areas

Question

Does the Department of Real Estate have jurisdiction over CC&R disputes?

Short Answer

Yes, they have jurisdiction over disputes between owners and associations regarding violations of community documents or statutes.

Detailed Answer

Homeowners can petition the department for a hearing regarding alleged violations of the community's governing documents (CC&Rs) or state laws regulating planned communities.

Alj Quote

This matter lies within the Department’s jurisdiction… regarding a dispute between an owner and a planned community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • regulatory authority

Question

If an HOA modifies a common area (e.g., digging a ditch), does it always require a member vote?

Short Answer

Not necessarily. If the modification aligns with a designated use in the governing documents (like 'drainage'), it may not constitute a 'change of use' requiring a vote.

Detailed Answer

The homeowner argued a vote was required to change 'Open Space' to a drainage ditch. The HOA argued the land was already dedicated for 'drainage,' so no use change occurred. The judge dismissed the complaint because the homeowner failed to prove it wasn't already a drainage area.

Alj Quote

Respondent argued it did not violate the CC&Rs because it did not change the characteristic of the common area and therefore no change protocols needed to be observed… Petitioner failed to meet his burden.

Legal Basis

CC&R Interpretation

Topic Tags

  • common areas
  • voting rights

Question

Can I request a civil penalty be levied against my HOA?

Short Answer

You can request it, but it will be denied if you fail to prove the violation.

Detailed Answer

In this decision, the judge explicitly denied the petitioner's request for a civil penalty after dismissing the petition.

Alj Quote

IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

Administrative Order

Topic Tags

  • penalties
  • remedies

Case

Docket No
23F-H045-REL
Case Title
Harry G. Turner v Mountain Gate Home Owners Association, Inc.
Decision Date
2023-08-14
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Harry G. Turner (petitioner)
    Appeared on his own behalf

Respondent Side

  • Michael Luden (president/representative)
    Mountain Gate Home Owners Association, Inc.
    Appeared on behalf of Respondent. Identified as President of the Homeowners Association
  • Brenda Anderson (witness/secretary)
    Mountain Gate Home Owners Association, Inc.
    Witness for Respondent; Secretary of Mountain Gate Homeowners Association
  • Kelly Callahan (HOA attorney)
    HOA's attorney who wrote an email regarding the drainage ditch proposal

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Administrative Law Judge
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Listed in transmission list
  • Jeremiah Lloyd (Community Development Director)
    Pinetop Lakeside
    Community Development Director for Pinetop Lakeside
  • Bill Best (County Engineer)
    Navajo County
    Navajo County Engineer
  • Emory Ellsworth (engineer)
    Painted Sky Engineering and Surveying
    Engineer consulted by Petitioner
  • John Murphy (engineer)
    Murphy Engineering Group
    Engineer whose company provided original certified plans

Other Participants

  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Listed in transmission list
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Listed in transmission list
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Listed in transmission list
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Listed in transmission list
  • Ken Anderson (community member)
    Mentioned as being present when a document was allegedly falsified
  • Gary Lao (developer)
    Original developer

Anthony Payson v. The Foothills Homeowners Association #1

Posted on by

Case Summary

Case ID 23F-H041-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-05-01
Administrative Law Judge Velva Moses-Thompson
Outcome The petition was dismissed after the Administrative Law Judge concluded that the Respondent HOA did not violate CC&R Section 5.4, finding that this section applies to use restrictions on individual Lots and Members, not the Association itself.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Anthony Payson Counsel —
Respondent The Foothills Homeowners Association #1 Counsel Sean K. Mohnihan

Alleged Violations

CC&R Section 5.4

Outcome Summary

The petition was dismissed after the Administrative Law Judge concluded that the Respondent HOA did not violate CC&R Section 5.4, finding that this section applies to use restrictions on individual Lots and Members, not the Association itself.

Why this result: The ALJ found that Petitioner failed to meet the burden of proof to establish the Respondent HOA violated CC&R Section 5.4 because the HOA does not own or operate the nuisance-causing television, and the CC&R section governs restrictions on lot Owners/Members, not the Association. OAH jurisdiction is limited to finding the governing document or statute violated by the respondent.

Key Issues & Findings

HOA's alleged failure to enforce nuisance provision (CC&R Section 5.4) regarding neighbor's outdoor television.

Petitioner alleged that the Respondent HOA failed to perform its duty to enforce CC&R Section 5.4 by refusing to seek removal of a neighbor's large, outdoor television that created noise disturbances and was deemed a nuisance.

Orders: The petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. §32- 2199.02(A)
  • CC&R Section 5.4

Analytics Highlights

Topics: Homeowners Association, CC&R, Nuisance, Enforcement, Jurisdiction, Outdoor TV
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. §32- 2199.02(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)
  • 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)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

23F-H041-REL Decision – 1047496.pdf

Uploaded 2026-05-01T10:25:11 (57.5 KB)

23F-H041-REL Decision – 1053240.pdf

Uploaded 2026-05-01T10:25:17 (98.4 KB)

23F-H041-REL Decision – 1047496.pdf

Uploaded 2026-01-23T17:55:58 (57.5 KB)

23F-H041-REL Decision – 1053240.pdf

Uploaded 2026-01-23T17:56:01 (98.4 KB)

The legal matter of *Anthony Payson v. The Foothills Homeowners Association #1* (No. 23F-H041-REL) was heard virtually by Administrative Law Judge (ALJ) Velva Moses-Thompson on April 13, 2023.

Key Facts and Petitioner's Allegations:

Petitioner Anthony Payson, a homeowner within the community, alleged that the Respondent Homeowners Association (HOA) neglected its duty to enforce the Covenants, Codes, & Restrictions (CC&Rs). Specifically, the Petitioner claimed that a large, outdoor television/movie theater installed by his neighbor violated CC&R Section 5.4 (Nuisances), which prohibits anything kept on a lot that "will or might disturb the peace, quiet, comfort, or serenity of the occupants of the surrounding property". Petitioner sought an order compelling the HOA to enforce the CC&Rs and require the neighbor to remove the television.

Respondent's Key Arguments:

The Respondent HOA, represented by Sean K. Mohnihan, orally moved to dismiss the petition for failure to state a claim for relief. The HOA argued that the Petitioner was alleging a violation of Section 5.4 by the neighbor, not the Association itself, and the Association neither owns nor operates the TV.

Crucially, the HOA asserted that the Office of Administrative Hearings (OAH) lacked jurisdiction to hear disputes among neighbors or to enforce common law duties to enforce CC&Rs. Furthermore, the HOA maintained that the Petitioner failed to provide reliable evidence (such as a log book, police reports, or a noise study) to substantiate a nuisance claim, despite the HOA having requested such documentation before initiating enforcement action.

Hearing Proceedings and Evidence:

The ALJ held the motion to dismiss in abeyance but proceeded with the presentation of evidence. Petitioner Payson testified that the TV had disturbed his peace and quiet on at least one occasion involving a hockey game, and that its mere existence constituted a violation because it *might* cause disturbance. Payson admitted he did not provide the HOA with specific dates, times, decibel readings, or video evidence of the disturbance, as the HOA had requested. The Respondent ultimately elected not to call witnesses, relying instead on the Petitioner's testimony and the jurisdictional arguments.

Outcome and Legal Decision:

In the final decision issued May 1, 2023, the ALJ concluded that the Petitioner failed to establish that the Respondent (The Foothills Homeowners Association #1) violated CC&R Section 5.4.

The ALJ determined that CC&R Section 5.4 addresses use restrictions on Members and Lots. Since the provisions refer to actions of members, any breach of that Article would be a breach by a Member, not the Association. The OAH’s authority, pursuant to ARIZ. REV. STAT. § 32-2199.02(A), is limited to finding whether the governing document or statute has been violated by the respondent. Because the Petitioner did not contend or provide facts establishing that the HOA stored property that caused noise or disturbed the peace, the Petitioner failed to meet the burden of proof against the Association.

The petition was ordered dismissed.

{ “case”: { “docket_no”: “23F-H041-REL”, “case_title”: “In the Matter of Anthony Payson vs The Foothills Homeowners Association #1”, “decision_date”: “2023-05-01”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can I use the ADRE administrative hearing process to force my HOA to enforce CC&R rules against a neighbor?”, “short_answer”: “Generally no, if the specific rule applies to member conduct rather than Association conduct.”, “detailed_answer”: “The Administrative Law Judge (ALJ) clarified that the dispute process is for determining if the Respondent (the HOA) violated a statute or governing document. If a CC&R provision restricts how a ‘lot’ may be used, a violation of that rule is a breach by the member (the neighbor), not the Association. Therefore, the HOA cannot be found guilty of violating a rule that governs homeowner behavior.”, “alj_quote”: “These provisions refer to what members may and may not do within the Association. Therefore, any breach of this Article would be a breach by a Member, not the Association. Petitioner failed to establish that Respondent violated CC&R Section 5.4.”, “legal_basis”: “CC&R Section 5.4; OAH Jurisdiction”, “topic_tags”: [ “enforcement”, “jurisdiction”, “neighbor disputes” ] }, { “question”: “Does the Office of Administrative Hearings (OAH) have jurisdiction to decide if my HOA was negligent or violated common law duties?”, “short_answer”: “No, the OAH jurisdiction is strictly limited to violations of statutes and governing documents.”, “detailed_answer”: “The tribunal does not have the authority to hear claims based on common law, such as negligence or general failure to perform a duty, unless it is a specific violation of the statutes or the community documents tailored to the Association’s conduct.”, “alj_quote”: “To the extent that Petitioner alleged that Respondent may have violated common law, or any other laws, the OAH lacks jurisdiction to make such a determination.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.01”, “topic_tags”: [ “jurisdiction”, “common law”, “negligence” ] }, { “question”: “What remedies or penalties can I request from the administrative judge if I win my case against the HOA?”, “short_answer”: “Relief is limited to a finding of violation, an order to comply, return of filing fees, and civil penalties.”, “detailed_answer”: “The administrative process cannot award damages for things like pain, suffering, or lost property value. The remedies are strictly defined by statute: finding a violation occurred, ordering the HOA to abide by the provision, returning the petitioner’s filing fee, and levying a civil penalty.”, “alj_quote”: “Petitioner’s relief in this venue is limited to e is limited to a finding that the governing document or statute at issue has been violated by the respondent, an order that Respondent abide by the provision in the future, and to have the filing fee returned to the petitioner and a civil penalty levied against Respondent.”, “legal_basis”: “Ariz. Rev. Stat. §32- 2199.02(A)”, “topic_tags”: [ “remedies”, “penalties”, “civil penalty” ] }, { “question”: “Who is responsible for proving that a violation occurred in an HOA dispute hearing?”, “short_answer”: “The Petitioner (the homeowner filing the complaint) bears the burden of proof.”, “detailed_answer”: “The homeowner bringing the case must provide sufficient evidence to prove their claims. It is not the HOA’s job to disprove the claims initially; the burden lies with the person filing the petition.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated on its CC&Rs by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)”, “topic_tags”: [ “burden of proof”, “evidence”, “legal standard” ] }, { “question”: “What is the ‘preponderance of the evidence’ standard used in these hearings?”, “short_answer”: “It means the claim is more probable than not to be true.”, “detailed_answer”: “This legal standard requires that the evidence presented must convince the judge that the petitioner’s argument is more likely true than the opposing side’s argument. It is described as the ‘greater weight of the evidence.'”, “alj_quote”: ““A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.””, “legal_basis”: “Morris K. Udall, Arizona Law of Evidence”, “topic_tags”: [ “legal standard”, “definitions”, “evidence” ] }, { “question”: “How are vague or ambiguous rules in the CC&Rs interpreted by the judge?”, “short_answer”: “They are construed to give effect to the intent of the parties and the underlying purpose of the document.”, “detailed_answer”: “When interpreting restrictive covenants, the judge looks at the document as a whole. If the covenant is unambiguous, it is enforced exactly as written to match the intent.”, “alj_quote”: ““Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.””, “legal_basis”: “Powell v. Washburn, 211 Ariz. 553”, “topic_tags”: [ “interpretation”, “CC&Rs”, “legal principles” ] } ] }

{ “case”: { “docket_no”: “23F-H041-REL”, “case_title”: “In the Matter of Anthony Payson vs The Foothills Homeowners Association #1”, “decision_date”: “2023-05-01”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can I use the ADRE administrative hearing process to force my HOA to enforce CC&R rules against a neighbor?”, “short_answer”: “Generally no, if the specific rule applies to member conduct rather than Association conduct.”, “detailed_answer”: “The Administrative Law Judge (ALJ) clarified that the dispute process is for determining if the Respondent (the HOA) violated a statute or governing document. If a CC&R provision restricts how a ‘lot’ may be used, a violation of that rule is a breach by the member (the neighbor), not the Association. Therefore, the HOA cannot be found guilty of violating a rule that governs homeowner behavior.”, “alj_quote”: “These provisions refer to what members may and may not do within the Association. Therefore, any breach of this Article would be a breach by a Member, not the Association. Petitioner failed to establish that Respondent violated CC&R Section 5.4.”, “legal_basis”: “CC&R Section 5.4; OAH Jurisdiction”, “topic_tags”: [ “enforcement”, “jurisdiction”, “neighbor disputes” ] }, { “question”: “Does the Office of Administrative Hearings (OAH) have jurisdiction to decide if my HOA was negligent or violated common law duties?”, “short_answer”: “No, the OAH jurisdiction is strictly limited to violations of statutes and governing documents.”, “detailed_answer”: “The tribunal does not have the authority to hear claims based on common law, such as negligence or general failure to perform a duty, unless it is a specific violation of the statutes or the community documents tailored to the Association’s conduct.”, “alj_quote”: “To the extent that Petitioner alleged that Respondent may have violated common law, or any other laws, the OAH lacks jurisdiction to make such a determination.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.01”, “topic_tags”: [ “jurisdiction”, “common law”, “negligence” ] }, { “question”: “What remedies or penalties can I request from the administrative judge if I win my case against the HOA?”, “short_answer”: “Relief is limited to a finding of violation, an order to comply, return of filing fees, and civil penalties.”, “detailed_answer”: “The administrative process cannot award damages for things like pain, suffering, or lost property value. The remedies are strictly defined by statute: finding a violation occurred, ordering the HOA to abide by the provision, returning the petitioner’s filing fee, and levying a civil penalty.”, “alj_quote”: “Petitioner’s relief in this venue is limited to e is limited to a finding that the governing document or statute at issue has been violated by the respondent, an order that Respondent abide by the provision in the future, and to have the filing fee returned to the petitioner and a civil penalty levied against Respondent.”, “legal_basis”: “Ariz. Rev. Stat. §32- 2199.02(A)”, “topic_tags”: [ “remedies”, “penalties”, “civil penalty” ] }, { “question”: “Who is responsible for proving that a violation occurred in an HOA dispute hearing?”, “short_answer”: “The Petitioner (the homeowner filing the complaint) bears the burden of proof.”, “detailed_answer”: “The homeowner bringing the case must provide sufficient evidence to prove their claims. It is not the HOA’s job to disprove the claims initially; the burden lies with the person filing the petition.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated on its CC&Rs by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)”, “topic_tags”: [ “burden of proof”, “evidence”, “legal standard” ] }, { “question”: “What is the ‘preponderance of the evidence’ standard used in these hearings?”, “short_answer”: “It means the claim is more probable than not to be true.”, “detailed_answer”: “This legal standard requires that the evidence presented must convince the judge that the petitioner’s argument is more likely true than the opposing side’s argument. It is described as the ‘greater weight of the evidence.'”, “alj_quote”: ““A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.””, “legal_basis”: “Morris K. Udall, Arizona Law of Evidence”, “topic_tags”: [ “legal standard”, “definitions”, “evidence” ] }, { “question”: “How are vague or ambiguous rules in the CC&Rs interpreted by the judge?”, “short_answer”: “They are construed to give effect to the intent of the parties and the underlying purpose of the document.”, “detailed_answer”: “When interpreting restrictive covenants, the judge looks at the document as a whole. If the covenant is unambiguous, it is enforced exactly as written to match the intent.”, “alj_quote”: ““Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.””, “legal_basis”: “Powell v. Washburn, 211 Ariz. 553”, “topic_tags”: [ “interpretation”, “CC&Rs”, “legal principles” ] } ] }

Case Participants

Petitioner Side

  • Anthony Payson (petitioner)
    Homeowner

Respondent Side

  • Sean K. Mohnihan (HOA attorney)
    Smith & Wamsley, PLLC
    Appeared for Respondent The Foothills Homeowners Association #1
  • Jason E Smith (attorney)
    Smith & Wamsley, PLLC
    Listed with counsel
  • Gabron (board member)
    The Foothills Homeowners Association #1
    Board representative/potential witness
  • Linda Armo (board member)
    The Foothills Homeowners Association #1
    Board representative/potential witness
  • Philip Brown (former HOA attorney)
    Previously represented the HOA; wrote a letter to Petitioner

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Barry Callahan (neighbor)
    Alleged violator of CC&Rs, neighbor to Petitioner

Carolyn Wefsenmoe v. Summit View Homeowner’s Association

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Case Summary

Case ID 23F-H017-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-03-08
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge denied the petition, ruling that the Petitioner failed to meet the burden of proof to establish that the walls were built on the common area. Since HOA maintenance responsibility primarily attached to the common area, and the location of the walls relative to the lots remained unproven, the HOA was not found in violation of its maintenance obligations.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Carolyn Wefsenmoe Counsel —
Respondent Summit View Homeowner's Association Counsel Chad M. Gallacher, Esq.

Alleged Violations

CC&R’s Article XI, Sections 1, 2, and 3; Summit View Community Plat Notes

Outcome Summary

The Administrative Law Judge denied the petition, ruling that the Petitioner failed to meet the burden of proof to establish that the walls were built on the common area. Since HOA maintenance responsibility primarily attached to the common area, and the location of the walls relative to the lots remained unproven, the HOA was not found in violation of its maintenance obligations.

Why this result: Petitioner failed to prove by a preponderance of the evidence that the walls were located in a common area. No survey evidence was presented to determine whether the walls were on the individual lots (Owner responsibility) or the common area (HOA responsibility).

Key Issues & Findings

HOA failure to maintain perimeter walls and improper charging of homeowners for repairs.

Petitioner alleged that the HOA (SVHA) violated CC&R Article XI, Sections 1, 2, and 3, and the Community Plat Notes by failing to maintain the subdivision perimeter walls and charging homeowners for repairs, arguing the walls abutted and were part of the Common Area (NAOS), making maintenance the HOA's responsibility.

Orders: Petitioner’s petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • CC&R Article XI, Section 1
  • CC&R Article XI, Section 2
  • CC&R Article XI, Section 3
  • Summit View Community Plat Notes

Analytics Highlights

Topics: HOA, Maintenance, Perimeter Walls, CC&R, Common Area, Burden of Proof, NAOS, Lot Line Dispute
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119
  • CC&R Article XI, Section 1
  • CC&R Article XI, Section 2
  • CC&R Article XI, Section 3
  • Summit View Plat Notes

Video Overview

Audio Overview

Decision Documents

23F-H017-REL Decision – 1018596.pdf

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23F-H017-REL Decision – 1018616.pdf

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23F-H017-REL Decision – 1031301.pdf

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23F-H017-REL Decision – 1032541.pdf

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23F-H017-REL Decision – 1032542.pdf

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23F-H017-REL Decision – 1032543.pdf

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23F-H017-REL Decision – 1032544.pdf

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23F-H017-REL Decision – 1032545.pdf

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23F-H017-REL Decision – 1032546.pdf

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23F-H017-REL Decision – 1032547.pdf

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23F-H017-REL Decision – 1035846.pdf

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23F-H017-REL Decision – 1018596.pdf

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23F-H017-REL Decision – 1018616.pdf

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23F-H017-REL Decision – 1031301.pdf

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23F-H017-REL Decision – 1032541.pdf

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23F-H017-REL Decision – 1032542.pdf

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23F-H017-REL Decision – 1032543.pdf

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23F-H017-REL Decision – 1032544.pdf

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23F-H017-REL Decision – 1032545.pdf

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23F-H017-REL Decision – 1032546.pdf

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23F-H017-REL Decision – 1032547.pdf

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23F-H017-REL Decision – 1035846.pdf

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This summary addresses the legal case hearing concerning Petitioner Carolyn Wefsenmoe versus Respondent Summit View Homeowner's Association (SVHA), Case No. 23F-H017-REL, held before the Office of Administrative Hearings (OAH) on February 21, 2023.

Key Facts and Main Issue

The dispute centered on the maintenance responsibility for the subdivision's perimeter walls and the SVHA's action of charging homeowners for repairs. Petitioner Wefsenmoe alleged the SVHA violated community documents, specifically CC&R's Article XI, Sections 1, 2, and 3, and the Summit View Community Plat Notes, by refusing to maintain the walls. The SVHA, represented by Chad Gallacher, Esq., argued the walls were located on individual Lots, making maintenance the homeowner's responsibility.

Key Legal Arguments and Proceedings

  1. Plat vs. CC&Rs: Petitioner relied heavily on language in the June 1996 Final Plat Notes, which stated that a Homeowners Association "WILL BE FORMED AND HAVE RESPONSIBILITY FOR MAINTAINING ALL COMMON AREAS, TO BE NOTED AS… SUBDIVISION PERIMETER WALLS". Petitioner noted that her wall abutted the Natural Area Open Space (NAOS), designated as a Common Area.
  2. Governing Documents Hierarchy: Respondent countered that the Plat statement was a "forecasting" or "foreshadowing". This statement was qualified by the phrase "IN ACCORDANCE WITH APPROVED PLANS," referring to the later Amended and Restated Declaration of Covenants, Conditions and Restrictions (CC&Rs) recorded in 2004.
  3. Lot Owner Responsibility: The SVHA argued that the CC&Rs placed maintenance burdens on the individual owner for all improvements on their Lot (Article III, Section 3). Furthermore, specific CC&R provisions required owners to obtain written architectural approval to perform maintenance or erect walls on their Lots (Article VIII, Sections 5 and 15), suggesting the maintenance obligation rested with the homeowner.
  4. Evidence of Location and Damage: The SVHA presented testimony that the walls in question were generally understood to be built on the individual lots, noting that the wall lines were not uniformly straight across the lots. SVHA's witness, Vic Smith, also testified that many wall damages were attributable to poor drainage and water runoff coming from the homeowner's Lot side, not the NAOS Common Area, which had no watering.
  5. Burden of Proof: Petitioner admitted on cross-examination that no professional survey had been conducted to definitively determine whether the walls were located on the Common Area or the individual Lots. The ALJ noted that Petitioner bore the burden of proof to establish the alleged violation by a preponderance of the evidence.

Outcome

The Administrative Law Judge (ALJ) issued a decision denying Petitioner's petition. The ALJ concluded that Petitioner failed to meet the required burden of proof. Absent persuasive evidence, such as a survey, demonstrating the walls were constructed in the Common Area, Petitioner could not establish that the SVHA was responsible for the maintenance or that the Association acted in violation of the community documents.

Questions

Question

Who has the burden of proof when a homeowner files a petition against their HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding HOA disputes, the person filing the petition is responsible for proving that the HOA committed the alleged violations. The HOA does not have to disprove the allegations initially; the homeowner must first provide sufficient evidence to support their claim.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • legal standards
  • burden of proof
  • procedural requirements

Question

What level of evidence is required to win a dispute against an HOA?

Short Answer

A 'preponderance of the evidence,' meaning the claim is more likely true than not.

Detailed Answer

The standard is not 'beyond a reasonable doubt' like in criminal cases. Instead, the homeowner must show that their version of the facts is more probable than the HOA's version. It relies on the convincing force of the evidence rather than just the number of witnesses.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • legal standards
  • evidence
  • hearings

Question

If a wall touches an HOA common area, does the HOA automatically have to maintain it?

Short Answer

No. The location of the wall's foundation (on the lot vs. common area) determines responsibility.

Detailed Answer

Simply abutting a common area does not make a structure part of the common area. Unless the homeowner can prove the structure was actually built *on* the common area land, the HOA may not be responsible for its maintenance.

Alj Quote

There was no persuasive evidence presented that simply because on the other side of the wall there was a common area, does not prove that the wall was actually built on the common area.

Legal Basis

Findings of Fact / Conclusions of Law

Topic Tags

  • maintenance
  • common areas
  • boundaries

Question

Is a professional survey necessary to prove a boundary or maintenance dispute?

Short Answer

Yes, often. Without a survey, it is difficult to prove exactly where a structure lies.

Detailed Answer

If there is a dispute about whether a wall or structure is on private property or common area, failing to provide a professional survey can result in losing the case. The judge generally cannot assume a location without specific evidence.

Alj Quote

However, again, no evidence was presented to determine exactly where the wall was built. Perhaps if this evidence was presented there may be a different result.

Legal Basis

Conclusions of Law

Topic Tags

  • evidence
  • surveys
  • property lines

Question

Does the alignment of walls affect who is responsible for them?

Short Answer

Yes. If walls are not uniformly aligned, it suggests they follow individual lot lines rather than a subdivision perimeter.

Detailed Answer

In this decision, the judge noted that because the walls were not in a straight, uniform line across lots (likely due to varying lot sizes), it supported the conclusion that the walls were built on individual lots rather than being a single common area perimeter wall.

Alj Quote

Further, the tribunal notes that the walls were not uniformly even across the individual lots. This was presumably because each lot is a different size, which also would lead to the conclusion that each wall was built on each individual lot.

Legal Basis

Conclusions of Law

Topic Tags

  • maintenance
  • construction
  • HOA obligations

Question

Can I rely solely on Plat Notes to prove HOA maintenance responsibility?

Short Answer

Not necessarily, especially if physical evidence contradicts the interpretation that a structure is a 'perimeter wall'.

Detailed Answer

Even if a Plat Note says the HOA maintains 'subdivision perimeter walls,' the homeowner must still prove that the specific wall in question fits that definition and location. If the evidence suggests the wall is on a private lot, the general note may not apply.

Alj Quote

Petitioner testified that she believed that based upon the 'Notes' section on the plat map, this created an obligation on the SVHA… [However] Petitioner has failed to prove by a preponderance of the evidence that the walls in questions are in a common area.

Legal Basis

Findings of Fact / Conclusions of Law

Topic Tags

  • cc&rs
  • plat maps
  • interpretation

Case

Docket No
23F-H017-REL
Case Title
Carolyn Wefsenmoe vs Summit View Homeowner's Association
Decision Date
2023-03-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Who has the burden of proof when a homeowner files a petition against their HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding HOA disputes, the person filing the petition is responsible for proving that the HOA committed the alleged violations. The HOA does not have to disprove the allegations initially; the homeowner must first provide sufficient evidence to support their claim.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • legal standards
  • burden of proof
  • procedural requirements

Question

What level of evidence is required to win a dispute against an HOA?

Short Answer

A 'preponderance of the evidence,' meaning the claim is more likely true than not.

Detailed Answer

The standard is not 'beyond a reasonable doubt' like in criminal cases. Instead, the homeowner must show that their version of the facts is more probable than the HOA's version. It relies on the convincing force of the evidence rather than just the number of witnesses.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • legal standards
  • evidence
  • hearings

Question

If a wall touches an HOA common area, does the HOA automatically have to maintain it?

Short Answer

No. The location of the wall's foundation (on the lot vs. common area) determines responsibility.

Detailed Answer

Simply abutting a common area does not make a structure part of the common area. Unless the homeowner can prove the structure was actually built *on* the common area land, the HOA may not be responsible for its maintenance.

Alj Quote

There was no persuasive evidence presented that simply because on the other side of the wall there was a common area, does not prove that the wall was actually built on the common area.

Legal Basis

Findings of Fact / Conclusions of Law

Topic Tags

  • maintenance
  • common areas
  • boundaries

Question

Is a professional survey necessary to prove a boundary or maintenance dispute?

Short Answer

Yes, often. Without a survey, it is difficult to prove exactly where a structure lies.

Detailed Answer

If there is a dispute about whether a wall or structure is on private property or common area, failing to provide a professional survey can result in losing the case. The judge generally cannot assume a location without specific evidence.

Alj Quote

However, again, no evidence was presented to determine exactly where the wall was built. Perhaps if this evidence was presented there may be a different result.

Legal Basis

Conclusions of Law

Topic Tags

  • evidence
  • surveys
  • property lines

Question

Does the alignment of walls affect who is responsible for them?

Short Answer

Yes. If walls are not uniformly aligned, it suggests they follow individual lot lines rather than a subdivision perimeter.

Detailed Answer

In this decision, the judge noted that because the walls were not in a straight, uniform line across lots (likely due to varying lot sizes), it supported the conclusion that the walls were built on individual lots rather than being a single common area perimeter wall.

Alj Quote

Further, the tribunal notes that the walls were not uniformly even across the individual lots. This was presumably because each lot is a different size, which also would lead to the conclusion that each wall was built on each individual lot.

Legal Basis

Conclusions of Law

Topic Tags

  • maintenance
  • construction
  • HOA obligations

Question

Can I rely solely on Plat Notes to prove HOA maintenance responsibility?

Short Answer

Not necessarily, especially if physical evidence contradicts the interpretation that a structure is a 'perimeter wall'.

Detailed Answer

Even if a Plat Note says the HOA maintains 'subdivision perimeter walls,' the homeowner must still prove that the specific wall in question fits that definition and location. If the evidence suggests the wall is on a private lot, the general note may not apply.

Alj Quote

Petitioner testified that she believed that based upon the 'Notes' section on the plat map, this created an obligation on the SVHA… [However] Petitioner has failed to prove by a preponderance of the evidence that the walls in questions are in a common area.

Legal Basis

Findings of Fact / Conclusions of Law

Topic Tags

  • cc&rs
  • plat maps
  • interpretation

Case

Docket No
23F-H017-REL
Case Title
Carolyn Wefsenmoe vs Summit View Homeowner's Association
Decision Date
2023-03-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Carolyn Wefsenmoe (petitioner)
    Appeared via Google Meet on her own behalf

Respondent Side

  • Chad M. Gallacher (HOA attorney)
    Maxwell & Morgan, P.C.
  • Bick Smith (witness/board president)
    Summit View Homeowner's Association
    Also referred to as Vic Smith; testified for Respondent
  • Henry (board member)
    Summit View Homeowner's Association
    Discussed erosion issues; toured walls with Bick Smith
  • Denise (board member)
    Summit View Homeowner's Association
    Participated in special board meeting
  • Larry Burns (property manager/GM)
    Summit View Homeowner's Association
    General Manager who wrote community painting update; participated in board meeting

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
    Transmitted minute entry to
  • James Knupp (Acting Commissioner)
    Arizona Department of Real Estate
    Transmitted order to
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Transmitted ALJ decision to
  • AHansen (ADRE Staff)
    Arizona Department of Real Estate
    Email recipient for transmitted documents
  • vnunez (ADRE Staff)
    Arizona Department of Real Estate
    Email recipient for transmitted documents
  • djones (ADRE Staff)
    Arizona Department of Real Estate
    Email recipient for transmitted documents
  • labril (ADRE Staff)
    Arizona Department of Real Estate
    Email recipient for transmitted documents
  • c. serrano (OAH Staff)
    OAH
    Signed minute entries for transmission
  • Helen Purcell (county recorder)
    Maricopa County
    Recorded Amended CC&R Declaration in 2004
  • Maria Rosana Pira (notary public)
    Maricopa County
    Notarized Amended CC&R and Bylaws in 2004

Other Participants

  • Elelliana (unknown)
    Correspondent in objected-to email exhibit
  • Beth Mulcahy (attorney)
    Mulcahy Law Firm, P.C.
    Firm filed the Amended CC&R Declaration in 2004
  • LizzieG (customer service rep)
    Brown Community Management
    Customer service contact listed on billing document

Brenda C Norman v. Rancho Del Lago Community Association

Posted on by

Case Summary

Case ID 22F-H2221019-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-01-18
Administrative Law Judge Adam D. Stone
Outcome Petitioner was deemed the prevailing party and RDLCA was ordered to comply with CC&R Section 3.1(D)(3) and refund the $500.00 filing fee. The specific remedy requested by Petitioner (ordering RDLCA to fine the neighbor or force light removal) was denied as the ALJ lacked statutory authority (A.R.S. § 32-2199.02) to grant that relief.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Brenda C Norman Counsel —
Respondent Rancho Del Lago Community Association Counsel Mackenzie Hill, Esq.

Alleged Violations

Section 3.1(D)(3) of the CC&Rs

Outcome Summary

Petitioner was deemed the prevailing party and RDLCA was ordered to comply with CC&R Section 3.1(D)(3) and refund the $500.00 filing fee. The specific remedy requested by Petitioner (ordering RDLCA to fine the neighbor or force light removal) was denied as the ALJ lacked statutory authority (A.R.S. § 32-2199.02) to grant that relief.

Key Issues & Findings

Violation of CC&R regarding flood illumination direction and ARC approval process.

Petitioner alleged that Respondent (RDLCA) violated CC&R 3.1(D)(3) because a neighbor installed flood lights shining onto Petitioner's property without RDLCA approval (ARC approval). The ALJ found RDLCA in violation because the lights were never approved.

Orders: RDLCA must comply with CC&R Section 3.1(D)(3) and pay Petitioner her $500.00 filing fee. No civil penalty was levied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.R.S. § 32-2199.02

Analytics Highlights

Topics: HOA, CC&R, Lighting, Architectural Review, Filing Fee Refund
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.R.S. § 32-2199.02
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

22F-H2221019-REL Decision – 939490.pdf

Uploaded 2026-04-26T09:57:40 (95.0 KB)

22F-H2221019-REL Decision – 939490.pdf

Uploaded 2026-01-23T17:42:27 (95.0 KB)

This summary details the administrative hearing proceedings in the matter of *Brenda C Norman v. Rancho Del Lago Community Association* (RDLCA), held on January 14, 2022, before Administrative Law Judge (ALJ) Adam D. Stone.

Key Facts and Main Issue

The Petitioner, Brenda C Norman, filed a Homeowners Association (HOA) Dispute Process Petition on or about October 23, 2021, alleging that RDLCA violated the community documents. The specific issue was RDLCA's alleged failure to enforce Section 3.1(D)(3) of the CC&Rs, which mandates that flood illumination must be directed at the owner’s property away from neighboring property. The Petitioner testified that her neighbor installed flood lights that shined into her backyard and residence, and she requested RDLCA fine the neighbors or force the removal of the fixture. The Petitioner paid a $500.00 filing fee.

Hearing Proceedings and Arguments

The Petitioner bore the burden of proof to establish the violation by a preponderance of the evidence.

  • Petitioner’s Argument: The neighbor's lights continued to shine onto her property, and RDLCA had not adequately remedied the situation.
  • Respondent’s Argument: RDLCA, through community manager Spencer Brod, testified that upon receiving the complaint, they investigated and sent correspondence (August 17, 2021) to the neighbor requesting light removal. The neighbor subsequently replaced the fixture, and RDLCA later informed the Petitioner that the floodlights were now angled downward and were in compliance (September 2021). RDLCA also argued that the specific CC&R section applied only to lights on the front of the house, meaning neighbor approval was not required for the side/backyard fixture.

Legal Points and Final Decision

The ALJ found RDLCA in violation of the CC&Rs.

  • Legal Rationale: The ALJ could not definitively rule on RDLCA’s defense that the CC&R section applied only to front yards, as neither party submitted the full Section 3.1. However, the ALJ noted that RDLCA’s own correspondence referenced Section 3.1 and indicated the light was installed without ARC approval. Since no evidence demonstrated that ARC approval occurred, RDLCA was found to be in violation of CC&R Section 3.1(D)(3).
  • Outcome and Order: The Petitioner was deemed the prevailing party in this matter. Pursuant to A.R.S. § 32-2199.02, the ALJ ordered RDLCA to comply with Section 3.1(D)(3). The ALJ explicitly stated that he did not have the statutory authority to order RDLCA to fine or force the neighbor to remove the lights, thus denying the Petitioner's requested specific remedies. RDLCA was ordered to pay the Petitioner her $500.00 filing fee within thirty days. No civil penalty was deemed appropriate.

Questions

Question

Can an Administrative Law Judge order my HOA to fine a neighbor for a violation?

Short Answer

No, the ALJ does not have the statutory authority to order fines against neighbors.

Detailed Answer

Even if a violation is found, the ALJ explicitly stated that the statute does not grant them the power to order the HOA to fine a neighbor or to force a neighbor to remove non-compliant items.

Alj Quote

The Administrative Law Judge does not have the authority under the applicable statute to order that RDLCA fine or order the neighbor remove the lights.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • Remedies
  • Fines
  • Authority

Question

Who is responsible for proving that the HOA violated the community documents?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner filing the dispute must prove the HOA's violation by a 'preponderance of the evidence'. It is not the HOA's job to disprove it initially.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • Burden of Proof
  • Evidence
  • Procedure

Question

If I win my case against the HOA, can I get my filing fee back?

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this decision, because the homeowner was the prevailing party, the HOA was ordered to pay the $500 filing fee directly to the homeowner within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner her filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Order

Topic Tags

  • Fees
  • Reimbursement
  • Prevailing Party

Question

Can I challenge my HOA for failing to enforce architectural rules on a neighbor?

Short Answer

Yes, if the HOA allows modifications without the required approval.

Detailed Answer

The ALJ found the HOA in violation of the CC&Rs because the neighbor installed lights without the required Architectural Review Committee (ARC) approval, and the HOA failed to address this specific lack of approval.

Alj Quote

Because this never occurred, Respondent is in violation of CC&R Section 3.1(D)(3).

Legal Basis

CC&R Section 3.1(D)(3)

Topic Tags

  • Enforcement
  • Architectural Review
  • Lighting

Question

What happens if we don't provide the full text of the CC&Rs during the hearing?

Short Answer

The judge cannot rule on parts of the rules that are not provided.

Detailed Answer

The HOA tried to argue a rule applied only to the front yard, but because neither party submitted the full section of the CC&Rs, the judge could not verify that claim and had to rule based only on the evidence available.

Alj Quote

At the outset, neither party submitted the full Section 3.1 of the CC&R’s and the ALJ therefore cannot determine if the section in question applies to the front yard only.

Legal Basis

Evidentiary Standard

Topic Tags

  • Evidence
  • CC&Rs
  • Documentation

Question

What does 'preponderance of the evidence' mean?

Short Answer

It means the claim is more likely true than not.

Detailed Answer

The decision defines this legal standard as proof that convinces the judge that a contention is 'more probably true than not,' even if there is still some doubt.

Alj Quote

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Legal Basis

Arizona Law of Evidence

Topic Tags

  • Legal Definitions
  • Standards

Case

Docket No
22F-H2221019-REL
Case Title
Brenda C Norman vs. Rancho Del Lago Community Association
Decision Date
2022-01-18
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Can an Administrative Law Judge order my HOA to fine a neighbor for a violation?

Short Answer

No, the ALJ does not have the statutory authority to order fines against neighbors.

Detailed Answer

Even if a violation is found, the ALJ explicitly stated that the statute does not grant them the power to order the HOA to fine a neighbor or to force a neighbor to remove non-compliant items.

Alj Quote

The Administrative Law Judge does not have the authority under the applicable statute to order that RDLCA fine or order the neighbor remove the lights.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • Remedies
  • Fines
  • Authority

Question

Who is responsible for proving that the HOA violated the community documents?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner filing the dispute must prove the HOA's violation by a 'preponderance of the evidence'. It is not the HOA's job to disprove it initially.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • Burden of Proof
  • Evidence
  • Procedure

Question

If I win my case against the HOA, can I get my filing fee back?

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this decision, because the homeowner was the prevailing party, the HOA was ordered to pay the $500 filing fee directly to the homeowner within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner her filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Order

Topic Tags

  • Fees
  • Reimbursement
  • Prevailing Party

Question

Can I challenge my HOA for failing to enforce architectural rules on a neighbor?

Short Answer

Yes, if the HOA allows modifications without the required approval.

Detailed Answer

The ALJ found the HOA in violation of the CC&Rs because the neighbor installed lights without the required Architectural Review Committee (ARC) approval, and the HOA failed to address this specific lack of approval.

Alj Quote

Because this never occurred, Respondent is in violation of CC&R Section 3.1(D)(3).

Legal Basis

CC&R Section 3.1(D)(3)

Topic Tags

  • Enforcement
  • Architectural Review
  • Lighting

Question

What happens if we don't provide the full text of the CC&Rs during the hearing?

Short Answer

The judge cannot rule on parts of the rules that are not provided.

Detailed Answer

The HOA tried to argue a rule applied only to the front yard, but because neither party submitted the full section of the CC&Rs, the judge could not verify that claim and had to rule based only on the evidence available.

Alj Quote

At the outset, neither party submitted the full Section 3.1 of the CC&R’s and the ALJ therefore cannot determine if the section in question applies to the front yard only.

Legal Basis

Evidentiary Standard

Topic Tags

  • Evidence
  • CC&Rs
  • Documentation

Question

What does 'preponderance of the evidence' mean?

Short Answer

It means the claim is more likely true than not.

Detailed Answer

The decision defines this legal standard as proof that convinces the judge that a contention is 'more probably true than not,' even if there is still some doubt.

Alj Quote

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Legal Basis

Arizona Law of Evidence

Topic Tags

  • Legal Definitions
  • Standards

Case

Docket No
22F-H2221019-REL
Case Title
Brenda C Norman vs. Rancho Del Lago Community Association
Decision Date
2022-01-18
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Brenda C Norman (petitioner)
    Appeared on her own behalf

Respondent Side

  • Mackenzie Hill (HOA attorney)
    The Brown Law Group, PLLC
    Represented Rancho Del Lago Community Association
  • Nathan Tennyson (HOA attorney)
    Represented Rancho Del Lago Community Association
  • Spencer Brod (community manager)
    Testified for Respondent

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of order transmission
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of order transmission
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of order transmission
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of order transmission

Charles P Mandela vs. Blue Ridge Estates Homeowners’ Association

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

Case Summary

Case ID 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).

——————————————————————————–

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?

——————————————————————————–

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.

——————————————————————————–

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.

——————————————————————————–

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

Lee & Kim Edwards v. Scottsdale Embassy Condominium Association

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Case Summary

Case ID 21F-H2120028-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-07-28
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lee & Kim Edwards Counsel Terry Foster, Esq.
Respondent Scottsdale Embassy Condominium Association Counsel —

Alleged Violations

A.R.S. § 33-1255

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove by a preponderance of the evidence that the Respondent violated its CC&Rs, Bylaws, or A.R.S. § 33-1255, ruling that the statute was inapplicable due to the specific provisions in the Declaration regarding the 1/26 assessment calculation.

Why this result: Petitioner failed to meet the burden of proof, and the ALJ determined A.R.S. § 33-1255 was superseded by the Declaration, which mandated assessments based on the undivided 1/26 interest in the common elements.

Key Issues & Findings

Assessment calculation based on undivided interest in common areas

Petitioner challenged the Association's decision to change assessments from a historical square footage basis to a 1/26 interest calculation, arguing that this method violates A.R.S. § 33-1255 by charging for limited common elements (patios/parking).

Orders: The petition of Lee & Kim Edwards is dismissed; Respondent is deemed the prevailing party.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1255
  • Declaration Article I, Section 5
  • Declaration Article II, Section 5
  • Declaration Article II, Section 7
  • Declaration Article IV, Section 4
  • Declaration Article VI, Section 9

Analytics Highlights

Topics: condominium, assessment, cc&r, statutory interpretation, common elements, limited common elements
Additional Citations:

  • A.R.S. § 32-2199(1)
  • A.R.S. § 33-1255
  • 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
  • Powell v. Washburn, 211 Ariz. 553
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70

Video Overview

Audio Overview

Decision Documents

21F-H2120028-REL Decision – 899379.pdf

Uploaded 2026-04-24T11:32:11 (123.6 KB)

21F-H2120028-REL Decision – 856603.pdf

Uploaded 2026-04-24T11:32:19 (98.1 KB)

Assessment Methodology Dispute: Edwards v. Scottsdale Embassy Condominium Association

Executive Summary

This document provides a comprehensive analysis of the legal dispute between homeowners Lee & Kim Edwards (Petitioners) and the Scottsdale Embassy Condominium Association (Respondent) concerning a change in the methodology for calculating homeowner assessments. The core of the conflict was the Association’s decision to shift from a historical practice of assessments based on unit square footage to a uniform rate where each of the 26 units pays an equal 1/26 share of the common expenses.

The dispute was adjudicated by an Administrative Law Judge (ALJ) in two separate hearings. In both instances, the ALJ ruled in favor of the Association, dismissing the petitions filed by the Edwards.

Key Takeaways:

• Change in Methodology: The Association’s Board, acting on legal advice received in January 2020, concluded that its 40-year practice of using a square-footage-based assessment violated the community’s Covenants, Conditions, and Restrictions (CC&Rs). The Board subsequently implemented a 1/26 equal-share assessment method after a majority of homeowners selected this option.

• Initial Ruling on “Uniform Rate”: In the first hearing in February 2021, the Petitioners argued that the historical square footage method was a “uniform rate” and that the Association had waived its right to change the long-standing practice. The ALJ rejected this, finding that the new 1/26 rate complied with the CC&Rs’ requirement for a “uniform rate” (Article VI, Section 9) and aligned with each unit’s specified 1/26 undivided interest in the common elements (Article VI, Section 4(d)).

• Rehearing Ruling on State Statute: The Petitioners were granted a rehearing in July 2021, where they argued that the 1/26 method violated Arizona statute A.R.S. § 33-1255 by improperly charging all owners for “limited common elements” like patios and parking spaces. The ALJ again ruled against the Petitioners, concluding that the state statute did not apply. The ruling was based on a key provision in the statute: “Unless otherwise provided for in the declaration.” The judge found that the Association’s Declaration did provide otherwise by defining patios and parking as general common elements and explicitly mandating that costs be shared based on each unit’s 1/26 interest.

• Final Outcome: The petition was definitively dismissed after the rehearing, making the ALJ’s order binding. The Association’s adoption of the 1/26 assessment rate was upheld as compliant with its governing documents.

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Background of the Dispute

The legal conflict originated from a single-issue petition filed on November 20, 2020, by Lee and Kim Edwards, owners of unit 6937 in the Scottsdale Embassy Condominium development. The petition, filed with the Arizona Department of Real Estate, alleged that the Scottsdale Embassy Condominium Association had violated its CC&Rs, specifically Article VI, Section 9, and Article IV, Section 1.

The central issue was the Association Board’s decision to change the long-standing method of calculating homeowner assessments. For over 40 years, assessments had been based on the square footage of each unit. In 2020, the Board implemented a new system where the Association’s annual budget was divided equally among the 26 units, with each owner paying a 1/26 share. The Petitioners sought to enforce the historical calculation method unless and until the CC&Rs were properly amended.

Chronology of the Assessment Change

• Historical Practice: For more than four decades, the Association calculated and charged member assessments based on the square footage of each condominium unit.

• Legal Consultation (January 2020): Two members of the Association’s Board consulted with an attorney regarding the legality of the historical assessment method.

• Attorney Recommendation (January 24, 2020): The attorney advised the Association that, to ensure compliance with the CC&Rs, it should calculate assessments based on each homeowner’s 1/26 interest in the common areas. The attorney’s letter stated:

• Homeowner Consultation: Following the legal advice, the Board informed homeowners that the prior square-footage method violated the CC&Rs. The Board sought input on three potential assessment methods: the 1/26 rate, a variable blended rate, or continuing with the square footage rate. A majority of homeowners selected the 1/26 rate. The Board noted that any method other than the 1/26 rate would require a formal amendment to the CC&Rs.

• Implementation (September 26, 2020): The Board officially notified homeowners that it would begin charging assessments based on the 1/26 rate and that an amendment to the CC&Rs was not necessary to implement this change.

Initial Hearing and Decision (February 2021)

An evidentiary hearing was held on February 9, 2021, before Administrative Law Judge Velva Moses-Thompson.

Arguments Presented

Petitioners (Edwards)

1. The historical square footage rate qualified as a “uniform rate” and was compliant with the CC&Rs.
2. By using the square footage rate for over 40 years, the Association had waived its right to enforce a different method like the 1/26 rate.

Respondent (Association)

1. The plain language of the CC&Rs requires that each homeowner pay an assessment based on the 1/26 rate.
2. It is not legally possible to waive a mandatory CC&R requirement through past practice.

On February 19, 2021, the ALJ issued a decision dismissing the petition. The judge’s conclusions of law were based on a direct interpretation of the CC&Rs:

• Uniform Rate Compliance: The ALJ determined that the “preponderance of the evidence” showed that the Association’s 1/26 rate was a uniform rate that complied with Article VI, Section 9 of the CC&Rs.

• Burden of Proof: The Petitioners failed to meet their burden to prove that the Association had violated its governing documents.

• Outcome: The Association was deemed the prevailing party, and the petition was dismissed.

Rehearing and Final Decision (July 2021)

The Petitioners filed a request for a rehearing on March 30, 2021, which was granted. The rehearing was held on July 8, 2021. The Respondent did not appear at this hearing, as its counsel had withdrawn from representation without formally notifying the tribunal.

In the rehearing, the Petitioners introduced a new argument, alleging that the 1/26 assessment method violated Arizona state law, specifically A.R.S. § 33-1255.

• The core of this argument was that the 1/26 rate improperly included charges for “limited common elements,” such as patios and assigned parking spaces.

• The Petitioners contended that this forced all homeowners to pay for the maintenance of elements that were assigned to and benefited fewer than all units, in direct violation of the statute.

On July 28, 2021, the ALJ issued a final decision, once again dismissing the petition. The ruling hinged on the precise wording of both the state statute and the Association’s Declaration.

• Applicability of A.R.S. § 33-1255: The judge found that the statute did not apply to this matter. The relevant section of the law, A.R.S. § 33-1255(C), begins with the critical phrase: “Unless otherwise provided for in the declaration…”

• Supremacy of the Declaration: The ALJ concluded that the Association’s Declaration did provide otherwise. The CC&Rs explicitly:

◦ Define “Common Elements” broadly to include patios and parking areas (Article I, Section 3).

◦ Establish that each unit has an “undivided interest in the general common areas” of 1/26 (Article I, Section 5).

◦ Mandate that each unit’s share of costs for repair and maintenance of common areas is the “same as its undivided interest in the common elements” (Article IV, Section 4(d)).

• Final Outcome: Because the Declaration’s specific provisions overrode the general terms of the state statute, the Association was found to be in compliance. The petition was dismissed, and the order was deemed binding on the parties.

Key Legal Principles and Definitions

Concept

Definition / Application in Case

Burden of Proof

The Petitioners were required to establish their claim by a “preponderance of the evidence.”

Preponderance of the Evidence

Defined as “proof as convinces the trier of fact that the contention is more probably true than not.” The ALJ found the Petitioners failed to meet this standard in both hearings.

Restrictive Covenants

Arizona law requires that unambiguous restrictive covenants be enforced to give effect to the parties’ intent and be interpreted as a whole. The ALJ’s decisions were based on a direct interpretation of the CC&Rs’ language.

Common Elements (per CC&Rs)

A broad definition including multifamily structures, land, roofs, ceilings, foundations, storage spaces, patios, parking areas, recreational facilities, lawns, pipes, and conduits.

Unit (per CC&Rs)

A freehold estate consisting of the interior space of an apartment. The definition explicitly states that common elements are not part of the unit.

Undivided Interest (per CC&Rs)

Article I, Section 5 clearly establishes that “The undivided interest in the general common areas… which shall be conveyed with each respective units shall be 1/26.” This provision was central to the final ruling.

Study Guide: Edwards v. Scottsdale Embassy Condominium Association

This study guide provides a comprehensive review of the administrative case between Lee & Kim Edwards and the Scottsdale Embassy Condominium Association, based on the provided legal decisions. It includes a short-answer quiz, an answer key, suggested essay questions, and a detailed glossary of key terms.

Short-Answer Quiz

Answer the following questions in two to three sentences each, based on the information provided in the case documents.

1. What was the central conflict between the Petitioners (Lee & Kim Edwards) and the Respondent (Scottsdale Embassy Condominium Association)?

2. For over 40 years, how did the Association historically calculate assessments for homeowners?

3. What specific event in January 2020 prompted the Association’s Board to change the assessment method?

4. In the first hearing on February 9, 2021, what were the two main arguments presented by Mr. Edwards?

5. What was the Administrative Law Judge’s conclusion regarding the “uniform rate” requirement from CC&Rs Article VI, Section 9 in the initial decision?

6. Upon what new legal grounds did the Petitioners base their March 30, 2021, request for a re-hearing?

7. According to the CC&Rs, what is the defined undivided interest in the general common areas for each unit?

8. Why did the Administrative Law Judge ultimately conclude that Arizona Revised Statutes (A.R.S.) § 33-1255 did not apply in this case?

9. What legal standard of proof did the Petitioners need to meet to successfully prove their case?

10. What was the final, binding outcome of the re-hearing held on July 8, 2021?

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Answer Key

1. The central conflict concerned the method for calculating homeowner assessments. The Petitioners argued for the historical method based on unit square footage, while the Respondent implemented a new method where each of the 26 units paid an equal share (1/26 rate) of the Association’s costs.

2. For over 40 years, the Association historically calculated assessments based on the square footage of each condominium unit. This practice was changed by the Board in 2020.

3. In January 2020, two Board members met with an attorney who advised that to comply with the CC&Rs, the Association should charge assessments based on each homeowner’s 1/26 interest in the common areas, not on square footage.

4. Mr. Edwards argued that the historical square footage rate was a “uniform rate” that complied with the CC&Rs. He also contended that by using this method for 40 years, the Association had waived its right to enforce a different assessment method like the 1/26 rate.

5. The Judge concluded that the Respondent’s assessment method, based on a uniform rate of 1/26 of the Association’s costs for each unit, did comply with Article VI, Section 9. Therefore, the Petitioners failed to prove the Association had violated the CC&Rs.

6. The Petitioners based their request for a re-hearing on the new allegation that the Respondent had violated Arizona Revised Statutes (A.R.S.) § 33-1255. They argued the 1/26 rate improperly required members to pay for limited common elements, such as patios and parking spaces, not assigned to them.

7. According to Article I, Section 5 of the Declaration (CC&Rs), the undivided interest in the general common areas established and conveyed with each respective unit is 1/26.

8. The Judge concluded that A.R.S. § 33-1255 did not apply because the statute itself contains an exception: “Unless otherwise provided for in the declaration.” In this case, the Association’s Declaration explicitly required that each member be charged an assessment equivalent to their 1/26 interest in the total costs, which included patios and parking areas.

9. The Petitioners bore the burden of proof to establish their claims by a “preponderance of the evidence.” This standard requires proof that convinces the trier of fact that a contention is more probably true than not.

10. Following the re-hearing, the Administrative Law Judge again ordered that the petition of Lee & Kim Edwards be dismissed. The Respondent was deemed the prevailing party, and the order was declared binding on the parties.

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Essay Questions

The following questions are designed for longer, essay-style responses. Answers are not provided.

1. Trace the evolution of the Petitioners’ legal strategy from the initial petition filed on November 20, 2020, to the arguments made during the re-hearing on July 8, 2021. How did their core arguments change, and what new evidence or legal statutes were introduced?

2. Analyze the concept of a “uniform rate” as required by Article VI, Section 9 of the CC&Rs. Discuss how both the Petitioners and the Respondent interpreted this phrase to support their respective assessment methods (square footage vs. 1/26 rate).

3. Explain in detail the role of A.R.S. § 33-1255 in the re-hearing. Why did the Petitioners believe it supported their case, and what specific language in both the statute and the Association’s Declaration led the Administrative Law Judge to rule that it did not apply?

4. Evaluate the actions taken by the Association’s Board of Directors in 2020. Consider their consultation with an attorney, their communication with homeowners, and their final decision to implement the 1/26 rate. Discuss whether these actions were consistent with the powers and obligations outlined in the CC&Rs.

5. Discuss the legal argument of “waiver” raised by Mr. Edwards in the first hearing. Explain what he meant by this and why the Association’s 40-year history of using a square-footage-based assessment was central to this claim. Why did this argument ultimately fail?

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Glossary of Key Terms

Definition

1/26 Rate

The assessment method where the Association’s annual budget is divided 26 ways, with each unit responsible for paying an equal portion. This is based on each unit’s 1/26 undivided interest in the common areas as specified in the CC&Rs.

Administrative Law Judge (ALJ)

The independent judicial officer who presides over administrative hearings, hears evidence, and issues a decision. In this case, the ALJ was Velva Moses-Thompson.

A.R.S. § 32-2199(1)

The Arizona Revised Statute that permits a condominium unit owner to file a petition with the Department of Real Estate for a hearing regarding alleged violations of the Condominium Act.

A.R.S. § 33-1255

The Arizona Revised Statute concerning common expenses. It states that unless the declaration provides otherwise, expenses for a limited common element shall be assessed against the units to which it is assigned, and expenses benefitting fewer than all units shall be assessed exclusively against the units benefitted.

Arizona Department of Real Estate

The state agency authorized by statute to receive and decide Petitions for Hearings from members of condominium associations in Arizona.

Burden of Proof

The obligation on a party in a legal proceeding to establish its claims by a required standard of evidence. In this case, the Petitioners bore the burden of proof.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set up the guidelines for a planned community or condominium. Also referred to as the “Declaration” in the provided documents.

Common Area / Common Elements

As defined in Article I, Section 3 of the CC&Rs, this includes the multifamily structure (except for the units), land, air space, bearing walls, roofs, storage spaces, patios, recreational facilities, lawns, pipes, and other premises designed for common use.

Declaration

Another term for the Covenants, Conditions, and Restrictions (CC&Rs).

Lee & Kim Edwards

The Petitioners in the case and owners of unit 6937 in the Scottsdale Embassy Condominium development.

Office of Administrative Hearings

An independent state agency to which the Department of Real Estate refers petitions for evidentiary hearings.

Petitioners

The party that initiates a legal action or petition. In this case, Lee & Kim Edwards.

Preponderance of the Evidence

The evidentiary standard required to be met by the Petitioners. 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 a petition is filed. In this case, the Scottsdale Embassy Condominium Association.

Restricted Common Area

As defined in Article I, Section 3(b) of the CC&Rs, this refers to a separately designed and exclusive parking area for each unit as assigned by the Board of Directors.

Scottsdale Embassy Condominium Association

The Respondent in the case; the condominium unit owners’ association for the development.

Square Footage Rate

The historical method of calculating assessments for over 40 years, where each unit’s assessment was based on its square footage.

Uniform Rate

A requirement from Article VI, Section 9 of the CC&Rs that states both regular and special assessments must be fixed at a uniform rate for all units. The interpretation of this term was central to the dispute.

As defined in Article I, Section 4 of the CC&Rs, a separately designated freehold estate consisting of the space bounded by the interior surfaces of the perimeter walls, floors, ceilings, windows, and floors of each apartment. It does not include common elements.

Waiver

A legal argument made by the Petitioners that because the Association had charged assessments based on square footage for 40 years, it had relinquished or “waived” its right to enforce a different method.

4 Shocking Lessons from an HOA Lawsuit That Could Upend How You See Your Fees

Introduction: The 40-Year Mistake

If you live in a condominium or a community governed by a Homeowners Association (HOA), you likely operate under a simple assumption: the way things have always been done is the correct and legal way. Monthly fees, maintenance schedules, and community rules that have been in place for decades feel permanent and unassailable. But what if they aren’t?

This was the central question in the case of Lee & Kim Edwards versus the Scottsdale Embassy Condominium Association. For over 40 years, the Association calculated homeowner fees based on the square footage of each unit—a practice that seemed fair and logical, and one that was never questioned by residents.

Then came the twist. In January 2020, after consulting with an attorney, the HOA board announced a shocking revelation: their 40-year-old assessment method was a direct violation of the community’s own governing documents. The board presented the legal findings to the community and sought their input on how to proceed. After being given the choice between the old method, a blended rate, or a new flat-rate fee that complied with the rules, most homeowners voted for the compliant flat-rate system for every single unit, regardless of its size.

Homeowners sued to keep the old method, sparking a legal battle that went all the way to an administrative court. The resulting decisions offer surprising and crucial lessons for every homeowner paying HOA dues. Here are the four most impactful takeaways from the case that could change how you view your own community’s rules.

1. “Past Practice” Means Nothing if It Violates the Rules

The primary argument made by the petitioners, Mr. and Mrs. Edwards, was that the Association had “waived its right” to change the assessment method. After all, by using the square-footage calculation for four decades, hadn’t they established an unbreakable precedent? It seemed like a common-sense argument rooted in history and consistency.

The court, however, completely rejected this line of reasoning. The Administrative Law Judge’s decision was not based on historical practice but on the clear, written rules found in the community’s Covenants, Conditions, and Restrictions (CC&Rs). The Association argued that it’s “not possible to waive the CC&R requirement,” and the court agreed.

The Lesson: This case powerfully demonstrates that tradition or “how things have always been done” cannot override the explicit language of an HOA’s governing documents. The CC&Rs are a contract. The lesson is clear: if your HOA’s practice contradicts its documents, the practice is invalid. The board has a fiduciary duty to follow the written rules, not a 40-year-old mistake.

2. Your CC&Rs Are a Binding Contract—Read Them

Throughout the legal proceedings, the Administrative Law Judge consistently referred back to the specific text of the CC&Rs to make a final decision. The entire case ultimately hinged on the interpretation of a few key sentences written decades ago.

The most critical passage, which decided the outcome, was from Article VI, Section 4(d) of the community’s governing documents:

“Each unit’s share shall be the same as its undivided interest in the common elements of the total amount determined under the subparagraphs (a), (b), (c), and (d) above.” —Scottsdale Embassy Condominium Association CC&Rs, Article VI, Section 4(d)

This single sentence was the linchpin. It explicitly linked each unit’s assessment share to its “undivided interest in the common elements.” Another section of the document, Article I, Section 5, had already established that interest as an equal 1/26 for all 26 units.

The Lesson: This is a classic example of legal cross-referencing in a contract. Section 4(d) provided the instruction (base fees on “undivided interest”), while Article I, Section 5 provided the specific value (1/26). With both parts present and unambiguous, the court had no choice but to enforce them exactly as written, leaving no room for interpretations based on fairness or history. The contract was the contract.

3. A “Uniform Rate” Might Not Mean What You Think

One of the central points of contention was the term “uniform rate.” Article VI, Section 9 of the CC&Rs required that all assessments “must be fixed at a uniform rate for all units.”

The homeowners argued that the square footage rate was, in fact, a “uniform rate”—a consistent price per square foot applied to every unit. It’s an interpretation many of us might find reasonable.

However, the HOA Board and the court had a different interpretation. The judge found that the flat 1/26 rate was the correct interpretation of a “uniform rate” because it was uniformly applied to every unit’s established 1/26 interest in the common areas. In the court’s view, the “rate” being applied uniformly was the 1/26 fraction of the total budget. The fact that this resulted in different dollar amounts for square-footage fees was irrelevant; the legal share was what had to be uniform.

The Lesson: Common-sense terms like “uniform” can have very specific legal meanings within the context of your governing documents. The true definition is found not in a dictionary, but in how the term is defined and applied by the rest of the document’s provisions.

4. Your HOA’s Rules Can Sometimes Override State Law

In a final attempt to overturn the decision, the petitioners filed for a re-hearing. This time, they cited a specific Arizona state law, A.R.S. 33-1255. This statute says that expenses for “limited common elements”—things like assigned patios or parking spaces that only benefit specific units—should be assessed only against those units that benefit from them. The homeowners argued that the new 1/26 flat fee unfairly forced them to pay for their neighbors’ patios and parking spots, a direct violation of state law.

Surprisingly, this argument also failed. The reason is found in the crucial introductory clause of the state law itself: “Unless otherwise provided for in the declaration…”

Because the Scottsdale Embassy’s Declaration did provide otherwise—by explicitly rolling all general and restricted common area costs into the total budget before calculating each unit’s 1/26 share—the community’s own rules legally superseded the default state statute. The judge concluded that the state law “does not apply to this matter because the Declaration requires” a different method.

The Lesson: This is perhaps the most counter-intuitive lesson of all. This demonstrates a key principle of contract law and planned community governance: state statutes often provide a “default” rule for situations a community’s documents don’t address. However, they also grant communities the power to create their own specific rules, which, if legally permissible, will take precedence. Homeowners cannot assume that a state law automatically protects them if their community’s own governing documents have a more specific rule in place.

Conclusion: Are You Sure You Know What You Agreed To?

The central message from the Scottsdale Embassy case is undeniable: in an HOA, the written word is law. The CC&Rs and other governing documents are a binding contract that dictates the rules, regardless of 40 years of history, common-sense assumptions, or even some default state laws. What you believe is fair or standard practice is irrelevant if the document you agreed to upon purchase says otherwise.

This case was decided by a few sentences written decades ago. When was the last time you read your community’s governing documents from cover to cover?

Case Participants

Petitioner Side

  • Lee Edwards (petitioner, witness)
  • Kim Edwards (petitioner)
  • Teresa H. Foster (petitioner attorney)
    Ellis & Baker, P.C.
    Also referred to as Terri Foster and Terry Foster

Respondent Side

  • Lauren Vie (respondent attorney)
    Appeared for initial hearing; later noted as withdrawn
  • Caleb Koch (board president, witness)
    Scottsdale Embassy Condominium Association
  • Mary Edinburgh (board member, witness)
    Scottsdale Embassy Condominium Association
  • Beth Mulcahy (respondent attorney)
    Mulcahy Law Firm, PC
    Recipient of transmission; noted as withdrawn counsel prior to rehearing

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient

Other Participants

  • Miranda Alvarez (unknown)
    Associated with transmission for petitioner's attorney

Don France v. Mesa East Property Owners Association

Posted on by

Case Summary

Case ID 20F-H2020056-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-21
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Don France Counsel —
Respondent Mesa East Property Owners Association Counsel B. Austin Bailio

Alleged Violations

CC&R section 2.7

Outcome Summary

The petition was dismissed because the Petitioner failed to demonstrate a violation by the Association, conceding that the Association was not in violation of the cited CC&R section.

Why this result: Petitioner acknowledged the Association was not in violation of CC&R section 2.7, the single issue raised in the petition.

Key Issues & Findings

Alleged violation of CC&R section 2.7 by the Association (later asserted as estoppel regarding enforcement)

Petitioner alleged the Respondent Association violated CC&R section 2.7. At the hearing, Petitioner acknowledged the Association was not actually in violation of section 2.7, but argued the Association was estopped from enforcing the provision requiring a six-foot gate for RV storage. Petitioner sought invalidation of outstanding fines.

Orders: Don France's petition is dismissed.

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
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 41-1092.07(F)(6)
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: CC&R, RV storage, Estoppel, Fines
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 41-1092.07(F)(6)
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Video Overview

Audio Overview

Decision Documents

20F-H2020056-REL Decision – 924655.pdf

Uploaded 2026-04-24T11:27:03 (39.2 KB)

20F-H2020056-REL Decision – 823714.pdf

Uploaded 2026-04-24T11:27:11 (96.1 KB)

20F-H2020056-REL Decision – 823714.pdf

Uploaded 2026-01-23T17:32:50 (96.1 KB)

Administrative Hearing Briefing: France v. Mesa East Property Owners Association

Executive Summary

This document provides a detailed analysis of the administrative hearing decision in case number 20F-H2020056-REL, involving petitioner Don France and respondent Mesa East Property Owners Association (the “Association”). The core of the dispute was the Association’s enforcement of its Covenants, Conditions, and Restrictions (CC&Rs), specifically section 2.7, which requires a six-foot-high gate for Recreational Vehicles (RVs) stored on a property.

The petitioner, Mr. France, was fined by the Association in 2019 for not having the required gate on an RV structure that the Association itself had approved in 2014. Mr. France initially filed a petition alleging the Association was in violation of its own CC&Rs. However, at the September 1, 2020 hearing, he conceded this was not the case and instead argued the Association was “estopped”—or legally prevented—from enforcing the rule due to its prior approval.

The Administrative Law Judge ultimately dismissed Mr. France’s petition on procedural grounds. The judge determined that since Mr. France acknowledged his petition’s central claim was incorrect, he had failed to meet his burden of proof. The new arguments concerning estoppel and the legality of the fines were deemed not properly before the tribunal because they were not included in the original petition. The decision underscores the critical importance of aligning claims made in a formal petition with the arguments presented at a hearing.

Case Overview

Case Number

No. 20F-H2020056-REL

In the Office of Administrative Hearings

Petitioner

Don France

Respondent

Mesa East Property Owners Association

Respondent’s Counsel

B. Austin Bailio, Esq.

Administrative Law Judge

Thomas Shedden

Hearing Date

September 1, 2020

Decision Date

September 21, 2020

The central issue of the case revolves around the enforcement of CC&R section 2.7, which mandates that RVs stored on a property must be screened behind a structure with a six-foot-high gate. This requirement is mirrored by a City of Mesa municipal code.

Chronology of Key Events

• 2014: Mr. France applies for and receives approval from the Association’s Architectural Review Committee (ARC) to build an RV port. In his application, he acknowledges he will abide by deed restrictions and City of Mesa codes.

• October 21, 2014: The Association issues its final approval for the structure, which is built without a gate.

• Circa 2018: Following threats of litigation from other residents over non-enforcement of the CC&Rs, the Association begins a new enforcement campaign for the six-foot gate rule. The City of Mesa denies the Association’s request to “grandfather in” non-compliant homes.

• 2019: The deadline for residents to come into compliance passes.

• March 11, 2019: The Association issues a Notice of Violation (NOV) to Mr. France for lacking the required gate.

• April 5, 2019: Through an attorney, Mr. France asserts that the Association is estopped from enforcing the rule due to its 2014 approval.

• May 15, 2019: The Association’s attorney rejects the estoppel claim and informs Mr. France’s attorney that fines of $500 per week will be assessed.

• May 31, 2019: The Association assesses a $500 fine against Mr. France, with additional fines assessed later.

• July 24, 2019: The City of Mesa issues its own NOV to Mr. France, citing a violation of city code 11-34-5(B), which also requires a six-foot screening fence for RVs.

• April 16, 2020: Mr. France files a petition alleging the Association is in violation of CC&R section 2.7.

• Prior to Hearing: To comply with the City of Mesa’s NOV, Mr. France installs a temporary gate at a cost of approximately $800.

• September 1, 2020: The administrative hearing is conducted.

Analysis of Arguments and Testimonies

Petitioner’s Position (Don France)

• Initial Petition: The formal petition, filed on April 16, 2020, was based on the single issue that the Mesa East Property Owners Association had violated its own CC&R section 2.7.

• Revised Argument at Hearing: During the hearing, Mr. France acknowledged that the Association was not, in fact, violating section 2.7. His argument shifted to a claim of estoppel, asserting that the Association could not enforce the rule against him because its own ARC had approved his gateless structure in 2014.

• Requested Relief: Mr. France asked the judge to rule that the Association could not require him to install a gate and to invalidate any outstanding fines levied against him.

• Supporting Testimony: Joann Van Kirk, the chairperson of the ARC in 2014, testified on Mr. France’s behalf. She stated that she had been informed by a past chair that no gate was required for structures like Mr. France’s, citing other properties that had RV shelters without gates. She also testified that she called the City of Mesa at the time and was told a gate was not required if the structure was attached to the house.

Respondent’s Position (Mesa East POA)

• Basis for Enforcement: The Association began strictly enforcing the gate requirement around 2018 after being threatened with lawsuits by other members for failing to enforce the CC&Rs.

• Enforcement Actions: After an unsuccessful attempt to have the City of Mesa grandfather in non-compliant properties, the Association notified members of the requirement via its newsletter and online, setting a compliance deadline of 2019. When Mr. France did not comply, the Association issued an NOV and subsequently began assessing fines.

• Legal Stance: The Association’s counsel formally rejected Mr. France’s estoppel argument in May 2019.

• Supporting Testimony: Donald Smith testified that at the time the NOV was issued to Mr. France, eleven other residents were also non-compliant. By the hearing date, six remained in violation, five of whom had agreed to comply. This testimony was intended to show that the enforcement was not targeted solely at Mr. France.

Independent Municipal Action

The City of Mesa’s regulations played a significant and independent role in the matter.

• City Code: The City of Mesa has its own ordinance, Code section 11-34-5(B), which requires RVs taller than six feet to be screened by a six-foot-tall fence.

• Notice of Violation: On July 24, 2019, the City issued its own NOV to Mr. France for violating this code.

• Consequence: This municipal enforcement action compelled Mr. France to install a temporary gate to avoid penalties from the City, regardless of the outcome of his dispute with the Property Owners Association.

Administrative Law Judge’s Decision and Rationale

Final Order: IT IS ORDERED that Don France’s petition is dismissed.

The judge’s decision to dismiss the case was based on a precise legal and procedural rationale, rather than the merits of the estoppel argument.

• Failure of the Core Claim: The judge noted that Mr. France’s petition was limited to the single claim that the Association had violated CC&R section 2.7. At the hearing, Mr. France himself admitted this was not the case. As the petitioner, Mr. France bore the burden of proof, and his own testimony demonstrated that the “preponderance of the evidence shows that there is no violation.”

• Jurisdictional Limitation: The new issues raised by Mr. France at the hearing—namely the estoppel argument and the legality of the fines—were declared “not properly before the tribunal.” The judge reasoned that these claims were not included in the original petition, a separate filing fee was not paid for a second issue, and the claims were not listed in the official Notice of Hearing. This procedural failure prevented the judge from ruling on the substance of these arguments.

Conclusion and Post-Decision Protocol

The dismissal of Mr. France’s petition represents a conclusive finding in favor of the respondent based on the specific claims filed. The decision illustrates that the scope of an administrative hearing is strictly defined by the issues raised in the initial petition.

According to the decision document, the order is binding on both parties unless a rehearing is granted. A request for a rehearing must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of the order, pursuant to Arizona Revised Statutes.

Study Guide: France v. Mesa East Property Owners Association (No. 20F-H2020056-REL)

This guide provides a comprehensive review of the administrative hearing decision in the case between Don France (Petitioner) and the Mesa East Property Owners Association (Respondent), as decided by Administrative Law Judge Thomas Shedden.

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Short-Answer Questions

Instructions: Answer the following questions in two to three complete sentences, drawing all information directly from the provided legal decision.

1. Who are the primary parties in this case, and what was the single issue alleged in the Petitioner’s original petition filed on April 16, 2020?

2. According to CC&R section 2.7 and the City of Mesa’s code, what is the specific requirement for storing a recreational vehicle (RV) on a property?

3. What enforcement actions did the Mesa East Property Owners Association take against Don France in the spring of 2019?

4. What was Don France’s primary legal argument against the Association’s enforcement, which he revealed at the September 1, 2020 hearing?

5. What was the state of compliance on Mr. France’s property regarding the RV gate as of the hearing date, and what prompted this action?

6. According to the testimony of Donald Smith, what prompted the Association to begin enforcing the six-foot gate requirement around 2018?

7. What key information did Joann Van Kirk, the 2014 chairperson of the Architectural Review Committee, provide in her testimony?

8. How did the Petitioner’s argument at the hearing differ from the allegation in his initial petition, and why was this difference critical to the case’s outcome?

9. Why did the Administrative Law Judge decline to rule on the legality of the fines the Association had levied against Mr. France?

10. What was the ultimate order issued by the Administrative Law Judge, and what was the legal reasoning behind this decision?

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Answer Key for Short-Answer Questions

1. The primary parties are Don France, the Petitioner, and the Mesa East Property Owners Association, the Respondent. The single issue alleged in Mr. France’s petition was that the Association was in violation of its own CC&R section 2.7.

2. Both CC&R section 2.7 (the 1994 version) and the City of Mesa’s code (section 11-34-5(B)) require that RVs stored on a property must be screened behind a structure with a gate that is at least six feet high. The CC&Rs also specified the fence and gate must be tall enough to prevent a person from seeing the RV.

3. On March 11, 2019, the Association issued a Notice of Violation to Mr. France because his RV structure lacked a six-foot gate. Subsequently, on May 31, 2019, the Association fined him $500 for the same violation.

4. At the hearing, Mr. France’s primary argument was that the Association was “estopped” from finding him in violation of section 2.7. He argued this because the Association’s Architectural Review Committee had approved his RV structure in 2014 without the gate.

5. As of the hearing date, Mr. France had installed a temporary six-foot gate at a cost of about $800. This action was taken to comply with a Notice of Violation issued to him by the City of Mesa on July 24, 2019.

6. Donald Smith testified that around 2018, people were threatening to sue the Association if it did not enforce the CC&Rs. After meeting with the City of Mesa, which would not allow non-compliant homes to be grandfathered in, the Association began enforcing the gate requirement.

7. Joann Van Kirk testified that in 2014, she had learned from the past ARC chair that no gate was required because other owners had shelters without gates. She also testified that she called the City of Mesa and was told no gate was required if the structure was attached to the house.

8. While his petition alleged the Association had violated section 2.7, at the hearing Mr. France acknowledged this was not the case and argued instead that the Association was estopped from enforcing that section against him. This was critical because the judge could only rule on the single issue raised in the petition, which Mr. France conceded had no merit.

9. The judge declined to rule on the legality of the fines because the issue was not raised in Mr. France’s original petition. Therefore, it was not properly before the tribunal as a filing fee had not been paid for a second issue and it was not included in the Notice of Hearing.

10. The judge ordered that Don France’s petition be dismissed. The reasoning was that the petition was limited to the single issue of whether the Association had violated CC&R section 2.7, and Mr. France himself acknowledged at the hearing that no such violation by the Association had occurred.

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Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive essay-format response for each, citing specific facts from the case decision to support your arguments.

1. Analyze the concept of estoppel as it applies to this case. Explain why Don France believed the Association was estopped from enforcing the gate requirement, referencing the 2014 approvals, and discuss why the Association disagreed and proceeded with enforcement actions.

2. Discuss the procedural limitations that shaped the outcome of this hearing. How did the specific wording of Mr. France’s initial petition and the rules governing administrative hearings ultimately prevent the judge from considering the central issues of estoppel and the validity of the fines?

3. Examine the conflict between a property owner’s reliance on past approvals and a Property Owners Association’s duty to enforce its CC&Rs. Use the testimony of Joann Van Kirk and Donald Smith to illustrate the differing perspectives and pressures that led to this dispute.

4. Trace the timeline of events from Mr. France’s 2014 application to the 2020 hearing. Detail the key actions taken by Mr. France, the Association’s Architectural Review Committee, the Association’s Board, and the City of Mesa, and explain how their interactions created the legal conflict.

5. Evaluate the standard of proof required in this case, the “preponderance of the evidence.” Although the case was dismissed on a procedural issue, discuss which party presented a more convincing case regarding the underlying dispute over the RV gate, and why.

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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, makes findings of fact and conclusions of law, and issues decisions and orders.

Architectural Review Committee (ARC)

A committee within the Property Owners Association responsible for reviewing and approving applications for property improvements, such as Mr. France’s RV port in 2014.

Burden of Proof

The responsibility of a party in a legal case to prove their allegations. In this matter, Mr. France bore the burden of proof to show the Association violated its CC&Rs.

Covenants, Conditions, and Restrictions. These are the governing community documents that set rules for property use, such as section 2.7 which requires a six-foot gate for RV storage.

Conclusions of Law

The section of the judge’s decision that applies legal principles and statutes to the established facts of the case to reach a final ruling.

Estoppel

A legal principle asserted by Mr. France arguing that the Association should be prevented from enforcing a rule (the gate requirement) against him because of its prior action (approving his structure without a gate in 2014).

Findings of Fact

A formal, numbered list of facts in the judge’s decision that are established by the evidence and testimony presented during the hearing.

Notice of Violation (NOV)

A formal notice issued by the Association or the City of Mesa to a property owner informing them that they are in violation of a specific rule or code.

Petitioner

The party who initiates a legal action by filing a petition. In this case, Don France is the Petitioner.

Preponderance of the Evidence

The standard of proof required in this hearing. It is defined as evidence with “the most convincing force” that is sufficient to incline an impartial mind to one side of an issue over the other.

Respondent

The party against whom a petition is filed. In this case, the Mesa East Property Owners Association is the Respondent.

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20F-H2020056-REL

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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings concerning the case of Don France versus the Mesa East Property Owners Association. The document details a dispute where Petitioner Don France alleged that the Respondent Association violated a community covenant regarding the storage of recreational vehicles (RVs), specifically CC&R section 2.7, which requires RVs to be stored behind a six-foot gate. Although Mr. France initially brought the petition alleging the Association violated the rule, he ultimately argued that the Association was estopped from enforcing the rule against him due to past approval of his RV structure without a gate. The decision includes a summary of the Findings of Fact related to Mr. France’s structure, the Association’s attempts to enforce the gate requirement against him and other residents, and the resulting fines he incurred before installing a gate to comply with a separate City of Mesa Notice of Violation. Ultimately, the Administrative Law Judge determined that Mr. France failed to meet the burden of proof to show the Association violated the CC&Rs, and his petition was dismissed because he acknowledged the Association was not actually in violation of section 2.7.

1 source

What were the legal and factual grounds for the case’s dismissal?
How did the Association’s past actions relate to the estoppel claim?
What was the core conflict between the homeowner, HOA, and city codes?

Based on 1 source

00:00
00:00

NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Don France (petitioner)
    Appeared on his own behalf and testified
  • Joann Van Kirk (witness)
    Testified for Petitioner; was chairperson of Architectural Review Committee ('ARC') in 2014

Respondent Side

  • B. Austin Bailio (HOA attorney)
    Maxwell & Morgan, P.C.
    Attorney for Respondent Mesa East Property Owners Association
  • Michael Estey (witness)
    Testified for Respondent
  • Donald Smith (witness)
    Testified for Respondent

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate

Susan E Abbass v. 10000 North Central Homeowners Assocciation

Posted on by

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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Suggested Essay Questions

Instructions: The following questions are designed for a more in-depth, essay-format response. Answers are not provided.

1. Analyze the legal distinction between a “right” and an “obligation” as it pertains to the Homeowners Association’s authority under the CCR’s in this case. How was this distinction central to the Administrative Law Judge’s final decision?

2. Discuss the concept of “preponderance of the evidence” as defined in the legal decision. Detail the evidence and arguments presented by both the Petitioner and Respondent, and explain why the judge ultimately concluded that the Petitioner failed to meet this standard.

3. Trace the complete procedural history of this case, from the filing of the initial petition to the final order. Identify the key dates, actions taken by each party, and the rulings made at each stage of the administrative process.

4. Evaluate the actions taken by the Respondent (10000 North Central Homeowners Association) in response to the Petitioner’s complaint. Based on the Findings of Fact, did the association act reasonably and in compliance with the CCR’s?

5. Explain the jurisdiction and statutory limitations of the Office of Administrative Hearings in resolving disputes between homeowners and their associations, as outlined in the decision. What remedies were available to the Petitioner through this venue, and why was the specific relief she sought beyond the judge’s power to grant?

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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

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.

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

John A Sellers vs. Rancho Madera Condominium Association

Posted on by

Case Summary

Case ID 19F-H1918010-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-10
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John A Sellers Counsel —
Respondent Rancho Madera Condominium Association Counsel Edward D. O'Brien

Alleged Violations

CC&Rs § 3.10

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the HOA (Respondent) did not violate CC&R Section 3.10. The CC&Rs imposed the duty of keeping the drainage area clear primarily on the Unit Owners, and the HOA only retained the right to enforce this requirement, not an explicit obligation.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the CC&Rs because the HOA did not have an obligation to enforce clearance requirements against unit owners under the cited covenant provisions.

Key Issues & Findings

Alleged violation of CC&Rs § 3.10 by failing to require unit owners to remove vegetation and fencing materials from the stormwater channel behind their homes.

Petitioner alleged the HOA violated CC&Rs § 3.10 by failing to compel unit owners to clear vegetation and debris (including chicken wire) from the stormwater drainage channel, asserting this failure created a flood risk to unit 12. The ALJ found that the CC&Rs placed the primary maintenance responsibility on Unit Owners, and the HOA only had the right, but not the obligation, to enforce clearance requirements.

Orders: The petition was denied and dismissed. No action was required of Respondent because Petitioner failed to establish that Respondent violated the CC&Rs regarding maintenance of the drainage easement.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199.01
  • Title 33, Chapter 9
  • A.A.C. R2-19-119(A) and (B)(1)
  • Vazanno v. Superior Court
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY
  • Powell v. Washburn
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Analytics Highlights

Topics: HOA, CC&R, Drainage, Maintenance, Enforcement, Condominium
Additional Citations:

  • A.R.S. § 32-2199.01
  • Title 33, Chapter 9
  • A.A.C. R2-19-119(A) and (B)(1)
  • Vazanno v. Superior Court
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY
  • Powell v. Washburn
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Video Overview

Audio Overview

Decision Documents

19F-H1918010-REL Decision – 706533.pdf

Uploaded 2026-04-24T11:15:56 (42.2 KB)

19F-H1918010-REL Decision – 707530.pdf

Uploaded 2026-04-24T11:16:00 (111.5 KB)

19F-H1918010-REL Decision – 667122.pdf

Uploaded 2026-04-24T11:16:05 (50.0 KB)

19F-H1918010-REL Decision – 678371.pdf

Uploaded 2026-04-24T11:16:09 (129.5 KB)

19F-H1918010-REL Decision – 667122.pdf

Uploaded 2026-01-23T17:26:17 (50.0 KB)

19F-H1918010-REL Decision – 678371.pdf

Uploaded 2026-01-23T17:26:21 (129.5 KB)

Briefing Document: Sellers vs. Rancho Madera Condominium Association

Executive Summary

This document synthesizes the legal proceedings and outcomes of the case John A Sellers, Petitioner, vs. Rancho Madera Condominium Association, Respondent (Case No. 19F-H1918010-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was a claim by Petitioner John Sellers that his homeowner’s association (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to compel other homeowners to remove vegetation and fencing from a common stormwater drainage channel, which he alleged created a flood risk to his property, Unit 12.

The petitioner’s claim was ultimately unsuccessful. It was denied first in an initial evidentiary hearing and again in a subsequent rehearing. The central finding of the Administrative Law Judges (ALJs) in both decisions was a critical distinction between an HOA’s right to enforce rules and an obligation to do so. The ALJs determined that the CC&Rs placed the primary responsibility for maintaining the drainage easement on the individual unit owners. The HOA’s mandatory duty to intervene was found to be triggered only by actual damage resulting from an owner’s negligence, not by the mere potential for future damage. As no flooding or damage had ever occurred, the HOA was found to have acted within its authority and had not violated the CC&Rs. The petitioner’s personal circumstances, including a contentious divorce and court-ordered sale of the property, were noted but deemed legally irrelevant to the determination of a CC&R violation.

Case Chronology and Procedural History

The case progressed through an initial petition, a hearing, a decision, a request for rehearing, and a final decision on rehearing. A notable procedural anomaly occurred when a hearing scheduled for November 5, 2018, was officially vacated due to a withdrawal notice from the petitioner, yet the hearing proceeded on that date as originally planned.

Details

Aug 23, 2018

Petition Filed

John A. Sellers filed a single-issue petition with the Arizona Department of Real Estate alleging the Rancho Madera Condominium Association violated CC&R § 3.10.

Oct 23, 2018

Hearing Vacated

An order was issued by ALJ Diane Mihalsky vacating the November 5 hearing because the petitioner had notified the Department of his wish to withdraw the petition.

Nov 5 & Dec 12, 2018

Initial Hearing

Despite the prior vacating order, an evidentiary hearing was held before ALJ Mihalsky.

Dec 26, 2018

Initial Decision

ALJ Mihalsky issued a decision finding that the petitioner failed to prove his case. The petition was denied.

Feb 1, 2019

Rehearing Requested

The petitioner filed a request for a rehearing, alleging procedural irregularities and errors in the initial decision.

Feb 22, 2019

Rehearing Granted

The Commissioner of the Department of Real Estate granted the request for a rehearing.

Apr 15, 2019

Rehearing Held

A rehearing was held before a new judge, ALJ Tammy L. Eigenheer.

May 7, 2019

Post-Hearing Filing Stricken

The petitioner submitted an unauthorized supplemental argument after the rehearing. ALJ Eigenheer issued an order striking the filing from the record and closing the record.

May 10, 2019

Final Decision on Rehearing

ALJ Eigenheer issued a final decision, again finding for the respondent and dismissing the petition.

Core Dispute Analysis

Petitioner’s Position and Allegations

• Core Allegation: The petitioner alleged that the Rancho Madera Condominium Association (Respondent) violated CC&R § 3.10 by failing to enforce its rules. Specifically, the Association did not require owners of “Drainage Easement Units” to remove obstructions—such as large succulents, cacti, shrubs, and chicken wire fencing—from a 3′ x 3′ stormwater drainage canal located behind their homes.

• Perceived Risk: The petitioner testified that these items could catch storm debris, clog the channel, and cause flooding that would damage his property, Unit 12. He submitted videos of heavy rains to support his concern.

• Evolving Legal Argument: In the rehearing, the petitioner’s argument shifted. He acknowledged that the CC&Rs gave the Association the right to enforce maintenance standards but argued that “at a certain point exercising a right becomes an obligation,” particularly when matters of safety and property values are implicated.

• Claimed Financial Damages: The petitioner testified he was undergoing a contentious divorce and his condominium was being sold by order of the Maricopa County Superior Court. He asserted that due to the unresolved flood risk, which he was obligated to disclose, the sale price of Unit 12 was “$40,000 less than it would have been.”

Respondent’s Position and Actions

• Denial of Violation: The Association denied it had violated any CC&Rs by its handling of the drainage channel.

• Evidence and Testimony: The Association, represented by its President, Jeffrey Kaplan, presented several key points:

◦ No History of Flooding: Mr. Kaplan testified that Unit 12 had never sustained any flood damage since the development was built in 2012, including during a “100-year storm” in 2014. After a significant rainstorm in August 2018, he personally inspected the easement and saw no water in it.

◦ Origin of Plants: Mr. Kaplan stated that the builder had originally planted the vegetation in the drainage easement that the petitioner was concerned about.

◦ No Other Complaints: No other members of the 46-unit Association had expressed any concerns about drainage.

◦ Proactive Communication: To assuage the petitioner’s concerns, the Association’s management company sent letters to the relevant homeowners on April 18, 2018, and July 19, 2018, reminding them of their responsibility to keep the drainage area free of obstructions.

◦ Due Diligence: Mr. Kaplan contacted officials at the Maricopa County Flood Control District and the Town of Cave Creek, who confirmed the drainage area was not on any official floodplain maps and that the Association was solely responsible for its maintenance.

Key CC&R Provisions and Legal Interpretation

The ALJs’ decisions hinged on a close reading of the Rancho Madera CC&Rs. The analysis consistently differentiated between the duties of individual owners and the duties of the Association.

• CC&R § 3.10.2 — Unit Owner Responsibility: This section places the primary maintenance burden directly on the homeowners of the Drainage Easement Units.

◦ Interpretation: The legal conclusion was that this provision unambiguously makes individual owners responsible for keeping their portion of the easement clear.

• CC&R § 3.10.4 — Association Responsibility: This section defines the specific circumstance under which the Association is required to act.

◦ Interpretation: Both ALJs found that this clause creates a reactionary, not a proactive, duty for the Association. Its obligation to repair is triggered by actual damage occurring, not by a perceived risk of future damage.

• CC&R § 13.1.1 — Association Enforcement Power: This section, highlighted in the rehearing, grants the Association authority to act.

◦ Interpretation: The ALJ in the rehearing ruled that this language grants a discretionary right, not a mandatory obligation. The CC&Rs contain no provision that converts this right into a duty under the circumstances presented by the petitioner.

Judicial Findings and Rulings

Initial Decision (ALJ Diane Mihalsky, Dec 26, 2018)

• Burden of Proof: The petitioner failed to establish his claim by a preponderance of the evidence.

• Findings of Fact: The petitioner successfully established that plants and chicken wire existed in the stormwater canal. However, he failed to establish that these items actually impeded the flow of water.

• Conclusion: The respondent proved that the drainage canal had functioned as intended since 2012 and that Unit 12 had never flooded. The petitioner’s divorce was noted to have “cast a long shadow over his administrative complaint” but was irrelevant to the legal issue. The petition was denied.

Rehearing Decision (ALJ Tammy L. Eigenheer, May 10, 2019)

• Central Legal Finding: The CC&Rs clearly intend for unit owners to bear the primary responsibility for keeping the drainage area clear. The Association’s only specified obligation is to repair damage after it has occurred and bill the responsible owner.

• Right vs. Obligation: The decision explicitly states, “While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”

• Final Order: The petitioner failed to establish that the respondent violated Section 3.10 of the CC&Rs. The petition was dismissed.

Notable Evidence

A key piece of evidence submitted by the respondent was a June 22, 2018, email from the petitioner’s wife, Debborah Sellers, which directly refuted the petitioner’s claims. In the email, she stated:

“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”

Study Guide for Case No. 19F-H1918010-REL: Sellers v. Rancho Madera Condominium Association

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 sentences, drawing exclusively from the information provided in the case documents.

1. What was the specific allegation John A. Sellers made against the Rancho Madera Condominium Association in his petition filed on August 23, 2018?

2. Identify the key responsibilities assigned to individual unit owners of Drainage Easement Units according to Section 3.10.2 of the CC&Rs.

3. Who is Jeffrey Kaplan, and what key testimony did he provide on behalf of the Respondent?

4. What specific actions did the Respondent’s management company take in April and July of 2018 to address the Petitioner’s concerns?

5. According to the decision by Administrative Law Judge Diane Mihalsky, what did the Petitioner fail to establish regarding the plants and chicken wire in the drainage canal?

6. On what grounds did John A. Sellers file his Homeowner’s Association (HOA) Dispute Rehearing Request on February 1, 2019?

7. What was the Petitioner’s core argument regarding the Association’s “right to enforce” the CC&Rs versus an “obligation to enforce” them?

8. What was the final conclusion of Administrative Law Judge Tammy L. Eigenheer regarding the Association’s responsibilities under the CC&Rs?

9. What occurred after the April 15, 2019 rehearing when the Petitioner attempted to submit supplemental information to the Office of Administrative Hearings?

10. Describe the evidence presented in an email from Debborah Sellers and its relevance to the case.

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Answer Key

1. John A. Sellers alleged that the Rancho Madera Condominium Association violated Section 3.10 of its Covenants, Conditions, and Restrictions (CC&Rs). He claimed the Association failed to require condominium owners to remove vegetation and fencing materials from the stormwater channel, creating a flood risk for his unit.

2. Section 3.10.2 of the CC&Rs requires each Unit Owner of a Drainage Easement Unit to keep their respective Drainage Easement Area free of weeds and other debris. The purpose is to ensure that stormwater can flow freely and that no improvement, including plant materials, impedes this flow.

3. Jeffrey Kaplan is the President of the Rancho Madera Condominium Association. He testified that the drainage easement had never failed, even during a 100-year storm in 2014, that the original builder had planted the vegetation in question, and that he had consulted with county and town officials about the drainage area.

4. To address the Petitioner’s concerns, the Respondent’s management company sent letters to the owners of the Drainage Easement Units. Letters sent on April 18, 2018, and July 19, 2018, reminded owners of their responsibility to keep the drainage area free of obstructions, weeds, and debris.

5. Judge Mihalsky’s decision on December 26, 2018, concluded that the Petitioner established the presence of plants and chicken wire but failed to establish that these items actually impede the flow of water. The judge found that the drainage system functions as intended and there was no unreasonable risk of flooding.

6. The Petitioner filed for a rehearing based on several alleged issues with the original proceeding. These included an irregularity in the proceedings, the existence of newly discovered evidence, errors in the admission or rejection of evidence, and a belief that the findings of fact or decision were arbitrary, capricious, or not supported by evidence.

7. The Petitioner argued that while the CC&Rs grant the Association the “right to enforce” maintenance requirements, this right becomes an “obligation” when issues of property values and safety are at stake. He maintained that the potential for flooding created such an obligation for the Association to act.

8. Judge Eigenheer concluded that the CC&Rs intend for unit owners to bear the responsibility of keeping the Drainage Easement Area clear. She determined that while the Association has the right to enforce this, nothing in the CC&Rs creates an obligation for it to do so, and its only specified responsibility is to repair damage after it occurs, billing the responsible unit owner.

9. After the rehearing, the Petitioner submitted supplemental authority and argument without having requested leave to do so. The Respondent’s counsel argued this filing was untimely and introduced new arguments, requesting it be struck. On May 7, 2019, Judge Eigenheer ordered the filing struck from the record and closed the record.

10. The Respondent submitted a June 22, 2018 email from Debborah Sellers, the Petitioner’s wife. In the email, she stated there had never been an issue with the storm drain, called his concerns “nonsense,” and noted that the developer had done a good job, undermining the Petitioner’s claim of a significant and obvious flood risk.

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Suggested Essay Questions

1. Analyze the legal reasoning used by Administrative Law Judge Tammy L. Eigenheer to dismiss the petition after the rehearing. Contrast her interpretation of the Association’s duties under the CC&Rs with the findings presented by Judge Diane Mihalsky in the initial decision.

2. Discuss the concept of “preponderance of the evidence” as defined in the legal documents. Evaluate the evidence presented by both the Petitioner and the Respondent, explaining why the Petitioner ultimately failed to meet this burden of proof in both hearings.

3. Trace the complete procedural history of case No. 19F-H1918010-REL. Identify and explain the significance of key events, including the initial petition, the vacated hearing, the first Administrative Law Judge Decision, the request for rehearing, and the final order dismissing the case.

4. Examine the role and responsibilities of the Rancho Madera Condominium Association versus the individual unit owners as defined by Sections 3.10, 3.10.2, 3.10.4, and 13.1.1 of the CC&Rs. How did the interpretation of these sections form the basis of the final legal decision?

5. Evaluate the different types of evidence presented in the hearings, including witness testimony (Sellers, Kaplan), documentary evidence (CC&Rs, letters, emails), and physical evidence (photographs, videos). How did each type of evidence contribute to the final outcome of the case?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, takes evidence, and makes legal decisions and orders. In this case, Diane Mihalsky and Tammy L. Eigenheer served as ALJs.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the guidelines for a planned community or condominium association. In this case, the CC&Rs for Rancho Madera were the central document in the dispute.

Drainage Easement

A perpetual, non-exclusive legal right created over a specific portion of property (the eastern five feet of Units 9-18) for constructing and maintaining a stormwater drainage channel.

Drainage Easement Area

The specific portion of land encumbered by the Drainage Easement, defined as the eastern five feet of the designated units.

Drainage Improvements

The physical components of the drainage system, such as the channel, decomposed granite, rip rap (large stones), or concrete, as originally constructed by the developer.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, such as the Department of Real Estate.

Petitioner

The party who initiates a legal action or files a petition seeking a legal remedy. In this case, John A. Sellers.

Preponderance of the Evidence

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

Rehearing

A second hearing of a case, granted by the Commissioner in this instance, to re-examine the issues based on claims such as procedural irregularities, newly discovered evidence, or errors in the original decision.

Respondent

The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, the Rancho Madera Condominium Association.

The Department

Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings from members of condominium unit owners’ associations.

I Read an Entire HOA Lawsuit. Here Are 4 Shocking Lessons About Power, Rules, and Reality.

The Anatomy of a Neighborhood War

Living under a Homeowner’s Association (HOA) often means navigating a complex world of rules, regulations, and neighborhood politics. For most, disagreements are minor annoyances. But sometimes, a seemingly small issue can escalate into a full-blown legal war.

This is the story of one homeowner’s single-minded crusade against his HOA over a stormwater drainage channel he believed was a serious flooding risk. After filing a formal petition, the dispute escalated into a multi-stage legal battle that spanned nearly a year. The official court documents reveal that even after a judge ruled decisively against him, the homeowner doubled down, demanding a rare rehearing.

A deep dive into this protracted case reveals a fascinating and cautionary tale. The legal reasoning that ultimately settled the matter highlights several surprising lessons that apply to anyone living in a planned community.

1. Proving a Rule Was Broken Isn’t the Same as Proving Harm

The initial hearing, held before Administrative Law Judge Diane Mihalsky in late 2018, centered on a seemingly straightforward argument from the petitioner, John Sellers. He pointed out that his neighbors had placed plants—including large succulents, shrubs, and cacti—as well as chicken wire in a stormwater drainage channel. This, he argued, was a clear violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs), which stated that no improvement “shall be constructed, installed or allowed to grow… that may… impede the flow of water.”

But in her December 26, 2018 decision, the judge ruled against him. While Sellers successfully proved the obstructions existed, he failed to meet the legal burden of proof that they actually “impede the flow of water.” His claim was defeated by testimony from the HOA President, Jeffrey Kaplan, who stated that the unit had never sustained any flood damage, not even during a “100-year storm in 2014.”

The lesson from this first round is stark: in this legal context, simply pointing out a technical rule break was not enough. The petitioner had to prove that the violation was causing a tangible, negative impact. Without evidence of actual harm or impeded water flow, the theoretical risk was insufficient to win the case.

2. An HOA’s “Right” to Enforce Is Not an “Obligation”

After losing the first round on a question of evidence, Sellers’ argument evolved. He requested a rehearing, which was granted, and the case landed before a new judge, Tammy L. Eigenheer, in the spring of 2019. This shifted the legal focus from physical proof of impeded water flow to a more fundamental question of the HOA’s duties.

Sellers argued that because safety and property values were at stake, the association had a duty to enforce the CC&Rs and compel his neighbors to clear the drainage channel. He contended that at a certain point, an organization’s “right” to act becomes an “obligation.”

The judge’s final decision on May 10, 2019, was clear, absolute, and is where the most powerful lesson of the entire case lies.

“While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”

This distinction is critical for any homeowner. An HOA can possess the legal power to act but may not be legally compelled to use it. According to the judge’s interpretation, the governing documents placed the responsibility for keeping the channel clear on the individual unit owners. The association’s only stated obligation was to repair damage after it happened, with the cost being billed back to the responsible party.

3. Outside Conflicts Can Cast a Long Shadow

Legal disputes are rarely just about the facts of the case. During the initial hearing, it was revealed that the petitioner was going through a “contentious divorce” and that the condo unit at the center of the dispute was a community asset being sold by the court.

The most dramatic evidence, however, came from an email written by the petitioner’s own wife, Debborah Sellers. The email, submitted as evidence by the HOA, directly undermined his claims about the severity of the drainage issue.

“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”

In her decision, Judge Mihalsky officially stated that the divorce was “not relevant” to the technical question of whether the HOA violated the CC&Rs. However, she immediately added that the situation “cast a long shadow over his administrative complaint,” suggesting that the personal context, and especially the damaging email, severely harmed the petitioner’s credibility.

4. Writing Letters Isn’t the Same as Being Heard

Throughout the dispute, the petitioner made his concerns known by writing “many letters” to the HOA president. He was persistent in his written communications, attempting to force the issue onto the association’s radar.

Yet, this effort was contrasted with a notable lack of direct participation. According to the testimony of HOA President Kaplan during the first hearing, Sellers “never attended any of Respondent’s noticed Board meetings” where his concerns could have been discussed among the board members.

The HOA’s response to his letters was limited; it sent two general reminder letters to all residents in the affected area but did not take direct enforcement action against any specific homeowner. The practical takeaway is that to effect change or be taken seriously in an HOA dispute, visibility and participation are critical. Writing letters is a start, but attending official meetings to present a case in person can be a more effective strategy for ensuring an issue is formally addressed.

A Cautionary Tale for Any Homeowner

What began as a seemingly straightforward complaint about drainage and rule enforcement devolved into a legal battle that consumed nearly a year, involving two multi-day hearings before two different administrative law judges. The petitioner lost his case on the evidence, then lost it again on the law.

It serves as a potent cautionary tale, demonstrating that in the world of HOA disputes, the obvious path is not always the winning one. It leaves every homeowner with a final, thought-provoking question to ponder: When you see a problem in your community, how do you decide if a fight is worth the cost—not just in money, but in time, credibility, and peace?

Case Participants

Petitioner Side

  • John A Sellers (petitioner)

Respondent Side

  • Edward D. O’Brien (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP
    Represented Respondent
  • Edith I. Rudder (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP
    Represented Respondent
  • Jeffrey Kaplan (HOA President/witness)
    Rancho Madera Condominium Association
    Testified on behalf of Respondent

Neutral Parties

  • Diane Mihalsky (ALJ)
    OAH
    ALJ for initial proceedings
  • Tammy L. Eigenheer (ALJ)
    OAH
    ALJ for rehearing
  • Judy Lowe (Commissioner)
    ADRE
  • LDettorre (ADRE staff)
    ADRE
    Recipient of transmission
  • AHansen (ADRE staff)
    ADRE
    Recipient of transmission
  • djones (ADRE staff)
    ADRE
    Recipient of transmission
  • DGardner (ADRE staff)
    ADRE
    Recipient of transmission
  • ncano (ADRE staff)
    ADRE
    Recipient of transmission
  • c. serrano (Clerical staff)
    Transmitted document
  • F. Del Sol (Clerical staff)
    Transmitted document

Other Participants

  • Debborah Sellers (witness)
    Petitioner's wife, email submitted as evidence

Debbie Westerman v. Bridgewood Townhomes

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Case Summary

Case ID 18F-H1818028-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-04-26
Administrative Law Judge Diane Mihalsky
Outcome The ALJ denied the petition, concluding the Respondent HOA did not unreasonably deny the Petitioner's architectural request. The HOA's standard specification requiring 4” x 8” x 16” CMU blocks for courtyard walls was found to be reasonable for maintaining architectural continuity consistent with the original Al Beadle design of the community.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Debbie Westerman Counsel —
Respondent Bridgewood Nine 30 Property Owners Association, Inc. aka Bridgewood Townhomes Counsel Mark E. Lines and R. Patrick Whelan

Alleged Violations

CC&R § 5(G)

Outcome Summary

The ALJ denied the petition, concluding the Respondent HOA did not unreasonably deny the Petitioner's architectural request. The HOA's standard specification requiring 4” x 8” x 16” CMU blocks for courtyard walls was found to be reasonable for maintaining architectural continuity consistent with the original Al Beadle design of the community.

Why this result: Petitioner failed to prove that the HOA's denial was unreasonable or that the specified 4” x 8” x 16” CMU block was inferior to the 8” x 8” x 16” CMU block she requested, and compliance with the HOA's reasonable specifications was required.

Key Issues & Findings

Unreasonable denial of architectural request to build a courtyard wall

Petitioner alleged the HOA violated CC&R § 5(G) by unreasonably denying her request to construct a courtyard wall using 8” x 8” x 16” CMU blocks, which did not comply with the HOA's Wall Construction Specifications & Conditions requiring 4” x 8” x 16” CMU blocks.

Orders: Petition denied because Petitioner failed to establish that CC&R § 5(G) required the Respondent to approve her Architectural Request which did not comply with Respondent’s Wall Construction Specifications & Conditions.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

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)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • CC&R § 5(G)
  • CC&R § 7(B)
  • CC&R § 5(J)

Analytics Highlights

Topics: HOA, CC&R, Architectural Review, Wall Construction, CMU block, Architectural Standard
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. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • 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

18F-H1818028-REL Decision – 631265.pdf

Uploaded 2026-04-25T09:57:11 (161.6 KB)

18F-H1818028-REL Decision – 631265.pdf

Uploaded 2026-01-23T17:23:15 (161.6 KB)

Briefing Document: Westerman v. Bridgewood Townhomes HOA (Case No. 18F-H1818028-REL)

Executive Summary

This document synthesizes the findings and decision in the case of Debbie Westerman versus the Bridgewood Nine 30 Property Owners Association, Inc. (HOA). The central conflict involved the HOA’s denial of Ms. Westerman’s architectural request to construct a courtyard wall using 8” x 8” x 16” concrete masonry unit (CMU) blocks, which deviated from the association’s established standard of 4” x 8” x 16” CMU blocks.

The Administrative Law Judge (ALJ) ultimately denied the petitioner’s claim, ruling in favor of the HOA. The decision rested on the finding that the HOA’s architectural standards were reasonable and established to maintain the community’s original design integrity. The petitioner failed to meet the burden of proof required to show that the HOA’s denial was unreasonable or that the specified building materials were in any significant way inferior. The HOA successfully argued that its “Wall Construction Specifications & Conditions,” in place since 2005, were created to preserve the architectural continuity of the original “Al Beadle design” and have been consistently applied to numerous other homeowner projects.

1. Case Overview and Core Dispute

• Parties:

◦ Petitioner: Debbie Westerman, owner of condominium unit 31 in Bridgewood Townhomes.

◦ Respondent: Bridgewood Nine 30 Property Owners Association, Inc. (also known as Bridgewood Townhomes).

• Jurisdiction: The case was heard by the Arizona Office of Administrative Hearings following a petition filed with the Arizona Department of Real Estate on January 23, 2018.

• Core Allegation: The petitioner alleged that the HOA violated its Covenants, Conditions, and Restrictions (CC&Rs) § 5(G) by unreasonably denying her request to build a courtyard wall with 8” x 8” x 16” CMU blocks. The HOA’s established specification required the use of 4” x 8” x 16” CMU blocks.

2. Chronology of the Dispute

The key events leading to the administrative hearing occurred between October 2017 and January 2018.

Oct 25, 2017

Michael Brubaker, the HOA Board President, emailed the petitioner with the association’s “Wall Construction Specifications & Conditions.”

Oct 25, 2017

The petitioner submitted an Architectural Request to build a wall with 8″ x 8″ x 16″ CMU blocks, acknowledging the deviation from specifications.

Oct 25, 2017

Mr. Brubaker sent a follow-up email cautioning the petitioner not to pre-order non-conforming materials as her request was not yet approved.

Nov 29, 2017

Mr. Brubaker emailed the petitioner, acknowledging her request as “extraordinary” and stating the Board would need to meet to consider it.

Dec 28, 2017

The petitioner was formally notified of a Board meeting scheduled for January 2, 2018, to review her request.

Jan 2, 2018

The petitioner attended the Board meeting. The Board unanimously rejected her request because it was contrary to the established specifications and “the historical aspects of our compliance structure.” The Board noted its willingness to approve a compliant wall, but the petitioner “stated that she [was] unwilling to comply.”

Jan 8, 2018

The HOA’s attorney sent a letter to the petitioner summarizing the legal basis for the denial.

Jan 23, 2018

The petitioner filed her formal petition with the Arizona Department of Real Estate.

3. Petitioner’s Arguments and Evidence (Debbie Westerman)

The petitioner’s case was built on three main arguments: the superiority of her proposed materials, the inconsistency of community standards, and the questionable validity of the HOA’s rules.

• Material Superiority: The petitioner claimed her proposed 8” x 8” x 16” blocks were stronger, less expensive, and visually identical to the required blocks.

◦ Evidence: She testified that three different contractors advised her that the larger blocks would be cheaper due to needing fewer units and less mortar.

◦ Evidence: Her subcontractor, Richard Ross, testified that using twice as many blocks (as required by the 4″ specification) “doubles the chance of the wall failing.”

• Inconsistent Community Standards: The petitioner argued that the HOA did not enforce a uniform aesthetic, negating the need for strict adherence to the block size specification.

◦ Evidence: She submitted photographs (Exhibits A5, A6) of walls at units 34 and 38, owned by Board President Michael Brubaker, which she claimed were built with larger blocks visible through stucco.

◦ Evidence: She submitted a photograph (Exhibit A11) showing courtyard walls of different heights, although wall height was not the subject of her dispute.

• Questionable Rule Authenticity: At the hearing, the petitioner challenged the validity of the “Wall Construction Specifications & Conditions” document itself.

◦ Argument: She argued the document was not authentic because the HOA did not produce the official Board meeting minutes from 2005 when the rules were allegedly adopted. This challenge was raised for the first time at the hearing.

4. Respondent’s Arguments and Evidence (Bridgewood HOA)

The HOA’s defense was centered on its legal authority, the reasonableness of its established architectural standards, and the consistent enforcement of its rules.

• Adherence to Established Architectural Standards: The HOA’s primary defense was that its denial was based on a reasonable and long-standing architectural rule.

◦ Authority: The HOA cited CC&R § 5(J), which grants the Board the authority to adopt reasonable rules concerning the use of common elements. Rule 7(a) requires Board approval for any exterior alterations.

◦ Evidence: The HOA submitted the “Wall Construction Specifications & Conditions” (Exhibit 3), which Mr. Brubaker credibly testified was adopted by the Board on March 22, 2005.

◦ Purpose of the Rule: Mr. Brubaker stated the rule’s purpose was to ensure architectural continuity. An email to the petitioner (Exhibit 7) explained:

• Consistent Enforcement: The HOA demonstrated that the rule was not arbitrary but had been consistently applied.

◦ Evidence: Mr. Brubaker testified that since the program’s adoption, “twenty-nine homeowners have had applications approved and constructed courtyard walls to specification.” Four additional compliant applications were approved since the petitioner’s submission. A photograph of a recently completed, compliant wall (Ms. Warren’s) was submitted as Exhibit 16.

• Rebuttal of Petitioner’s Claims: The HOA directly countered the petitioner’s key arguments.

◦ On Inconsistency: Mr. Brubaker testified that the non-conforming walls at units 34 and 38 were constructed before 1980 by the original developer, prior to the HOA assuming control of the property (Exhibit 14).

◦ On Structural Integrity: The HOA submitted two technical bulletins from the National Concrete Masonry Association (Exhibits 19 and 20). These documents stated that 4″ high (“half-high”) units can be considered “structurally equivalent to their corresponding 8-in. (203-mm) high unit” as long as the cross-section is the same.

◦ On Cost: The HOA submitted a bid from J E Bowen Construction for $6,165.00 to build a compliant wall for the petitioner’s unit (Exhibit 17). It also noted that another homeowner’s recent compliant wall cost only $4,268.23 (Exhibit 15).

5. Administrative Law Judge’s Conclusions and Final Order

The Administrative Law Judge (ALJ) found comprehensively in favor of the Respondent (HOA), denying the Petitioner’s petition.

• Burden of Proof: The ALJ established that the petitioner bore the burden of proving her case by a “preponderance of the evidence” and failed to do so.

• Reasonableness of HOA Standards: The decision affirmed the HOA’s right to establish and enforce aesthetic standards.

• Validity of Specifications: The petitioner’s challenge to the authenticity of the HOA’s rules was dismissed. The ALJ found that she “did not establish that Respondent’s Wall Construction Specifications & Conditions was fraudulent or improperly adopted.”

• Materiality of Block Type: The ALJ concluded that the petitioner failed to prove her central claim that the larger blocks were superior.

• Aesthetic Impact: The ALJ determined that the petitioner’s proposed wall would violate the community’s aesthetic standards, noting that a wall using the larger blocks “would be noticeably different from walls that were constructed in compliance with the Wall Construction Specifications & Conditions and other Al Beadle design elements.”

Final Order: “IT IS ORDERED that Petitioners’ petition is denied because she has not established that CC&R § 5(G) required the Respondent to approve her Architectural Request to build a block wall around her patio that did not comply with Respondent’s Wall Construction Specifications & Conditions.”

The order, issued on April 26, 2018, is binding unless a rehearing is requested within 30 days of service.

Study Guide: Westerman v. Bridgewood Nine 30 Property Owners Association, Inc.

This study guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 18F-H1818028-REL, concerning a dispute between a homeowner and her homeowners’ association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case.

Short-Answer Quiz

Instructions: Answer the following ten questions in 2-3 sentences each, based on the information provided in the source document.

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

2. What specific action by the Respondent was the Petitioner challenging in her petition?

3. According to the Respondent, what was the primary purpose of the “Wall Construction Specifications & Conditions”?

4. What were the three main arguments the Petitioner presented in favor of using 8” x 8” x 16” CMU blocks instead of the specified size?

5. How did the Petitioner attempt to demonstrate that the Respondent’s enforcement of wall specifications was inconsistent?

6. What was the Respondent’s explanation for the non-conforming walls cited by the Petitioner?

7. What evidence did the Respondent present to counter the Petitioner’s claim that the specified 4” x 8” x 16” CMU blocks were structurally inferior?

8. Which party bore the “burden of proof” in this case, and what did that require them to establish?

9. On what date did the Respondent’s Board of Directors originally adopt the Wall Construction Specifications & Conditions?

10. What was the final ruling in this case, and what was the judge’s primary reason for the decision?

Answer Key

1. The primary parties were Debbie Westerman, the Petitioner, and the Bridgewood Nine 30 Property Owners Association, Inc., the Respondent. Ms. Westerman owns condominium unit 31 in the Bridgewood Townhomes development and is therefore a member of the Respondent homeowners’ association.

2. The Petitioner was challenging the Respondent’s denial of her Architectural Request to build a wall around her patio. Specifically, she alleged that the Respondent had unreasonably denied her request to use 8” x 8” x 16” concrete masonry unit (CMU) block, which violated the association’s Covenants, Conditions, and Restrictions (CC&Rs).

3. The “Wall Construction Specifications & Conditions” were developed to provide architectural continuity and standards for courtyard walls. They were intended to ensure that any new walls conformed to the original Al Beadle design represented by other structures on the property, such as the perimeter wall and pool enclosure.

4. The Petitioner argued that her proposed 8” x 8” x 16” CMU blocks were stronger, less expensive (requiring fewer blocks and less mortar), and looked the same as the specified blocks. This information was based on advice she received from three different contractors.

5. The Petitioner submitted photographs of courtyard walls at unit nos. 34 and 38, which she testified had larger blocks visible through stucco. She used these examples to argue that walls within the community were not consistent.

6. The Respondent’s Board president, Michael Brubaker, testified that the walls for units 34 and 38 were constructed before 1980. This was before the original developer turned the property over to the Respondent homeowners’ association, and therefore before the current specifications were in place.

7. The Respondent submitted two technical documents (TEK 5-15 and TEK 2-2B) from the National Concrete Masonry Association. These documents stated that 4-inch high (“half-high”) units are structurally equivalent to their corresponding 8-inch high counterparts, provided the face shell and web thicknesses are the same.

8. The Petitioner, Ms. Westerman, bore the burden of proof. This required her to establish by a “preponderance of the evidence” that the Respondent violated CC&R § 5(G) by unreasonably denying her request.

9. Michael Brubaker, the Respondent’s Board president, credibly testified that the Board adopted the Wall Construction Specifications & Conditions on March 22, 2005.

10. The final ruling was that the Petitioner’s petition was denied. The judge concluded that the Petitioner failed to establish that the Respondent’s Board acted unreasonably in denying her request, as the Board’s decision to maintain architectural consistency with the original Al Beadle design was reasonable.

Suggested Essay Questions

Instructions: The following questions are designed for longer, essay-style responses to test a deeper understanding of the case’s themes and legal principles. Do not provide answers.

1. Analyze the legal concept of a “restrictive covenant.” Using the CC&Rs from the Bridgewood Townhomes development as an example, explain how these covenants function to regulate property use and how they are interpreted and enforced in a legal dispute.

2. Evaluate the evidence presented by both the Petitioner and the Respondent regarding the structural integrity and cost of the different CMU block sizes. Discuss the quality of the evidence (e.g., expert testimony, technical documents, contractor bids) and explain which side made a more compelling argument on this point.

3. Discuss the role and authority of a homeowners’ association Board of Directors as demonstrated in this case. How did the Board use its authority under the CC&Rs to create and enforce the “Wall Construction Specifications & Conditions,” and what does the judge’s decision say about the reasonableness of its actions?

4. The concept of “architectural continuity” and preserving the original “Al Beadle design” was central to the Respondent’s argument. Explain the significance of this argument and analyze why the Administrative Law Judge found it to be a reasonable basis for denying the Petitioner’s request.

5. Trace the procedural history of this dispute, from the Petitioner’s initial Architectural Request in October 2017 through the Administrative Law Judge’s final decision. What do the steps taken by both parties reveal about the formal processes for dispute resolution within this planned community?

Glossary of Key Terms

Definition (as used in the source document)

Administrative Law Judge (ALJ)

An independent judge (Diane Mihalsky) who presides over administrative hearings at the Office of Administrative Hearings, an agency separate from the Department of Real Estate.

Architectural Request

A formal application submitted by a homeowner to the homeowners’ association for approval of any alterations or additions to the exterior of a unit.

Covenants, Conditions, and Restrictions. A set of rules recorded with the county that governs the rights and obligations of property owners within a planned community or condominium development.

Concrete Masonry Unit. A standard-size rectangular block used in construction. In this case, the dispute centered on two sizes: 4” x 8” x 16” and 8” x 8” x 16”.

Common Area

Areas within the development owned by the Homeowners’ Association in trust for the benefit and use of all lot owners.

Department

The Arizona Department of Real Estate, the state agency authorized to receive and decide petitions for hearings from members of homeowners’ associations.

Homeowners’ Association (HOA)

An organization in a subdivision, planned community, or condominium development that makes and enforces rules for the properties within its jurisdiction. In this case, the Bridgewood Nine 30 Property Owners Association, Inc.

Limited Common Elements

Areas, such as the patios or courtyards adjacent to individual units, that are part of the common area but are reserved for the exclusive use of a specific owner.

Petitioner

The party who files a petition initiating a legal action. In this case, the homeowner, Debbie Westerman.

Preponderance of the Evidence

The standard of proof required in this civil case. It is defined as evidence that has the most convincing force and is 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 case, the homeowners’ association, Bridgewood Nine 30 Property Owners Association, Inc.

Restrictive Covenant

A provision in a deed or CC&R that limits the use of the property. The judge notes that if unambiguous, these are enforced to give effect to the intent of the parties.

Subpoena Duces Tecum

A legal order requiring a person to appear and bring specified documents or evidence with them. The decision notes the Petitioner did not request one for the Board meeting minutes.

TEK 2-2B & TEK 5-15

Titles of technical publications from the National Concrete Masonry Association, submitted as evidence by the Respondent to demonstrate the structural equivalence of different-sized CMU blocks.

Why Your HOA Cares About Your Bricks: A Real-Life Legal Battle, Deconstructed

For many homeowners, the relationship with their Homeowners’ Association (HOA) is a source of quiet frustration. It often involves rules that seem arbitrary, overly specific, or just plain unreasonable. You want to make a practical improvement to your property, but the HOA’s governing documents stand in the way, citing regulations you never knew existed. This friction between individual desire and community standards is common, but rarely does it escalate into a formal legal dispute.

When it does, however, the results can be surprisingly illuminating. Such is the case of Debbie Westerman and the Bridgewood Townhomes HOA in Arizona. Their legal battle wasn’t over a major renovation or a loud party; it was about the specific size of concrete blocks for a new patio wall. On the surface, it seems like a minor disagreement. But a closer look at the administrative law judge’s decision reveals powerful, practical lessons for every homeowner about the hidden legal realities of community governance.

By deconstructing the judge’s final decision, we can uncover four critical lessons that reveal how HOAs wield power and how homeowners can protect themselves.

Takeaway 1: Aesthetic Vision Can Legally Outweigh Practicality

At the heart of the dispute was a simple disagreement over materials. The petitioner, Debbie Westerman, wanted to build her patio wall using 8″x8″x16″ concrete blocks. Her reasoning was entirely practical: a licensed contractor advised her that the larger blocks were “stronger, less expensive, and looks the same.” From a homeowner’s perspective, this seems like an open-and-shut case for approval.

The HOA, however, denied the request. Their position was based not on practicality, but on a specific design vision. The association’s rules, established back in 2005, explicitly required the use of 4″x8″x16″ blocks. The reason? To maintain “architectural continuity” with the property’s original “Al Beadle design.” This wasn’t a vague preference; it was a documented standard intended to conform new construction to the existing visual language of the community, as seen in the “property’s perimeter wall, the original block buildings, the pool area enclosure and buildings, the parking structures, and the walls around the parking areas.”

Ultimately, the judge sided with the HOA. The decision found that the association’s requirement was reasonable because it was aimed at keeping new construction consistent with “significant elements of Bridgewood Townhomes.” This is a crucial lesson: a homeowner’s logical arguments about cost, strength, and appearance can be legally superseded by a community’s well-documented commitment to a specific, even if less tangible, design aesthetic.

Takeaway 2: The Power is in the Paper Trail

The HOA’s entire case rested on the strength of a single key document: the “Wall Construction Specifications & Conditions.” This document, which the board officially adopted on March 22, 2005, clearly outlined the requirement for the 4-inch blocks.

Crucially, the petitioner only challenged the authenticity of this document for the first time during the hearing itself, arguing the HOA had not produced the original meeting minutes that adopted it. The judge deemed this last-minute challenge inadmissible. Why? Crucially, the judge noted that the homeowner had failed to use the proper legal procedures to demand the HOA produce those records ahead of time, making her challenge too little, too late. The HOA, meanwhile, demonstrated a long history of consistent enforcement. Before Ms. Westerman’s request, the association had already approved 29 other courtyard walls, all built according to the 2005 specifications.

This highlights a critical lesson: an HOA’s power is codified in its paper trail. The governing documents—from the Covenants, Conditions, and Restrictions (CC&Rs) down to specific board-adopted rules—carry immense legal weight.

Pro Tip: Your HOA’s governing documents are more than just the CC&Rs you received at closing. Formally request and review all board-adopted rules, architectural guidelines, and meeting minutes related to your planned project hiring a contractor or submitting an application.

Takeaway 3: The Burden of Proof Is on the Homeowner

Many people might assume that in a dispute, the powerful organization (the HOA) has the responsibility to prove its rules are fair and justified. The legal reality is often the exact opposite.

The judge’s decision explicitly stated that the “burden of proof” was on Ms. Westerman to establish that the HOA had acted unreasonably. It was not the HOA’s job to prove their rule was perfect; it was the homeowner’s job to prove the denial was improper. To meet this high legal standard, defined as a “preponderance of the evidence,” you need convincing proof.

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

This case provides a masterclass in what constitutes convincing proof. Ms. Westerman’s evidence that the 8-inch blocks were superior came from the testimony of her contractor’s unlicensed subcontractor. In sharp contrast, the HOA submitted two technical documents from the National Concrete Masonry Association—a neutral, expert authority—which demonstrated that the required 4-inch blocks are “structurally equivalent” to their 8-inch counterparts. The homeowner brought an opinion to a legal fight; the HOA brought expert documentation.

Actionable Advice: If you choose to challenge an HOA decision, understand that personal testimony and contractor opinions are often insufficient. To meet the ‘burden of proof,’ you must be prepared to counter the HOA’s documented rules with equally strong evidence, such as independent engineering reports, surveys, or expert testimony.

Takeaway 4: An HOA Rule Can Be a “Win-Win Program”

While it’s easy to view HOA rules as purely restrictive, the association’s board president, Michael Brubaker, offered a completely different perspective. He framed the wall policy not as a limitation, but as a benefit designed to increase the value and security of the entire community.

In an email to the petitioner, he explained the board’s original thinking behind allowing the walls in the first place, calling it a “win win program.”

A courtyard wall allowed homeowners to expand their homes with an exclusive-use courtyard space, enhance privacy, and improve security, which resulted in an increased individual property value that subsequently raised all property values. Additionally, the Association reduced costs by reducing the common area to be maintained. This is a win win program.

This viewpoint is bolstered by another critical fact: the HOA assumes maintenance responsibility for the walls after they are built. This reinforces the logic behind the rule. Uniformity isn’t just about aesthetics; it’s about the long-term, collective cost and labor of maintaining these structures, making a consistent standard a practical and financial concern for the entire association.

Conclusion: Beyond the Bricks

The dispute between Debbie Westerman and the Bridgewood Townhomes HOA was, on its face, about the size of concrete blocks. But the legal decision reveals a much deeper story about community living. It’s a story about how a shared aesthetic vision, when properly documented, can become legally enforceable. It’s a confirmation of the immense power of written rules and the critical importance of bringing credible evidence to a dispute. And it’s a reminder that the legal burden often falls on the individual to challenge the collective.

This case demonstrates that behind a seemingly petty disagreement lies a complex reality of legal precedent, established processes, and a community’s right to define and defend its character. The next time you encounter a seemingly arbitrary HOA rule, will you see it as a simple restriction, or will you look for the deeper story of community standards and legal precedent behind it?

Case Participants

Petitioner Side

  • Debbie Westerman (petitioner)
    Appeared on her own behalf
  • Kelly Zernich (witness)
    Petitioner's realtor
  • Richard Ross (witness)
    Petitioner's contractor's subcontractor

Respondent Side

  • Mark E. Lines (attorney)
    Shaw & Lines, LLC
  • R. Patrick Whelan (attorney)
    Shaw & Lines, LLC
  • Michael Brubaker (board member/witness)
    Respondent's Board president

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate

Other Participants

  • Barb Warren (homeowner/applicant)
    Application approved by the Board (used for comparison)
  • Felicia Del Sol (unknown)
    Transmitted the decision electronically