The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.
Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.
Key Issues & Findings
Violation of Residential Use covenant prohibiting traffic/parking generation by business
The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.
Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.
Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1919044-REL
Agency
ADRE
Tribunal
OAH
Decision Date
2019-05-07
Administrative Law Judge
Thomas Shedden
Outcome
partial
Filing Fees Refunded
$0.00
Civil Penalties
$500.00
Parties & Counsel
Petitioner
Pointe Tapatio Community Association
Counsel
Lauren Vie
Respondent
Lanye C. Wilkey and Devin E. Wilkey
Counsel
Joseph Velez
Alleged Violations
CC&R Article 3, section 3.1
Outcome Summary
The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.
Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.
Key Issues & Findings
Violation of Residential Use covenant prohibiting traffic/parking generation by business
The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.
Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.
Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.
Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.
Key Issues & Findings
Violation of Residential Use covenant prohibiting traffic/parking generation by business
The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.
Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.
Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.
Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.
Key Issues & Findings
Violation of Residential Use covenant prohibiting traffic/parking generation by business
The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.
Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.
Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.
Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.
Key Issues & Findings
Violation of Residential Use covenant prohibiting traffic/parking generation by business
The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.
Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.
Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
The ALJ denied the petition after rehearing, concluding the Petitioner failed to prove by a preponderance of the evidence that the HOA violated its CC&Rs, controlling Rules and Regulations (revised July 2018), or relevant statutes (A.R.S. §§ 33-1803 and 1809) by banning parking on association streets and implementing a booting/towing contract.
Why this result: The Petitioner failed to meet the burden of proof to establish the alleged violations of community documents or A.R.S. statutes by a preponderance of the evidence.
Key Issues & Findings
Alleged violation of community documents and statutes regarding parking ban and vehicle booting/towing
Petitioner alleged the HOA violated its CC&Rs amendments 1, 2, and 3, and Rules and Regulations, by banning all parking on association streets and contracting for vehicle booting/towing. Petitioner also contested the validity of the 2018 revised Rules and Regulations due to improper notice and alleged violations of A.R.S. §§ 33-1803 and 1809.
Briefing Document: Lee v. Greenlaw Townhouses HOA Parking Dispute
Executive Summary
This document synthesizes the findings from two administrative law judge decisions concerning a dispute between homeowner William P. Lee and the Greenlaw Townhouses Unit Two Homeowners Association (“Greenlaw”). The core of the dispute was Greenlaw’s 2018 implementation of a complete ban on street parking within the community and its subsequent contract with a towing company to “boot” vehicles in violation.
Mr. Lee’s petition, filed on September 12, 2018, alleged that this parking ban violated specific amendments to the association’s Covenants, Conditions, and Restrictions (CC&Rs) and was enacted through an invalid revision of the community’s Rules and Regulations.
Following an initial hearing on December 13, 2018, and a subsequent rehearing on April 1, 2019, the Administrative Law Judge (ALJ) conclusively denied Mr. Lee’s petition. The final decision, issued on April 22, 2019, determined that Mr. Lee failed to meet his burden of proof. The ALJ found that the May 2018 revised Rules and Regulations, which explicitly ban all street parking, were the controlling authority. Furthermore, the decision established that these rules do not conflict with the CC&R amendments, as the amendments only prohibit parking in specific, limited scenarios (e.g., fire lanes, snow removal) and do not grant a general right to park on association streets.
Case Overview
Case Name
William P. Lee v. Greenlaw Townhouses Unit Two Homeowners Association
Case Number
19F-H1918019-REL
Jurisdiction
Arizona Office of Administrative Hearings (referred by the Department of Real Estate)
Adjudicator
Administrative Law Judge Velva Moses-Thompson
Petitioner
William P. Lee
Respondent
Greenlaw Townhouses Unit Two Homeowners Association (“Greenlaw”)
Key Dates
– Petition Filed: September 12, 2018 – Initial Hearing: December 13, 2018 – Rehearing: April 1, 2019 – Final Decision: April 22, 2019
Core Allegation
The central issue, as defined in the Notice of Hearing, was Mr. Lee’s single-issue petition alleging that Greenlaw “violated Community Document CC&Rs amendments 1, 2, & 3 and Association Rules and Regulations… when it banned all parking on the association streets and contracted with a towing service to boot vehicles.”
Analysis of Governing Documents
The case revolved around the interpretation of and interplay between Greenlaw’s CC&Rs, its Rules and Regulations, and its Bylaws.
Covenants, Conditions, and Restrictions (CC&Rs)
• Association Authority: Section (I)(b) of the CC&Rs grants Greenlaw ownership of the common areas, which include the streets in question (Eva, Heidi, and Jeffrey Loops). It specifies that the “maintenance and use shall be controlled by the Association.”
• Parking Amendments: Amendments 1, 2, and 3 were central to Mr. Lee’s argument. These amendments add specific parking prohibitions to the CC&Rs under Article II, PERMITTED USES.
Amendment
Provision
Amendment #1
Prohibits parking in designated fire lanes, which are to be marked with signs and red-painted curbs after consultation with the Flagstaff Fire Marshal.
Amendment #2
Prohibits residents or visitors from parking on association roads during periods of snow removal. Violators may be towed at the vehicle owner’s expense.
Amendment #3
Prohibits parking vehicles at the curb side in an obvious state of disrepair for more than 72 hours. Such vehicles are considered abandoned and may be towed.
Rules and Regulations
• 2003 Revised Rules and Regulations: Mr. Lee contended that this was the controlling document and that it allowed for parking on association streets. He argued that Greenlaw’s booting of vehicles in 2017 was a violation of these rules.
• May 2018 Revised Rules and Regulations: Greenlaw asserted that this was the new, controlling document, effective July 2018. Section 8 of these rules institutes a complete ban on street parking:
Association Bylaws (1986)
• Notice Requirement: Mr. Lee cited Article V, Section 1 of the Bylaws, which states that notices to lot owners “shall be in writing and delivered personally or mailed to the directors or lot owners at their addresses appearing on the books of the corporation.” This formed the basis of his argument that the email distribution of the 2018 rules was improper.
Key Arguments Presented
Petitioner (William P. Lee)
• Violation of CC&Rs: The general parking ban enacted in the 2018 Rules contradicted the CC&R amendments, which only banned parking in specific situations.
• Invalidity of 2018 Rules: The May 2018 Rules and Regulations were invalid because Greenlaw failed to provide proper notice of the revision as required by the 1986 Bylaws, instead sending an email which he contended was insufficient and unclear.
• Controlling Document: The 2003 Rules, which he claimed permitted street parking, should be considered the controlling authority.
• Improper Motivation: The parking ban was enacted solely to appease a board member, Barbara, who did not want cars parked behind her property.
• Evidence of Enforcement: Mr. Lee testified that he observed a jeep being booted and that the Greenlaw manager’s response to his inquiry confirmed the association’s policy.
Respondent (Greenlaw HOA)
• Authority Over Common Areas: The CC&Rs grant Greenlaw the authority to control the use of association streets.
• Validity of 2018 Rules: The May 2018 Rules and Regulations were properly adopted and represent the current, controlling regulations.
• No Conflict with CC&Rs: The CC&R amendments do not authorize parking; they are a list of specific prohibitions. A general ban on parking does not conflict with these specific restrictions.
• Notice Sufficiency: Greenlaw argued that the Bylaw’s requirement for personal or postal mail delivery only applies to notices mandated by statute or the CC&Rs, not to amendments to the Rules and Regulations. Mr. Lee did, in fact, receive the revised rules via email on July 6, 2018.
• Cure of Prior Violations: Any alleged violation of the prior (2003) rules was rendered moot and “cured” by the valid enactment of the May 2018 revised rules.
Administrative Law Judge’s Rulings and Rationale
The ALJ’s decisions in both the initial hearing and the rehearing were consistent, leading to the denial of Mr. Lee’s petition.
• Burden of Proof: The ALJ established that Mr. Lee, as the petitioner, bore the burden of proving his claims by a “preponderance of the evidence.” In both decisions, the ALJ concluded that Mr. Lee failed to meet this standard. A preponderance of the evidence is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
• Controlling Authority: The “weight of the evidence presented at hearing” showed that the May 2018 revised Rules and Regulations were the controlling rules at the time the petition was filed. Mr. Lee failed to establish that the 2003 Rules were still in effect.
• Interpretation of CC&Rs: The ALJ found the restrictive covenants in Amendments 1, 2, and 3 to be unambiguous. The ruling states, “Amendments 1, 2, and 3 of the Greenlaw CC&Rs do not allow parking on the streets, but rather, provide specific scenarios in which parking on the streets is banned.” Therefore, Greenlaw’s decision to ban all street parking did not violate these amendments.
• Lack of Evidence for Harm: The ALJ noted that Mr. Lee “did not even allege that Greenlaw booted or towed one of his vehicles.” Furthermore, regarding the booted jeep he observed, “there was no evidence provided that the Greenlaw manager stated that Greenlaw was responsible for booting the jeep. Moreover, Mr. Lee did not know who owned the jeep, nor who was responsible for booting the jeep.”
Final Disposition
Petition Denied: The final order, issued April 22, 2019, following the rehearing, states: “IT IS ORDERED that Petitioners’ petition is denied.”
The decision concluded that Mr. Lee failed to establish by a preponderance of the evidence that Greenlaw violated its CC&Rs or its Rules and Regulations when it banned parking and contracted with a towing company. This order is final and binding on the parties, with any further appeal requiring judicial review in superior court.
Study Guide – 19F-H1918019-REL-RHG
Study Guide: Lee v. Greenlaw Townhouses Unit Two HOA
This study guide provides a review of the administrative legal case between Petitioner William P. Lee and Respondent Greenlaw Townhouses Unit Two Homeowners Association, as detailed in the Administrative Law Judge Decisions No. 19F-H1918019-REL and No. 19F-H1918019-REL-RHG.
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Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case documents.
1. Who were the primary parties in this case, and what was the central dispute?
2. What was Petitioner William P. Lee’s main argument regarding the association’s Covenants, Conditions, and Restrictions (CC&Rs)?
3. On what grounds did the Greenlaw HOA claim it had the authority to ban all parking on its streets?
4. What three specific parking prohibitions were explicitly listed in Amendments 1, 2, and 3 of the Greenlaw CC&Rs?
5. What was the significance of the May 2018 revised Rules and Regulations in the judge’s final decisions?
6. How did Mr. Lee challenge the validity of the revised 2018 Rules and Regulations during the rehearing?
7. What legal standard of proof was required for Mr. Lee’s petition to succeed, and did the judge find that he met it?
8. According to the case findings, what evidence did Mr. Lee present to prove that Greenlaw was responsible for booting or towing member vehicles?
9. What was Greenlaw’s defense against the claim that it failed to provide proper notice of the new rules?
10. What was the final outcome of both the initial hearing on December 13, 2018, and the rehearing on April 1, 2019?
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Answer Key
1. The primary parties were Petitioner William P. Lee, a townhouse owner, and Respondent Greenlaw Townhouses Unit Two Homeowners Association. The central dispute was Mr. Lee’s allegation that Greenlaw’s ban on all street parking and its contract with a towing company to “boot” vehicles violated the community’s governing documents.
2. Mr. Lee argued that because CC&R Amendments 1, 2, and 3 only banned parking in specific scenarios (fire lanes, snow removal, abandoned vehicles), they implicitly permitted parking at all other times. He contended that a total ban therefore violated these amendments.
3. The Greenlaw HOA argued that Section (I)(b) of its CC&Rs grants it control over the maintenance and use of common areas, which include the association’s streets. They contended this authority was sufficient to ban parking and contract with a towing company.
4. The three amendments prohibited parking in designated fire lanes, on subdivision roads during periods of snow removal, and for vehicles parked at curbside in an obvious state of disrepair for more than 72 hours.
5. The May 2018 revised Rules and Regulations explicitly banned parking on any association street at any time. The judge found these to be the controlling rules, superseding any previous versions, and that they “cured” any purported violations that may have occurred under older rules.
6. During the rehearing, Mr. Lee argued that the 2018 rules were invalid because Greenlaw failed to provide proper notice. He contended that the association’s Bylaws required notice to be delivered personally or by postal mail, not by email as was done on July 6, 2018.
7. Mr. Lee was required to prove his case by a “preponderance of the evidence.” The Administrative Law Judge concluded in both decisions that Mr. Lee failed to meet this burden of proof.
8. Mr. Lee testified that he observed a jeep that had been booted but provided no evidence that Greenlaw was responsible for booting it or any other vehicles belonging to members. The judge found that he did not establish that Greenlaw had booted or towed any vehicles.
9. Greenlaw argued that the Bylaw’s requirement for notice by mail or personal delivery only applied to notices required by statute or the CC&Rs. The association contended it was not required by law or its CC&Rs to provide notice of an amendment to its Rules and Regulations in that specific manner.
10. The final outcome of both hearings was a denial of Mr. Lee’s petition. The Administrative Law Judge ordered in both the December 31, 2018 decision and the April 22, 2019 decision that the petition be denied because Mr. Lee failed to prove Greenlaw violated its CC&Rs or Rules and Regulations.
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Essay Questions
Instructions: Consider the following questions for a deeper analysis of the case. Develop an essay-format response for each, drawing evidence and examples from the case documents.
1. Analyze the legal reasoning of the Administrative Law Judge in determining that the CC&R amendments did not grant an affirmative right to park. How did the judge’s interpretation of “restrictive covenants” shape the outcome?
2. Discuss the concept of “burden of proof” as it applied to William P. Lee’s petition. Using specific examples from the hearings, explain why the judge concluded he failed to meet the “preponderance of the evidence” standard.
3. Trace the evolution of Mr. Lee’s arguments from the initial petition to the rehearing. How did his focus shift, particularly regarding the notification method for the revised Rules and Regulations, and what impact did this shift have on the proceedings?
4. Examine the conflicting interpretations of Greenlaw’s Bylaws regarding the proper method for notifying homeowners of changes. Evaluate the arguments made by both Mr. Lee and Greenlaw on this point and discuss which interpretation the judge implicitly supported.
5. The judge in the initial hearing noted that Greenlaw “has in effect cured any purported previous violation through the enactment of the May 2018 Revised Rules and Regulations.” Discuss the legal implications of this finding for homeowners’ associations and their ability to amend rules to address ongoing disputes.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings at government agencies. In this case, Velva Moses-Thompson of the Office of Administrative Hearings.
Answer (Legal)
A formal written response filed by the respondent to a petition, addressing the allegations made.
Bylaws
The formal rules governing the internal management of an organization, such as a homeowners’ association. Greenlaw’s Bylaws were recorded on June 16, 1986.
CC&Rs (Covenants, Conditions, and Restrictions)
A set of rules established by a developer or homeowners’ association that govern a planned community. All owners are legally bound by these rules.
Common Area
Property within a planned community that is owned by the homeowners’ association for the benefit and use of all lot owners. In this case, the streets (Eva, Heidi, and Jeffrey Loops) are considered common areas.
Department
Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions from HOA members.
Evidentiary Hearing
A formal proceeding where parties present evidence (such as testimony and exhibits) before a judge to resolve a factual dispute.
Homeowners’ Association (HOA)
An organization in a subdivision, planned community, or condominium development that makes and enforces rules for the properties and their residents.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona where administrative law judges conduct evidentiary hearings for other state agencies.
Petitioner
The party who files a petition initiating a legal action. In this case, William P. Lee.
Petition
A formal written request to a court or administrative body, asking for a specific action or decision on a matter.
Preponderance of the Evidence
The standard of proof in most civil cases, meaning the evidence must show that a claim is more likely to be true than not true. This was the burden of proof placed on Mr. Lee.
Rehearing
A second hearing of a case to allow for reconsideration of the initial decision, often based on new evidence or arguments.
Respondent
The party against whom a petition is filed. In this case, Greenlaw Townhouses Unit Two Homeowners Association.
Restrictive Covenant
A provision in a deed or community document that limits the use of the property. The principle is that such covenants are enforced to give effect to the intent of the parties.
Rules and Regulations
A set of operational rules created by an HOA’s board that provide specific details on how to follow the broader principles outlined in the CC&Rs and Bylaws.
Blog Post – 19F-H1918019-REL-RHG
5 Surprising Truths About HOA Power: Lessons from a Homeowner’s Losing Battle Over Parking
For many homeowners, the relationship with their Homeowners Association (HOA) is a delicate balance, and nowhere is this more apparent than with parking rules. A single violation notice can escalate into a years-long conflict. But what happens when a homeowner, convinced the HOA has overstepped its authority, decides to fight back?
William P. Lee believed his HOA’s governing documents were his shield. The court, however, ruled they were a blank check for the board’s authority. Mr. Lee took his HOA to court over a newly enacted, total ban on street parking, contending the rule was not only unreasonable but enacted merely to appease a board member who didn’t want cars parked behind her property. He lost his case, requested a rehearing, and lost again. His determined but ultimately failed battle provides a masterclass in the surprising and often counter-intuitive extent of an HOA’s power, revealing five critical lessons for every homeowner.
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1. What Isn’t Forbidden Can Still Be Banned
Mr. Lee’s primary argument was rooted in the community’s founding documents, the Covenants, Conditions, and Restrictions (CC&Rs). He pointed out that the CC&Rs only prohibited parking in a few specific situations: in designated fire lanes, during snow removal, or for vehicles that were obviously abandoned. By his logic, if parking wasn’t explicitly forbidden at other times, it must be allowed.
The judge’s decision, however, hinged on a critical legal distinction. The ruling concluded that the CC&Rs did not grant an affirmative right to park on the streets; they only listed a few specific prohibitions. This legal gray area gave the HOA Board the authority to create new, more restrictive rules to fill in the gaps.
The Takeaway: This case is a stark warning about “permissive silence.” Homeowners should treat their CC&Rs not as a list of guaranteed rights, but as a minimum set of restrictions. The absence of a specific prohibition does not guarantee a right, and a future board can—and likely will—build upon those foundational rules to enact stricter policies.
2. The Board Can Retroactively ‘Cure’ Its Own Violations
Part of Mr. Lee’s case was that the HOA had been improperly booting vehicles back in 2017, under the old, more permissive rules. He argued that these past actions were a violation, regardless of any later changes.
The judge found that the HOA’s new rule effectively neutralized this argument. The decision explicitly states that even if the association had acted improperly in the past, “Greenlaw has in effect cured any purported previous violation through the enactment of the May 2018 Revised Rules and Regulations.”
The Takeaway: This finding sets a sobering precedent, revealing an HOA’s power to “move the goalposts” retroactively. By codifying its desired policy into a new rule, a board can effectively legitimize its past actions. This makes it incredibly difficult for homeowners to win disputes over actions that, while questionable at the time, are now sanctioned by current regulations.
3. The “Fine Print” Is Now a PDF Attachment
Mr. Lee also argued that the rule change itself was invalid because he was never properly notified. He cited the association’s 1986 Bylaws, which required official notices to be delivered personally or by postal mail.
The court rejected this argument. The HOA successfully contended—and the judge agreed—that the old bylaw for mail delivery was narrow in scope. It only applied to notices that were required to be sent to homeowners under statute or the CC&Rs, and there was no such underlying requirement for a simple rule change. Therefore, the court found that an email sent in early July 2018 with a PDF attachment titled “Greenlaw II Townhomes Rules and Regulations – May 2018.pdf” constituted sufficient legal notice.
The Takeaway: This ruling underscores the shifting legal definition of “notice” in the digital age. It creates a vulnerability for less tech-savvy residents or those simply overwhelmed by digital clutter. A routine email from your HOA can carry the full weight of a formal legal notice, and the excuse “I didn’t see the email” is no longer a valid defense.
4. An HOA Can Ban Parking on Streets It Owns
The new rule implemented by the Greenlaw HOA was absolute. Its language leaves no room for interpretation:
Parking is not allowed on any association street or alleyway at any time. Eva, Heidi and Jeffrey Loops are not city streets. They are owned and maintained solely by the HOA. Under city code, the streets are considered “Private Fire Access Lanes.” Consequently, cars parked in violation may be booted and/or towed by a contracted independent towing company.
The critical factor here is ownership. The streets within the Greenlaw community were not public city streets; they were private property, common areas owned and maintained by the HOA. This distinction gave the board sweeping authority to control them.
The Takeaway: If your community’s streets are private property owned by the HOA, the board’s power to regulate them is immense—far exceeding what would be possible on public roads. As this case demonstrates, that authority can extend to a complete and total ban on all street parking, at any time.
5. Suspicion Isn’t Proof: The High Bar of Evidence
In any legal hearing, the person bringing the complaint has the “burden of proof.” Mr. Lee had to convince the judge that his claims were “more probably true than not,” a standard known as a “preponderance of the evidence.”
He failed to meet this standard. The court decision notes that he “provided no evidence that Greenlaw booted or towed any of the vehicles belonging to Greenlaw members.” While he testified to seeing a booted Jeep, his case unraveled under questioning. When he inquired with the HOA manager, her response was non-committal and did not admit responsibility. In court, Mr. Lee admitted he “did not know who owned the jeep, nor who was responsible for booting the jeep.” Critically, his own vehicle had never been booted or towed.
The Takeaway: There is a vast difference between observing something you believe to be a violation and proving it in a formal hearing. For any homeowner considering legal action, this is a vital lesson. Without documented, concrete evidence—admissions in emails, dated photos, official violation notices, or direct witness testimony—a complaint built on suspicion alone is likely to fail.
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Conclusion: The Vigilant Homeowner
The case of William P. Lee serves as a powerful illustration of the “presumption of board authority” that often prevails in community governance disputes. Courts tend to defer to the board’s interpretation of its own rules and its authority to act, unless there is an explicit, unambiguous violation of the law or the governing documents themselves. His story demonstrates that winning a dispute requires more than a sense of injustice; it demands a deep understanding that an HOA’s power is often broader and more flexible than many residents assume. For the modern homeowner, vigilance is not just a good idea—it is an essential practice.
This homeowner scrutinized the rules and bylaws, yet the board’s power expanded beyond them. Are you prepared for the rules you follow today to change tomorrow?
Case Participants
Petitioner Side
William P. Lee(petitioner) Testified on behalf of himself,
Respondent Side
Mark K. Sahl(respondent attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Appeared on behalf of Respondent
Timothy D. Butterfield(respondent attorney) Appeared on behalf of Respondent for the initial hearing and rehearing,
Barbara(board member) Greenlaw Townhouses Unit Two Homeowners Association Board member who Petitioner alleged influenced policy
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings Administrative Law Judge for the initial hearing and rehearing,
Judy Lowe(Commissioner) Arizona Department of Real Estate Commissioner of the Arizona Department of Real Estate,
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918019-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-04-22
Administrative Law Judge
Velva Moses-Thompson
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
William P. Lee
Counsel
—
Respondent
Greenlaw Townhouses Unit Two
Counsel
Timothy D. Butterfield, Esq.
Alleged Violations
A.R.S. §§ 33-1803 and 1809; CC&Rs Amendments 1, 2, and 3; Greenlaw Rules and Regulations
Outcome Summary
The Administrative Law Judge denied the petition, finding that the Petitioner failed to establish by a preponderance of the evidence that the HOA violated the cited governing documents (CC&Rs/Rules) or state statutes (A.R.S. §§ 33-1803 and 1809) by banning street parking and contracting for vehicle booting/towing.
Why this result: Petitioner failed to meet the burden of proof regarding violations of CC&Rs Amendments 1, 2, and 3, the Rules and Regulations, and A.R.S. §§ 33-1803 and 1809. The ALJ found the July 2018 revised Rules, which banned parking, were controlling.
Key Issues & Findings
Violation regarding banning parking and use of towing/booting company.
Petitioner alleged the HOA improperly banned street parking and contracted with a towing/booting company, arguing this violated specific CC&R amendments, the Rules and Regulations, and A.R.S. §§ 33-1803 and 1809. He also claimed the 2018 revised Rules were invalid due to improper electronic notice instead of personal delivery or mail.
Briefing Document: Lee v. Greenlaw Townhouses HOA Parking Dispute
Executive Summary
This document synthesizes the findings from two administrative law judge decisions concerning a dispute between homeowner William P. Lee and the Greenlaw Townhouses Unit Two Homeowners Association (“Greenlaw”). The core of the dispute was Greenlaw’s 2018 implementation of a complete ban on street parking within the community and its subsequent contract with a towing company to “boot” vehicles in violation.
Mr. Lee’s petition, filed on September 12, 2018, alleged that this parking ban violated specific amendments to the association’s Covenants, Conditions, and Restrictions (CC&Rs) and was enacted through an invalid revision of the community’s Rules and Regulations.
Following an initial hearing on December 13, 2018, and a subsequent rehearing on April 1, 2019, the Administrative Law Judge (ALJ) conclusively denied Mr. Lee’s petition. The final decision, issued on April 22, 2019, determined that Mr. Lee failed to meet his burden of proof. The ALJ found that the May 2018 revised Rules and Regulations, which explicitly ban all street parking, were the controlling authority. Furthermore, the decision established that these rules do not conflict with the CC&R amendments, as the amendments only prohibit parking in specific, limited scenarios (e.g., fire lanes, snow removal) and do not grant a general right to park on association streets.
Case Overview
Case Name
William P. Lee v. Greenlaw Townhouses Unit Two Homeowners Association
Case Number
19F-H1918019-REL
Jurisdiction
Arizona Office of Administrative Hearings (referred by the Department of Real Estate)
Adjudicator
Administrative Law Judge Velva Moses-Thompson
Petitioner
William P. Lee
Respondent
Greenlaw Townhouses Unit Two Homeowners Association (“Greenlaw”)
Key Dates
– Petition Filed: September 12, 2018 – Initial Hearing: December 13, 2018 – Rehearing: April 1, 2019 – Final Decision: April 22, 2019
Core Allegation
The central issue, as defined in the Notice of Hearing, was Mr. Lee’s single-issue petition alleging that Greenlaw “violated Community Document CC&Rs amendments 1, 2, & 3 and Association Rules and Regulations… when it banned all parking on the association streets and contracted with a towing service to boot vehicles.”
Analysis of Governing Documents
The case revolved around the interpretation of and interplay between Greenlaw’s CC&Rs, its Rules and Regulations, and its Bylaws.
Covenants, Conditions, and Restrictions (CC&Rs)
• Association Authority: Section (I)(b) of the CC&Rs grants Greenlaw ownership of the common areas, which include the streets in question (Eva, Heidi, and Jeffrey Loops). It specifies that the “maintenance and use shall be controlled by the Association.”
• Parking Amendments: Amendments 1, 2, and 3 were central to Mr. Lee’s argument. These amendments add specific parking prohibitions to the CC&Rs under Article II, PERMITTED USES.
Amendment
Provision
Amendment #1
Prohibits parking in designated fire lanes, which are to be marked with signs and red-painted curbs after consultation with the Flagstaff Fire Marshal.
Amendment #2
Prohibits residents or visitors from parking on association roads during periods of snow removal. Violators may be towed at the vehicle owner’s expense.
Amendment #3
Prohibits parking vehicles at the curb side in an obvious state of disrepair for more than 72 hours. Such vehicles are considered abandoned and may be towed.
Rules and Regulations
• 2003 Revised Rules and Regulations: Mr. Lee contended that this was the controlling document and that it allowed for parking on association streets. He argued that Greenlaw’s booting of vehicles in 2017 was a violation of these rules.
• May 2018 Revised Rules and Regulations: Greenlaw asserted that this was the new, controlling document, effective July 2018. Section 8 of these rules institutes a complete ban on street parking:
Association Bylaws (1986)
• Notice Requirement: Mr. Lee cited Article V, Section 1 of the Bylaws, which states that notices to lot owners “shall be in writing and delivered personally or mailed to the directors or lot owners at their addresses appearing on the books of the corporation.” This formed the basis of his argument that the email distribution of the 2018 rules was improper.
Key Arguments Presented
Petitioner (William P. Lee)
• Violation of CC&Rs: The general parking ban enacted in the 2018 Rules contradicted the CC&R amendments, which only banned parking in specific situations.
• Invalidity of 2018 Rules: The May 2018 Rules and Regulations were invalid because Greenlaw failed to provide proper notice of the revision as required by the 1986 Bylaws, instead sending an email which he contended was insufficient and unclear.
• Controlling Document: The 2003 Rules, which he claimed permitted street parking, should be considered the controlling authority.
• Improper Motivation: The parking ban was enacted solely to appease a board member, Barbara, who did not want cars parked behind her property.
• Evidence of Enforcement: Mr. Lee testified that he observed a jeep being booted and that the Greenlaw manager’s response to his inquiry confirmed the association’s policy.
Respondent (Greenlaw HOA)
• Authority Over Common Areas: The CC&Rs grant Greenlaw the authority to control the use of association streets.
• Validity of 2018 Rules: The May 2018 Rules and Regulations were properly adopted and represent the current, controlling regulations.
• No Conflict with CC&Rs: The CC&R amendments do not authorize parking; they are a list of specific prohibitions. A general ban on parking does not conflict with these specific restrictions.
• Notice Sufficiency: Greenlaw argued that the Bylaw’s requirement for personal or postal mail delivery only applies to notices mandated by statute or the CC&Rs, not to amendments to the Rules and Regulations. Mr. Lee did, in fact, receive the revised rules via email on July 6, 2018.
• Cure of Prior Violations: Any alleged violation of the prior (2003) rules was rendered moot and “cured” by the valid enactment of the May 2018 revised rules.
Administrative Law Judge’s Rulings and Rationale
The ALJ’s decisions in both the initial hearing and the rehearing were consistent, leading to the denial of Mr. Lee’s petition.
• Burden of Proof: The ALJ established that Mr. Lee, as the petitioner, bore the burden of proving his claims by a “preponderance of the evidence.” In both decisions, the ALJ concluded that Mr. Lee failed to meet this standard. A preponderance of the evidence is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
• Controlling Authority: The “weight of the evidence presented at hearing” showed that the May 2018 revised Rules and Regulations were the controlling rules at the time the petition was filed. Mr. Lee failed to establish that the 2003 Rules were still in effect.
• Interpretation of CC&Rs: The ALJ found the restrictive covenants in Amendments 1, 2, and 3 to be unambiguous. The ruling states, “Amendments 1, 2, and 3 of the Greenlaw CC&Rs do not allow parking on the streets, but rather, provide specific scenarios in which parking on the streets is banned.” Therefore, Greenlaw’s decision to ban all street parking did not violate these amendments.
• Lack of Evidence for Harm: The ALJ noted that Mr. Lee “did not even allege that Greenlaw booted or towed one of his vehicles.” Furthermore, regarding the booted jeep he observed, “there was no evidence provided that the Greenlaw manager stated that Greenlaw was responsible for booting the jeep. Moreover, Mr. Lee did not know who owned the jeep, nor who was responsible for booting the jeep.”
Final Disposition
Petition Denied: The final order, issued April 22, 2019, following the rehearing, states: “IT IS ORDERED that Petitioners’ petition is denied.”
The decision concluded that Mr. Lee failed to establish by a preponderance of the evidence that Greenlaw violated its CC&Rs or its Rules and Regulations when it banned parking and contracted with a towing company. This order is final and binding on the parties, with any further appeal requiring judicial review in superior court.
Study Guide – 19F-H1918019-REL-RHG
Study Guide: Lee v. Greenlaw Townhouses Unit Two HOA
This study guide provides a review of the administrative legal case between Petitioner William P. Lee and Respondent Greenlaw Townhouses Unit Two Homeowners Association, as detailed in the Administrative Law Judge Decisions No. 19F-H1918019-REL and No. 19F-H1918019-REL-RHG.
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Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case documents.
1. Who were the primary parties in this case, and what was the central dispute?
2. What was Petitioner William P. Lee’s main argument regarding the association’s Covenants, Conditions, and Restrictions (CC&Rs)?
3. On what grounds did the Greenlaw HOA claim it had the authority to ban all parking on its streets?
4. What three specific parking prohibitions were explicitly listed in Amendments 1, 2, and 3 of the Greenlaw CC&Rs?
5. What was the significance of the May 2018 revised Rules and Regulations in the judge’s final decisions?
6. How did Mr. Lee challenge the validity of the revised 2018 Rules and Regulations during the rehearing?
7. What legal standard of proof was required for Mr. Lee’s petition to succeed, and did the judge find that he met it?
8. According to the case findings, what evidence did Mr. Lee present to prove that Greenlaw was responsible for booting or towing member vehicles?
9. What was Greenlaw’s defense against the claim that it failed to provide proper notice of the new rules?
10. What was the final outcome of both the initial hearing on December 13, 2018, and the rehearing on April 1, 2019?
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Answer Key
1. The primary parties were Petitioner William P. Lee, a townhouse owner, and Respondent Greenlaw Townhouses Unit Two Homeowners Association. The central dispute was Mr. Lee’s allegation that Greenlaw’s ban on all street parking and its contract with a towing company to “boot” vehicles violated the community’s governing documents.
2. Mr. Lee argued that because CC&R Amendments 1, 2, and 3 only banned parking in specific scenarios (fire lanes, snow removal, abandoned vehicles), they implicitly permitted parking at all other times. He contended that a total ban therefore violated these amendments.
3. The Greenlaw HOA argued that Section (I)(b) of its CC&Rs grants it control over the maintenance and use of common areas, which include the association’s streets. They contended this authority was sufficient to ban parking and contract with a towing company.
4. The three amendments prohibited parking in designated fire lanes, on subdivision roads during periods of snow removal, and for vehicles parked at curbside in an obvious state of disrepair for more than 72 hours.
5. The May 2018 revised Rules and Regulations explicitly banned parking on any association street at any time. The judge found these to be the controlling rules, superseding any previous versions, and that they “cured” any purported violations that may have occurred under older rules.
6. During the rehearing, Mr. Lee argued that the 2018 rules were invalid because Greenlaw failed to provide proper notice. He contended that the association’s Bylaws required notice to be delivered personally or by postal mail, not by email as was done on July 6, 2018.
7. Mr. Lee was required to prove his case by a “preponderance of the evidence.” The Administrative Law Judge concluded in both decisions that Mr. Lee failed to meet this burden of proof.
8. Mr. Lee testified that he observed a jeep that had been booted but provided no evidence that Greenlaw was responsible for booting it or any other vehicles belonging to members. The judge found that he did not establish that Greenlaw had booted or towed any vehicles.
9. Greenlaw argued that the Bylaw’s requirement for notice by mail or personal delivery only applied to notices required by statute or the CC&Rs. The association contended it was not required by law or its CC&Rs to provide notice of an amendment to its Rules and Regulations in that specific manner.
10. The final outcome of both hearings was a denial of Mr. Lee’s petition. The Administrative Law Judge ordered in both the December 31, 2018 decision and the April 22, 2019 decision that the petition be denied because Mr. Lee failed to prove Greenlaw violated its CC&Rs or Rules and Regulations.
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Essay Questions
Instructions: Consider the following questions for a deeper analysis of the case. Develop an essay-format response for each, drawing evidence and examples from the case documents.
1. Analyze the legal reasoning of the Administrative Law Judge in determining that the CC&R amendments did not grant an affirmative right to park. How did the judge’s interpretation of “restrictive covenants” shape the outcome?
2. Discuss the concept of “burden of proof” as it applied to William P. Lee’s petition. Using specific examples from the hearings, explain why the judge concluded he failed to meet the “preponderance of the evidence” standard.
3. Trace the evolution of Mr. Lee’s arguments from the initial petition to the rehearing. How did his focus shift, particularly regarding the notification method for the revised Rules and Regulations, and what impact did this shift have on the proceedings?
4. Examine the conflicting interpretations of Greenlaw’s Bylaws regarding the proper method for notifying homeowners of changes. Evaluate the arguments made by both Mr. Lee and Greenlaw on this point and discuss which interpretation the judge implicitly supported.
5. The judge in the initial hearing noted that Greenlaw “has in effect cured any purported previous violation through the enactment of the May 2018 Revised Rules and Regulations.” Discuss the legal implications of this finding for homeowners’ associations and their ability to amend rules to address ongoing disputes.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings at government agencies. In this case, Velva Moses-Thompson of the Office of Administrative Hearings.
Answer (Legal)
A formal written response filed by the respondent to a petition, addressing the allegations made.
Bylaws
The formal rules governing the internal management of an organization, such as a homeowners’ association. Greenlaw’s Bylaws were recorded on June 16, 1986.
CC&Rs (Covenants, Conditions, and Restrictions)
A set of rules established by a developer or homeowners’ association that govern a planned community. All owners are legally bound by these rules.
Common Area
Property within a planned community that is owned by the homeowners’ association for the benefit and use of all lot owners. In this case, the streets (Eva, Heidi, and Jeffrey Loops) are considered common areas.
Department
Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions from HOA members.
Evidentiary Hearing
A formal proceeding where parties present evidence (such as testimony and exhibits) before a judge to resolve a factual dispute.
Homeowners’ Association (HOA)
An organization in a subdivision, planned community, or condominium development that makes and enforces rules for the properties and their residents.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona where administrative law judges conduct evidentiary hearings for other state agencies.
Petitioner
The party who files a petition initiating a legal action. In this case, William P. Lee.
Petition
A formal written request to a court or administrative body, asking for a specific action or decision on a matter.
Preponderance of the Evidence
The standard of proof in most civil cases, meaning the evidence must show that a claim is more likely to be true than not true. This was the burden of proof placed on Mr. Lee.
Rehearing
A second hearing of a case to allow for reconsideration of the initial decision, often based on new evidence or arguments.
Respondent
The party against whom a petition is filed. In this case, Greenlaw Townhouses Unit Two Homeowners Association.
Restrictive Covenant
A provision in a deed or community document that limits the use of the property. The principle is that such covenants are enforced to give effect to the intent of the parties.
Rules and Regulations
A set of operational rules created by an HOA’s board that provide specific details on how to follow the broader principles outlined in the CC&Rs and Bylaws.
Blog Post – 19F-H1918019-REL-RHG
5 Surprising Truths About HOA Power: Lessons from a Homeowner’s Losing Battle Over Parking
For many homeowners, the relationship with their Homeowners Association (HOA) is a delicate balance, and nowhere is this more apparent than with parking rules. A single violation notice can escalate into a years-long conflict. But what happens when a homeowner, convinced the HOA has overstepped its authority, decides to fight back?
William P. Lee believed his HOA’s governing documents were his shield. The court, however, ruled they were a blank check for the board’s authority. Mr. Lee took his HOA to court over a newly enacted, total ban on street parking, contending the rule was not only unreasonable but enacted merely to appease a board member who didn’t want cars parked behind her property. He lost his case, requested a rehearing, and lost again. His determined but ultimately failed battle provides a masterclass in the surprising and often counter-intuitive extent of an HOA’s power, revealing five critical lessons for every homeowner.
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1. What Isn’t Forbidden Can Still Be Banned
Mr. Lee’s primary argument was rooted in the community’s founding documents, the Covenants, Conditions, and Restrictions (CC&Rs). He pointed out that the CC&Rs only prohibited parking in a few specific situations: in designated fire lanes, during snow removal, or for vehicles that were obviously abandoned. By his logic, if parking wasn’t explicitly forbidden at other times, it must be allowed.
The judge’s decision, however, hinged on a critical legal distinction. The ruling concluded that the CC&Rs did not grant an affirmative right to park on the streets; they only listed a few specific prohibitions. This legal gray area gave the HOA Board the authority to create new, more restrictive rules to fill in the gaps.
The Takeaway: This case is a stark warning about “permissive silence.” Homeowners should treat their CC&Rs not as a list of guaranteed rights, but as a minimum set of restrictions. The absence of a specific prohibition does not guarantee a right, and a future board can—and likely will—build upon those foundational rules to enact stricter policies.
2. The Board Can Retroactively ‘Cure’ Its Own Violations
Part of Mr. Lee’s case was that the HOA had been improperly booting vehicles back in 2017, under the old, more permissive rules. He argued that these past actions were a violation, regardless of any later changes.
The judge found that the HOA’s new rule effectively neutralized this argument. The decision explicitly states that even if the association had acted improperly in the past, “Greenlaw has in effect cured any purported previous violation through the enactment of the May 2018 Revised Rules and Regulations.”
The Takeaway: This finding sets a sobering precedent, revealing an HOA’s power to “move the goalposts” retroactively. By codifying its desired policy into a new rule, a board can effectively legitimize its past actions. This makes it incredibly difficult for homeowners to win disputes over actions that, while questionable at the time, are now sanctioned by current regulations.
3. The “Fine Print” Is Now a PDF Attachment
Mr. Lee also argued that the rule change itself was invalid because he was never properly notified. He cited the association’s 1986 Bylaws, which required official notices to be delivered personally or by postal mail.
The court rejected this argument. The HOA successfully contended—and the judge agreed—that the old bylaw for mail delivery was narrow in scope. It only applied to notices that were required to be sent to homeowners under statute or the CC&Rs, and there was no such underlying requirement for a simple rule change. Therefore, the court found that an email sent in early July 2018 with a PDF attachment titled “Greenlaw II Townhomes Rules and Regulations – May 2018.pdf” constituted sufficient legal notice.
The Takeaway: This ruling underscores the shifting legal definition of “notice” in the digital age. It creates a vulnerability for less tech-savvy residents or those simply overwhelmed by digital clutter. A routine email from your HOA can carry the full weight of a formal legal notice, and the excuse “I didn’t see the email” is no longer a valid defense.
4. An HOA Can Ban Parking on Streets It Owns
The new rule implemented by the Greenlaw HOA was absolute. Its language leaves no room for interpretation:
Parking is not allowed on any association street or alleyway at any time. Eva, Heidi and Jeffrey Loops are not city streets. They are owned and maintained solely by the HOA. Under city code, the streets are considered “Private Fire Access Lanes.” Consequently, cars parked in violation may be booted and/or towed by a contracted independent towing company.
The critical factor here is ownership. The streets within the Greenlaw community were not public city streets; they were private property, common areas owned and maintained by the HOA. This distinction gave the board sweeping authority to control them.
The Takeaway: If your community’s streets are private property owned by the HOA, the board’s power to regulate them is immense—far exceeding what would be possible on public roads. As this case demonstrates, that authority can extend to a complete and total ban on all street parking, at any time.
5. Suspicion Isn’t Proof: The High Bar of Evidence
In any legal hearing, the person bringing the complaint has the “burden of proof.” Mr. Lee had to convince the judge that his claims were “more probably true than not,” a standard known as a “preponderance of the evidence.”
He failed to meet this standard. The court decision notes that he “provided no evidence that Greenlaw booted or towed any of the vehicles belonging to Greenlaw members.” While he testified to seeing a booted Jeep, his case unraveled under questioning. When he inquired with the HOA manager, her response was non-committal and did not admit responsibility. In court, Mr. Lee admitted he “did not know who owned the jeep, nor who was responsible for booting the jeep.” Critically, his own vehicle had never been booted or towed.
The Takeaway: There is a vast difference between observing something you believe to be a violation and proving it in a formal hearing. For any homeowner considering legal action, this is a vital lesson. Without documented, concrete evidence—admissions in emails, dated photos, official violation notices, or direct witness testimony—a complaint built on suspicion alone is likely to fail.
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Conclusion: The Vigilant Homeowner
The case of William P. Lee serves as a powerful illustration of the “presumption of board authority” that often prevails in community governance disputes. Courts tend to defer to the board’s interpretation of its own rules and its authority to act, unless there is an explicit, unambiguous violation of the law or the governing documents themselves. His story demonstrates that winning a dispute requires more than a sense of injustice; it demands a deep understanding that an HOA’s power is often broader and more flexible than many residents assume. For the modern homeowner, vigilance is not just a good idea—it is an essential practice.
This homeowner scrutinized the rules and bylaws, yet the board’s power expanded beyond them. Are you prepared for the rules you follow today to change tomorrow?
Case Participants
Petitioner Side
William P. Lee(petitioner) Testified on behalf of himself,
Respondent Side
Mark K. Sahl(respondent attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Appeared on behalf of Respondent
Timothy D. Butterfield(respondent attorney) Appeared on behalf of Respondent for the initial hearing and rehearing,
Barbara(board member) Greenlaw Townhouses Unit Two Homeowners Association Board member who Petitioner alleged influenced policy
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings Administrative Law Judge for the initial hearing and rehearing,
Judy Lowe(Commissioner) Arizona Department of Real Estate Commissioner of the Arizona Department of Real Estate,
The Administrative Law Judge denied the petition, finding that the HOA Board had the authority under the CC&Rs and related documents to remove non-Board ARC members and appoint itself to perform the functions of the ARC, thus validating its approval of the homeowner's detached garage application.
Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated CC&Rs §§ 3.2 or 7.7. The Board, having assumed the developer's rights, was authorized to remove and appoint ARC members.
Key Issues & Findings
Alleged violation of CC&Rs regarding ARC dissolution and architectural approval authority.
Petitioner alleged that the HOA Board violated CC&Rs §§ 3.2 and 7.7 by dissolving the ARC and then acting as the ARC to approve a modification (detached garage) for a homeowner.
Orders: Petitioner's petition was denied because he failed to establish that CC&Rs §§ 3.2 or 7.7 prohibited the Respondent HOA from replacing non-Board ARC members, appointing its own members to act as the ARC, or approving the detached garage application.
Administrative Law Judge Decision Briefing: Dwight vs. Whisper Mountain HOA
Executive Summary
This document summarizes the Administrative Law Judge (ALJ) decision in case number 19F-H1918027-REL, concerning a dispute between homeowner N. Wayne Dwight, Jr. (“Petitioner”) and the Whisper Mountain Homeowners Association (“Respondent”). The Petitioner alleged that the HOA Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by suspending the Architectural Review Committee (ARC) and subsequently approving a homeowner’s construction application.
The ALJ denied the petition in its entirety, finding that the HOA Board acted within its authority. The decision established that upon the departure of the original developer (the “Declarant”), the Board inherited the Declarant’s full rights and responsibilities, including the power to both appoint and remove members of the ARC. The Judge explicitly rejected the Petitioner’s argument that ARC members held lifetime appointments, deeming such an interpretation contrary to the democratic principles of HOA governance. Consequently, the Board’s decision to remove the non-Board ARC members and appoint itself to serve as the ARC was ruled a valid exercise of its powers, and its subsequent approval of the construction application was not a violation of the CC&Rs.
Case Overview
Entity
Petitioner
N. Wayne Dwight, Jr. (Homeowner and former ARC member)
Respondent
Whisper Mountain Homeowners Association (HOA)
Adjudicator
Administrative Law Judge Diane Mihalsky
Case Number
19F-H1918027-REL
Hearing Date
January 14, 2019
Decision Date
January 29, 2019
Core Allegation
The Petitioner alleged that the Respondent’s Board violated two sections of the CC&Rs:
1. § 7.7 (Improvements and Alterations): By approving a homeowner’s application to build a detached garage on September 19, 2018, without the approval of a properly constituted ARC.
2. § 3.2 (Appeal): By creating a situation where the body making an architectural decision (the Board acting as the ARC) is the same body that would hear an appeal of that decision, rendering the appeal process meaningless.
This was based on the Petitioner’s central claim that the Board’s action on August 6, 2018, to “dissolve” or “suspend” the ARC was a violation of the governing documents.
Key Factual Background & Timeline
• Prior to 2015: The developer, VIP Homes (“Declarant”), establishes the ARC as required by the CC&Rs.
• 2015: The Declarant turns over control of the HOA to the resident-elected Board of Directors.
• March 15, 2016: The Board adopts an ARC Charter, which explicitly states: “The right to appoint and remove all appointed [ARC] members at any time is hereby vested solely in the Board.” The Petitioner is appointed as one of three non-Board members to the ARC.
• 2017 or 2018: A proposed amendment to the CC&Rs to formally replace references to “Declarant” with “Board” or “Association” is not adopted by the general membership.
• July 17, 2018: The ARC meets to consider a detached garage application from homeowners Mark and Connie Wells. The meeting is contentious, with the Petitioner expressing doubts about the ARC’s authority to grant a variance from city setback requirements. The meeting adjourns abruptly after the applicant allegedly “verbally threatened the committee.”
• August 6, 2018: The HOA Board meets and passes a motion “to suspend the ARC committee for 60 days until guidelines/expectations are clarified.” The motion states that in the interim, the Board will review and approve all ARC submissions.
• August 24, 2018: The Board sends a letter to the non-Board ARC members, including the Petitioner, informing them of the 60-day suspension.
• September 17, 2018: The Board meets and approves a revised application from the Wells, which now aligns with City of Mesa code.
• September 19, 2018: The Board, formally acting as the ARC, reviews and approves the Wells’ revised application.
• October 22, 2018: The Petitioner files his complaint with the Arizona Department of Real Estate.
• November 19, 2018: The Board adopts a “Resolution Regarding the ARC” to clarify its position. The resolution states the Board had “(i) temporarily removed the current members of the [ARC] (via a suspension) and (ii) chose to act and serve as the current [ARC].” It also formally ratifies the approval of the Wells’ garage.
Central Arguments Presented
Petitioner’s Position (N. Wayne Dwight, Jr.)
• Limited Board Authority: The CC&Rs (§ 3.4) grant the Declarant the “sole right to appoint and remove” ARC members. After the Declarant’s departure, this section states that members “shall be appointed by the Board.” The Petitioner argued this only conferred the power to appoint, not to remove.
• Failed Amendment: The failure of the membership to amend the CC&Rs to explicitly grant the Board the Declarant’s powers proves that the Board does not possess the power of removal.
• Lifetime Appointments: The Petitioner argued that once appointed, ARC members could only be removed for specific cause (e.g., moving out of the community, incapacitation) and were otherwise entitled to serve for life.
• Improper ARC Suspension: The Board’s action to suspend the committee was a violation of the CC&Rs, as the Board lacked the authority to do so.
• Invalid Approval: Because the ARC was improperly suspended, the Board’s subsequent approval of the Wells’ application violated § 7.7, which requires ARC approval for all alterations.
• Meaningless Appeals: If the Board can act as the ARC, the appeal process outlined in § 3.2, which allows a homeowner to appeal an ARC decision to the Board, becomes an “exercise in futility.”
Respondent’s Position (Whisper Mountain HOA)
• Inherited Powers: Upon the Declarant’s departure, the Board assumed all of its rights and responsibilities under the CC&Rs, including the power to both appoint and remove ARC members.
• Authority from ARC Charter: The ARC Charter, adopted in 2016, explicitly grants the Board the sole right to remove ARC members at any time.
• Intent of the Board: The Board’s intent was not to abolish the ARC, but to address concerns about the committee’s conduct, including its “way of questioning applicants” and a need for more civility, fairness, and consistency.
• Clarification of “Suspension”: The use of the word “suspend” in communications by the management company (Mariposa Group) was “unfortunate and inaccurate.” The Board’s true action, clarified in its November 19 resolution, was to remove the non-Board members and appoint its own members to serve as the ARC.
• Valid Approval: The Board was legitimately acting as the ARC when it approved the Wells’ application; therefore, § 7.7 was not violated.
Administrative Law Judge’s Analysis and Conclusions
Interpretation of Governing Documents
The ALJ concluded that restrictive covenants must be construed as a whole and interpreted to give effect to the intent of the parties. The Judge found the Petitioner’s interpretation of the CC&Rs to be unpersuasive and ultimately harmful to the community.
• The Judge stated that the Petitioner’s interpretation “elevates non-elected members of ARC above elected Board members, abrogates any community control over ARC, and does not serve the underlying purposes of the CC&Rs.”
• This “unelected lifetime appointment” concept was found to be contrary to the “democratic principles underlying HOA law in Arizona.”
On the Board’s Authority
The ALJ affirmed the HOA’s authority to manage the ARC as it did.
• Assumption of Powers: The decision concludes that “When Declarant turned Respondent HOA over to its Board, the Board assumed all of Declarant’s rights and responsibilities under the CC&Rs and related documents.” This included the power to remove ARC members.
• ARC Charter: The Judge noted that the ARC Charter also “expressly provided that the Board had the power to remove as well as to appoint members of the ARC.”
• Legitimacy of Actions: The Board was found to have acted within its authority in August 2018 when it “removed the three non-Board members of the ARC and appointed itself to perform the functions of the ARC.”
On the Alleged Violations
Based on the finding that the Board acted within its authority, the ALJ concluded that no violations occurred.
• Conclusion on CC&R § 7.7 (ARC Approval): The petition failed on this point because the Board was legitimately acting as the ARC when it approved the Wells’ application in September 2018.
• Conclusion on CC&R § 3.2 (Appeals): The petition failed on this point because the CC&Rs do not prohibit Board members from acting as the ARC. While acknowledging that appealing a decision to the same body “may be an exercise in futility,” the Judge noted that under the CC&Rs, the Board is not required to hear appeals in any event.
Final Order and Implications
Order: The petition filed by N. Wayne Dwight, Jr. was denied. The Judge found he had not established that the HOA violated CC&Rs §§ 3.2 or 7.7.
Implications: This decision establishes a strong precedent for interpreting HOA governing documents in a manner that favors functional, democratic governance over literal interpretations that could lead to impractical or absurd outcomes. It affirms that an HOA Board generally inherits the full operational powers of the original developer unless explicitly restricted, and that a Board can act to reform or reconstitute committees to ensure they serve the community’s best interests.
Study Guide – 19F-H1918027-REL
Study Guide: Dwight v. Whisper Mountain Homeowners Association
This study guide provides a comprehensive review of the Administrative Law Judge Decision in the case of N. Wayne Dwight, Jr. vs. Whisper Mountain Homeowners Association (No. 19F-H1918027-REL). It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined within the context of the legal document.
Short-Answer Quiz
Answer each of the following questions in two to three sentences, drawing exclusively from the provided source document.
1. What were the two specific allegations made by the Petitioner, N. Wayne Dwight, Jr., in his petition filed on October 22, 2018?
2. Identify the key parties in this case and describe their respective roles or relationships to the dispute.
3. What was the purpose and outcome of the ARC meeting held on July 17, 2018, regarding the Wells’ property?
4. Explain the actions taken by the Respondent’s Board of Directors during its meeting on August 6, 2018, regarding the Architectural Review Committee (ARC).
5. What was the Petitioner’s interpretation of CC&R § 3.4 regarding the removal of ARC members, and what was the potential consequence of this interpretation as noted by the Administrative Law Judge?
6. According to the Respondent’s Board president, Greg Robert Wingert, what were the primary reasons for removing the non-Board members of the ARC?
7. Describe the role of the Mariposa Group LLC in this case and explain how its communications created confusion.
8. How did the Board clarify its actions and ratify its decisions in the November 19, 2018 Resolution?
9. What is the legal standard of proof the Petitioner was required to meet, and how is it defined in the case documents?
10. What was the final ruling of the Administrative Law Judge, and what was the core reasoning behind the decision regarding CC&Rs §§ 3.2 and 7.7?
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Answer Key
1. The Petitioner alleged that the Respondent’s Board violated Covenants, Conditions, and Restrictions (CC&Rs) §§ 3.2 and 7.7. The specific violations cited were the dissolution or suspension of the Architectural Review Committee (ARC) on August 6, 2018, and the subsequent approval of an application from two members to build a detached garage on September 19, 2018.
2. The key parties are N. Wayne Dwight, Jr. (the “Petitioner”), a property owner and former ARC member, and the Whisper Mountain Homeowners Association (the “Respondent”). The case also involves Greg Robert Wingert, the President of the Respondent’s Board, and Mark and Connie Wells, the homeowners who applied to build a detached garage. The dispute centers on the Respondent’s authority over the ARC, of which the Petitioner was a member.
3. The purpose of the July 17, 2018, meeting was for the ARC, including the Petitioner, to consider Mark and Connie Wells’ application for a detached garage. The meeting was abruptly adjourned after the applicant allegedly threatened the committee, and no formal vote was conducted at that time. However, a letter dated July 30, 2018, later informed the Wells that the ARC had approved their request.
4. At the August 6, 2018, meeting, the Board of Directors discussed the need for more consistency and guidelines for the ARC. Citing these reasons and safety concerns from a prior meeting, the Board passed a motion to “suspend the ARC committee for 60 days” and announced that in the interim, the Board itself would review and approve all ARC submissions.
5. The Petitioner argued that CC&R § 3.4 only allowed the Board to appoint, not remove, ARC members. He contended that once appointed, members could only be removed for cause and were otherwise entitled to serve for life. The Judge noted this interpretation would elevate unelected ARC members above the elected Board and abrogate community control.
6. Greg Robert Wingert testified that the Board removed the non-Board ARC members due to concerns about the “manner in which questioning was done in a public forum.” The Board’s intent was not to eliminate the ARC, but to continue the review process while making it more civil, fair, consistent, and transparent.
7. The Mariposa Group LLC was the Respondent’s management company. Its employees, such as Ed Ericksen, were responsible for drafting official communications like minutes and letters. These communications used inaccurate words like “suspend” and “dissolve” to describe the Board’s actions regarding the ARC, which Mr. Wingert testified was an “unfortunate and inaccurate” choice of words that did not reflect the Board’s true intent.
8. The November 19, 2018, Resolution clarified that the Board had removed the existing ARC members and appointed itself to act and serve as the ARC, as was its right under CC&R § 3.4. The resolution explicitly stated that the Board members were the current members of the ARC and ratified all prior architectural decisions made by the Board while serving in this capacity, including the approval of the garage on Lot 18.
9. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not, representing the greater weight of evidence that is sufficient to incline a fair and impartial mind to one side of the issue.
10. The Administrative Law Judge denied the Petitioner’s petition. The Judge concluded that the Board acted within its authority when it removed the non-Board ARC members and appointed itself to perform ARC functions, meaning it did not violate CC&R § 7.7 by approving the Wells’ application. The Judge also found no violation of CC&R § 3.2, noting that the CC&Rs do not prohibit Board members from acting as the ARC.
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Essay Questions
The following questions are designed for longer-form analysis. Formulate a comprehensive response based solely on the facts and legal interpretations presented in the source document.
1. Analyze the Administrative Law Judge’s interpretation of the CC&Rs, particularly § 3.4. How does this interpretation address the transfer of power from the “Declarant” to the Board, and how does it counter the Petitioner’s argument for lifetime appointments?
2. Discuss the concept of an “appeal” as outlined in CC&R § 3.2. Evaluate the potential conflict of interest and the issue of futility raised when the Board of Directors also serves as the Architectural Review Committee.
3. Trace the timeline of events surrounding the Wells’ application for a detached garage. How did this specific application serve as the catalyst for the broader conflict between the Petitioner and the Respondent’s Board?
4. Examine the role of communication and language in this dispute. How did the specific wording used by the management company in official documents (e.g., “suspend”) differ from the Board’s stated intent, and how did this discrepancy fuel the conflict?
5. Based on the evidence presented, evaluate the argument that the Board’s actions were a necessary measure to ensure a “civil, fair, consistent, and transparent” architectural review process versus the argument that the Board overstepped its authority as defined by the CC&Rs.
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Glossary of Key Terms
Definition within the Source Context
Administrative Law Judge (ALJ)
An independent judicial officer (Diane Mihalsky) from the Office of Administrative Hearings tasked with conducting an evidentiary hearing and rendering a decision on the petition.
Architectural Review Committee (ARC)
A committee established to review and approve or deny any improvements, alterations, or other work that alters the exterior appearance of a property. Per the CC&Rs, its decisions are final unless appealed to the Board.
ARC Charter
A document adopted by the Respondent’s Board on March 15, 2016, which provided that the ARC would consist of up to four members appointed by the Board and that the Board vested itself with the sole right to appoint and remove all appointed ARC members at any time.
Board of Directors (Board)
The elected body that conducts the affairs of the Whisper Mountain Homeowners Association. The document presumes they are elected by members to specific terms.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for the Whisper Mountain planned community, recorded on September 7, 2016. They outline the rules for property use, the structure of the HOA, and the functions of bodies like the ARC.
Declarant
The original developer who built the planned community, identified as VIP Homes. The Declarant initially held the sole right to appoint and remove ARC members, a right that transferred to the Board after the developer was no longer involved.
Mariposa Group LLC
The management company employed by the Respondent HOA. Its employees, such as Douglas Egan and Ed Ericksen, were responsible for drafting official communications like meeting minutes and approval letters.
Office of Administrative Hearings (OAH)
An independent state agency to which the Department of Real Estate referred the petition for an evidentiary hearing.
Petitioner
N. Wayne Dwight, Jr., a property owner in the Whisper Mountain development and a former member of the ARC. He filed the petition alleging the HOA violated its CC&Rs.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win the case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The Whisper Mountain Homeowners Association (“HOA”), the governing body for the development. The Respondent was represented by its Board and legal counsel.
Blog Post – 19F-H1918027-REL
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19F-H1918027-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between a homeowner, N. Wayne Dwight, Jr. (Petitioner), and the Whisper Mountain Homeowners Association (Respondent). The Petitioner alleged that the HOA’s Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by dissolving or suspending the Architectural Review Committee (ARC) and subsequently approving an application for a detached garage. The decision details the background, evidence presented at the hearing, and the Administrative Law Judge’s (ALJ) findings and conclusions of law. Ultimately, the ALJ denied the petition, finding that the Board acted within its authority under the governing documents to remove non-Board ARC members and appoint itself to fulfill the ARC’s functions. The ALJ concluded that the Petitioner failed to prove the HOA violated the specified CC&Rs.
Based on 1 source
Case Participants
Petitioner Side
N. Wayne Dwight, Jr.(petitioner) Appeared on his own behalf; former ARC member; testified on his own behalf
Respondent Side
Troy B. Stratman(attorney) Stratman Law Firm, PLC Represented Whisper Mountain Homeowners Association
Greg Robert Wingert(board member/witness) Whisper Mountain Homeowners Association Board President; Chairman of the ARC; testified for Respondent
Pam Cohen(board member) Whisper Mountain Homeowners Association Seconded motions; identified as 'Pam' in meeting minutes
Ronna(board member) Whisper Mountain Homeowners Association Made motion to suspend ARC
Gary(board member) Whisper Mountain Homeowners Association
Douglas Egan(property manager) Mariposa Group LLC Sent approval letter for garage application
Ed Ericksen(property manager) Mariposa Community Manager; sent approval/clarification letters regarding Wells' request
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Felicia Del Sol(staff) Transmitted decision
Other Participants
Mark Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Connie Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Phil Hoyt(owner/member) Whisper Mountain development (Lot 16)
Andy Horn(owner/member) Whisper Mountain development (Lot 1)
Jason Komorowski(owner/member) Whisper Mountain development (Lot 51)
Connie Harrison(neighbor) Whisper Mountain development Mentioned regarding Lot 18 variance condition
Don Berry(owner/member) Whisper Mountain development (Lot 45)
The Administrative Law Judge denied the petition, finding that the HOA Board had the authority under the CC&Rs and related documents to remove non-Board ARC members and appoint itself to perform the functions of the ARC, thus validating its approval of the homeowner's detached garage application.
Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated CC&Rs §§ 3.2 or 7.7. The Board, having assumed the developer's rights, was authorized to remove and appoint ARC members.
Key Issues & Findings
Alleged violation of CC&Rs regarding ARC dissolution and architectural approval authority.
Petitioner alleged that the HOA Board violated CC&Rs §§ 3.2 and 7.7 by dissolving the ARC and then acting as the ARC to approve a modification (detached garage) for a homeowner.
Orders: Petitioner's petition was denied because he failed to establish that CC&Rs §§ 3.2 or 7.7 prohibited the Respondent HOA from replacing non-Board ARC members, appointing its own members to act as the ARC, or approving the detached garage application.
Administrative Law Judge Decision Briefing: Dwight vs. Whisper Mountain HOA
Executive Summary
This document summarizes the Administrative Law Judge (ALJ) decision in case number 19F-H1918027-REL, concerning a dispute between homeowner N. Wayne Dwight, Jr. (“Petitioner”) and the Whisper Mountain Homeowners Association (“Respondent”). The Petitioner alleged that the HOA Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by suspending the Architectural Review Committee (ARC) and subsequently approving a homeowner’s construction application.
The ALJ denied the petition in its entirety, finding that the HOA Board acted within its authority. The decision established that upon the departure of the original developer (the “Declarant”), the Board inherited the Declarant’s full rights and responsibilities, including the power to both appoint and remove members of the ARC. The Judge explicitly rejected the Petitioner’s argument that ARC members held lifetime appointments, deeming such an interpretation contrary to the democratic principles of HOA governance. Consequently, the Board’s decision to remove the non-Board ARC members and appoint itself to serve as the ARC was ruled a valid exercise of its powers, and its subsequent approval of the construction application was not a violation of the CC&Rs.
Case Overview
Entity
Petitioner
N. Wayne Dwight, Jr. (Homeowner and former ARC member)
Respondent
Whisper Mountain Homeowners Association (HOA)
Adjudicator
Administrative Law Judge Diane Mihalsky
Case Number
19F-H1918027-REL
Hearing Date
January 14, 2019
Decision Date
January 29, 2019
Core Allegation
The Petitioner alleged that the Respondent’s Board violated two sections of the CC&Rs:
1. § 7.7 (Improvements and Alterations): By approving a homeowner’s application to build a detached garage on September 19, 2018, without the approval of a properly constituted ARC.
2. § 3.2 (Appeal): By creating a situation where the body making an architectural decision (the Board acting as the ARC) is the same body that would hear an appeal of that decision, rendering the appeal process meaningless.
This was based on the Petitioner’s central claim that the Board’s action on August 6, 2018, to “dissolve” or “suspend” the ARC was a violation of the governing documents.
Key Factual Background & Timeline
• Prior to 2015: The developer, VIP Homes (“Declarant”), establishes the ARC as required by the CC&Rs.
• 2015: The Declarant turns over control of the HOA to the resident-elected Board of Directors.
• March 15, 2016: The Board adopts an ARC Charter, which explicitly states: “The right to appoint and remove all appointed [ARC] members at any time is hereby vested solely in the Board.” The Petitioner is appointed as one of three non-Board members to the ARC.
• 2017 or 2018: A proposed amendment to the CC&Rs to formally replace references to “Declarant” with “Board” or “Association” is not adopted by the general membership.
• July 17, 2018: The ARC meets to consider a detached garage application from homeowners Mark and Connie Wells. The meeting is contentious, with the Petitioner expressing doubts about the ARC’s authority to grant a variance from city setback requirements. The meeting adjourns abruptly after the applicant allegedly “verbally threatened the committee.”
• August 6, 2018: The HOA Board meets and passes a motion “to suspend the ARC committee for 60 days until guidelines/expectations are clarified.” The motion states that in the interim, the Board will review and approve all ARC submissions.
• August 24, 2018: The Board sends a letter to the non-Board ARC members, including the Petitioner, informing them of the 60-day suspension.
• September 17, 2018: The Board meets and approves a revised application from the Wells, which now aligns with City of Mesa code.
• September 19, 2018: The Board, formally acting as the ARC, reviews and approves the Wells’ revised application.
• October 22, 2018: The Petitioner files his complaint with the Arizona Department of Real Estate.
• November 19, 2018: The Board adopts a “Resolution Regarding the ARC” to clarify its position. The resolution states the Board had “(i) temporarily removed the current members of the [ARC] (via a suspension) and (ii) chose to act and serve as the current [ARC].” It also formally ratifies the approval of the Wells’ garage.
Central Arguments Presented
Petitioner’s Position (N. Wayne Dwight, Jr.)
• Limited Board Authority: The CC&Rs (§ 3.4) grant the Declarant the “sole right to appoint and remove” ARC members. After the Declarant’s departure, this section states that members “shall be appointed by the Board.” The Petitioner argued this only conferred the power to appoint, not to remove.
• Failed Amendment: The failure of the membership to amend the CC&Rs to explicitly grant the Board the Declarant’s powers proves that the Board does not possess the power of removal.
• Lifetime Appointments: The Petitioner argued that once appointed, ARC members could only be removed for specific cause (e.g., moving out of the community, incapacitation) and were otherwise entitled to serve for life.
• Improper ARC Suspension: The Board’s action to suspend the committee was a violation of the CC&Rs, as the Board lacked the authority to do so.
• Invalid Approval: Because the ARC was improperly suspended, the Board’s subsequent approval of the Wells’ application violated § 7.7, which requires ARC approval for all alterations.
• Meaningless Appeals: If the Board can act as the ARC, the appeal process outlined in § 3.2, which allows a homeowner to appeal an ARC decision to the Board, becomes an “exercise in futility.”
Respondent’s Position (Whisper Mountain HOA)
• Inherited Powers: Upon the Declarant’s departure, the Board assumed all of its rights and responsibilities under the CC&Rs, including the power to both appoint and remove ARC members.
• Authority from ARC Charter: The ARC Charter, adopted in 2016, explicitly grants the Board the sole right to remove ARC members at any time.
• Intent of the Board: The Board’s intent was not to abolish the ARC, but to address concerns about the committee’s conduct, including its “way of questioning applicants” and a need for more civility, fairness, and consistency.
• Clarification of “Suspension”: The use of the word “suspend” in communications by the management company (Mariposa Group) was “unfortunate and inaccurate.” The Board’s true action, clarified in its November 19 resolution, was to remove the non-Board members and appoint its own members to serve as the ARC.
• Valid Approval: The Board was legitimately acting as the ARC when it approved the Wells’ application; therefore, § 7.7 was not violated.
Administrative Law Judge’s Analysis and Conclusions
Interpretation of Governing Documents
The ALJ concluded that restrictive covenants must be construed as a whole and interpreted to give effect to the intent of the parties. The Judge found the Petitioner’s interpretation of the CC&Rs to be unpersuasive and ultimately harmful to the community.
• The Judge stated that the Petitioner’s interpretation “elevates non-elected members of ARC above elected Board members, abrogates any community control over ARC, and does not serve the underlying purposes of the CC&Rs.”
• This “unelected lifetime appointment” concept was found to be contrary to the “democratic principles underlying HOA law in Arizona.”
On the Board’s Authority
The ALJ affirmed the HOA’s authority to manage the ARC as it did.
• Assumption of Powers: The decision concludes that “When Declarant turned Respondent HOA over to its Board, the Board assumed all of Declarant’s rights and responsibilities under the CC&Rs and related documents.” This included the power to remove ARC members.
• ARC Charter: The Judge noted that the ARC Charter also “expressly provided that the Board had the power to remove as well as to appoint members of the ARC.”
• Legitimacy of Actions: The Board was found to have acted within its authority in August 2018 when it “removed the three non-Board members of the ARC and appointed itself to perform the functions of the ARC.”
On the Alleged Violations
Based on the finding that the Board acted within its authority, the ALJ concluded that no violations occurred.
• Conclusion on CC&R § 7.7 (ARC Approval): The petition failed on this point because the Board was legitimately acting as the ARC when it approved the Wells’ application in September 2018.
• Conclusion on CC&R § 3.2 (Appeals): The petition failed on this point because the CC&Rs do not prohibit Board members from acting as the ARC. While acknowledging that appealing a decision to the same body “may be an exercise in futility,” the Judge noted that under the CC&Rs, the Board is not required to hear appeals in any event.
Final Order and Implications
Order: The petition filed by N. Wayne Dwight, Jr. was denied. The Judge found he had not established that the HOA violated CC&Rs §§ 3.2 or 7.7.
Implications: This decision establishes a strong precedent for interpreting HOA governing documents in a manner that favors functional, democratic governance over literal interpretations that could lead to impractical or absurd outcomes. It affirms that an HOA Board generally inherits the full operational powers of the original developer unless explicitly restricted, and that a Board can act to reform or reconstitute committees to ensure they serve the community’s best interests.
Study Guide – 19F-H1918027-REL
Study Guide: Dwight v. Whisper Mountain Homeowners Association
This study guide provides a comprehensive review of the Administrative Law Judge Decision in the case of N. Wayne Dwight, Jr. vs. Whisper Mountain Homeowners Association (No. 19F-H1918027-REL). It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined within the context of the legal document.
Short-Answer Quiz
Answer each of the following questions in two to three sentences, drawing exclusively from the provided source document.
1. What were the two specific allegations made by the Petitioner, N. Wayne Dwight, Jr., in his petition filed on October 22, 2018?
2. Identify the key parties in this case and describe their respective roles or relationships to the dispute.
3. What was the purpose and outcome of the ARC meeting held on July 17, 2018, regarding the Wells’ property?
4. Explain the actions taken by the Respondent’s Board of Directors during its meeting on August 6, 2018, regarding the Architectural Review Committee (ARC).
5. What was the Petitioner’s interpretation of CC&R § 3.4 regarding the removal of ARC members, and what was the potential consequence of this interpretation as noted by the Administrative Law Judge?
6. According to the Respondent’s Board president, Greg Robert Wingert, what were the primary reasons for removing the non-Board members of the ARC?
7. Describe the role of the Mariposa Group LLC in this case and explain how its communications created confusion.
8. How did the Board clarify its actions and ratify its decisions in the November 19, 2018 Resolution?
9. What is the legal standard of proof the Petitioner was required to meet, and how is it defined in the case documents?
10. What was the final ruling of the Administrative Law Judge, and what was the core reasoning behind the decision regarding CC&Rs §§ 3.2 and 7.7?
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Answer Key
1. The Petitioner alleged that the Respondent’s Board violated Covenants, Conditions, and Restrictions (CC&Rs) §§ 3.2 and 7.7. The specific violations cited were the dissolution or suspension of the Architectural Review Committee (ARC) on August 6, 2018, and the subsequent approval of an application from two members to build a detached garage on September 19, 2018.
2. The key parties are N. Wayne Dwight, Jr. (the “Petitioner”), a property owner and former ARC member, and the Whisper Mountain Homeowners Association (the “Respondent”). The case also involves Greg Robert Wingert, the President of the Respondent’s Board, and Mark and Connie Wells, the homeowners who applied to build a detached garage. The dispute centers on the Respondent’s authority over the ARC, of which the Petitioner was a member.
3. The purpose of the July 17, 2018, meeting was for the ARC, including the Petitioner, to consider Mark and Connie Wells’ application for a detached garage. The meeting was abruptly adjourned after the applicant allegedly threatened the committee, and no formal vote was conducted at that time. However, a letter dated July 30, 2018, later informed the Wells that the ARC had approved their request.
4. At the August 6, 2018, meeting, the Board of Directors discussed the need for more consistency and guidelines for the ARC. Citing these reasons and safety concerns from a prior meeting, the Board passed a motion to “suspend the ARC committee for 60 days” and announced that in the interim, the Board itself would review and approve all ARC submissions.
5. The Petitioner argued that CC&R § 3.4 only allowed the Board to appoint, not remove, ARC members. He contended that once appointed, members could only be removed for cause and were otherwise entitled to serve for life. The Judge noted this interpretation would elevate unelected ARC members above the elected Board and abrogate community control.
6. Greg Robert Wingert testified that the Board removed the non-Board ARC members due to concerns about the “manner in which questioning was done in a public forum.” The Board’s intent was not to eliminate the ARC, but to continue the review process while making it more civil, fair, consistent, and transparent.
7. The Mariposa Group LLC was the Respondent’s management company. Its employees, such as Ed Ericksen, were responsible for drafting official communications like minutes and letters. These communications used inaccurate words like “suspend” and “dissolve” to describe the Board’s actions regarding the ARC, which Mr. Wingert testified was an “unfortunate and inaccurate” choice of words that did not reflect the Board’s true intent.
8. The November 19, 2018, Resolution clarified that the Board had removed the existing ARC members and appointed itself to act and serve as the ARC, as was its right under CC&R § 3.4. The resolution explicitly stated that the Board members were the current members of the ARC and ratified all prior architectural decisions made by the Board while serving in this capacity, including the approval of the garage on Lot 18.
9. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not, representing the greater weight of evidence that is sufficient to incline a fair and impartial mind to one side of the issue.
10. The Administrative Law Judge denied the Petitioner’s petition. The Judge concluded that the Board acted within its authority when it removed the non-Board ARC members and appointed itself to perform ARC functions, meaning it did not violate CC&R § 7.7 by approving the Wells’ application. The Judge also found no violation of CC&R § 3.2, noting that the CC&Rs do not prohibit Board members from acting as the ARC.
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Essay Questions
The following questions are designed for longer-form analysis. Formulate a comprehensive response based solely on the facts and legal interpretations presented in the source document.
1. Analyze the Administrative Law Judge’s interpretation of the CC&Rs, particularly § 3.4. How does this interpretation address the transfer of power from the “Declarant” to the Board, and how does it counter the Petitioner’s argument for lifetime appointments?
2. Discuss the concept of an “appeal” as outlined in CC&R § 3.2. Evaluate the potential conflict of interest and the issue of futility raised when the Board of Directors also serves as the Architectural Review Committee.
3. Trace the timeline of events surrounding the Wells’ application for a detached garage. How did this specific application serve as the catalyst for the broader conflict between the Petitioner and the Respondent’s Board?
4. Examine the role of communication and language in this dispute. How did the specific wording used by the management company in official documents (e.g., “suspend”) differ from the Board’s stated intent, and how did this discrepancy fuel the conflict?
5. Based on the evidence presented, evaluate the argument that the Board’s actions were a necessary measure to ensure a “civil, fair, consistent, and transparent” architectural review process versus the argument that the Board overstepped its authority as defined by the CC&Rs.
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Glossary of Key Terms
Definition within the Source Context
Administrative Law Judge (ALJ)
An independent judicial officer (Diane Mihalsky) from the Office of Administrative Hearings tasked with conducting an evidentiary hearing and rendering a decision on the petition.
Architectural Review Committee (ARC)
A committee established to review and approve or deny any improvements, alterations, or other work that alters the exterior appearance of a property. Per the CC&Rs, its decisions are final unless appealed to the Board.
ARC Charter
A document adopted by the Respondent’s Board on March 15, 2016, which provided that the ARC would consist of up to four members appointed by the Board and that the Board vested itself with the sole right to appoint and remove all appointed ARC members at any time.
Board of Directors (Board)
The elected body that conducts the affairs of the Whisper Mountain Homeowners Association. The document presumes they are elected by members to specific terms.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for the Whisper Mountain planned community, recorded on September 7, 2016. They outline the rules for property use, the structure of the HOA, and the functions of bodies like the ARC.
Declarant
The original developer who built the planned community, identified as VIP Homes. The Declarant initially held the sole right to appoint and remove ARC members, a right that transferred to the Board after the developer was no longer involved.
Mariposa Group LLC
The management company employed by the Respondent HOA. Its employees, such as Douglas Egan and Ed Ericksen, were responsible for drafting official communications like meeting minutes and approval letters.
Office of Administrative Hearings (OAH)
An independent state agency to which the Department of Real Estate referred the petition for an evidentiary hearing.
Petitioner
N. Wayne Dwight, Jr., a property owner in the Whisper Mountain development and a former member of the ARC. He filed the petition alleging the HOA violated its CC&Rs.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win the case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The Whisper Mountain Homeowners Association (“HOA”), the governing body for the development. The Respondent was represented by its Board and legal counsel.
Blog Post – 19F-H1918027-REL
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19F-H1918027-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between a homeowner, N. Wayne Dwight, Jr. (Petitioner), and the Whisper Mountain Homeowners Association (Respondent). The Petitioner alleged that the HOA’s Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by dissolving or suspending the Architectural Review Committee (ARC) and subsequently approving an application for a detached garage. The decision details the background, evidence presented at the hearing, and the Administrative Law Judge’s (ALJ) findings and conclusions of law. Ultimately, the ALJ denied the petition, finding that the Board acted within its authority under the governing documents to remove non-Board ARC members and appoint itself to fulfill the ARC’s functions. The ALJ concluded that the Petitioner failed to prove the HOA violated the specified CC&Rs.
Based on 1 source
Case Participants
Petitioner Side
N. Wayne Dwight, Jr.(petitioner) Appeared on his own behalf; former ARC member; testified on his own behalf
Respondent Side
Troy B. Stratman(attorney) Stratman Law Firm, PLC Represented Whisper Mountain Homeowners Association
Greg Robert Wingert(board member/witness) Whisper Mountain Homeowners Association Board President; Chairman of the ARC; testified for Respondent
Pam Cohen(board member) Whisper Mountain Homeowners Association Seconded motions; identified as 'Pam' in meeting minutes
Ronna(board member) Whisper Mountain Homeowners Association Made motion to suspend ARC
Gary(board member) Whisper Mountain Homeowners Association
Douglas Egan(property manager) Mariposa Group LLC Sent approval letter for garage application
Ed Ericksen(property manager) Mariposa Community Manager; sent approval/clarification letters regarding Wells' request
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Felicia Del Sol(staff) Transmitted decision
Other Participants
Mark Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Connie Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Phil Hoyt(owner/member) Whisper Mountain development (Lot 16)
Andy Horn(owner/member) Whisper Mountain development (Lot 1)
Jason Komorowski(owner/member) Whisper Mountain development (Lot 51)
Connie Harrison(neighbor) Whisper Mountain development Mentioned regarding Lot 18 variance condition
Don Berry(owner/member) Whisper Mountain development (Lot 45)
A.R.S. §§ 33-1803 and 1809; CC&Rs Amendments 1, 2, and 3; Greenlaw Rules and Regulations
Outcome Summary
The Administrative Law Judge denied the petition, finding that the Petitioner failed to establish by a preponderance of the evidence that the HOA violated the cited governing documents (CC&Rs/Rules) or state statutes (A.R.S. §§ 33-1803 and 1809) by banning street parking and contracting for vehicle booting/towing.
Why this result: Petitioner failed to meet the burden of proof regarding violations of CC&Rs Amendments 1, 2, and 3, the Rules and Regulations, and A.R.S. §§ 33-1803 and 1809. The ALJ found the July 2018 revised Rules, which banned parking, were controlling.
Key Issues & Findings
Violation regarding banning parking and use of towing/booting company.
Petitioner alleged the HOA improperly banned street parking and contracted with a towing/booting company, arguing this violated specific CC&R amendments, the Rules and Regulations, and A.R.S. §§ 33-1803 and 1809. He also claimed the 2018 revised Rules were invalid due to improper electronic notice instead of personal delivery or mail.
Administrative Hearing Briefing: William P. Lee v. Greenlaw Townhouses Unit Two
Executive Summary
This document analyzes the Administrative Law Judge Decision in case No. 19F-H1918019-REL-RHG, where Petitioner William P. Lee’s complaint against the Greenlaw Townhouses Unit Two Homeowners Association (Greenlaw) was denied. Mr. Lee, a homeowner, alleged that Greenlaw’s complete ban on street parking and its contract with a towing company to enforce the ban violated the association’s Covenants, Conditions, and Restrictions (CC&Rs).
The Administrative Law Judge (ALJ) found that Mr. Lee failed to meet the required burden of proof. The central conclusion was that Greenlaw’s revised Rules and Regulations, effective July 2018, are the controlling authority and explicitly permit a total ban on street parking. The ALJ determined that the specific parking prohibitions detailed in the CC&R amendments—concerning fire lanes, snow removal, and abandoned vehicles—do not preclude the association from enacting a more comprehensive ban via its rules. Furthermore, the petitioner failed to provide sufficient evidence that Greenlaw had actually taken the alleged enforcement actions (booting or towing) against any member’s vehicle.
Case Overview
Detail
Information
Case Name
William P. Lee v. Greenlaw Townhouses Unit Two
Case Number
19F-H1918019-REL-RHG
Arizona Office of Administrative Hearings
Petitioner
William P. Lee (Homeowner)
Respondent
Greenlaw Townhouses Unit Two (Homeowners Association)
Hearing Date
April 1, 2019 (Rehearing)
Decision Date
April 22, 2019
Final Order
Petitioner’s petition is denied.
Presiding ALJ
Velva Moses-Thompson
Petitioner’s Core Allegations and Arguments
William P. Lee’s petition, filed on September 12, 2018, centered on the claim that Greenlaw acted outside its authority by banning all street parking and contracting with a towing company for enforcement. His arguments were:
• Violation of CC&Rs: The total parking ban directly contradicted CC&R Amendments 1, 2, and 3. Mr. Lee contended these amendments established an exhaustive list of permissible parking restrictions, limited to:
◦ Designated fire lanes (Amendment #1).
◦ Periods of snow removal (Amendment #2).
◦ Vehicles in an obvious state of disrepair for over 72 hours (Amendment #3).
• Invalidity of Revised Rules: Mr. Lee argued that the July 2018 revised Rules and Regulations, which contain the parking ban, were not valid or controlling due to improper notification.
◦ He contended that Greenlaw’s Bylaws (Article V, Section 1) required that such notices be delivered personally or by postal mail.
◦ He received notice only via a July 6, 2018 email, which he claimed did not clearly indicate that the rules had been substantively changed.
• Improper Motive: Mr. Lee contended that “the only reason that the Association banned parking was to please Barbara, a board member who did not want anyone to park behind her property.”
Respondent’s Defense
Greenlaw Townhouses Unit Two asserted that its actions were proper and within the scope of its authority as an HOA. Its defense included the following points:
• Controlling Authority: Greenlaw maintained that its revised Rules and Regulations, effective July 2018, were the controlling documents governing parking.
• Notice Protocol: The association contended that the Bylaw provision requiring personal or postal mail notice applies only to notices mandated by statute or the CC&Rs. Greenlaw argued there is no such requirement for providing notice of amendments to the Rules and Regulations.
• Sufficient Notice: Greenlaw asserted that Mr. Lee received actual notice of the revised rules via the email sent on July 6, 2018.
Analysis of Key Governing Documents
The case revolved around the interpretation of and interplay between several of Greenlaw’s governing documents.
Document
Key Provision / Content
Relevance to Case
CC&R Amendments 1, 2, & 3
These amendments, added to Article II (Permitted Uses), establish specific, conditional parking prohibitions related to fire lanes, snow removal, and abandoned vehicles.
The petitioner argued these amendments represented the only circumstances under which parking could be banned. The ALJ found they were not an exhaustive list.
Bylaws, Article V, Section 1
“Notices to directors and lot owners shall be in writing and delivered personally or mailed to the directors or lot owners at their addresses appearing on the books of the corporation.”
The petitioner cited this to argue that the email notice for the revised rules was improper, thus invalidating the rules. The ALJ sided with the Respondent’s interpretation.
Rules and Regulations (July 2018), Section 8
“Parking is not allowed on any association street or alleyway at any time… cars parked in violation may be booted and/or towed by a contracted independent towing company.” The rule specifies that the streets (Eva, Heidi, Jeffrey Loops) are private and owned by the HOA.
This document contains the explicit, total parking ban at the heart of the dispute. The ALJ found this rule to be the valid and controlling authority.
Administrative Law Judge’s Findings and Conclusions
The ALJ’s decision was based on a comprehensive review of the evidence and legal standards, ultimately concluding that the petitioner failed to prove his case.
Burden of Proof
The decision established that Mr. Lee bore the burden of proof “to establish that Greenlaw violated amendments 1, 2, and 3 of the CC&Rs, and the Greenlaw Rules and Regulations by a preponderance of the evidence.” A preponderance of the evidence is defined as proof that convinces the trier of fact a contention is “more probably true than not.”
Key Conclusions of Law
1. Validity of the 2018 Rules: The ALJ concluded that “the weight of the evidence presented at hearing shows that Greenlaw’s Rules and Regulations were revised effective July 2018 and are the controlling Rules and Regulations of Greenlaw.” Mr. Lee failed to establish that any prior version remained in effect.
2. Scope of CC&R Amendments: The decision found that the CC&R amendments only “provide specific scenarios in which parking on the streets is banned.” They do not restrict the association from implementing a broader ban through its Rules and Regulations. Therefore, the total ban did not violate the CC&Rs.
3. No Violation of Rules: Because the July 2018 rules were found to be controlling, and they explicitly authorize a total parking ban, the ALJ concluded that Greenlaw’s decision did not violate its own Rules and Regulations.
4. Insufficient Evidence of Enforcement: A critical failure in the petitioner’s case was the lack of evidence.
◦ The decision notes, “Mr. Lee provided no evidence that Greenlaw booted or towed any of the vehicles belonging to Greenlaw members.”
◦ His testimony about observing a booted jeep was dismissed as insufficient, as he “did not know who owned the jeep, nor who was responsible for booting the jeep.” The Greenlaw manager’s subsequent comment was not found to be an admission of responsibility.
◦ Mr. Lee did not allege that any of his own vehicles had been booted or towed.
5. No Statutory Violation: The judge found that Mr. Lee failed to establish any violation of Arizona Revised Statutes §§ 33-1803 and 33-1809.
Final Order and Implications
Based on these findings, the Administrative Law Judge issued a final, binding order.
• Order: “IT IS ORDERED that Petitioners’ petition is denied.”
• Appeal Process: As the order resulted from a rehearing, it is binding on the parties. Any party wishing to appeal must seek judicial review in the superior court within thirty-five days from the date the order was served.
Study Guide – 19F-H1918019-REL
Study Guide: Lee v. Greenlaw Townhouses Unit Two (Case No. 19F-H1918019-REL-RHG)
This guide provides a comprehensive review of the administrative law case between William P. Lee and the Greenlaw Townhouses Unit Two Homeowners Association. It covers the central conflict, the arguments presented by both parties, the key legal documents involved, and the final decision rendered by the Administrative Law Judge.
Case Overview
This case centers on a dispute between a homeowner, William P. Lee, and his Homeowners Association (HOA), Greenlaw Townhouses Unit Two. Mr. Lee filed a petition alleging that the HOA’s decision to ban all parking on association streets and contract with a towing company violated the community’s governing documents. The matter was decided by an Administrative Law Judge following a rehearing on April 1, 2019.
Key Parties and Roles
Party/Role
Name / Entity
Description
Petitioner
William P. Lee
A homeowner in Greenlaw Unit Two and member of the HOA who filed the petition against the association.
Respondent
Greenlaw Townhouses Unit Two
The Homeowners Association (HOA) responsible for governing the community, against which the petition was filed.
Legal Counsel
Timothy D. Butterfield, Esq.
Appeared on behalf of the Respondent, Greenlaw Townhouses.
Adjudicator
Velva Moses-Thompson
The Administrative Law Judge from the Office of Administrative Hearings who presided over the rehearing and issued the decision.
Timeline of Key Events
June 16, 1986
Greenlaw Bylaws were recorded at the Coconino County Recorder.
July 2, 1999
Greenlaw Declaration of Covenants, Conditions, and Restrictions (CC&Rs) was recorded.
July 6, 2018
Greenlaw sent an email to members with an attachment containing the revised Rules and Regulations, effective July 2018.
September 12, 2018
William P. Lee filed a petition with the Arizona Department of Real Estate.
December 13, 2018
The original hearing on the petition was conducted.
February 11, 2019
The Department of Real Estate issued an order for a rehearing.
April 1, 2019
The rehearing was held at the Office of Administrative Hearings.
April 22, 2019
The Administrative Law Judge issued the final decision, denying the petitioner’s petition.
The Central Conflict: Parking Regulations
The core of the dispute was Mr. Lee’s allegation that Greenlaw’s comprehensive ban on street parking, as stated in its revised 2018 Rules and Regulations, violated the more specific parking restrictions outlined in the community’s CC&Rs. The validity of the 2018 Rules and Regulations, and the method by which they were distributed to homeowners, was also a key point of contention.
• Violation of CC&Rs: The general ban on street parking violated Amendments 1, 2, and 3 of the CC&Rs, which only banned parking in specific situations (fire lanes, snow removal, abandoned vehicles).
• Improper Notice: Greenlaw failed to provide proper notice of the revised Rules and Regulations. Mr. Lee argued that the HOA’s Bylaws (Article V, Section 1) required notice to be delivered personally or by postal mail, not by email.
• Unclear Communication: The email sent on July 6, 2018, did not clearly state that the rules had been recently changed.
• Invalidity of New Rules: Due to the improper notice, Mr. Lee contended that the 2018 revised Rules and Regulations were not valid or controlling.
• Improper Motivation: Mr. Lee alleged the only reason for the ban was to appease a board member named Barbara who did not want anyone parking behind her property.
• Evidence of Enforcement: Mr. Lee testified that he observed a jeep being booted in a driveway and that the Greenlaw manager’s response implied the HOA’s contracted towing company could boot vehicles in violation.
• Notice Was Sufficient: Greenlaw contended that the Bylaw’s requirement for mail or personal delivery only applied to notices mandated by statute or the CC&Rs.
• No Notice Requirement: The HOA argued that it was not required by law or the CC&Rs to provide homeowners with notice of an amendment to the Rules and Regulations.
• Notice Was Received: Greenlaw asserted that Mr. Lee did, in fact, receive notice of the revised rules via the email sent on July 6, 2018.
• No Proof of Harm: Greenlaw pointed out that Mr. Lee provided no evidence that any vehicles belonging to Greenlaw members had been booted or towed by the association, nor did he allege that one of his own vehicles had been affected.
Governing Documents and Legal Principles
• Amendment #1: Bans parking in designated fire lanes.
• Amendment #2: Bans parking on subdivision roads during snow removal periods.
• Amendment #3: Allows for the towing of vehicles parked at the curb in an obvious state of disrepair for over 72 hours.
• Article V, Section 1: States that notices to directors and lot owners “shall be in writing and delivered personally or mailed.”
• Section 8: Explicitly states, “Parking is not allowed on any association street or alleyway at any time.” It identifies the streets (Eva, Heidi, and Jeffrey Loops) as “Private Fire Access Lanes” owned by the HOA and states that vehicles in violation may be booted and/or towed.
• The petitioner, Mr. Lee, bore the burden of proof to establish his claims by a preponderance of the evidence.
• The source defines preponderance of the evidence as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
The Judge’s Decision and Rationale
The Administrative Law Judge, Velva Moses-Thompson, denied Mr. Lee’s petition. The key conclusions of law were:
1. Controlling Document: The 2018 revised Rules and Regulations were found to be the valid and controlling rules for the Greenlaw HOA.
2. Authority to Ban Parking: The 2018 Rules and Regulations explicitly allow the association to ban all parking on its streets and to enforce this rule by booting or towing vehicles.
3. No Violation of CC&Rs: The judge concluded that Mr. Lee failed to prove that the general parking ban violated the specific, situational bans outlined in CC&R Amendments 1, 2, and 3. The amendments did not preclude the HOA from enacting a broader rule.
4. Failure to Meet Burden of Proof: Mr. Lee did not establish by a preponderance of the evidence that Greenlaw’s actions violated either the CC&Rs or the Rules and Regulations.
5. Insufficient Evidence of Enforcement: Mr. Lee failed to provide any evidence that Greenlaw was actually responsible for booting the jeep he observed. His testimony was not sufficient to prove the HOA had taken action against any member.
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Quiz: Test Your Understanding
Answer the following questions in 2-3 sentences based on the information in the study guide.
1. What was the central allegation in William P. Lee’s petition against the Greenlaw HOA?
2. What three specific scenarios for parking restrictions are outlined in Amendments 1, 2, and 3 of the Greenlaw CC&Rs?
3. On what grounds did Mr. Lee argue that the 2018 revised Rules and Regulations were not valid?
4. How did Greenlaw defend its use of email to distribute the revised Rules and Regulations to homeowners?
5. According to Section 8 of the revised Rules and Regulations, what are the potential consequences for parking on an association street?
6. What was the judge’s conclusion regarding the validity and authority of the 2018 revised Rules and Regulations?
7. What is the “preponderance of the evidence” standard, and who bore the burden of proof to meet it in this case?
8. Why did the judge find Mr. Lee’s testimony about a booted jeep to be insufficient evidence?
9. Did the judge find that Greenlaw’s general parking ban violated Amendments 1, 2, and 3 of the CC&Rs? Explain why or why not.
10. What was the final order issued by the Administrative Law Judge in this matter?
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Answer Key
1. Mr. Lee’s central allegation was that the Greenlaw HOA had violated its CC&Rs and Rules and Regulations. Specifically, he claimed the association’s decision to ban all parking on its streets and to contract with a company to boot vehicles was improper.
2. The CC&R amendments outline three specific parking restrictions. Amendment 1 bans parking in designated fire lanes, Amendment 2 bans parking on roads during snow removal, and Amendment 3 allows for the towing of abandoned vehicles in a state of disrepair for over 72 hours.
3. Mr. Lee argued the 2018 rules were invalid because he was not given proper notice. He contended that the HOA’s Bylaws required notice to be delivered personally or by postal mail, and that the email he received was not a valid method of distribution.
4. Greenlaw defended its use of email by arguing that the Bylaw’s requirement for personal or mail delivery only applied to notices that were required by statute or the CC&Rs. The HOA contended it was not required by law to provide notice for an amendment to its Rules and Regulations.
5. Section 8 states that cars parked in violation on an association street may be booted and/or towed by a contracted independent towing company. The rule identifies the streets as “Private Fire Access Lanes.”
6. The judge concluded that the Rules and Regulations revised in July 2018 were the controlling rules for Greenlaw. Furthermore, the judge found that these rules do allow the association to ban all parking on its streets and to tow or boot cars in violation.
7. A “preponderance of the evidence” is the standard of proof that convinces a judge that a contention is more probably true than not. In this case, the petitioner, William P. Lee, bore the burden of proving his claims by this standard.
8. The evidence was insufficient because Mr. Lee did not know who owned the jeep or who was responsible for booting it. There was no direct evidence provided that proved Greenlaw or its contractor was responsible for the action.
9. No, the judge did not find that the ban violated the CC&Rs. The judge reasoned that the amendments only provided specific scenarios where parking was banned and did not prevent the HOA from enacting a broader, more general parking ban in its Rules and Regulations.
10. The final order issued by the Administrative Law Judge was that the Petitioner’s (Mr. Lee’s) petition is denied.
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Essay Questions for Deeper Analysis
The following questions are for further reflection. No answers are provided.
1. Analyze the conflict between Greenlaw’s Bylaws (Article V, Section 1) regarding notice and its 2018 distribution of revised Rules and Regulations. Discuss both parties’ arguments and explain how the judge’s ultimate decision implies a resolution to this conflict.
2. Discuss the legal concept of “burden of proof” as it applies to this case. How did William P. Lee’s failure to meet the “preponderance of the evidence” standard affect the outcome of his claims regarding both the parking ban and the alleged booting/towing incidents?
3. Compare and contrast the parking restrictions detailed in the CC&R Amendments with the broader ban instituted in Section 8 of the 2018 Rules and Regulations. Explain why the existence of the specific amendments did not prevent the HOA from enacting a more general rule.
4. Evaluate the evidence presented by Mr. Lee. What were the strengths and weaknesses of his arguments and testimony, particularly concerning the booted jeep and the motivation behind the parking ban?
5. Imagine you are legal counsel for the Greenlaw HOA. Based on the arguments and outcome of this case, what advice would you give the Board of Directors regarding future amendments to its Rules and Regulations to avoid similar disputes?
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Glossary of Key Terms
• Administrative Law Judge (ALJ): An official who presides over hearings at administrative agencies. In this case, Velva Moses-Thompson served as the ALJ for the Office of Administrative Hearings.
• Affirmative Defenses: Arguments made by the respondent that, if proven, can defeat or mitigate the petitioner’s claim. The Respondent (Greenlaw) bears the burden to establish these defenses.
• Burden of Proof: The obligation of a party in a legal case to prove their allegations. In this case, Mr. Lee had the burden of proof to establish his claims.
• Bylaws: A set of rules adopted by an organization, such as an HOA, for governing its internal operations. Greenlaw’s bylaws addressed the method for providing notices to members.
• Covenants, Conditions, and Restrictions (CC&Rs): A set of rules governing the use of land in a planned community or subdivision. Owners agree to be bound by the CC&Rs.
• Homeowners Association (HOA): An organization in a planned community that makes and enforces rules for the properties and its residents. Greenlaw Townhouses Unit Two is the HOA in this case.
• Petitioner: The party who files a petition initiating a legal action. William P. Lee is the Petitioner.
• Preponderance of the Evidence: The standard of proof in which the trier of fact is convinced that a contention is “more probably true than not.” It is described as “the greater weight of the evidence.”
• Respondent: The party against whom a petition is filed; the party who must respond to the claims. Greenlaw Townhouses Unit Two is the Respondent.
• Rules and Regulations: A set of rules established by the HOA, in addition to the CC&Rs and Bylaws, that govern the day-to-day life and conduct within the community. The 2018 revised parking ban was located in Greenlaw’s Rules and Regulations.
Blog Post – 19F-H1918019-REL
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19F-H1918019-REL-RHG
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This document presents an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between William P. Lee, a homeowner, and Greenlaw Townhouses Unit Two, his Homeowners Association. The central issue revolved around the Greenlaw HOA’s implementation of a comprehensive ban on street parking and its contracting with a towing company to enforce the rule, which Mr. Lee contended violated the association’s governing documents, specifically amendments to the Covenants, Conditions, and Restrictions (CC&Rs), and the proper notification procedures for revised rules. The findings of fact detail the history of the parking rules, the homeowner’s receipt of the electronic notification of the revised rules, and Mr. Lee’s arguments that the association failed to use the required postal mail or personal delivery methods for notice. The Conclusions of Law determined that the controlling rules were the revised July 2018 Rules and Regulations and that Mr. Lee failed to prove by a preponderance of the evidence that the HOA violated either the CC&Rs or relevant Arizona statutes. Consequently, the Judge ordered that the petitioner’s petition be denied.
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Case Participants
Petitioner Side
William P. Lee(petitioner) Greenlaw Townhouses Unit Two Homeowners Association member Testified on behalf of himself
Respondent Side
Mark K. Sahl(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Timothy D. Butterfield(HOA attorney) Greenlaw Townhouses Unit Two Homeowners Association
Barbara(board member) Greenlaw Townhouses Unit Two Homeowners Association Contended by Lee to be the reason for the parking ban
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
