The ALJ denied the petition, concluding that the homeowner failed to meet the burden of proof demonstrating the HOA violated community documents by refusing the requested block wall. The wall was prohibited by CC&Rs and ALC Guidelines because it was planned for just inside the property line and excluded the adjacent owner from use, potentially leading to prohibited parallel walls.
Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated the CC&Rs and ALC Guidelines.
Key Issues & Findings
Refusal to approve construction of a 10’ long, 6’ high block wall for privacy
Petitioner sought approval for a 10’ long, 6’ high block wall for privacy, built a foot or so inside his property line, designed to prevent adjacent neighbors (the Rohlmans) from using it. Respondent denied the wall based on community documents restricting such constructions to avoid parallel walls and requiring party walls to be on or immediately adjacent to the property line, granting contiguous owners the right to use them.
Briefing: Case No. 17F-H1717037-REL, Long v. Pebble Creek Resort Community
Executive Summary
This document provides a comprehensive analysis of the administrative hearing and final decision concerning a dispute between homeowner Richard Long (“Petitioner”) and the Pebble Creek Resort Community homeowners’ association (“Respondent”). The core of the dispute was the Petitioner’s request to build a 10-foot long, 6-foot high block privacy wall approximately one foot inside his property line, which the Respondent’s Architectural Landscape Committee (ALC) denied.
The Administrative Law Judge (ALJ) ultimately denied the petition, a decision that was subsequently adopted as a Final Order by the Arizona Department of Real Estate. The central finding was that the Respondent’s governing documents—specifically the Covenants, Conditions, and Restrictions (CC&Rs) and ALC Guidelines—unequivocally prohibit the proposed wall. The ALJ concluded that a wall built so close to a property line is defined as a “Party Wall,” which must be constructed “on or immediately adjacent to” the boundary and be usable by both property owners. The Petitioner’s proposal violated these foundational rules by being set back from the property line with the explicit intent of preventing neighbor access and use.
The Respondent had offered a conditional variance for a wall to be built directly on the property line, but this required a mutual “Party Wall/Fence Agreement” with the adjacent neighbor, who refused to sign, citing concerns over property value and the legal complexity of a perpetual easement. The final ruling affirmed the Respondent’s authority to enforce its governing documents as written.
Case Overview
The matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed by the Petitioner with the Arizona Department of Real Estate. The Petitioner alleged that the Respondent HOA had violated its own governing documents by refusing to approve his proposed wall.
Case Detail
Information
Case Name
Richard Long, Petitioner, v. Pebble Creek Resort Community, Respondent
Case Number
No. 17F-H1717037-REL / HO 17-17/037
Office of Administrative Hearings (Phoenix, Arizona)
Petitioner
Richard Long (Appeared on his own behalf)
Respondent
Pebble Creek Resort Community (Represented by Jack Sarsam, SVP for Robson Communities)
Administrative Law Judge
Diane Mihalsky
Real Estate Commissioner
Judy Lowe
Hearing Date
August 30, 2017
ALJ Decision Date
September 6, 2017
Final Order Date
September 14, 2017
Core Dispute and Party Positions
Petitioner’s Proposal and Argument (Richard Long)
• Project: A 10-foot long, 6-foot high block wall intended to provide privacy between his patio and the patio of his adjacent neighbors, the Rohlmans.
• Proposed Location: “A foot or so inside his side of the property line.”
• Stated Intent: To construct a wall to which his neighbors could not attach or otherwise use. The Petitioner testified that if the Rohlmans later wanted their own wall (e.g., for a pool or pet), they could build a separate, parallel wall on their property.
• Rejection of Alternatives: The Petitioner acknowledged that the ALC would approve a “privacy panel wall” made of alumawood or lattice, but he rejected this option, deeming it “unsightly and flimsy.”
• Core Claim: The Petitioner argued that the Respondent’s CC&Rs and ALC Guidelines did not explicitly prohibit the construction of his proposed block wall at its intended location inside his property line.
Respondent’s Position and Actions (Pebble Creek HOA)
• Initial Action: The ALC denied the Petitioner’s request.
• Rationale for Denial: The Respondent explained that walls near lot lines can become problematic, particularly if they result in “two parallel walls.” This situation can create a narrow, inaccessible space between the walls that is difficult to maintain and “becomes filled with refuse, leaves, insects, nests and rodents.”
• Conditional Variance: On May 1, 2017, the Respondent offered to approve a variance with several key conditions:
1. The wall must be constructed directly on the property line.
2. Both the Petitioner and the Rohlmans must sign a written “Party Wall/Fence Agreement” (Form ALC 48).
3. This agreement must grant current and future owners permission to “extend/complete the wall” and must be disclosed upon the sale of either home.
4. The signed agreement would be kept in the ALC files for both properties.
Neighbor’s Position (The Rohlmans)
• The Rohlmans declined to sign the Party Wall/Fence Agreement proposed by the Respondent.
• In an email submitted as evidence, they outlined their reasons for refusal:
◦ Property Value: They believed a wall on the property line would negatively affect the “current and future value” of both properties.
◦ Legal Complexity: The agreement would require granting a perpetual easement, which they identified as a legal document entailing legal expenses.
◦ Disclosure upon Sale: The easement would have to be disclosed to future buyers, which they argued “lowers the value of the property.”
◦ Future Construction: A wall on the property line could be extended by either party or future owners “without the agreement of the other party.”
◦ They concluded that “All of these requirements are onerous.”
Analysis of Governing Documents
The ALJ’s decision rested on a direct interpretation of four key sections of the community’s CC&Rs and ALC Guidelines.
• CC&R § 1(Hh) – Definition of “Party Walls”
◦ This section defines a party wall as: “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.”
◦ The ALJ found that the Petitioner’s proposal for a wall “a foot or so inside” the property line did not meet this definition.
• CC&R § 2(P)(i) – Use of Party Walls
◦ This rule states: “Each Owner shall have the right to use the Party Wall, provided that such use does not interfere with the other Owner’s use and enjoyment thereof.”
◦ This directly contradicted the Petitioner’s goal of building a wall that his neighbors would be prohibited from using.
• ALC Guideline SS(4)(a) – Parallel Walls
◦ This guideline explicitly states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.”
◦ The Petitioner’s own testimony acknowledged the possibility of his neighbor building a parallel wall in the future, a scenario the guidelines are designed to prevent.
• ALC Guideline JJ – “Privacy Panel Wall”
◦ This section details the pre-approved alternative for privacy screening. Such a wall must be:
▪ Free-standing alumawood.
▪ Six feet in height and no more than sixteen feet in length.
▪ Located “at least three (3) feet from the property line.”
◦ This demonstrates a clear distinction in the rules between a shared “Party Wall” near the boundary and a private “Privacy Panel” set significantly back from it.
Administrative Law Judge’s Decision and Rationale
The ALJ, Diane Mihalsky, concluded that the Petitioner failed to meet his burden of proof to establish that the Respondent had violated its governing documents.
• Key Findings of Law:
1. A block wall built “a foot inside the property line” does not conform to CC&R § 1(Hh), which requires a party wall to be “on or immediately adjacent to” the boundary.
2. The Petitioner’s intent to deny his neighbor the use of the wall violates CC&R § 2(P)(i), which grants both owners rights to use a party wall.
3. The Petitioner’s proposal creates the potential for prohibited parallel walls, violating ALC Guideline SS(4)(a).
• Conclusion: The ALJ stated that the community’s documents “unequivocally prohibit Respondent from building a 6’ high, 10’ long block wall a foot from his property line that the Rohlmans are not permitted to use.”
• Recommended Order: On September 6, 2017, the ALJ issued a recommended order that the Petitioner’s petition be denied.
Final Order and Subsequent Actions
• Adoption of Decision: On September 14, 2017, Judy Lowe, Commissioner of the Arizona Department of Real Estate, issued a Final Order adopting the ALJ’s decision in its entirety.
• Effect of Order: The denial of the petition became final, binding, and effective immediately.
• Conditions for Rehearing: The Final Order stipulated that a rehearing could be granted pursuant to A.R.S. § 32-2199.04, but only for one of the following reasons:
1. Irregularity in proceedings or abuse of discretion by the ALJ.
2. Misconduct by the Department, ALJ, or prevailing party.
3. Accident or surprise that could not have been prevented.
4. Newly discovered material evidence.
5. Excessive or insufficient penalties.
6. Error in the admission or rejection of evidence.
7. The decision is arbitrary, capricious, or an abuse of discretion.
8. The findings of fact are not supported by the evidence or are contrary to law.
• Judicial Review: The order is subject to judicial review through the filing of a complaint pursuant to state law.
Study Guide – 17F-H1717037-REL
Study Guide: Long v. Pebble Creek Resort Community (Case No. 17F-H1717037-REL)
This study guide provides a review of the administrative hearing decision concerning a dispute between homeowner Richard Long and the Pebble Creek Resort Community homeowners’ association. It covers the facts of the case, the arguments presented, the relevant community rules, and the final legal outcome.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, based on the information provided in the case documents.
1. What was the specific structure that the Petitioner, Richard Long, proposed to build, and what was its intended purpose?
2. On what grounds did the Respondent, Pebble Creek Resort Community, justify its restrictions against the type of wall the Petitioner proposed?
3. What conditional variance did the Respondent offer to the Petitioner on May 1, 2017?
4. What were the primary concerns expressed by the Petitioner’s neighbors, the Rohlmans, which led them to decline the proposed wall agreement?
5. According to ALC Guideline JJ, what alternative structure could the Petitioner have built for privacy, and what were its key requirements?
6. How do the CC&Rs define a “Party Wall,” and what right does CC&R § 2(P)(i) grant to contiguous property owners regarding such a wall?
7. What rule from the ALC Guidelines prohibits the construction of two parallel walls side-by-side, and why is this rule in place?
8. What is the legal standard of “preponderance of the evidence” as defined in the hearing decision?
9. Who held the burden of proof to establish that the homeowners’ association violated its governing documents?
10. What was the final, binding outcome of the case after the Administrative Law Judge’s decision was reviewed?
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Answer Key
1. The Petitioner proposed to build a 10-foot long, 6-foot high block wall for privacy between his patio and his neighbor’s patio. The wall was to be located a foot or so inside his side of the property line, so his neighbors could not attach to it.
2. The Respondent explained that walls built near, but not on, the property line can lead to problems. This can result in two parallel walls being built, creating an unmaintainable space between them that collects refuse, leaves, insects, nests, and rodents.
3. The Respondent approved a variance on the condition that the wall be built on the property line. Both the Petitioner and his neighbors (the Rohlmans) had to agree in writing that current or future owners could extend the wall, with this agreement being disclosed upon sale of either house.
4. The Rohlmans declined because they believed a wall on the property line would negatively affect their property’s value. They were also concerned about the legal expense and perpetual nature of an easement, and the possibility that future owners could lengthen the wall without consent.
5. ALC Guideline JJ permits a “privacy panel wall,” which is a free-standing alumawood wall. This wall must be 6 feet high, no longer than 16 feet, and located at least 3 feet from the property line. The Petitioner rejected this option, feeling it was “unsightly and flimsy.”
6. CC&R § 1(Hh) defines a “Party Wall” as a wall constructed on or immediately adjacent to the common boundary of lots. CC&R § 2(P)(i) states that each owner of a contiguous property has the right to use the Party Wall, provided it does not interfere with the other owner’s use.
7. ALC Guideline SS(4)(a) states that an existing party wall along a joint property line “precludes any adjacent parallel party wall.” This rule is in place to prevent the negative situation described by the Respondent where a difficult-to-maintain space is created between two walls.
8. A “preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. It is also described as “the greater weight of the evidence” that is sufficient to incline a fair mind to one side of an issue over the other.
9. The Petitioner, Richard Long, bore the burden of proof. He had to establish by a preponderance of the evidence that the Respondent violated the CC&Rs and ALC Guidelines.
10. The Administrative Law Judge (ALJ) denied the Petitioner’s petition, and this decision was adopted by the Commissioner of the Department of Real Estate, becoming a Final Order. The Order is binding on the parties unless a rehearing is granted.
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Essay Questions
Instructions: The following questions are designed for a longer, essay-style response. Use the case documents to formulate a comprehensive answer supported by specific facts and citations to the community’s governing documents.
1. Analyze the conflict between the Petitioner’s desire for a specific type of privacy structure and the Respondent’s interpretation of the community’s CC&Rs and ALC Guidelines. How did the governing documents prioritize community standards and potential future problems over an individual homeowner’s preference?
2. Discuss the role and reasoning of the Petitioner’s neighbors, the Rohlmans. Evaluate their concerns regarding property value, easements, and future modifications as presented in their email, and explain how their refusal to sign the agreement was a critical factor in the dispute.
3. Explain the legal reasoning used by Administrative Law Judge Diane Mihalsky to reach her decision. Detail which specific sections of the CC&Rs and ALC Guidelines were most influential and how she applied them to unequivocally deny the Petitioner’s request.
4. Compare and contrast the two types of structures discussed for ensuring privacy: the block wall proposed by the Petitioner and the “privacy panel wall” permitted by ALC Guideline JJ. What are the key differences in their material, specifications, placement, and the implications of those differences within the community’s rules?
5. Trace the procedural path of this dispute, from the initial petition to the Final Order. Describe the distinct roles and authority of the Arizona Department of Real Estate, the Architectural Landscape Committee (ALC), the Office of Administrative Hearings, the Administrative Law Judge, and the Commissioner.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over hearings at an administrative agency (in this case, the Office of Administrative Hearings) and makes decisions on disputes. In this case, the ALJ was Diane Mihalsky.
Architectural Landscape Committee (ALC)
The committee within the homeowners’ association responsible for reviewing and approving or denying proposed changes to properties, such as walls and fences, based on the community’s guidelines.
Burden of Proof
The obligation to prove one’s assertion. In this case, the Petitioner bore the burden of proof to establish that the Respondent violated the community documents.
Covenants, Conditions and Restrictions. These are the governing legal documents that set out the guidelines for a planned community or homeowners’ association.
The Department
The Arizona Department of Real Estate, which is authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations.
Homeowners’ Association (HOA)
The organization that creates and enforces rules for the properties within its jurisdiction. In this case, the Pebble Creek Resort Community homeowners’ association was the Respondent.
Party Wall
As defined in CC&R § 1(Hh), “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.” CC&R § 2(P)(i) grants each owner the right to use the Party Wall.
Petitioner
The party who files a petition initiating a legal action. In this case, the homeowner Richard Long.
Preponderance of the Evidence
The standard of proof in this civil case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and “[t]he greater weight of the evidence.”
Respondent
The party against whom a petition is filed. In this case, the Pebble Creek Resort Community homeowners’ association.
Blog Post – 17F-H1717037-REL
Why Your HOA Can Control a Wall Built Entirely on Your Property
Introduction: The Privacy Paradox
Imagine you want a bit more privacy from your next-door neighbor. The solution seems simple: build a wall. To avoid any disputes, you decide to build it entirely on your land, a good foot inside your property line. It’s your property, your wall, your right. But what if your Homeowners’ Association (HOA) tells you that you can’t? This is not a hypothetical scenario; it’s precisely what happened to homeowner Richard Long when he tried to build a 10’ long, 6’ high block wall.
Mr. Long proposed building the wall just one foot inside his property line, believing this would make it a private structure, free from the shared-property rules that often complicate neighborly relations. The HOA denied his request, sparking a legal dispute. The outcome of this case provides surprising and counter-intuitive lessons that every homeowner in a planned community should understand about property rights, community rules, and the hidden logic that governs them.
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1. The Hidden Logic: Preventing the “Rodent Run”
At first glance, the HOA’s rule might seem like arbitrary overreach. Why should they care if a wall is on the property line or one foot away from it? The answer reveals a practical, long-term logic designed to prevent a specific, unpleasant problem: two parallel walls built side-by-side.
The HOA’s governing documents were written to avoid a scenario where a small, unmaintainable gap is created between two separate walls on adjacent properties. If Mr. Long built his wall a foot inside his line, and his neighbor later decided to do the same, a narrow dead space would be created between the homes. In its official written answer, the HOA vividly described the issue this creates:
This is not a good situation in that there often isn’t room between the walls to properly maintain either wall, and the area in between the two walls becomes filled with refuse, leaves, insects, nests and rodents.
This reveals a core principle of planned community management: rules are often designed not to restrict current owners, but to mitigate future risks and liabilities for the entire community. This preventative governance aims to protect the community from future blight, sanitation issues, and pest infestations.
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2. The “Immediately Adjacent” Rule: Your Property Isn’t an Island
The homeowner’s central argument was that by building the wall a foot inside his property, it was his private wall, not a shared “party wall” subject to joint rules. It was a clever attempt to circumvent the regulations, but it failed because of the precise wording in the community’s Covenants, Conditions, and Restrictions (CC&Rs).
Here, the dispute hinged on two seemingly innocuous words. The community’s CC&Rs define a “Party Wall” as a wall constructed “on or immediately adjacent to the common boundary.” The Administrative Law Judge interpreted a wall built only a foot away as falling under the definition of “immediately adjacent.” This single phrase effectively negated the homeowner’s entire strategy.
The judge’s determination that the wall qualified as “immediately adjacent” was critical. By legally defining it as a Party Wall, another rule from the CC&Rs automatically kicked in: the adjoining neighbor’s explicit right to use it. This completely undermined the homeowner’s central goal of creating a purely private structure.
As if that weren’t definitive enough, another, even more explicit rule served as the final nail in the coffin. ALC Guideline SS(4)(a) states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.” This rule directly forbids the exact “rodent run” scenario, showing that the governing documents had multiple, overlapping prohibitions against his plan.
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3. The Neighbor’s Veto: It’s a Three-Party Problem
In an attempt to find a middle ground, the HOA offered a potential compromise. They would approve the wall, but only if it were built directly on the property line and if both Mr. Long and his neighbors, the Rohlmans, signed a formal “Party Wall/Fence Agreement.” This solution, however, revealed another layer of complexity. The neighbors refused to sign.
The Rohlmans explained their reasoning in an email, highlighting concerns that went beyond simple aesthetics. They worried about the financial and legal implications of a shared wall on the property line.
[We] declined to have a wall built on the property line between our homes because it affects the current and future value of our property – and yours. Furthermore, each of us would have to grant the other an easement in perpetuity, which is a legal document… Upon the sale of our home, we would have to inform the purchaser of the easement, which lowers the value of the property.
This demonstrates a common blind spot for homeowners: disputes are rarely bilateral. The rights and financial interests of adjacent property owners create a complex, multi-party dynamic. More often than not, an HOA dispute is a three-party negotiation, and a neighbor’s consent—or lack thereof—can be the deciding factor.
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Conclusion: The Rules You Don’t Know Can Hurt You
The final outcome was decisive. The Administrative Law Judge upheld the HOA’s decision, and the homeowner’s petition was denied. The judge concluded that the community’s governing documents “unequivocally prohibit” the proposed wall. However, this was not a total denial of privacy. Mr. Long did have an approved option: a free-standing “alumawood” privacy panel, provided it was located three feet from the property line. He rejected this alternative because he felt it was “unsightly and flimsy.”
This case serves as a powerful reminder that an HOA’s governing documents are not mere suggestions; they are legally binding contracts. The conflict was ultimately not between a homeowner’s right to privacy and the HOA, but between the homeowner’s specific aesthetic preference and the community’s established architectural standards. What you can do on your own land is deeply intertwined with the collective rules you agreed to when you purchased your home.
Before your next home improvement project, does your plan align not just with your vision, but also with the shared vision encoded in your community’s rules?
Case Participants
Petitioner Side
Richard Long(petitioner) Appeared on his own behalf
Petitioner's wife(interested party) Required, along with Petitioner, to agree in writing to the wall conditions for variance approval (Unit 39 Lot 12)
Respondent Side
Jack Sarsam(executive/witness) Robson Communities Senior Vice President for Robson Communities, overseeing Respondent's operations; testified for Respondent
Neutral Parties
Diane Mihalsky(ALJ) Administrative Law Judge who issued the decision
Judy Lowe(Commissioner) Arizona Department of Real Estate Commissioner who adopted the ALJ decision in the Final Order
Dan Gardner(HOA Coordinator) Contact for rehearing requests; listed as HOA Coordinator
Other Participants
The Rohlmans(neighbor/interested party) Adjacent neighbors (Unit 39 lot 11) whose refusal to sign the party wall agreement was central to the dispute
The ALJ denied the petition, concluding that the homeowner failed to meet the burden of proof demonstrating the HOA violated community documents by refusing the requested block wall. The wall was prohibited by CC&Rs and ALC Guidelines because it was planned for just inside the property line and excluded the adjacent owner from use, potentially leading to prohibited parallel walls.
Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated the CC&Rs and ALC Guidelines.
Key Issues & Findings
Refusal to approve construction of a 10’ long, 6’ high block wall for privacy
Petitioner sought approval for a 10’ long, 6’ high block wall for privacy, built a foot or so inside his property line, designed to prevent adjacent neighbors (the Rohlmans) from using it. Respondent denied the wall based on community documents restricting such constructions to avoid parallel walls and requiring party walls to be on or immediately adjacent to the property line, granting contiguous owners the right to use them.
Briefing: Case No. 17F-H1717037-REL, Long v. Pebble Creek Resort Community
Executive Summary
This document provides a comprehensive analysis of the administrative hearing and final decision concerning a dispute between homeowner Richard Long (“Petitioner”) and the Pebble Creek Resort Community homeowners’ association (“Respondent”). The core of the dispute was the Petitioner’s request to build a 10-foot long, 6-foot high block privacy wall approximately one foot inside his property line, which the Respondent’s Architectural Landscape Committee (ALC) denied.
The Administrative Law Judge (ALJ) ultimately denied the petition, a decision that was subsequently adopted as a Final Order by the Arizona Department of Real Estate. The central finding was that the Respondent’s governing documents—specifically the Covenants, Conditions, and Restrictions (CC&Rs) and ALC Guidelines—unequivocally prohibit the proposed wall. The ALJ concluded that a wall built so close to a property line is defined as a “Party Wall,” which must be constructed “on or immediately adjacent to” the boundary and be usable by both property owners. The Petitioner’s proposal violated these foundational rules by being set back from the property line with the explicit intent of preventing neighbor access and use.
The Respondent had offered a conditional variance for a wall to be built directly on the property line, but this required a mutual “Party Wall/Fence Agreement” with the adjacent neighbor, who refused to sign, citing concerns over property value and the legal complexity of a perpetual easement. The final ruling affirmed the Respondent’s authority to enforce its governing documents as written.
Case Overview
The matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed by the Petitioner with the Arizona Department of Real Estate. The Petitioner alleged that the Respondent HOA had violated its own governing documents by refusing to approve his proposed wall.
Case Detail
Information
Case Name
Richard Long, Petitioner, v. Pebble Creek Resort Community, Respondent
Case Number
No. 17F-H1717037-REL / HO 17-17/037
Office of Administrative Hearings (Phoenix, Arizona)
Petitioner
Richard Long (Appeared on his own behalf)
Respondent
Pebble Creek Resort Community (Represented by Jack Sarsam, SVP for Robson Communities)
Administrative Law Judge
Diane Mihalsky
Real Estate Commissioner
Judy Lowe
Hearing Date
August 30, 2017
ALJ Decision Date
September 6, 2017
Final Order Date
September 14, 2017
Core Dispute and Party Positions
Petitioner’s Proposal and Argument (Richard Long)
• Project: A 10-foot long, 6-foot high block wall intended to provide privacy between his patio and the patio of his adjacent neighbors, the Rohlmans.
• Proposed Location: “A foot or so inside his side of the property line.”
• Stated Intent: To construct a wall to which his neighbors could not attach or otherwise use. The Petitioner testified that if the Rohlmans later wanted their own wall (e.g., for a pool or pet), they could build a separate, parallel wall on their property.
• Rejection of Alternatives: The Petitioner acknowledged that the ALC would approve a “privacy panel wall” made of alumawood or lattice, but he rejected this option, deeming it “unsightly and flimsy.”
• Core Claim: The Petitioner argued that the Respondent’s CC&Rs and ALC Guidelines did not explicitly prohibit the construction of his proposed block wall at its intended location inside his property line.
Respondent’s Position and Actions (Pebble Creek HOA)
• Initial Action: The ALC denied the Petitioner’s request.
• Rationale for Denial: The Respondent explained that walls near lot lines can become problematic, particularly if they result in “two parallel walls.” This situation can create a narrow, inaccessible space between the walls that is difficult to maintain and “becomes filled with refuse, leaves, insects, nests and rodents.”
• Conditional Variance: On May 1, 2017, the Respondent offered to approve a variance with several key conditions:
1. The wall must be constructed directly on the property line.
2. Both the Petitioner and the Rohlmans must sign a written “Party Wall/Fence Agreement” (Form ALC 48).
3. This agreement must grant current and future owners permission to “extend/complete the wall” and must be disclosed upon the sale of either home.
4. The signed agreement would be kept in the ALC files for both properties.
Neighbor’s Position (The Rohlmans)
• The Rohlmans declined to sign the Party Wall/Fence Agreement proposed by the Respondent.
• In an email submitted as evidence, they outlined their reasons for refusal:
◦ Property Value: They believed a wall on the property line would negatively affect the “current and future value” of both properties.
◦ Legal Complexity: The agreement would require granting a perpetual easement, which they identified as a legal document entailing legal expenses.
◦ Disclosure upon Sale: The easement would have to be disclosed to future buyers, which they argued “lowers the value of the property.”
◦ Future Construction: A wall on the property line could be extended by either party or future owners “without the agreement of the other party.”
◦ They concluded that “All of these requirements are onerous.”
Analysis of Governing Documents
The ALJ’s decision rested on a direct interpretation of four key sections of the community’s CC&Rs and ALC Guidelines.
• CC&R § 1(Hh) – Definition of “Party Walls”
◦ This section defines a party wall as: “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.”
◦ The ALJ found that the Petitioner’s proposal for a wall “a foot or so inside” the property line did not meet this definition.
• CC&R § 2(P)(i) – Use of Party Walls
◦ This rule states: “Each Owner shall have the right to use the Party Wall, provided that such use does not interfere with the other Owner’s use and enjoyment thereof.”
◦ This directly contradicted the Petitioner’s goal of building a wall that his neighbors would be prohibited from using.
• ALC Guideline SS(4)(a) – Parallel Walls
◦ This guideline explicitly states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.”
◦ The Petitioner’s own testimony acknowledged the possibility of his neighbor building a parallel wall in the future, a scenario the guidelines are designed to prevent.
• ALC Guideline JJ – “Privacy Panel Wall”
◦ This section details the pre-approved alternative for privacy screening. Such a wall must be:
▪ Free-standing alumawood.
▪ Six feet in height and no more than sixteen feet in length.
▪ Located “at least three (3) feet from the property line.”
◦ This demonstrates a clear distinction in the rules between a shared “Party Wall” near the boundary and a private “Privacy Panel” set significantly back from it.
Administrative Law Judge’s Decision and Rationale
The ALJ, Diane Mihalsky, concluded that the Petitioner failed to meet his burden of proof to establish that the Respondent had violated its governing documents.
• Key Findings of Law:
1. A block wall built “a foot inside the property line” does not conform to CC&R § 1(Hh), which requires a party wall to be “on or immediately adjacent to” the boundary.
2. The Petitioner’s intent to deny his neighbor the use of the wall violates CC&R § 2(P)(i), which grants both owners rights to use a party wall.
3. The Petitioner’s proposal creates the potential for prohibited parallel walls, violating ALC Guideline SS(4)(a).
• Conclusion: The ALJ stated that the community’s documents “unequivocally prohibit Respondent from building a 6’ high, 10’ long block wall a foot from his property line that the Rohlmans are not permitted to use.”
• Recommended Order: On September 6, 2017, the ALJ issued a recommended order that the Petitioner’s petition be denied.
Final Order and Subsequent Actions
• Adoption of Decision: On September 14, 2017, Judy Lowe, Commissioner of the Arizona Department of Real Estate, issued a Final Order adopting the ALJ’s decision in its entirety.
• Effect of Order: The denial of the petition became final, binding, and effective immediately.
• Conditions for Rehearing: The Final Order stipulated that a rehearing could be granted pursuant to A.R.S. § 32-2199.04, but only for one of the following reasons:
1. Irregularity in proceedings or abuse of discretion by the ALJ.
2. Misconduct by the Department, ALJ, or prevailing party.
3. Accident or surprise that could not have been prevented.
4. Newly discovered material evidence.
5. Excessive or insufficient penalties.
6. Error in the admission or rejection of evidence.
7. The decision is arbitrary, capricious, or an abuse of discretion.
8. The findings of fact are not supported by the evidence or are contrary to law.
• Judicial Review: The order is subject to judicial review through the filing of a complaint pursuant to state law.
Study Guide – 17F-H1717037-REL
Study Guide: Long v. Pebble Creek Resort Community (Case No. 17F-H1717037-REL)
This study guide provides a review of the administrative hearing decision concerning a dispute between homeowner Richard Long and the Pebble Creek Resort Community homeowners’ association. It covers the facts of the case, the arguments presented, the relevant community rules, and the final legal outcome.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, based on the information provided in the case documents.
1. What was the specific structure that the Petitioner, Richard Long, proposed to build, and what was its intended purpose?
2. On what grounds did the Respondent, Pebble Creek Resort Community, justify its restrictions against the type of wall the Petitioner proposed?
3. What conditional variance did the Respondent offer to the Petitioner on May 1, 2017?
4. What were the primary concerns expressed by the Petitioner’s neighbors, the Rohlmans, which led them to decline the proposed wall agreement?
5. According to ALC Guideline JJ, what alternative structure could the Petitioner have built for privacy, and what were its key requirements?
6. How do the CC&Rs define a “Party Wall,” and what right does CC&R § 2(P)(i) grant to contiguous property owners regarding such a wall?
7. What rule from the ALC Guidelines prohibits the construction of two parallel walls side-by-side, and why is this rule in place?
8. What is the legal standard of “preponderance of the evidence” as defined in the hearing decision?
9. Who held the burden of proof to establish that the homeowners’ association violated its governing documents?
10. What was the final, binding outcome of the case after the Administrative Law Judge’s decision was reviewed?
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Answer Key
1. The Petitioner proposed to build a 10-foot long, 6-foot high block wall for privacy between his patio and his neighbor’s patio. The wall was to be located a foot or so inside his side of the property line, so his neighbors could not attach to it.
2. The Respondent explained that walls built near, but not on, the property line can lead to problems. This can result in two parallel walls being built, creating an unmaintainable space between them that collects refuse, leaves, insects, nests, and rodents.
3. The Respondent approved a variance on the condition that the wall be built on the property line. Both the Petitioner and his neighbors (the Rohlmans) had to agree in writing that current or future owners could extend the wall, with this agreement being disclosed upon sale of either house.
4. The Rohlmans declined because they believed a wall on the property line would negatively affect their property’s value. They were also concerned about the legal expense and perpetual nature of an easement, and the possibility that future owners could lengthen the wall without consent.
5. ALC Guideline JJ permits a “privacy panel wall,” which is a free-standing alumawood wall. This wall must be 6 feet high, no longer than 16 feet, and located at least 3 feet from the property line. The Petitioner rejected this option, feeling it was “unsightly and flimsy.”
6. CC&R § 1(Hh) defines a “Party Wall” as a wall constructed on or immediately adjacent to the common boundary of lots. CC&R § 2(P)(i) states that each owner of a contiguous property has the right to use the Party Wall, provided it does not interfere with the other owner’s use.
7. ALC Guideline SS(4)(a) states that an existing party wall along a joint property line “precludes any adjacent parallel party wall.” This rule is in place to prevent the negative situation described by the Respondent where a difficult-to-maintain space is created between two walls.
8. A “preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. It is also described as “the greater weight of the evidence” that is sufficient to incline a fair mind to one side of an issue over the other.
9. The Petitioner, Richard Long, bore the burden of proof. He had to establish by a preponderance of the evidence that the Respondent violated the CC&Rs and ALC Guidelines.
10. The Administrative Law Judge (ALJ) denied the Petitioner’s petition, and this decision was adopted by the Commissioner of the Department of Real Estate, becoming a Final Order. The Order is binding on the parties unless a rehearing is granted.
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Essay Questions
Instructions: The following questions are designed for a longer, essay-style response. Use the case documents to formulate a comprehensive answer supported by specific facts and citations to the community’s governing documents.
1. Analyze the conflict between the Petitioner’s desire for a specific type of privacy structure and the Respondent’s interpretation of the community’s CC&Rs and ALC Guidelines. How did the governing documents prioritize community standards and potential future problems over an individual homeowner’s preference?
2. Discuss the role and reasoning of the Petitioner’s neighbors, the Rohlmans. Evaluate their concerns regarding property value, easements, and future modifications as presented in their email, and explain how their refusal to sign the agreement was a critical factor in the dispute.
3. Explain the legal reasoning used by Administrative Law Judge Diane Mihalsky to reach her decision. Detail which specific sections of the CC&Rs and ALC Guidelines were most influential and how she applied them to unequivocally deny the Petitioner’s request.
4. Compare and contrast the two types of structures discussed for ensuring privacy: the block wall proposed by the Petitioner and the “privacy panel wall” permitted by ALC Guideline JJ. What are the key differences in their material, specifications, placement, and the implications of those differences within the community’s rules?
5. Trace the procedural path of this dispute, from the initial petition to the Final Order. Describe the distinct roles and authority of the Arizona Department of Real Estate, the Architectural Landscape Committee (ALC), the Office of Administrative Hearings, the Administrative Law Judge, and the Commissioner.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over hearings at an administrative agency (in this case, the Office of Administrative Hearings) and makes decisions on disputes. In this case, the ALJ was Diane Mihalsky.
Architectural Landscape Committee (ALC)
The committee within the homeowners’ association responsible for reviewing and approving or denying proposed changes to properties, such as walls and fences, based on the community’s guidelines.
Burden of Proof
The obligation to prove one’s assertion. In this case, the Petitioner bore the burden of proof to establish that the Respondent violated the community documents.
Covenants, Conditions and Restrictions. These are the governing legal documents that set out the guidelines for a planned community or homeowners’ association.
The Department
The Arizona Department of Real Estate, which is authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations.
Homeowners’ Association (HOA)
The organization that creates and enforces rules for the properties within its jurisdiction. In this case, the Pebble Creek Resort Community homeowners’ association was the Respondent.
Party Wall
As defined in CC&R § 1(Hh), “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.” CC&R § 2(P)(i) grants each owner the right to use the Party Wall.
Petitioner
The party who files a petition initiating a legal action. In this case, the homeowner Richard Long.
Preponderance of the Evidence
The standard of proof in this civil case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and “[t]he greater weight of the evidence.”
Respondent
The party against whom a petition is filed. In this case, the Pebble Creek Resort Community homeowners’ association.
Blog Post – 17F-H1717037-REL
Why Your HOA Can Control a Wall Built Entirely on Your Property
Introduction: The Privacy Paradox
Imagine you want a bit more privacy from your next-door neighbor. The solution seems simple: build a wall. To avoid any disputes, you decide to build it entirely on your land, a good foot inside your property line. It’s your property, your wall, your right. But what if your Homeowners’ Association (HOA) tells you that you can’t? This is not a hypothetical scenario; it’s precisely what happened to homeowner Richard Long when he tried to build a 10’ long, 6’ high block wall.
Mr. Long proposed building the wall just one foot inside his property line, believing this would make it a private structure, free from the shared-property rules that often complicate neighborly relations. The HOA denied his request, sparking a legal dispute. The outcome of this case provides surprising and counter-intuitive lessons that every homeowner in a planned community should understand about property rights, community rules, and the hidden logic that governs them.
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1. The Hidden Logic: Preventing the “Rodent Run”
At first glance, the HOA’s rule might seem like arbitrary overreach. Why should they care if a wall is on the property line or one foot away from it? The answer reveals a practical, long-term logic designed to prevent a specific, unpleasant problem: two parallel walls built side-by-side.
The HOA’s governing documents were written to avoid a scenario where a small, unmaintainable gap is created between two separate walls on adjacent properties. If Mr. Long built his wall a foot inside his line, and his neighbor later decided to do the same, a narrow dead space would be created between the homes. In its official written answer, the HOA vividly described the issue this creates:
This is not a good situation in that there often isn’t room between the walls to properly maintain either wall, and the area in between the two walls becomes filled with refuse, leaves, insects, nests and rodents.
This reveals a core principle of planned community management: rules are often designed not to restrict current owners, but to mitigate future risks and liabilities for the entire community. This preventative governance aims to protect the community from future blight, sanitation issues, and pest infestations.
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2. The “Immediately Adjacent” Rule: Your Property Isn’t an Island
The homeowner’s central argument was that by building the wall a foot inside his property, it was his private wall, not a shared “party wall” subject to joint rules. It was a clever attempt to circumvent the regulations, but it failed because of the precise wording in the community’s Covenants, Conditions, and Restrictions (CC&Rs).
Here, the dispute hinged on two seemingly innocuous words. The community’s CC&Rs define a “Party Wall” as a wall constructed “on or immediately adjacent to the common boundary.” The Administrative Law Judge interpreted a wall built only a foot away as falling under the definition of “immediately adjacent.” This single phrase effectively negated the homeowner’s entire strategy.
The judge’s determination that the wall qualified as “immediately adjacent” was critical. By legally defining it as a Party Wall, another rule from the CC&Rs automatically kicked in: the adjoining neighbor’s explicit right to use it. This completely undermined the homeowner’s central goal of creating a purely private structure.
As if that weren’t definitive enough, another, even more explicit rule served as the final nail in the coffin. ALC Guideline SS(4)(a) states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.” This rule directly forbids the exact “rodent run” scenario, showing that the governing documents had multiple, overlapping prohibitions against his plan.
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3. The Neighbor’s Veto: It’s a Three-Party Problem
In an attempt to find a middle ground, the HOA offered a potential compromise. They would approve the wall, but only if it were built directly on the property line and if both Mr. Long and his neighbors, the Rohlmans, signed a formal “Party Wall/Fence Agreement.” This solution, however, revealed another layer of complexity. The neighbors refused to sign.
The Rohlmans explained their reasoning in an email, highlighting concerns that went beyond simple aesthetics. They worried about the financial and legal implications of a shared wall on the property line.
[We] declined to have a wall built on the property line between our homes because it affects the current and future value of our property – and yours. Furthermore, each of us would have to grant the other an easement in perpetuity, which is a legal document… Upon the sale of our home, we would have to inform the purchaser of the easement, which lowers the value of the property.
This demonstrates a common blind spot for homeowners: disputes are rarely bilateral. The rights and financial interests of adjacent property owners create a complex, multi-party dynamic. More often than not, an HOA dispute is a three-party negotiation, and a neighbor’s consent—or lack thereof—can be the deciding factor.
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Conclusion: The Rules You Don’t Know Can Hurt You
The final outcome was decisive. The Administrative Law Judge upheld the HOA’s decision, and the homeowner’s petition was denied. The judge concluded that the community’s governing documents “unequivocally prohibit” the proposed wall. However, this was not a total denial of privacy. Mr. Long did have an approved option: a free-standing “alumawood” privacy panel, provided it was located three feet from the property line. He rejected this alternative because he felt it was “unsightly and flimsy.”
This case serves as a powerful reminder that an HOA’s governing documents are not mere suggestions; they are legally binding contracts. The conflict was ultimately not between a homeowner’s right to privacy and the HOA, but between the homeowner’s specific aesthetic preference and the community’s established architectural standards. What you can do on your own land is deeply intertwined with the collective rules you agreed to when you purchased your home.
Before your next home improvement project, does your plan align not just with your vision, but also with the shared vision encoded in your community’s rules?
Case Participants
Petitioner Side
Richard Long(petitioner) Appeared on his own behalf
Petitioner's wife(interested party) Required, along with Petitioner, to agree in writing to the wall conditions for variance approval (Unit 39 Lot 12)
Respondent Side
Jack Sarsam(executive/witness) Robson Communities Senior Vice President for Robson Communities, overseeing Respondent's operations; testified for Respondent
Neutral Parties
Diane Mihalsky(ALJ) Administrative Law Judge who issued the decision
Judy Lowe(Commissioner) Arizona Department of Real Estate Commissioner who adopted the ALJ decision in the Final Order
Dan Gardner(HOA Coordinator) Contact for rehearing requests; listed as HOA Coordinator
Other Participants
The Rohlmans(neighbor/interested party) Adjacent neighbors (Unit 39 lot 11) whose refusal to sign the party wall agreement was central to the dispute
The ALJ denied the petition, concluding that the homeowner failed to meet the burden of proof demonstrating the HOA violated community documents by refusing the requested block wall. The wall was prohibited by CC&Rs and ALC Guidelines because it was planned for just inside the property line and excluded the adjacent owner from use, potentially leading to prohibited parallel walls.
Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated the CC&Rs and ALC Guidelines.
Key Issues & Findings
Refusal to approve construction of a 10’ long, 6’ high block wall for privacy
Petitioner sought approval for a 10’ long, 6’ high block wall for privacy, built a foot or so inside his property line, designed to prevent adjacent neighbors (the Rohlmans) from using it. Respondent denied the wall based on community documents restricting such constructions to avoid parallel walls and requiring party walls to be on or immediately adjacent to the property line, granting contiguous owners the right to use them.
Briefing: Case No. 17F-H1717037-REL, Long v. Pebble Creek Resort Community
Executive Summary
This document provides a comprehensive analysis of the administrative hearing and final decision concerning a dispute between homeowner Richard Long (“Petitioner”) and the Pebble Creek Resort Community homeowners’ association (“Respondent”). The core of the dispute was the Petitioner’s request to build a 10-foot long, 6-foot high block privacy wall approximately one foot inside his property line, which the Respondent’s Architectural Landscape Committee (ALC) denied.
The Administrative Law Judge (ALJ) ultimately denied the petition, a decision that was subsequently adopted as a Final Order by the Arizona Department of Real Estate. The central finding was that the Respondent’s governing documents—specifically the Covenants, Conditions, and Restrictions (CC&Rs) and ALC Guidelines—unequivocally prohibit the proposed wall. The ALJ concluded that a wall built so close to a property line is defined as a “Party Wall,” which must be constructed “on or immediately adjacent to” the boundary and be usable by both property owners. The Petitioner’s proposal violated these foundational rules by being set back from the property line with the explicit intent of preventing neighbor access and use.
The Respondent had offered a conditional variance for a wall to be built directly on the property line, but this required a mutual “Party Wall/Fence Agreement” with the adjacent neighbor, who refused to sign, citing concerns over property value and the legal complexity of a perpetual easement. The final ruling affirmed the Respondent’s authority to enforce its governing documents as written.
Case Overview
The matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed by the Petitioner with the Arizona Department of Real Estate. The Petitioner alleged that the Respondent HOA had violated its own governing documents by refusing to approve his proposed wall.
Case Detail
Information
Case Name
Richard Long, Petitioner, v. Pebble Creek Resort Community, Respondent
Case Number
No. 17F-H1717037-REL / HO 17-17/037
Office of Administrative Hearings (Phoenix, Arizona)
Petitioner
Richard Long (Appeared on his own behalf)
Respondent
Pebble Creek Resort Community (Represented by Jack Sarsam, SVP for Robson Communities)
Administrative Law Judge
Diane Mihalsky
Real Estate Commissioner
Judy Lowe
Hearing Date
August 30, 2017
ALJ Decision Date
September 6, 2017
Final Order Date
September 14, 2017
Core Dispute and Party Positions
Petitioner’s Proposal and Argument (Richard Long)
• Project: A 10-foot long, 6-foot high block wall intended to provide privacy between his patio and the patio of his adjacent neighbors, the Rohlmans.
• Proposed Location: “A foot or so inside his side of the property line.”
• Stated Intent: To construct a wall to which his neighbors could not attach or otherwise use. The Petitioner testified that if the Rohlmans later wanted their own wall (e.g., for a pool or pet), they could build a separate, parallel wall on their property.
• Rejection of Alternatives: The Petitioner acknowledged that the ALC would approve a “privacy panel wall” made of alumawood or lattice, but he rejected this option, deeming it “unsightly and flimsy.”
• Core Claim: The Petitioner argued that the Respondent’s CC&Rs and ALC Guidelines did not explicitly prohibit the construction of his proposed block wall at its intended location inside his property line.
Respondent’s Position and Actions (Pebble Creek HOA)
• Initial Action: The ALC denied the Petitioner’s request.
• Rationale for Denial: The Respondent explained that walls near lot lines can become problematic, particularly if they result in “two parallel walls.” This situation can create a narrow, inaccessible space between the walls that is difficult to maintain and “becomes filled with refuse, leaves, insects, nests and rodents.”
• Conditional Variance: On May 1, 2017, the Respondent offered to approve a variance with several key conditions:
1. The wall must be constructed directly on the property line.
2. Both the Petitioner and the Rohlmans must sign a written “Party Wall/Fence Agreement” (Form ALC 48).
3. This agreement must grant current and future owners permission to “extend/complete the wall” and must be disclosed upon the sale of either home.
4. The signed agreement would be kept in the ALC files for both properties.
Neighbor’s Position (The Rohlmans)
• The Rohlmans declined to sign the Party Wall/Fence Agreement proposed by the Respondent.
• In an email submitted as evidence, they outlined their reasons for refusal:
◦ Property Value: They believed a wall on the property line would negatively affect the “current and future value” of both properties.
◦ Legal Complexity: The agreement would require granting a perpetual easement, which they identified as a legal document entailing legal expenses.
◦ Disclosure upon Sale: The easement would have to be disclosed to future buyers, which they argued “lowers the value of the property.”
◦ Future Construction: A wall on the property line could be extended by either party or future owners “without the agreement of the other party.”
◦ They concluded that “All of these requirements are onerous.”
Analysis of Governing Documents
The ALJ’s decision rested on a direct interpretation of four key sections of the community’s CC&Rs and ALC Guidelines.
• CC&R § 1(Hh) – Definition of “Party Walls”
◦ This section defines a party wall as: “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.”
◦ The ALJ found that the Petitioner’s proposal for a wall “a foot or so inside” the property line did not meet this definition.
• CC&R § 2(P)(i) – Use of Party Walls
◦ This rule states: “Each Owner shall have the right to use the Party Wall, provided that such use does not interfere with the other Owner’s use and enjoyment thereof.”
◦ This directly contradicted the Petitioner’s goal of building a wall that his neighbors would be prohibited from using.
• ALC Guideline SS(4)(a) – Parallel Walls
◦ This guideline explicitly states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.”
◦ The Petitioner’s own testimony acknowledged the possibility of his neighbor building a parallel wall in the future, a scenario the guidelines are designed to prevent.
• ALC Guideline JJ – “Privacy Panel Wall”
◦ This section details the pre-approved alternative for privacy screening. Such a wall must be:
▪ Free-standing alumawood.
▪ Six feet in height and no more than sixteen feet in length.
▪ Located “at least three (3) feet from the property line.”
◦ This demonstrates a clear distinction in the rules between a shared “Party Wall” near the boundary and a private “Privacy Panel” set significantly back from it.
Administrative Law Judge’s Decision and Rationale
The ALJ, Diane Mihalsky, concluded that the Petitioner failed to meet his burden of proof to establish that the Respondent had violated its governing documents.
• Key Findings of Law:
1. A block wall built “a foot inside the property line” does not conform to CC&R § 1(Hh), which requires a party wall to be “on or immediately adjacent to” the boundary.
2. The Petitioner’s intent to deny his neighbor the use of the wall violates CC&R § 2(P)(i), which grants both owners rights to use a party wall.
3. The Petitioner’s proposal creates the potential for prohibited parallel walls, violating ALC Guideline SS(4)(a).
• Conclusion: The ALJ stated that the community’s documents “unequivocally prohibit Respondent from building a 6’ high, 10’ long block wall a foot from his property line that the Rohlmans are not permitted to use.”
• Recommended Order: On September 6, 2017, the ALJ issued a recommended order that the Petitioner’s petition be denied.
Final Order and Subsequent Actions
• Adoption of Decision: On September 14, 2017, Judy Lowe, Commissioner of the Arizona Department of Real Estate, issued a Final Order adopting the ALJ’s decision in its entirety.
• Effect of Order: The denial of the petition became final, binding, and effective immediately.
• Conditions for Rehearing: The Final Order stipulated that a rehearing could be granted pursuant to A.R.S. § 32-2199.04, but only for one of the following reasons:
1. Irregularity in proceedings or abuse of discretion by the ALJ.
2. Misconduct by the Department, ALJ, or prevailing party.
3. Accident or surprise that could not have been prevented.
4. Newly discovered material evidence.
5. Excessive or insufficient penalties.
6. Error in the admission or rejection of evidence.
7. The decision is arbitrary, capricious, or an abuse of discretion.
8. The findings of fact are not supported by the evidence or are contrary to law.
• Judicial Review: The order is subject to judicial review through the filing of a complaint pursuant to state law.
The ALJ denied the petition, concluding that the homeowner failed to meet the burden of proof demonstrating the HOA violated community documents by refusing the requested block wall. The wall was prohibited by CC&Rs and ALC Guidelines because it was planned for just inside the property line and excluded the adjacent owner from use, potentially leading to prohibited parallel walls.
Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated the CC&Rs and ALC Guidelines.
Key Issues & Findings
Refusal to approve construction of a 10’ long, 6’ high block wall for privacy
Petitioner sought approval for a 10’ long, 6’ high block wall for privacy, built a foot or so inside his property line, designed to prevent adjacent neighbors (the Rohlmans) from using it. Respondent denied the wall based on community documents restricting such constructions to avoid parallel walls and requiring party walls to be on or immediately adjacent to the property line, granting contiguous owners the right to use them.
Briefing: Case No. 17F-H1717037-REL, Long v. Pebble Creek Resort Community
Executive Summary
This document provides a comprehensive analysis of the administrative hearing and final decision concerning a dispute between homeowner Richard Long (“Petitioner”) and the Pebble Creek Resort Community homeowners’ association (“Respondent”). The core of the dispute was the Petitioner’s request to build a 10-foot long, 6-foot high block privacy wall approximately one foot inside his property line, which the Respondent’s Architectural Landscape Committee (ALC) denied.
The Administrative Law Judge (ALJ) ultimately denied the petition, a decision that was subsequently adopted as a Final Order by the Arizona Department of Real Estate. The central finding was that the Respondent’s governing documents—specifically the Covenants, Conditions, and Restrictions (CC&Rs) and ALC Guidelines—unequivocally prohibit the proposed wall. The ALJ concluded that a wall built so close to a property line is defined as a “Party Wall,” which must be constructed “on or immediately adjacent to” the boundary and be usable by both property owners. The Petitioner’s proposal violated these foundational rules by being set back from the property line with the explicit intent of preventing neighbor access and use.
The Respondent had offered a conditional variance for a wall to be built directly on the property line, but this required a mutual “Party Wall/Fence Agreement” with the adjacent neighbor, who refused to sign, citing concerns over property value and the legal complexity of a perpetual easement. The final ruling affirmed the Respondent’s authority to enforce its governing documents as written.
Case Overview
The matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed by the Petitioner with the Arizona Department of Real Estate. The Petitioner alleged that the Respondent HOA had violated its own governing documents by refusing to approve his proposed wall.
Case Detail
Information
Case Name
Richard Long, Petitioner, v. Pebble Creek Resort Community, Respondent
Case Number
No. 17F-H1717037-REL / HO 17-17/037
Office of Administrative Hearings (Phoenix, Arizona)
Petitioner
Richard Long (Appeared on his own behalf)
Respondent
Pebble Creek Resort Community (Represented by Jack Sarsam, SVP for Robson Communities)
Administrative Law Judge
Diane Mihalsky
Real Estate Commissioner
Judy Lowe
Hearing Date
August 30, 2017
ALJ Decision Date
September 6, 2017
Final Order Date
September 14, 2017
Core Dispute and Party Positions
Petitioner’s Proposal and Argument (Richard Long)
• Project: A 10-foot long, 6-foot high block wall intended to provide privacy between his patio and the patio of his adjacent neighbors, the Rohlmans.
• Proposed Location: “A foot or so inside his side of the property line.”
• Stated Intent: To construct a wall to which his neighbors could not attach or otherwise use. The Petitioner testified that if the Rohlmans later wanted their own wall (e.g., for a pool or pet), they could build a separate, parallel wall on their property.
• Rejection of Alternatives: The Petitioner acknowledged that the ALC would approve a “privacy panel wall” made of alumawood or lattice, but he rejected this option, deeming it “unsightly and flimsy.”
• Core Claim: The Petitioner argued that the Respondent’s CC&Rs and ALC Guidelines did not explicitly prohibit the construction of his proposed block wall at its intended location inside his property line.
Respondent’s Position and Actions (Pebble Creek HOA)
• Initial Action: The ALC denied the Petitioner’s request.
• Rationale for Denial: The Respondent explained that walls near lot lines can become problematic, particularly if they result in “two parallel walls.” This situation can create a narrow, inaccessible space between the walls that is difficult to maintain and “becomes filled with refuse, leaves, insects, nests and rodents.”
• Conditional Variance: On May 1, 2017, the Respondent offered to approve a variance with several key conditions:
1. The wall must be constructed directly on the property line.
2. Both the Petitioner and the Rohlmans must sign a written “Party Wall/Fence Agreement” (Form ALC 48).
3. This agreement must grant current and future owners permission to “extend/complete the wall” and must be disclosed upon the sale of either home.
4. The signed agreement would be kept in the ALC files for both properties.
Neighbor’s Position (The Rohlmans)
• The Rohlmans declined to sign the Party Wall/Fence Agreement proposed by the Respondent.
• In an email submitted as evidence, they outlined their reasons for refusal:
◦ Property Value: They believed a wall on the property line would negatively affect the “current and future value” of both properties.
◦ Legal Complexity: The agreement would require granting a perpetual easement, which they identified as a legal document entailing legal expenses.
◦ Disclosure upon Sale: The easement would have to be disclosed to future buyers, which they argued “lowers the value of the property.”
◦ Future Construction: A wall on the property line could be extended by either party or future owners “without the agreement of the other party.”
◦ They concluded that “All of these requirements are onerous.”
Analysis of Governing Documents
The ALJ’s decision rested on a direct interpretation of four key sections of the community’s CC&Rs and ALC Guidelines.
• CC&R § 1(Hh) – Definition of “Party Walls”
◦ This section defines a party wall as: “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.”
◦ The ALJ found that the Petitioner’s proposal for a wall “a foot or so inside” the property line did not meet this definition.
• CC&R § 2(P)(i) – Use of Party Walls
◦ This rule states: “Each Owner shall have the right to use the Party Wall, provided that such use does not interfere with the other Owner’s use and enjoyment thereof.”
◦ This directly contradicted the Petitioner’s goal of building a wall that his neighbors would be prohibited from using.
• ALC Guideline SS(4)(a) – Parallel Walls
◦ This guideline explicitly states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.”
◦ The Petitioner’s own testimony acknowledged the possibility of his neighbor building a parallel wall in the future, a scenario the guidelines are designed to prevent.
• ALC Guideline JJ – “Privacy Panel Wall”
◦ This section details the pre-approved alternative for privacy screening. Such a wall must be:
▪ Free-standing alumawood.
▪ Six feet in height and no more than sixteen feet in length.
▪ Located “at least three (3) feet from the property line.”
◦ This demonstrates a clear distinction in the rules between a shared “Party Wall” near the boundary and a private “Privacy Panel” set significantly back from it.
Administrative Law Judge’s Decision and Rationale
The ALJ, Diane Mihalsky, concluded that the Petitioner failed to meet his burden of proof to establish that the Respondent had violated its governing documents.
• Key Findings of Law:
1. A block wall built “a foot inside the property line” does not conform to CC&R § 1(Hh), which requires a party wall to be “on or immediately adjacent to” the boundary.
2. The Petitioner’s intent to deny his neighbor the use of the wall violates CC&R § 2(P)(i), which grants both owners rights to use a party wall.
3. The Petitioner’s proposal creates the potential for prohibited parallel walls, violating ALC Guideline SS(4)(a).
• Conclusion: The ALJ stated that the community’s documents “unequivocally prohibit Respondent from building a 6’ high, 10’ long block wall a foot from his property line that the Rohlmans are not permitted to use.”
• Recommended Order: On September 6, 2017, the ALJ issued a recommended order that the Petitioner’s petition be denied.
Final Order and Subsequent Actions
• Adoption of Decision: On September 14, 2017, Judy Lowe, Commissioner of the Arizona Department of Real Estate, issued a Final Order adopting the ALJ’s decision in its entirety.
• Effect of Order: The denial of the petition became final, binding, and effective immediately.
• Conditions for Rehearing: The Final Order stipulated that a rehearing could be granted pursuant to A.R.S. § 32-2199.04, but only for one of the following reasons:
1. Irregularity in proceedings or abuse of discretion by the ALJ.
2. Misconduct by the Department, ALJ, or prevailing party.
3. Accident or surprise that could not have been prevented.
4. Newly discovered material evidence.
5. Excessive or insufficient penalties.
6. Error in the admission or rejection of evidence.
7. The decision is arbitrary, capricious, or an abuse of discretion.
8. The findings of fact are not supported by the evidence or are contrary to law.
• Judicial Review: The order is subject to judicial review through the filing of a complaint pursuant to state law.
The ALJ dismissed the petition, ruling that the HOA acted reasonably and had the authority under the CC&Rs to require the removal of the homeowner's patio cover for necessary painting and repairs. The ALJ determined that because the patio cover is a limited common element, the Petitioners must bear the cost of removal and reinstallation according to A.R.S. § 33-1255(C).
Why this result: Petitioners failed to prove the HOA violated CC&Rs or acted unreasonably, and statutory law assigned the expense burden for the limited common element to the homeowner.
Key Issues & Findings
Authority of HOA to mandate removal of homeowner's patio cover for maintenance and assignment of removal/reinstallation costs.
Petitioners challenged the Respondent HOA's authority and reasonableness in requiring them to remove their patio cover, a limited common element, for building painting and repair, and disputed the requirement that Petitioners bear the costs. The ALJ concluded that the HOA's plan was reasonable, the HOA had the authority under CC&R sections 9 and 9(b), and Petitioners must bear the cost of removal and reinstallation under A.R.S. § 33-1255(C).
Orders: Petitioners’ petition is dismissed. Respondent is deemed the prevailing party. Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Analytics Highlights
Topics: HOA authority, limited common element, maintenance costs, patio cover, CC&Rs, statutory interpretation, dismissal, prevailing party
Additional Citations:
A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
A.R.S. § 32-2199
A.R.S. § 32-2199.02
A.R.S. § 41-1092.09
ARIZ. ADMIN. CODE § R2-19-119
Gutierrez v. Industrial Commission of Arizona
Video Overview
Audio Overview
Decision Documents
17F-H1717038-REL Decision – 583987.pdf
Uploaded 2025-10-09T03:31:46 (53.0 KB)
17F-H1717038-REL Decision – 585505.pdf
Uploaded 2025-10-09T03:31:46 (385.9 KB)
Briefing Doc – 17F-H1717038-REL
Briefing on Larson v. Tempe Gardens Townhouse Corporation
Executive Summary
This briefing synthesizes the legal dispute between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation (the “Respondent” or “HOA”). The core conflict centered on the HOA’s directive that the Larsons remove their wooden patio cover at their own expense to facilitate a community-wide building repair and painting project.
The case progressed through two distinct phases. Initially, an Administrative Law Judge (ALJ) recommended dismissing the Larsons’ petition for a lack of a “justiciable controversy,” reasoning that the HOA had not yet acted on its threat to remove the patio cover, rendering the dispute speculative. However, the Commissioner of the Department of Real Estate rejected this recommendation, finding the matter was “ripe for adjudication,” and ordered a full hearing on the merits.
In the final decision, a second ALJ dismissed the Larsons’ petition and ruled in favor of the HOA. The judge found the HOA’s plan to be reasonable and necessary for the proper and safe completion of the project, based on credible testimony from the project manager. The decision affirmed the HOA’s authority under its CC&Rs to require the removal of the structure. Crucially, the ruling established that the patio cover is a “limited common element” under Arizona law. Consequently, pursuant to Arizona Revised Statutes, the homeowners (the Larsons) are exclusively responsible for all costs associated with it, including its removal and potential reinstallation.
Procedural History and Jurisdictional Rulings
Initial Petition and Dismissal Recommendation
On June 16, 2017, James and Shawna Larson filed a petition with the Department of Real Estate against their HOA, alleging a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). However, the initial filing did not specify which provisions had been violated.
Upon inquiry, the Petitioners’ counsel admitted via email that no specific provision of the CC&Rs had yet been violated. Instead, their concern was that section 10(a) would be violated if the HOA acted on its threat to forcibly remove their patio cover and charge them for the cost.
This led to the “ORDER RECOMMENDING DISMISSAL FOR LACK OF JUSTICIABLE CONTROVERSY,” issued on August 25, 2017, by Administrative Law Judge Suzanne Marwil. The key findings of this order were:
• Speculative Harm: The Judge found that the HOA’s actions “have not yet been undertaken and our [are] speculative at this juncture.”
• Lack of Jurisdiction: The order stated that the Office of Administrative Hearings’ jurisdiction, per A.R.S. § 32-2199, is limited to adjudicating existing violations of community documents, not potential future ones.
• Misunderstanding by Both Parties: The order noted, “Both parties fundamentally misunderstand the limits of this Tribunal’s jurisdiction.” The Petitioners were seeking a ruling on a future action, while the Respondent was urging the Tribunal to find the Petitioners had violated the CC&Rs, which was not the subject of the petition.
• Recommended Forum: The Judge suggested that the appropriate forum for the Petitioners would be a declaratory judgment action in superior court.
Rejection of Dismissal and Re-Hearing
On August 31, 2017, Judy Lowe, the Commissioner of the Department of Real Estate, issued an “ORDER REJECTING RECOMMENDATION OF DISMISSAL.”
• The Commissioner rejected the ALJ’s finding that the matter lacked a justiciable controversy.
• The order cited a letter from the Respondent dated June 1, 2017, which posed the question: “Is the presence of the awning a violation of the Association’s governing documents?”
• This question was deemed sufficient to make the matter “ripe for adjudication.”
• The Commissioner requested that the hearing be rescheduled for a ruling on the matter. A re-hearing was subsequently conducted on November 20, 2017, before Administrative Law Judge Thomas Shedden.
Analysis of the Merits of the Dispute
The re-hearing focused on the substantive conflict: whether the HOA had the authority to compel the Larsons to remove their patio cover at their own expense for the maintenance project.
Respondent’s (HOA) Case
The HOA, consisting of 169 units, initiated a project to make necessary repairs to its twenty-five buildings and then have them painted. The HOA’s position was based on the following points:
• Legal Authority: The HOA asserted its authority under sections 9 and 9(b) of its CC&Rs, which state that the HOA is responsible for maintaining building exteriors and that “Any cooperative action necessary or appropriate to the proper maintenance and upkeep of the… [building] exteriors… shall be taken by the [Respondent].”
• Project Necessity: The project manager, Wayne King, provided testimony that the HOA’s board deemed credible and reasonable.
◦ Safety: King stated that all five bidding contractors required the patio covers to be removed to ensure a safe work environment as mandated by the Arizona Department of Occupational Safety and Health (OSHA).
◦ Logistics: Standard scaffolding would not fit without removing the covers, commercial scaffolding would not provide full access, a forklift was not viable due to overhead power lines, and allowing painters to walk on homeowner patio covers was unsafe.
◦ Quality of Work: The project involved sanding, power washing, and patching before painting to “do the job right.” Many covers had been improperly flashed, causing damage to the buildings that needed repair.
◦ Warranty: The paint company would not provide a warranty for the project if individual homeowners, such as the Larsons, were permitted to paint their own units.
Petitioners’ (Larsons’) Case
The Larsons, who purchased their unit in 1999 with the wooden patio cover already in place, contested the HOA’s demands.
• Challenge to Authority: The Petitioners argued that the HOA had no legal authority to demand the removal of their patio cover.
• Unreasonable Cost: They asserted that the cost of removal and reinstallation was unreasonable, submitting two bids:
◦ One bid quoted $1,250 to remove and dispose of the cover and $3,980 to remove and rebuild it with new wood.
◦ A second bid quoted $5,975 to remove and then replace the structure.
• Proposed Alternative: In a letter dated May 19, 2017, the Larsons offered to have the back of their unit painted at their own expense.
• Compromise Offer: During the November 20, 2017 hearing, after hearing the project manager’s testimony, Ms. Larson offered that they would agree not to reinstall the patio cover if the HOA would pay for its removal.
Final Administrative Law Judge Decision
On December 11, 2017, ALJ Thomas Shedden issued a final decision dismissing the Larsons’ petition and finding in favor of the Respondent, Tempe Gardens Townhouse Corporation.
Key Findings and Conclusions of Law
Finding/Conclusion
Details
Standard of Review
The HOA’s decisions regarding maintenance and repair are given deference, provided they act reasonably.
Reasonableness of HOA Action
Based on the “credible testimony” of Wayne King, the Judge found that the HOA’s proposed plan for repairing and painting the buildings, which required the removal of patio covers, was reasonable.
HOA Authority
CC&R sections 9 and 9(b) were found to be “sufficient to show that Respondent has the authority to remove Petitioners’ patio to complete the painting work.”
Patio Cover Classification
The Petitioners’ patio cover was legally classified as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4).
Cost Responsibility
The central issue of payment was decided by statute. The Judge concluded that under a “reasonable reading of ARIZ. REV. STAT. section 33-1255(C),” any common expense associated with a limited common element “shall be assessed exclusively against the units benefitted.”
Final Order
Based on these findings, the Administrative Law Judge ordered the following:
“The evidence of record supports a conclusion that Respondent has authority to require Petitioners to remove their patio cover to allow the building to be properly and safely painted, and that Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.”
The final order was that the Petitioners’ petition be dismissed, and the Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party.
Study Guide – 17F-H1717038-REL
Study Guide: Larson v. Tempe Gardens Townhouse Corporation
This study guide provides a comprehensive review of the administrative case between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms based on the provided legal documents.
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Short-Answer Quiz
Answer the following questions in 2-3 sentences each, based on the information in the provided source documents.
1. Who were the primary parties involved in this case, and what was their relationship?
2. What was the initial reason given by Administrative Law Judge (ALJ) Suzanne Marwil for recommending the dismissal of the Larsons’ petition?
3. Why did the Commissioner of the Department of Real Estate, Judy Lowe, reject the initial recommendation for dismissal?
4. What was the central dispute that was ultimately decided in the November 20, 2017, hearing?
5. According to the final Administrative Law Judge Decision, what is the legal classification of the petitioners’ patio cover?
6. Which specific sections of the CC&Rs did the Respondent, Tempe Gardens Townhouse Corporation, cite as the basis for its authority?
7. What key reasons did project manager Wayne King provide to justify the necessity of removing the patio covers for the painting project?
8. Describe the significant difference in the cost estimates for removing and replacing the patio cover as presented by the Petitioners versus the Respondent’s project manager.
9. What was the final ruling regarding who was financially responsible for the removal and potential reinstallation of the patio cover?
10. What was the ultimate outcome of the Larsons’ petition following the final hearing, and which party was deemed the “prevailing party”?
——————————————————————————–
Answer Key
1. The primary parties were the Petitioners, homeowners James and Shawna Larson, and the Respondent, the Tempe Gardens Townhouse Corporation, which is their homeowner’s association (HOA). The dispute arose from the HOA’s plan to repair and paint the building exteriors.
2. ALJ Marwil initially recommended dismissal due to a “lack of justiciable controversy.” She found that the Petitioners had failed to cite any provision of the CC&Rs that the Respondent had currently violated, as the threatened action to remove the patio cover was speculative and had not yet occurred.
3. Commissioner Lowe rejected the dismissal because she found the matter was “ripe for adjudication.” Her decision was based on a June 1, 2017 letter from the Respondent that questioned whether “the presence of the awning [is] a violation of the Association’s governing documents,” which she interpreted as the Respondent alleging a violation.
4. The central dispute was whether the Tempe Gardens Townhouse Corporation had the authority to mandate that homeowners, specifically the Larsons, remove their patio covers at their own expense to facilitate a building repair and painting project.
5. The final decision classifies the Petitioners’ patio cover as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4). This classification was crucial to determining financial responsibility.
6. The Respondent cited sections 9 and 9(b) of the CC&Rs. Section 9(b) makes the Respondent responsible for maintaining building exteriors, and section 9 grants it the authority to take “Any cooperative action necessary or appropriate to the proper maintenance and upkeep” of those exteriors.
7. Wayne King testified that removal was necessary to properly and safely complete the work using scaffolding, as required by modern safety laws. He also stated that removal was needed to repair improperly flashed areas behind the covers and to ensure the painting contractor would provide a warranty for the project.
8. The Petitioners presented bids showing the cost to remove and rebuild the cover would be between $3,980 and $5,975. In contrast, Mr. King opined these estimates were very high and that the cost should be closer to $1,000 if existing materials were reused.
9. The final ruling, based on ARIZ. REV. STAT. section 33-1255(C), was that the Petitioners must bear the cost of removing the patio cover and, if they choose, the cost of reinstalling it. This is because the patio cover is a limited common element assigned specifically to their unit.
10. The final outcome was the dismissal of the Larsons’ petition. The Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party in the matter.
——————————————————————————–
Essay Questions
The following questions are designed for a more in-depth analysis. Use the provided documents to construct a detailed, evidence-based response.
1. Trace the procedural history of this case from the initial filing to the final decision. Discuss the key turning points, including the initial recommendation for dismissal, its rejection by the Commissioner, and the reasoning behind the final judgment.
2. Analyze the legal arguments presented by both the Petitioners and the Respondent in the November 2017 hearing. On what specific statutes and CC&R provisions did each side rely, and how did the Administrative Law Judge ultimately interpret these documents?
3. Evaluate the role of expert testimony in this case, specifically focusing on the evidence provided by project manager Wayne King. How did his testimony regarding safety, project requirements, and cost estimates influence the Administrative Law Judge’s findings on the reasonableness of the Respondent’s actions?
4. Discuss the legal concept of a “limited common element” as defined and applied in the source documents. Explain how this classification was central to the final decision regarding financial responsibility for the patio cover’s removal and reinstallation.
5. The initial Administrative Law Judge found no “justiciable controversy,” while the Commissioner later found the matter “ripe for adjudication.” Based on the details in all three documents, explain the arguments for both positions and analyze why the case ultimately proceeded to a full hearing.
——————————————————————————–
Glossary of Key Terms
Definition from Source Context
Administrative Law Judge (ALJ)
An official in the Office of Administrative Hearings who adjudicates complaints regarding condominium and planned community documents and ensures compliance with relevant statutes.
Covenants, Conditions, and Restrictions. The documents that govern the community and are described as a contract between the homeowner’s association and the homeowners.
Justiciable Controversy
A real dispute that a tribunal has the authority to resolve. The initial petition was recommended for dismissal for a lack of a justiciable controversy because the Respondent’s threatened actions were deemed speculative.
Limited Common Element
A legal classification for property defined under ARIZ. REV. STAT. section 33-1212(4). In this case, the Petitioners’ patio cover was classified as such, meaning any common expense associated with its maintenance, repair, or replacement is assessed against the unit to which it is assigned.
Petition
The formal document filed with the Department of Real Estate to initiate a complaint against a homeowner’s association.
Petitioner
The party that files a petition initiating a legal action. In this case, the homeowners James and Shawna Larson.
Preponderance of the Evidence
The standard of proof required in this matter, defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Prevailing Party
The party that is successful in a legal dispute. In the final order, the Respondent was deemed the prevailing party.
Respondent
The party against whom a petition is filed. In this case, the Tempe Gardens Townhouse Corporation.
Ripe for Adjudication
A term used by the Commissioner of the Department of Real Estate to indicate that a dispute is ready to be formally heard and decided by the Administrative Law Judge.
Blog Post – 17F-H1717038-REL
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3 sources
These documents chronicle the legal dispute between James and Shawna Larson (Petitioners) and the Tempe Gardens Townhouse Corporation (Respondent) concerning the removal of the Larsons’ patio cover for building maintenance. Initially, an Administrative Law Judge (ALJ) recommended dismissal because the Petitioners did not allege a current violation of the governing documents, thus lacking a justiciable controversy since the association had only threatened action. However, the Department of Real Estate Commissioner rejected this recommendation, asserting that a violation of the governing documents was alleged by the Respondent, making the matter ripe for adjudication. Following a rehearing, a different ALJ issued a final decision finding that the Respondent acted reasonably in requiring the patio cover removal for safe and proper painting and repairs, concluding that the Petitioners must bear the cost of removal and reinstallation as the cover is a limited common element.
Based on 3 sources
Case Participants
Petitioner Side
James Larson(petitioner)
Shawna Larson(petitioner)
Lisa M. Hanger(attorney) Counsel for Petitioners
Respondent Side
Nathan Tennyson(attorney) Brown Alcott PLLC Counsel for Respondent Tempe Gardens Townhouse Corporation
Wayne King(witness) Project manager hired by Respondent for the painting project; provided testimony
Neutral Parties
Suzanne Marwil(ALJ) Office of Administrative Hearings Authored Recommended Order Dismissal dated August 25, 2017
Thomas Shedden(ALJ) Office of Administrative Hearings Authored Administrative Law Judge Decision dated December 11, 2017
Judy Lowe(Commissioner) Arizona Department of Real Estate Rejected Recommendation of Dismissal
Dan Gardner(HOA coordinator) Transmitted documents (Order Rejecting Recommendation of Dismissal)
Other Participants
Chris Morga(contractor) Jacob and Co. Mentioned as a vendor who could remove patio covers
The ALJ dismissed the petition, ruling that the HOA acted reasonably and had the authority under the CC&Rs to require the removal of the homeowner's patio cover for necessary painting and repairs. The ALJ determined that because the patio cover is a limited common element, the Petitioners must bear the cost of removal and reinstallation according to A.R.S. § 33-1255(C).
Why this result: Petitioners failed to prove the HOA violated CC&Rs or acted unreasonably, and statutory law assigned the expense burden for the limited common element to the homeowner.
Key Issues & Findings
Authority of HOA to mandate removal of homeowner's patio cover for maintenance and assignment of removal/reinstallation costs.
Petitioners challenged the Respondent HOA's authority and reasonableness in requiring them to remove their patio cover, a limited common element, for building painting and repair, and disputed the requirement that Petitioners bear the costs. The ALJ concluded that the HOA's plan was reasonable, the HOA had the authority under CC&R sections 9 and 9(b), and Petitioners must bear the cost of removal and reinstallation under A.R.S. § 33-1255(C).
Orders: Petitioners’ petition is dismissed. Respondent is deemed the prevailing party. Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Analytics Highlights
Topics: HOA authority, limited common element, maintenance costs, patio cover, CC&Rs, statutory interpretation, dismissal, prevailing party
Additional Citations:
A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
A.R.S. § 32-2199
A.R.S. § 32-2199.02
A.R.S. § 41-1092.09
ARIZ. ADMIN. CODE § R2-19-119
Gutierrez v. Industrial Commission of Arizona
Audio Overview
Decision Documents
17F-H1717038-REL Decision – 583987.pdf
Uploaded 2025-10-08T06:51:36 (53.0 KB)
17F-H1717038-REL Decision – 585505.pdf
Uploaded 2025-10-08T06:51:37 (385.9 KB)
Briefing Doc – 17F-H1717038-REL
Briefing on Larson v. Tempe Gardens Townhouse Corporation
Executive Summary
This briefing synthesizes the legal dispute between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation (the “Respondent” or “HOA”). The core conflict centered on the HOA’s directive that the Larsons remove their wooden patio cover at their own expense to facilitate a community-wide building repair and painting project.
The case progressed through two distinct phases. Initially, an Administrative Law Judge (ALJ) recommended dismissing the Larsons’ petition for a lack of a “justiciable controversy,” reasoning that the HOA had not yet acted on its threat to remove the patio cover, rendering the dispute speculative. However, the Commissioner of the Department of Real Estate rejected this recommendation, finding the matter was “ripe for adjudication,” and ordered a full hearing on the merits.
In the final decision, a second ALJ dismissed the Larsons’ petition and ruled in favor of the HOA. The judge found the HOA’s plan to be reasonable and necessary for the proper and safe completion of the project, based on credible testimony from the project manager. The decision affirmed the HOA’s authority under its CC&Rs to require the removal of the structure. Crucially, the ruling established that the patio cover is a “limited common element” under Arizona law. Consequently, pursuant to Arizona Revised Statutes, the homeowners (the Larsons) are exclusively responsible for all costs associated with it, including its removal and potential reinstallation.
Procedural History and Jurisdictional Rulings
Initial Petition and Dismissal Recommendation
On June 16, 2017, James and Shawna Larson filed a petition with the Department of Real Estate against their HOA, alleging a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). However, the initial filing did not specify which provisions had been violated.
Upon inquiry, the Petitioners’ counsel admitted via email that no specific provision of the CC&Rs had yet been violated. Instead, their concern was that section 10(a) would be violated if the HOA acted on its threat to forcibly remove their patio cover and charge them for the cost.
This led to the “ORDER RECOMMENDING DISMISSAL FOR LACK OF JUSTICIABLE CONTROVERSY,” issued on August 25, 2017, by Administrative Law Judge Suzanne Marwil. The key findings of this order were:
• Speculative Harm: The Judge found that the HOA’s actions “have not yet been undertaken and our [are] speculative at this juncture.”
• Lack of Jurisdiction: The order stated that the Office of Administrative Hearings’ jurisdiction, per A.R.S. § 32-2199, is limited to adjudicating existing violations of community documents, not potential future ones.
• Misunderstanding by Both Parties: The order noted, “Both parties fundamentally misunderstand the limits of this Tribunal’s jurisdiction.” The Petitioners were seeking a ruling on a future action, while the Respondent was urging the Tribunal to find the Petitioners had violated the CC&Rs, which was not the subject of the petition.
• Recommended Forum: The Judge suggested that the appropriate forum for the Petitioners would be a declaratory judgment action in superior court.
Rejection of Dismissal and Re-Hearing
On August 31, 2017, Judy Lowe, the Commissioner of the Department of Real Estate, issued an “ORDER REJECTING RECOMMENDATION OF DISMISSAL.”
• The Commissioner rejected the ALJ’s finding that the matter lacked a justiciable controversy.
• The order cited a letter from the Respondent dated June 1, 2017, which posed the question: “Is the presence of the awning a violation of the Association’s governing documents?”
• This question was deemed sufficient to make the matter “ripe for adjudication.”
• The Commissioner requested that the hearing be rescheduled for a ruling on the matter. A re-hearing was subsequently conducted on November 20, 2017, before Administrative Law Judge Thomas Shedden.
Analysis of the Merits of the Dispute
The re-hearing focused on the substantive conflict: whether the HOA had the authority to compel the Larsons to remove their patio cover at their own expense for the maintenance project.
Respondent’s (HOA) Case
The HOA, consisting of 169 units, initiated a project to make necessary repairs to its twenty-five buildings and then have them painted. The HOA’s position was based on the following points:
• Legal Authority: The HOA asserted its authority under sections 9 and 9(b) of its CC&Rs, which state that the HOA is responsible for maintaining building exteriors and that “Any cooperative action necessary or appropriate to the proper maintenance and upkeep of the… [building] exteriors… shall be taken by the [Respondent].”
• Project Necessity: The project manager, Wayne King, provided testimony that the HOA’s board deemed credible and reasonable.
◦ Safety: King stated that all five bidding contractors required the patio covers to be removed to ensure a safe work environment as mandated by the Arizona Department of Occupational Safety and Health (OSHA).
◦ Logistics: Standard scaffolding would not fit without removing the covers, commercial scaffolding would not provide full access, a forklift was not viable due to overhead power lines, and allowing painters to walk on homeowner patio covers was unsafe.
◦ Quality of Work: The project involved sanding, power washing, and patching before painting to “do the job right.” Many covers had been improperly flashed, causing damage to the buildings that needed repair.
◦ Warranty: The paint company would not provide a warranty for the project if individual homeowners, such as the Larsons, were permitted to paint their own units.
Petitioners’ (Larsons’) Case
The Larsons, who purchased their unit in 1999 with the wooden patio cover already in place, contested the HOA’s demands.
• Challenge to Authority: The Petitioners argued that the HOA had no legal authority to demand the removal of their patio cover.
• Unreasonable Cost: They asserted that the cost of removal and reinstallation was unreasonable, submitting two bids:
◦ One bid quoted $1,250 to remove and dispose of the cover and $3,980 to remove and rebuild it with new wood.
◦ A second bid quoted $5,975 to remove and then replace the structure.
• Proposed Alternative: In a letter dated May 19, 2017, the Larsons offered to have the back of their unit painted at their own expense.
• Compromise Offer: During the November 20, 2017 hearing, after hearing the project manager’s testimony, Ms. Larson offered that they would agree not to reinstall the patio cover if the HOA would pay for its removal.
Final Administrative Law Judge Decision
On December 11, 2017, ALJ Thomas Shedden issued a final decision dismissing the Larsons’ petition and finding in favor of the Respondent, Tempe Gardens Townhouse Corporation.
Key Findings and Conclusions of Law
Finding/Conclusion
Details
Standard of Review
The HOA’s decisions regarding maintenance and repair are given deference, provided they act reasonably.
Reasonableness of HOA Action
Based on the “credible testimony” of Wayne King, the Judge found that the HOA’s proposed plan for repairing and painting the buildings, which required the removal of patio covers, was reasonable.
HOA Authority
CC&R sections 9 and 9(b) were found to be “sufficient to show that Respondent has the authority to remove Petitioners’ patio to complete the painting work.”
Patio Cover Classification
The Petitioners’ patio cover was legally classified as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4).
Cost Responsibility
The central issue of payment was decided by statute. The Judge concluded that under a “reasonable reading of ARIZ. REV. STAT. section 33-1255(C),” any common expense associated with a limited common element “shall be assessed exclusively against the units benefitted.”
Final Order
Based on these findings, the Administrative Law Judge ordered the following:
“The evidence of record supports a conclusion that Respondent has authority to require Petitioners to remove their patio cover to allow the building to be properly and safely painted, and that Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.”
The final order was that the Petitioners’ petition be dismissed, and the Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party.
The ALJ dismissed the petition, ruling that the HOA acted reasonably and had the authority under the CC&Rs to require the removal of the homeowner's patio cover for necessary painting and repairs. The ALJ determined that because the patio cover is a limited common element, the Petitioners must bear the cost of removal and reinstallation according to A.R.S. § 33-1255(C).
Why this result: Petitioners failed to prove the HOA violated CC&Rs or acted unreasonably, and statutory law assigned the expense burden for the limited common element to the homeowner.
Key Issues & Findings
Authority of HOA to mandate removal of homeowner's patio cover for maintenance and assignment of removal/reinstallation costs.
Petitioners challenged the Respondent HOA's authority and reasonableness in requiring them to remove their patio cover, a limited common element, for building painting and repair, and disputed the requirement that Petitioners bear the costs. The ALJ concluded that the HOA's plan was reasonable, the HOA had the authority under CC&R sections 9 and 9(b), and Petitioners must bear the cost of removal and reinstallation under A.R.S. § 33-1255(C).
Orders: Petitioners’ petition is dismissed. Respondent is deemed the prevailing party. Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Analytics Highlights
Topics: HOA authority, limited common element, maintenance costs, patio cover, CC&Rs, statutory interpretation, dismissal, prevailing party
Additional Citations:
A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
A.R.S. § 32-2199
A.R.S. § 32-2199.02
A.R.S. § 41-1092.09
ARIZ. ADMIN. CODE § R2-19-119
Gutierrez v. Industrial Commission of Arizona
Audio Overview
Decision Documents
17F-H1717038-REL Decision – 583987.pdf
Uploaded 2025-10-08T06:58:14 (53.0 KB)
17F-H1717038-REL Decision – 585505.pdf
Uploaded 2025-10-08T06:58:15 (385.9 KB)
Briefing Doc – 17F-H1717038-REL
Briefing on Larson v. Tempe Gardens Townhouse Corporation
Executive Summary
This briefing synthesizes the legal dispute between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation (the “Respondent” or “HOA”). The core conflict centered on the HOA’s directive that the Larsons remove their wooden patio cover at their own expense to facilitate a community-wide building repair and painting project.
The case progressed through two distinct phases. Initially, an Administrative Law Judge (ALJ) recommended dismissing the Larsons’ petition for a lack of a “justiciable controversy,” reasoning that the HOA had not yet acted on its threat to remove the patio cover, rendering the dispute speculative. However, the Commissioner of the Department of Real Estate rejected this recommendation, finding the matter was “ripe for adjudication,” and ordered a full hearing on the merits.
In the final decision, a second ALJ dismissed the Larsons’ petition and ruled in favor of the HOA. The judge found the HOA’s plan to be reasonable and necessary for the proper and safe completion of the project, based on credible testimony from the project manager. The decision affirmed the HOA’s authority under its CC&Rs to require the removal of the structure. Crucially, the ruling established that the patio cover is a “limited common element” under Arizona law. Consequently, pursuant to Arizona Revised Statutes, the homeowners (the Larsons) are exclusively responsible for all costs associated with it, including its removal and potential reinstallation.
Procedural History and Jurisdictional Rulings
Initial Petition and Dismissal Recommendation
On June 16, 2017, James and Shawna Larson filed a petition with the Department of Real Estate against their HOA, alleging a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). However, the initial filing did not specify which provisions had been violated.
Upon inquiry, the Petitioners’ counsel admitted via email that no specific provision of the CC&Rs had yet been violated. Instead, their concern was that section 10(a) would be violated if the HOA acted on its threat to forcibly remove their patio cover and charge them for the cost.
This led to the “ORDER RECOMMENDING DISMISSAL FOR LACK OF JUSTICIABLE CONTROVERSY,” issued on August 25, 2017, by Administrative Law Judge Suzanne Marwil. The key findings of this order were:
• Speculative Harm: The Judge found that the HOA’s actions “have not yet been undertaken and our [are] speculative at this juncture.”
• Lack of Jurisdiction: The order stated that the Office of Administrative Hearings’ jurisdiction, per A.R.S. § 32-2199, is limited to adjudicating existing violations of community documents, not potential future ones.
• Misunderstanding by Both Parties: The order noted, “Both parties fundamentally misunderstand the limits of this Tribunal’s jurisdiction.” The Petitioners were seeking a ruling on a future action, while the Respondent was urging the Tribunal to find the Petitioners had violated the CC&Rs, which was not the subject of the petition.
• Recommended Forum: The Judge suggested that the appropriate forum for the Petitioners would be a declaratory judgment action in superior court.
Rejection of Dismissal and Re-Hearing
On August 31, 2017, Judy Lowe, the Commissioner of the Department of Real Estate, issued an “ORDER REJECTING RECOMMENDATION OF DISMISSAL.”
• The Commissioner rejected the ALJ’s finding that the matter lacked a justiciable controversy.
• The order cited a letter from the Respondent dated June 1, 2017, which posed the question: “Is the presence of the awning a violation of the Association’s governing documents?”
• This question was deemed sufficient to make the matter “ripe for adjudication.”
• The Commissioner requested that the hearing be rescheduled for a ruling on the matter. A re-hearing was subsequently conducted on November 20, 2017, before Administrative Law Judge Thomas Shedden.
Analysis of the Merits of the Dispute
The re-hearing focused on the substantive conflict: whether the HOA had the authority to compel the Larsons to remove their patio cover at their own expense for the maintenance project.
Respondent’s (HOA) Case
The HOA, consisting of 169 units, initiated a project to make necessary repairs to its twenty-five buildings and then have them painted. The HOA’s position was based on the following points:
• Legal Authority: The HOA asserted its authority under sections 9 and 9(b) of its CC&Rs, which state that the HOA is responsible for maintaining building exteriors and that “Any cooperative action necessary or appropriate to the proper maintenance and upkeep of the… [building] exteriors… shall be taken by the [Respondent].”
• Project Necessity: The project manager, Wayne King, provided testimony that the HOA’s board deemed credible and reasonable.
◦ Safety: King stated that all five bidding contractors required the patio covers to be removed to ensure a safe work environment as mandated by the Arizona Department of Occupational Safety and Health (OSHA).
◦ Logistics: Standard scaffolding would not fit without removing the covers, commercial scaffolding would not provide full access, a forklift was not viable due to overhead power lines, and allowing painters to walk on homeowner patio covers was unsafe.
◦ Quality of Work: The project involved sanding, power washing, and patching before painting to “do the job right.” Many covers had been improperly flashed, causing damage to the buildings that needed repair.
◦ Warranty: The paint company would not provide a warranty for the project if individual homeowners, such as the Larsons, were permitted to paint their own units.
Petitioners’ (Larsons’) Case
The Larsons, who purchased their unit in 1999 with the wooden patio cover already in place, contested the HOA’s demands.
• Challenge to Authority: The Petitioners argued that the HOA had no legal authority to demand the removal of their patio cover.
• Unreasonable Cost: They asserted that the cost of removal and reinstallation was unreasonable, submitting two bids:
◦ One bid quoted $1,250 to remove and dispose of the cover and $3,980 to remove and rebuild it with new wood.
◦ A second bid quoted $5,975 to remove and then replace the structure.
• Proposed Alternative: In a letter dated May 19, 2017, the Larsons offered to have the back of their unit painted at their own expense.
• Compromise Offer: During the November 20, 2017 hearing, after hearing the project manager’s testimony, Ms. Larson offered that they would agree not to reinstall the patio cover if the HOA would pay for its removal.
Final Administrative Law Judge Decision
On December 11, 2017, ALJ Thomas Shedden issued a final decision dismissing the Larsons’ petition and finding in favor of the Respondent, Tempe Gardens Townhouse Corporation.
Key Findings and Conclusions of Law
Finding/Conclusion
Details
Standard of Review
The HOA’s decisions regarding maintenance and repair are given deference, provided they act reasonably.
Reasonableness of HOA Action
Based on the “credible testimony” of Wayne King, the Judge found that the HOA’s proposed plan for repairing and painting the buildings, which required the removal of patio covers, was reasonable.
HOA Authority
CC&R sections 9 and 9(b) were found to be “sufficient to show that Respondent has the authority to remove Petitioners’ patio to complete the painting work.”
Patio Cover Classification
The Petitioners’ patio cover was legally classified as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4).
Cost Responsibility
The central issue of payment was decided by statute. The Judge concluded that under a “reasonable reading of ARIZ. REV. STAT. section 33-1255(C),” any common expense associated with a limited common element “shall be assessed exclusively against the units benefitted.”
Final Order
Based on these findings, the Administrative Law Judge ordered the following:
“The evidence of record supports a conclusion that Respondent has authority to require Petitioners to remove their patio cover to allow the building to be properly and safely painted, and that Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.”
The final order was that the Petitioners’ petition be dismissed, and the Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party.
The ALJ dismissed the petition, ruling that the HOA acted reasonably and had the authority under the CC&Rs to require the removal of the homeowner's patio cover for necessary painting and repairs. The ALJ determined that because the patio cover is a limited common element, the Petitioners must bear the cost of removal and reinstallation according to A.R.S. § 33-1255(C).
Why this result: Petitioners failed to prove the HOA violated CC&Rs or acted unreasonably, and statutory law assigned the expense burden for the limited common element to the homeowner.
Key Issues & Findings
Authority of HOA to mandate removal of homeowner's patio cover for maintenance and assignment of removal/reinstallation costs.
Petitioners challenged the Respondent HOA's authority and reasonableness in requiring them to remove their patio cover, a limited common element, for building painting and repair, and disputed the requirement that Petitioners bear the costs. The ALJ concluded that the HOA's plan was reasonable, the HOA had the authority under CC&R sections 9 and 9(b), and Petitioners must bear the cost of removal and reinstallation under A.R.S. § 33-1255(C).
Orders: Petitioners’ petition is dismissed. Respondent is deemed the prevailing party. Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Analytics Highlights
Topics: HOA authority, limited common element, maintenance costs, patio cover, CC&Rs, statutory interpretation, dismissal, prevailing party
Additional Citations:
A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
A.R.S. § 32-2199
A.R.S. § 32-2199.02
A.R.S. § 41-1092.09
ARIZ. ADMIN. CODE § R2-19-119
Gutierrez v. Industrial Commission of Arizona
Audio Overview
Decision Documents
17F-H1717038-REL Decision – 583987.pdf
Uploaded 2025-10-08T07:02:29 (53.0 KB)
17F-H1717038-REL Decision – 585505.pdf
Uploaded 2025-10-08T07:02:30 (385.9 KB)
Briefing Doc – 17F-H1717038-REL
Briefing on Larson v. Tempe Gardens Townhouse Corporation
Executive Summary
This briefing synthesizes the legal dispute between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation (the “Respondent” or “HOA”). The core conflict centered on the HOA’s directive that the Larsons remove their wooden patio cover at their own expense to facilitate a community-wide building repair and painting project.
The case progressed through two distinct phases. Initially, an Administrative Law Judge (ALJ) recommended dismissing the Larsons’ petition for a lack of a “justiciable controversy,” reasoning that the HOA had not yet acted on its threat to remove the patio cover, rendering the dispute speculative. However, the Commissioner of the Department of Real Estate rejected this recommendation, finding the matter was “ripe for adjudication,” and ordered a full hearing on the merits.
In the final decision, a second ALJ dismissed the Larsons’ petition and ruled in favor of the HOA. The judge found the HOA’s plan to be reasonable and necessary for the proper and safe completion of the project, based on credible testimony from the project manager. The decision affirmed the HOA’s authority under its CC&Rs to require the removal of the structure. Crucially, the ruling established that the patio cover is a “limited common element” under Arizona law. Consequently, pursuant to Arizona Revised Statutes, the homeowners (the Larsons) are exclusively responsible for all costs associated with it, including its removal and potential reinstallation.
Procedural History and Jurisdictional Rulings
Initial Petition and Dismissal Recommendation
On June 16, 2017, James and Shawna Larson filed a petition with the Department of Real Estate against their HOA, alleging a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). However, the initial filing did not specify which provisions had been violated.
Upon inquiry, the Petitioners’ counsel admitted via email that no specific provision of the CC&Rs had yet been violated. Instead, their concern was that section 10(a) would be violated if the HOA acted on its threat to forcibly remove their patio cover and charge them for the cost.
This led to the “ORDER RECOMMENDING DISMISSAL FOR LACK OF JUSTICIABLE CONTROVERSY,” issued on August 25, 2017, by Administrative Law Judge Suzanne Marwil. The key findings of this order were:
• Speculative Harm: The Judge found that the HOA’s actions “have not yet been undertaken and our [are] speculative at this juncture.”
• Lack of Jurisdiction: The order stated that the Office of Administrative Hearings’ jurisdiction, per A.R.S. § 32-2199, is limited to adjudicating existing violations of community documents, not potential future ones.
• Misunderstanding by Both Parties: The order noted, “Both parties fundamentally misunderstand the limits of this Tribunal’s jurisdiction.” The Petitioners were seeking a ruling on a future action, while the Respondent was urging the Tribunal to find the Petitioners had violated the CC&Rs, which was not the subject of the petition.
• Recommended Forum: The Judge suggested that the appropriate forum for the Petitioners would be a declaratory judgment action in superior court.
Rejection of Dismissal and Re-Hearing
On August 31, 2017, Judy Lowe, the Commissioner of the Department of Real Estate, issued an “ORDER REJECTING RECOMMENDATION OF DISMISSAL.”
• The Commissioner rejected the ALJ’s finding that the matter lacked a justiciable controversy.
• The order cited a letter from the Respondent dated June 1, 2017, which posed the question: “Is the presence of the awning a violation of the Association’s governing documents?”
• This question was deemed sufficient to make the matter “ripe for adjudication.”
• The Commissioner requested that the hearing be rescheduled for a ruling on the matter. A re-hearing was subsequently conducted on November 20, 2017, before Administrative Law Judge Thomas Shedden.
Analysis of the Merits of the Dispute
The re-hearing focused on the substantive conflict: whether the HOA had the authority to compel the Larsons to remove their patio cover at their own expense for the maintenance project.
Respondent’s (HOA) Case
The HOA, consisting of 169 units, initiated a project to make necessary repairs to its twenty-five buildings and then have them painted. The HOA’s position was based on the following points:
• Legal Authority: The HOA asserted its authority under sections 9 and 9(b) of its CC&Rs, which state that the HOA is responsible for maintaining building exteriors and that “Any cooperative action necessary or appropriate to the proper maintenance and upkeep of the… [building] exteriors… shall be taken by the [Respondent].”
• Project Necessity: The project manager, Wayne King, provided testimony that the HOA’s board deemed credible and reasonable.
◦ Safety: King stated that all five bidding contractors required the patio covers to be removed to ensure a safe work environment as mandated by the Arizona Department of Occupational Safety and Health (OSHA).
◦ Logistics: Standard scaffolding would not fit without removing the covers, commercial scaffolding would not provide full access, a forklift was not viable due to overhead power lines, and allowing painters to walk on homeowner patio covers was unsafe.
◦ Quality of Work: The project involved sanding, power washing, and patching before painting to “do the job right.” Many covers had been improperly flashed, causing damage to the buildings that needed repair.
◦ Warranty: The paint company would not provide a warranty for the project if individual homeowners, such as the Larsons, were permitted to paint their own units.
Petitioners’ (Larsons’) Case
The Larsons, who purchased their unit in 1999 with the wooden patio cover already in place, contested the HOA’s demands.
• Challenge to Authority: The Petitioners argued that the HOA had no legal authority to demand the removal of their patio cover.
• Unreasonable Cost: They asserted that the cost of removal and reinstallation was unreasonable, submitting two bids:
◦ One bid quoted $1,250 to remove and dispose of the cover and $3,980 to remove and rebuild it with new wood.
◦ A second bid quoted $5,975 to remove and then replace the structure.
• Proposed Alternative: In a letter dated May 19, 2017, the Larsons offered to have the back of their unit painted at their own expense.
• Compromise Offer: During the November 20, 2017 hearing, after hearing the project manager’s testimony, Ms. Larson offered that they would agree not to reinstall the patio cover if the HOA would pay for its removal.
Final Administrative Law Judge Decision
On December 11, 2017, ALJ Thomas Shedden issued a final decision dismissing the Larsons’ petition and finding in favor of the Respondent, Tempe Gardens Townhouse Corporation.
Key Findings and Conclusions of Law
Finding/Conclusion
Details
Standard of Review
The HOA’s decisions regarding maintenance and repair are given deference, provided they act reasonably.
Reasonableness of HOA Action
Based on the “credible testimony” of Wayne King, the Judge found that the HOA’s proposed plan for repairing and painting the buildings, which required the removal of patio covers, was reasonable.
HOA Authority
CC&R sections 9 and 9(b) were found to be “sufficient to show that Respondent has the authority to remove Petitioners’ patio to complete the painting work.”
Patio Cover Classification
The Petitioners’ patio cover was legally classified as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4).
Cost Responsibility
The central issue of payment was decided by statute. The Judge concluded that under a “reasonable reading of ARIZ. REV. STAT. section 33-1255(C),” any common expense associated with a limited common element “shall be assessed exclusively against the units benefitted.”
Final Order
Based on these findings, the Administrative Law Judge ordered the following:
“The evidence of record supports a conclusion that Respondent has authority to require Petitioners to remove their patio cover to allow the building to be properly and safely painted, and that Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.”
The final order was that the Petitioners’ petition be dismissed, and the Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party.
The ALJ found that the Petitioner did not establish a violation of the Respondent's CC&Rs and recommended the petition be denied. The ALJ specifically noted the lack of proof that fees were inappropriate and that Petitioner failed to provide legal authority requiring equal benefit. The petition was denied, and the Respondent was not ordered to pay the Petitioner's filing fee.
Why this result: The Petitioner failed to meet the burden of proof required to establish a violation of the CC&Rs.
Key Issues & Findings
Alleged violation of CC&Rs regarding disproportionate assessment fees
Petitioner alleged Respondent was in violation of its CC&Rs because Master HOA fees were disproportionately borne by existing homeowners and did not benefit the whole development equally. Petitioner failed to establish a violation because required evidentiary documents (plat attached as 'Exhibit B') were missing, and Petitioner offered no legal authority requiring fees to be equally beneficial or even-handed.
Orders: Petitioner's petition is denied. Respondent shall not pay the filing fee required by section 32-2199.01 to the Petitioner.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199 et seq.
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.A.C. R2-19-119(B)
Analytics Highlights
Topics: CC&Rs, Master HOA, Assessment Fees, Common Areas, Burden of Proof, Rule Against Perpetuities
Additional Citations:
A.R.S. § 32-2199
A.R.S. § 32-2199.01
A.R.S. § 32-2199.02
A.A.C. R2-19-119
Video Overview
Audio Overview
Decision Documents
17F-H1717033-REL Decision – 575166.pdf
Uploaded 2025-10-09T03:31:37 (39.1 KB)
17F-H1717033-REL Decision – 582189.pdf
Uploaded 2025-10-09T03:31:37 (69.4 KB)
17F-H1717033-REL Decision – 584918.pdf
Uploaded 2025-10-09T03:31:37 (674.1 KB)
Briefing Doc – 17F-H1717033-REL
Administrative Hearing Briefing: Janicek v. Sycamore Vista No. 8 HOA
Executive Summary
This briefing document synthesizes the key findings and legal proceedings in case number 17F-H1717033-REL, wherein Petitioner Jay Janicek filed a complaint against Respondent Sycamore Vista No. 8 HOA. The petition was ultimately denied by an Administrative Law Judge (ALJ), a decision formally adopted and finalized by the Commissioner of the Arizona Department of Real Estate.
The core of the dispute centered on the Petitioner’s allegation that the HOA’s fee structure violated its Covenants, Conditions, and Restrictions (CC&Rs). Specifically, Janicek argued that payments made by his first-level association to a master association for common area expenses—most egregiously for a roadway loan—were improper because the benefits were not distributed equally among all homeowners.
The denial of the petition hinged on a critical failure of proof by the Petitioner. The CC&Rs define “Common Areas” by referencing a plat map (“Exhibit B”) that was not submitted into evidence by the Petitioner. Without this crucial document, it was impossible to prove that the fees collected by the HOA were for purposes outside the scope of the CC&Rs. Furthermore, the Petitioner failed to provide any legal authority or provision within the governing documents requiring that association fees be “even-handed or equally beneficial to all homeowners.” A secondary argument regarding the “rule against perpetuities,” introduced post-hearing, was also addressed and dismissed by the ALJ as legally inapplicable to the matter.
Case Overview
The following table outlines the principal parties and details of the administrative hearing.
Case Detail
Information
Petitioner
Jay Janicek
Respondent
Sycamore Vista No. 8 HOA
Respondent’s Counsel
Evan Thompson, Thompson Krone PLC
Respondent’s Representative
Steve Russo
Case Number
17F-H1717033-REL
Docket Number
17F-H1717033-REL
Hearing Date
July 12, 2017
Presiding Judge
Dorinda M. Lang, Administrative Law Judge
Hearing Observers
John Shields, Margery and Mathew Janicek
Petitioner’s Allegations
The petition filed by Jay Janicek alleged that Sycamore Vista No. 8 HOA was in violation of its governing CC&Rs. The central arguments presented were:
• Unequal Distribution of Costs and Benefits: The Petitioner contended that expenses paid by the Respondent association to the Sycamore Vista Master Home Owner’s Association (“Master HOA”) did not benefit all homeowners equally. The most “egregious” example cited was the payment toward a loan for a roadway within the master development.
• Violation of CC&Rs: The Petitioner argued that this unequal cost burden was a direct violation of Article 11, Section 11.5 of the Respondent’s CC&Rs. This section stipulates:
• Discrepancy Among Associations: The Petitioner asserted that another first-level association within the master development receives more benefit from the common areas but does not pay into the Master HOA.
• Rule Against Perpetuities: In a post-hearing submission, the Petitioner introduced a new argument that a “rule against perpetuities” was at stake in the matter.
Adjudication and Findings of Fact
The Administrative Law Judge’s decision was based on the Petitioner’s failure to meet the required burden of proof through a preponderance of the evidence.
Evidentiary Failure
The Petitioner’s case failed primarily due to a lack of sufficient evidence to prove a violation of the CC&Rs.
• Missing ‘Exhibit B’: The definition of “Common Areas” was essential to the case. According to Article 1, Section 1.6 of the CC&Rs, these areas are delineated on a plat that was supposed to be attached as “Exhibit B.”
• Critical Finding: The ALJ noted, “Unfortunately, there was no plat attached to the document that was offered into evidence and it was not to be found among the other exhibits. Therefore, Petitioner was unable to establish that Respondent’s fees pay for anything that is not provided for in the CC&Rs.”
• Petitioner’s Concession: The Petitioner did not dispute the Respondent’s argument that the Master HOA fees, including those for roads, were for Common Areas.
Lack of Legal Authority
The Petitioner’s core premise—that fees must be proportional to benefits received—was not substantiated by legal or documentary support.
• The ALJ found that the “Petitioner offered no legal authority that requires that all first level associations must pay the same into a master association or that all homeowners must receive the same benefit from or contribute the same amount (or even a proportionate share) to the common areas.”
• The argument that association fees were “disproportionately heavy” was not established to be a violation of any provision in the CC&Rs.
Post-Hearing Submissions
The record was held open until August 1, 2017, allowing for additional documentation from both parties.
• Petitioner (Exhibit 6): Submitted financial documentation, emails, and the argument concerning the rule against perpetuities.
• Respondent (Exhibit H): Submitted a Notice of Lien and attachments. This exhibit demonstrated that, regarding a lien for water services on properties not part of the Respondent HOA, the “Respondent’s homeowners are not responsible for it.”
Conclusions of Law and Final Decision
Based on the evidence and arguments presented, the ALJ denied the petition, a decision later finalized by the Arizona Department of Real Estate.
Denial of Petition
• The primary conclusion of law was that the “Petitioner has not established that Respondent is in violation of its CC&Rs.”
• The payment for Common Areas was found to be in comportment with the CC&Rs.
Rejection of Key Arguments
• Equal Benefit: The ALJ explicitly concluded: “Petitioner has offered no legal authority or provision of the CC&Rs that requires the association fees to be even-handed or equally beneficial to all homeowners.”
• Rule Against Perpetuities: While this argument was not part of the original petition, the ALJ addressed it to “lay a concern to rest.” The judge explained that the rule, which states that property ownership must vest within a lifetime plus 21 years, evolved from estate law and does not apply to HOA property sales where ownership vests immediately in the developer or a new owner. The judge concluded, “the rule against perpetuities does not apply to a homeowner’s association and it clearly does not apply in this matter.”
Timeline of Orders
1. July 12, 2017: An “Order Holding Record Open” was issued by ALJ Dorinda M. Lang.
2. August 14, 2017: The “Administrative Law Judge Decision” was issued, ordering that the Petitioner’s petition be denied.
3. August 21, 2017: A “Final Order” was issued by Judy Lowe, Commissioner of the Department of Real Estate, adopting the ALJ’s decision and officially denying the petition.
Post-Decision Procedures
The Final Order, effective August 21, 2017, concluded the administrative action and outlined the subsequent options available to the parties.
• The order is binding unless a rehearing is granted. A request for rehearing must be filed within 30 days of the service of the final order.
• A rehearing may be granted for the following causes:
1. Irregularity in the proceedings or any order or abuse of discretion that deprived a party of a fair hearing.
2. Misconduct by the Department, ALJ, or the prevailing party.
3. Accident or surprise that could not have been prevented by ordinary prudence.
4. Newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.
5. Excessive or insufficient penalties.
6. Error in the admission or rejection of evidence or other errors of law occurring during the proceeding.
7. The findings of fact or decision is arbitrary, capricious, or an abuse of discretion.
8. The findings of fact or decision is not supported by the evidence or is contrary to law.
• Parties may appeal the final administrative action by filing a complaint for judicial review.
Study Guide – 17F-H1717033-REL
Study Guide: Janicek v. Sycamore Vista No. 8 HOA
This guide provides a comprehensive review of the administrative hearing case No. 17F-H1717033-REL, Jay Janicek v. Sycamore Vista No. 8 HOA. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, arguments, and legal conclusions.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, based on the information provided in the case documents.
1. Who were the primary parties in this legal matter, and what were their designated roles?
2. What was the central allegation made by the Petitioner against the Respondent?
3. Which specific article and section of the Covenants, Conditions, and Restrictions (CC&Rs) did the Petitioner claim the Respondent had violated?
4. Explain the key piece of evidence that was missing and why its absence was critical to the case’s outcome.
5. What was the Respondent’s main argument regarding the fees paid to the Master HOA?
6. According to the case documents, who held the burden of proof, and what was the required standard of proof?
7. What was the “rule against perpetuities,” and what reason did the Administrative Law Judge give for its inapplicability to this case?
8. What was the ultimate decision of the Administrative Law Judge, and on what date was it issued?
9. After the hearing, the record was held open. What was the purpose of this, and what types of materials were submitted by the parties during this period?
10. What action did the Commissioner of the Department of Real Estate take after receiving the Administrative Law Judge’s decision?
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Answer Key
1. The primary parties were Jay Janicek, designated as the Petitioner, and Sycamore Vista No. 8 HOA, designated as the Respondent. The Petitioner is the party who filed the complaint, and the Respondent is the party against whom the complaint was filed.
2. The Petitioner alleged that the Respondent HOA was in violation of its CC&Rs. He argued that the fees his association paid to the Master HOA for a roadway loan did not benefit the whole development equally and were therefore inappropriate expenses for all homeowners to pay.
3. The Petitioner cited Article 11, Section 11.5 of the Respondent’s CC&Rs. This section, titled “Costs of Improvements,” details how the costs for improving Unimproved Lots and Common Areas in Phase 3 and Phase 4 are to be borne by the owners of lots within those specific phases.
4. The key missing evidence was a plat, referred to as “Exhibit B” in the CC&Rs. This plat was supposed to define the “Common Areas,” and without it, the Petitioner was unable to establish that the fees paid by the Respondent were for anything not provided for in the governing documents.
5. The Respondent argued that the Master HOA fees were used to pay for the development’s common areas. They maintained that the CC&Rs permit these payments and that there is no legal authority requiring all homeowners to receive the same benefit or for all first-level associations to contribute equally.
6. Pursuant to A.A.C. R2-19-119(B), the Petitioner, Jay Janicek, had the burden of proof in this matter. The standard of proof was a preponderance of the evidence, as established by A.A.C. R2-19-119(A).
7. The rule against perpetuities states that property ownership must vest within a time frame of an existing lifetime plus 21 years. The Judge ruled it did not apply because it evolved to handle estates bequeathed to a series of heirs and is not generally applicable to property sales where rights transfer at once; in the HOA’s case, ownership of undeveloped lots had already vested in the developer.
8. The Administrative Law Judge ordered that the Petitioner’s petition be denied. This decision was made on August 14, 2017.
9. The record was held open until August 1, 2017, to allow the Respondent to submit additional documentation and for the Petitioner to submit written objections. During this time, the Petitioner submitted financial documentation, emails, and a new argument about the rule against perpetuities (admitted as Exhibit 6), while the Respondent submitted a Notice of Lien (admitted as Exhibit H).
10. The Commissioner of the Department of Real Estate, Judy Lowe, adopted the Administrative Law Judge’s decision. This was formalized in a Final Order dated August 21, 2017, which accepted the ALJ’s recommendation and denied the Petitioner’s petition.
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Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a detailed essay-style response for each.
1. Analyze the critical evidentiary failure that led to the denial of Jay Janicek’s petition. How did the absence of the plat referred to as “Exhibit B” directly impact his ability to meet the “preponderance of the evidence” standard of proof?
2. Discuss the legal reasoning behind the Administrative Law Judge’s conclusion that there is no requirement for HOA fees to be “even-handed or equally beneficial to all homeowners.” How does this principle relate to the hierarchical structure of Master and first-level associations described in the case?
3. Explain the concept of the “rule against perpetuities” as described in the legal decision. Detail why the Administrative Law Judge, despite noting the argument was outside the original petition, addressed it and ultimately found it inapplicable to the case of a homeowner’s association.
4. Trace the procedural path of this case from the initial hearing to the final binding order. Identify the key dates, decisions, and entities involved at each stage, including the Office of Administrative Hearings and the Department of Real Estate.
5. Based on the Final Order, outline the process and potential grounds for requesting a rehearing. What were the eight specific causes listed in the order that could materially affect a moving party’s rights and justify a rehearing or review?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, Dorinda M. Lang served as the ALJ.
A.A.C.
Abbreviation for Arizona Administrative Code, a compilation of rules and regulations of Arizona state agencies.
A.R.S.
Abbreviation for Arizona Revised Statutes, the collection of all the laws of the state of Arizona.
Areas of Association Responsibility
Locations that the Homeowner’s Association is responsible for maintaining, as defined within its governing documents.
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the burden of proof was on the Petitioner.
Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision.
Common Areas
Areas within a housing development that are owned by the association for the use and benefit of all homeowners. The definition of these areas was a central issue in the case.
Commissioner
The head of a government department. In this context, Judy Lowe, the Commissioner of the Arizona Department of Real Estate, who adopted the ALJ’s decision.
First Level Association
An individual homeowner’s association within a larger development that also has a master association. The Respondent, Sycamore Vista No. 8 HOA, is a first level association.
Master HOA
The Sycamore Vista Master Home Owner’s Association. An overarching organization that governs expenses and common areas concerning an entire development composed of multiple first-level associations.
Office of Administrative Hearings (OAH)
The state agency that conducts administrative hearings for other state agencies. This case was referred to the OAH by the Department of Real Estate.
Petitioner
The party who files a petition or brings an action in a legal proceeding. In this case, Jay Janicek.
A map, drawn to scale, showing the divisions of a piece of land. The missing plat in this case was intended to show the “Common Areas.”
Preponderance of the Evidence
The standard of proof in most civil cases. It requires that the evidence shows a claim is more likely to be true than not true.
Respondent
The party against whom a petition is filed or who is responding to a legal action. In this case, Sycamore Vista No. 8 HOA.
Rule Against Perpetuities
A legal rule that prevents a property owner from controlling the disposition of their property for an indefinite period after their death. The ALJ found it did not apply in this HOA context.
Unimproved Lot Assessments
Fees imposed on the owners of undeveloped lots to pay for the costs of improving certain areas, as described in Section 6.13 of the CC&Rs.
Unimproved Lots
Parcels of land within the development that have not yet been built upon.
Blog Post – 17F-H1717033-REL
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17F-H1717033-REL
3 sources
These documents chronicle the legal proceedings of a dispute between Jay Janicek, the Petitioner, and Sycamore Vista No. 8 HOA, the Respondent, before the Office of Administrative Hearings. The first source is an “Order Holding Record Open,” dated July 12, 2017, which temporarily extends the deadline for submitting additional evidence. The subsequent sources contain the “Administrative Law Judge Decision” issued on August 14, 2017, which outlines the hearing details and the judge’s recommendation to deny the petition because Janicek failed to establish a violation of the HOA’s Covenants, Conditions, and Restrictions. Finally, the third document presents the “Final Order” from the Department of Real Estate Commissioner on August 21, 2017, which accepts and affirms the Administrative Law Judge’s decision to deny the petition. Janicek’s core claim argued that certain master association fees were disproportionately applied and did not benefit all homeowners equally, which the judge ultimately dismissed due to a lack of supporting legal authority or CC&R provisions.
Based on 3 sources
Case Participants
Petitioner Side
Jay Janicek(petitioner)
Respondent Side
Evan Thompson(HOA attorney) Thompson Krone PLC Attorney for Respondent
Steve Russo(respondent representative)
Neutral Parties
Dorinda M. Lang(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
Dan Gardner(HOA Coordinator) Office of Administrative Hearings Addressee for rehearing request
Other Participants
John Shields(observer)
Margery Janicek(observer)
Mathew Janicek(observer)
M. Aguirre(unknown) Thompson Krone PLC Listed on transmittal documents
The ALJ found that the Petitioner did not establish a violation of the Respondent's CC&Rs and recommended the petition be denied. The ALJ specifically noted the lack of proof that fees were inappropriate and that Petitioner failed to provide legal authority requiring equal benefit. The petition was denied, and the Respondent was not ordered to pay the Petitioner's filing fee.
Why this result: The Petitioner failed to meet the burden of proof required to establish a violation of the CC&Rs.
Key Issues & Findings
Alleged violation of CC&Rs regarding disproportionate assessment fees
Petitioner alleged Respondent was in violation of its CC&Rs because Master HOA fees were disproportionately borne by existing homeowners and did not benefit the whole development equally. Petitioner failed to establish a violation because required evidentiary documents (plat attached as 'Exhibit B') were missing, and Petitioner offered no legal authority requiring fees to be equally beneficial or even-handed.
Orders: Petitioner's petition is denied. Respondent shall not pay the filing fee required by section 32-2199.01 to the Petitioner.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199 et seq.
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.A.C. R2-19-119(B)
Analytics Highlights
Topics: CC&Rs, Master HOA, Assessment Fees, Common Areas, Burden of Proof, Rule Against Perpetuities
Additional Citations:
A.R.S. § 32-2199
A.R.S. § 32-2199.01
A.R.S. § 32-2199.02
A.A.C. R2-19-119
Video Overview
Audio Overview
Decision Documents
17F-H1717033-REL Decision – 575166.pdf
Uploaded 2026-01-23T17:20:21 (39.1 KB)
17F-H1717033-REL Decision – 582189.pdf
Uploaded 2026-01-23T17:20:24 (69.4 KB)
17F-H1717033-REL Decision – 584918.pdf
Uploaded 2026-01-23T17:20:27 (674.1 KB)
Briefing Doc – 17F-H1717033-REL
Administrative Hearing Briefing: Janicek v. Sycamore Vista No. 8 HOA
Executive Summary
This briefing document synthesizes the key findings and legal proceedings in case number 17F-H1717033-REL, wherein Petitioner Jay Janicek filed a complaint against Respondent Sycamore Vista No. 8 HOA. The petition was ultimately denied by an Administrative Law Judge (ALJ), a decision formally adopted and finalized by the Commissioner of the Arizona Department of Real Estate.
The core of the dispute centered on the Petitioner’s allegation that the HOA’s fee structure violated its Covenants, Conditions, and Restrictions (CC&Rs). Specifically, Janicek argued that payments made by his first-level association to a master association for common area expenses—most egregiously for a roadway loan—were improper because the benefits were not distributed equally among all homeowners.
The denial of the petition hinged on a critical failure of proof by the Petitioner. The CC&Rs define “Common Areas” by referencing a plat map (“Exhibit B”) that was not submitted into evidence by the Petitioner. Without this crucial document, it was impossible to prove that the fees collected by the HOA were for purposes outside the scope of the CC&Rs. Furthermore, the Petitioner failed to provide any legal authority or provision within the governing documents requiring that association fees be “even-handed or equally beneficial to all homeowners.” A secondary argument regarding the “rule against perpetuities,” introduced post-hearing, was also addressed and dismissed by the ALJ as legally inapplicable to the matter.
Case Overview
The following table outlines the principal parties and details of the administrative hearing.
Case Detail
Information
Petitioner
Jay Janicek
Respondent
Sycamore Vista No. 8 HOA
Respondent’s Counsel
Evan Thompson, Thompson Krone PLC
Respondent’s Representative
Steve Russo
Case Number
17F-H1717033-REL
Docket Number
17F-H1717033-REL
Hearing Date
July 12, 2017
Presiding Judge
Dorinda M. Lang, Administrative Law Judge
Hearing Observers
John Shields, Margery and Mathew Janicek
Petitioner’s Allegations
The petition filed by Jay Janicek alleged that Sycamore Vista No. 8 HOA was in violation of its governing CC&Rs. The central arguments presented were:
• Unequal Distribution of Costs and Benefits: The Petitioner contended that expenses paid by the Respondent association to the Sycamore Vista Master Home Owner’s Association (“Master HOA”) did not benefit all homeowners equally. The most “egregious” example cited was the payment toward a loan for a roadway within the master development.
• Violation of CC&Rs: The Petitioner argued that this unequal cost burden was a direct violation of Article 11, Section 11.5 of the Respondent’s CC&Rs. This section stipulates:
• Discrepancy Among Associations: The Petitioner asserted that another first-level association within the master development receives more benefit from the common areas but does not pay into the Master HOA.
• Rule Against Perpetuities: In a post-hearing submission, the Petitioner introduced a new argument that a “rule against perpetuities” was at stake in the matter.
Adjudication and Findings of Fact
The Administrative Law Judge’s decision was based on the Petitioner’s failure to meet the required burden of proof through a preponderance of the evidence.
Evidentiary Failure
The Petitioner’s case failed primarily due to a lack of sufficient evidence to prove a violation of the CC&Rs.
• Missing ‘Exhibit B’: The definition of “Common Areas” was essential to the case. According to Article 1, Section 1.6 of the CC&Rs, these areas are delineated on a plat that was supposed to be attached as “Exhibit B.”
• Critical Finding: The ALJ noted, “Unfortunately, there was no plat attached to the document that was offered into evidence and it was not to be found among the other exhibits. Therefore, Petitioner was unable to establish that Respondent’s fees pay for anything that is not provided for in the CC&Rs.”
• Petitioner’s Concession: The Petitioner did not dispute the Respondent’s argument that the Master HOA fees, including those for roads, were for Common Areas.
Lack of Legal Authority
The Petitioner’s core premise—that fees must be proportional to benefits received—was not substantiated by legal or documentary support.
• The ALJ found that the “Petitioner offered no legal authority that requires that all first level associations must pay the same into a master association or that all homeowners must receive the same benefit from or contribute the same amount (or even a proportionate share) to the common areas.”
• The argument that association fees were “disproportionately heavy” was not established to be a violation of any provision in the CC&Rs.
Post-Hearing Submissions
The record was held open until August 1, 2017, allowing for additional documentation from both parties.
• Petitioner (Exhibit 6): Submitted financial documentation, emails, and the argument concerning the rule against perpetuities.
• Respondent (Exhibit H): Submitted a Notice of Lien and attachments. This exhibit demonstrated that, regarding a lien for water services on properties not part of the Respondent HOA, the “Respondent’s homeowners are not responsible for it.”
Conclusions of Law and Final Decision
Based on the evidence and arguments presented, the ALJ denied the petition, a decision later finalized by the Arizona Department of Real Estate.
Denial of Petition
• The primary conclusion of law was that the “Petitioner has not established that Respondent is in violation of its CC&Rs.”
• The payment for Common Areas was found to be in comportment with the CC&Rs.
Rejection of Key Arguments
• Equal Benefit: The ALJ explicitly concluded: “Petitioner has offered no legal authority or provision of the CC&Rs that requires the association fees to be even-handed or equally beneficial to all homeowners.”
• Rule Against Perpetuities: While this argument was not part of the original petition, the ALJ addressed it to “lay a concern to rest.” The judge explained that the rule, which states that property ownership must vest within a lifetime plus 21 years, evolved from estate law and does not apply to HOA property sales where ownership vests immediately in the developer or a new owner. The judge concluded, “the rule against perpetuities does not apply to a homeowner’s association and it clearly does not apply in this matter.”
Timeline of Orders
1. July 12, 2017: An “Order Holding Record Open” was issued by ALJ Dorinda M. Lang.
2. August 14, 2017: The “Administrative Law Judge Decision” was issued, ordering that the Petitioner’s petition be denied.
3. August 21, 2017: A “Final Order” was issued by Judy Lowe, Commissioner of the Department of Real Estate, adopting the ALJ’s decision and officially denying the petition.
Post-Decision Procedures
The Final Order, effective August 21, 2017, concluded the administrative action and outlined the subsequent options available to the parties.
• The order is binding unless a rehearing is granted. A request for rehearing must be filed within 30 days of the service of the final order.
• A rehearing may be granted for the following causes:
1. Irregularity in the proceedings or any order or abuse of discretion that deprived a party of a fair hearing.
2. Misconduct by the Department, ALJ, or the prevailing party.
3. Accident or surprise that could not have been prevented by ordinary prudence.
4. Newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.
5. Excessive or insufficient penalties.
6. Error in the admission or rejection of evidence or other errors of law occurring during the proceeding.
7. The findings of fact or decision is arbitrary, capricious, or an abuse of discretion.
8. The findings of fact or decision is not supported by the evidence or is contrary to law.
• Parties may appeal the final administrative action by filing a complaint for judicial review.
Study Guide – 17F-H1717033-REL
Study Guide: Janicek v. Sycamore Vista No. 8 HOA
This guide provides a comprehensive review of the administrative hearing case No. 17F-H1717033-REL, Jay Janicek v. Sycamore Vista No. 8 HOA. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, arguments, and legal conclusions.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, based on the information provided in the case documents.
1. Who were the primary parties in this legal matter, and what were their designated roles?
2. What was the central allegation made by the Petitioner against the Respondent?
3. Which specific article and section of the Covenants, Conditions, and Restrictions (CC&Rs) did the Petitioner claim the Respondent had violated?
4. Explain the key piece of evidence that was missing and why its absence was critical to the case’s outcome.
5. What was the Respondent’s main argument regarding the fees paid to the Master HOA?
6. According to the case documents, who held the burden of proof, and what was the required standard of proof?
7. What was the “rule against perpetuities,” and what reason did the Administrative Law Judge give for its inapplicability to this case?
8. What was the ultimate decision of the Administrative Law Judge, and on what date was it issued?
9. After the hearing, the record was held open. What was the purpose of this, and what types of materials were submitted by the parties during this period?
10. What action did the Commissioner of the Department of Real Estate take after receiving the Administrative Law Judge’s decision?
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Answer Key
1. The primary parties were Jay Janicek, designated as the Petitioner, and Sycamore Vista No. 8 HOA, designated as the Respondent. The Petitioner is the party who filed the complaint, and the Respondent is the party against whom the complaint was filed.
2. The Petitioner alleged that the Respondent HOA was in violation of its CC&Rs. He argued that the fees his association paid to the Master HOA for a roadway loan did not benefit the whole development equally and were therefore inappropriate expenses for all homeowners to pay.
3. The Petitioner cited Article 11, Section 11.5 of the Respondent’s CC&Rs. This section, titled “Costs of Improvements,” details how the costs for improving Unimproved Lots and Common Areas in Phase 3 and Phase 4 are to be borne by the owners of lots within those specific phases.
4. The key missing evidence was a plat, referred to as “Exhibit B” in the CC&Rs. This plat was supposed to define the “Common Areas,” and without it, the Petitioner was unable to establish that the fees paid by the Respondent were for anything not provided for in the governing documents.
5. The Respondent argued that the Master HOA fees were used to pay for the development’s common areas. They maintained that the CC&Rs permit these payments and that there is no legal authority requiring all homeowners to receive the same benefit or for all first-level associations to contribute equally.
6. Pursuant to A.A.C. R2-19-119(B), the Petitioner, Jay Janicek, had the burden of proof in this matter. The standard of proof was a preponderance of the evidence, as established by A.A.C. R2-19-119(A).
7. The rule against perpetuities states that property ownership must vest within a time frame of an existing lifetime plus 21 years. The Judge ruled it did not apply because it evolved to handle estates bequeathed to a series of heirs and is not generally applicable to property sales where rights transfer at once; in the HOA’s case, ownership of undeveloped lots had already vested in the developer.
8. The Administrative Law Judge ordered that the Petitioner’s petition be denied. This decision was made on August 14, 2017.
9. The record was held open until August 1, 2017, to allow the Respondent to submit additional documentation and for the Petitioner to submit written objections. During this time, the Petitioner submitted financial documentation, emails, and a new argument about the rule against perpetuities (admitted as Exhibit 6), while the Respondent submitted a Notice of Lien (admitted as Exhibit H).
10. The Commissioner of the Department of Real Estate, Judy Lowe, adopted the Administrative Law Judge’s decision. This was formalized in a Final Order dated August 21, 2017, which accepted the ALJ’s recommendation and denied the Petitioner’s petition.
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Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a detailed essay-style response for each.
1. Analyze the critical evidentiary failure that led to the denial of Jay Janicek’s petition. How did the absence of the plat referred to as “Exhibit B” directly impact his ability to meet the “preponderance of the evidence” standard of proof?
2. Discuss the legal reasoning behind the Administrative Law Judge’s conclusion that there is no requirement for HOA fees to be “even-handed or equally beneficial to all homeowners.” How does this principle relate to the hierarchical structure of Master and first-level associations described in the case?
3. Explain the concept of the “rule against perpetuities” as described in the legal decision. Detail why the Administrative Law Judge, despite noting the argument was outside the original petition, addressed it and ultimately found it inapplicable to the case of a homeowner’s association.
4. Trace the procedural path of this case from the initial hearing to the final binding order. Identify the key dates, decisions, and entities involved at each stage, including the Office of Administrative Hearings and the Department of Real Estate.
5. Based on the Final Order, outline the process and potential grounds for requesting a rehearing. What were the eight specific causes listed in the order that could materially affect a moving party’s rights and justify a rehearing or review?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, Dorinda M. Lang served as the ALJ.
A.A.C.
Abbreviation for Arizona Administrative Code, a compilation of rules and regulations of Arizona state agencies.
A.R.S.
Abbreviation for Arizona Revised Statutes, the collection of all the laws of the state of Arizona.
Areas of Association Responsibility
Locations that the Homeowner’s Association is responsible for maintaining, as defined within its governing documents.
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the burden of proof was on the Petitioner.
Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision.
Common Areas
Areas within a housing development that are owned by the association for the use and benefit of all homeowners. The definition of these areas was a central issue in the case.
Commissioner
The head of a government department. In this context, Judy Lowe, the Commissioner of the Arizona Department of Real Estate, who adopted the ALJ’s decision.
First Level Association
An individual homeowner’s association within a larger development that also has a master association. The Respondent, Sycamore Vista No. 8 HOA, is a first level association.
Master HOA
The Sycamore Vista Master Home Owner’s Association. An overarching organization that governs expenses and common areas concerning an entire development composed of multiple first-level associations.
Office of Administrative Hearings (OAH)
The state agency that conducts administrative hearings for other state agencies. This case was referred to the OAH by the Department of Real Estate.
Petitioner
The party who files a petition or brings an action in a legal proceeding. In this case, Jay Janicek.
A map, drawn to scale, showing the divisions of a piece of land. The missing plat in this case was intended to show the “Common Areas.”
Preponderance of the Evidence
The standard of proof in most civil cases. It requires that the evidence shows a claim is more likely to be true than not true.
Respondent
The party against whom a petition is filed or who is responding to a legal action. In this case, Sycamore Vista No. 8 HOA.
Rule Against Perpetuities
A legal rule that prevents a property owner from controlling the disposition of their property for an indefinite period after their death. The ALJ found it did not apply in this HOA context.
Unimproved Lot Assessments
Fees imposed on the owners of undeveloped lots to pay for the costs of improving certain areas, as described in Section 6.13 of the CC&Rs.
Unimproved Lots
Parcels of land within the development that have not yet been built upon.
Blog Post – 17F-H1717033-REL
Select all sources
575166.pdf
582189.pdf
584918.pdf
No emoji found
Loading
17F-H1717033-REL
3 sources
These documents chronicle the legal proceedings of a dispute between Jay Janicek, the Petitioner, and Sycamore Vista No. 8 HOA, the Respondent, before the Office of Administrative Hearings. The first source is an “Order Holding Record Open,” dated July 12, 2017, which temporarily extends the deadline for submitting additional evidence. The subsequent sources contain the “Administrative Law Judge Decision” issued on August 14, 2017, which outlines the hearing details and the judge’s recommendation to deny the petition because Janicek failed to establish a violation of the HOA’s Covenants, Conditions, and Restrictions. Finally, the third document presents the “Final Order” from the Department of Real Estate Commissioner on August 21, 2017, which accepts and affirms the Administrative Law Judge’s decision to deny the petition. Janicek’s core claim argued that certain master association fees were disproportionately applied and did not benefit all homeowners equally, which the judge ultimately dismissed due to a lack of supporting legal authority or CC&R provisions.
Based on 3 sources
Case Participants
Petitioner Side
Jay Janicek(petitioner)
Respondent Side
Evan Thompson(HOA attorney) Thompson Krone PLC Attorney for Respondent
Steve Russo(respondent representative)
Neutral Parties
Dorinda M. Lang(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
Dan Gardner(HOA Coordinator) Office of Administrative Hearings Addressee for rehearing request
Other Participants
John Shields(observer)
Margery Janicek(observer)
Mathew Janicek(observer)
M. Aguirre(unknown) Thompson Krone PLC Listed on transmittal documents
