Sally Magana v. Wynstone Park Homeowners Association

Posted on October 29, 2025 by [email protected]

Case Summary

Case ID	25F-H070-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2025-10-29
Administrative Law Judge	Velva Moses-Thompson
Outcome	none
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Sally Magana	Counsel	—
Respondent	Wynstone Park Homeowners Association	Counsel	Ashley Turner

Alleged Violations

Title 8, Chapter 6, Article I – 8-6-3(T)
CC&Rs Section 7.1

Outcome Summary

The Administrative Law Judge dismissed the Petitioner's two-issue petition. The OAH lacked jurisdiction over the alleged violation of the City of Mesa Code Ordinance (parking/nuisance). On the CC&R violation claim (mischaracterizing maintenance), Petitioner failed to prove the HOA violated CC&Rs Section 7.1, as the evidence established that Petitioner made unapproved changes/alterations to the driveway extension.

Why this result: Petitioner failed to meet the burden of proof that the Respondent HOA violated CC&Rs, and the tribunal lacked jurisdiction to hear the municipal code violation claim.

Key Issues & Findings

HOA assessed a fine for public nuisances for parking on approved driveway extension

Petitioner alleged the HOA violated the Mesa City Ordinance by fining her for parking on her approved driveway extension. The extension approval dated back to 1998 and 2018.

Orders: Petition dismissed. The OAH determined it lacked jurisdiction to rule on alleged violations of City of Mesa Code Ordinances.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

Title 8, Chapter 6, Article I – 8-6-3(T)
A.R.S. § 32-2199(B)
A.R.S. § 32-2199.01(A)
A.R.S. § 33-1803

HOA mischaracterizing maintenance as an unauthorized modification

Petitioner claimed the work performed (lifting pavers, replacing sand with gravel/decomposed granite, and altering slope) was routine maintenance. Respondent argued this constituted an exterior change or alteration requiring prior written architectural approval, which Petitioner failed to obtain.

Orders: Petition dismissed. Petitioner failed to establish Respondent violated CC&Rs 7.1. Evidence showed Petitioner made changes to the surface under the pavers and the slope of the driveway extension without prior approval.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

CC&Rs Section 7.1
CC&Rs Section 10.1
Powell v. Washburn
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
A.R.S. § 41-1092.07(G)(2)

Analytics Highlights

Topics: HOA Enforcement, Architectural Review, Maintenance vs Modification, Jurisdiction, Mesa Code Ordinance, Pavers, Driveway Extension

Additional Citations:

Title 8, Chapter 6, Article I – 8-6-3(T)
CC&Rs Section 7.1
CC&Rs Section 10.1
A.R.S. § 32-2199(B)
A.R.S. § 32-2199.01(A)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A) and (B)(1)
A.A.C. R2-19-119(B)(2)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Powell v. Washburn
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Audio Overview

Decision Documents

25F-H070-REL Decision – 1350920.pdf

Uploaded 2026-01-23T18:26:35 (50.9 KB)

25F-H070-REL Decision – 1352025.pdf

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25F-H070-REL Decision – 1355826.pdf

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25F-H070-REL Decision – 1363586.pdf

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Briefing Doc – 25F-H070-REL

Briefing Document: Magana v. Wynstone Park Homeowners Association

Executive Summary

This document provides a comprehensive analysis of the administrative hearing and final decision in case number 25F-H070-REL, Sally Magana v. Wynstone Park Homeowners Association. The petitioner, Sally Magana, filed a two-issue petition alleging the Homeowners Association (HOA) improperly fined her for a public nuisance related to parking and mischaracterized necessary property maintenance as an unauthorized architectural modification.

The respondent, Wynstone Park HOA, countered that the Office of Administrative Hearings (OAH) lacked jurisdiction over the alleged city ordinance violation and that the work performed by the petitioner was, in fact, an unapproved “alteration” under the community’s Covenants, Conditions, and Restrictions (CC&Rs). The HOA maintained its enforcement actions were authorized and appropriate.

The Administrative Law Judge (ALJ) ultimately dismissed the petitioner’s case in its entirety. The decision was based on two key findings: 1) The OAH does not have the jurisdiction to rule on violations of a municipal (City of Mesa) ordinance, and 2) The petitioner failed to meet her burden of proof to establish that the HOA violated its own governing documents. The ALJ concluded that the work performed—which included removing the original paver base, installing a new gravel surface, and altering the slope of the driveway—constituted a “change or alteration” requiring prior approval under CC&R Section 7.1, which the petitioner did not obtain.

Case Overview

Entity / Individual

Petitioner

Sally Magana (Homeowner)

Respondent

Wynstone Park Homeowners Association (HOA)

Presiding Judge

Velva Moses-Thompson, Administrative Law Judge (ALJ)

Case Number

25F-H070-REL

Hearing Date

October 9, 2025

Decision Date

October 29, 2025

Timeline of Key Events

July 3, 2019

HOA granted a variance allowing Ms. Magana to park anywhere on her driveway extension.

Feb 26, 2021

HOA sent a notice to Ms. Magana for parking past the garage, citing nuisance under CC&R Section 8.4.

Jan 27, 2025

Ms. Magana submitted a Design Review Application to modify drainage under her paver extension.

Feb 11, 2025

HOA’s Architectural Review Committee (ARC) disapproved the application, citing the 50% lot coverage rule and nuisance complaints from a neighbor.

March 12, 2025

The HOA Board met with Ms. Magana at her property to discuss the matter.

May/June 2025

Ms. Magana proceeded with work on the pavers without ARC approval.

June 2, 2025

HOA issued a courtesy notice for an unapproved architectural change under CC&R Section 7.1.

June 11, 2025

HOA issued a Violation Notice with a $25 fine for the unapproved change.

July 14, 2025

HOA issued a second Violation Notice with a $50 fine.

July 17, 2025

Ms. Magana filed her petition with the Arizona Department of Real Estate.

Oct 29, 2025

The ALJ issued a decision dismissing the petition.

Petitioner’s Allegations and Arguments

Ms. Magana’s case was centered on two primary allegations:

1. Violation of Public Nuisance Ordinance: The petitioner alleged the HOA violated “Title 8, Chapter 6, Article I, 8-6-3: PUBLIC NUISANCES PROHIBITED” of the City of Mesa code by fining her for parking on her driveway extension. She argued that the extension was approved in 1998 and reaffirmed by an HOA variance in 2019, making the fine improper.

2. Violation of CC&R Section 7.1 (Architectural Approval): The petitioner contended that the HOA mischaracterized routine maintenance as an “unauthorized modification.” She argued the work was necessary to correct a drainage issue causing water pooling against her foundation and creating a risk of termites. Her position was that since no new pavers were installed and the layout was not changed, the work did not constitute an architectural change requiring ARC approval. She also raised the issue of selective enforcement, providing photos of other homes with alleged violations that had not been cited.

Respondent’s Position and Defense

The HOA’s defense, presented by attorney Ashley Turner and Board President Andrew Hancock, rested on the following points:

1. Jurisdictional Challenge: The HOA argued that the OAH does not have jurisdiction to decide whether the association violated a City of Mesa ordinance, and that this issue should be dismissed on that basis alone.

2. The Work Was an “Alteration,” Not “Maintenance”: The HOA asserted that the work performed went beyond simple maintenance. Testimony revealed that the original play sand base was removed, a new decomposed granite base was installed, and the grade of the surface was altered to change the slope and water flow. The HOA considered these actions a “change or alteration” as defined in CC&R Section 7.1, which explicitly requires prior written approval from the ARC.

3. Proper Denial and Enforcement: The HOA’s denial of Ms. Magana’s initial application was based on established Design Guidelines, specifically that the total parking area “may not exceed… fifty percent (50%) of the lot width.” The denial also cited ongoing nuisance complaints from a neighbor regarding noise and access issues caused by vehicles parked on the extension. The subsequent fines were issued in accordance with the HOA’s enforcement policy after Ms. Magana completed the work without approval.

4. Authority to Enforce: The HOA cited CC&R Section 10.1, which grants it the right to enforce all covenants and restrictions in the governing documents.

Key Testimonies and Evidence

Witness Testimony

• Rita Elizalde (Petitioner’s Witness; Owner, JLE Heartscape and Design):

◦ Testified that the initial proposal, which included drains, was not executed due to the HOA’s denial.

◦ Characterized the work performed as “a maintenance on what you already had” to correct sinking pavers and water pooling against the foundation.

◦ Confirmed that the previous installer had used an improper “play sand base,” which her company removed.

◦ Stated they installed a new base of “decomposite granite,” replaced the original pavers in the same design, and added polymeric sand to lock them in.

◦ Confirmed the ground “had to be sloped back a little bit” to ensure water ran toward the street and not toward the neighbor’s property or the house foundation.

• Andrew Hancock (Respondent’s Witness; HOA Board President):

◦ Testified that the board considered the work a “change to the design of the pavers” because it addressed slope and drainage issues, which is more than basic maintenance.

◦ Stated that the board denied the initial application due to the 50% lot coverage rule and nuisance complaints from the neighbor, which included “the sound of the vehicle’s wake child” and the car blocking the neighbor’s access for taking out trash cans.

◦ Clarified that the board offered Ms. Magana two potential compromises: stopping the pavers at the garage line or bringing her fence/gate forward to be in line with the garage.

◦ Testified that photos of the work in progress (Exhibit G) showed all pavers removed and the base grading “manipulated.” He also noted what appeared to be new PVC piping.

◦ Referencing a photo of the pre-maintenance water pooling (Exhibit E), he testified that it showed water flowing “over the end border into the gravel and the neighbor’s yard.”

Key Exhibits

Exhibit #

Description & Significance

Respondent

The HOA’s CC&Rs, establishing the rules for architectural approval (Sec 7.1) and enforcement (Sec 10.1).

Respondent

Ms. Magana’s initial Design Review Application (denied) and a photo showing significant water pooling on the pavers and onto the neighboring lot.

Petitioner

Before and after photos of the paver extension, intended to show no visual change in design.

Respondent

Photos taken during the project showing all pavers removed, piled up, and the underlying base exposed and re-graded.

H, I, K

Respondent

The series of enforcement letters: Courtesy Notice (June 2), $25 Fine (June 11), and $50 Fine (July 14) for the unapproved alteration.

Petitioner

The HOA’s Design Guidelines, which include the 50% lot width limitation for parking areas.

Administrative Law Judge’s Decision and Rationale

The ALJ’s final decision dismissed Ms. Magana’s petition. The ruling was grounded in the following conclusions of law:

• Lack of Jurisdiction over Municipal Ordinance: The ALJ determined that “The OAH does not have jurisdiction to determine whether a planned community organization has violated a City of Mesa Code Ordinance.” This effectively dismissed the first issue of the petition without ruling on its merits.

• Petitioner’s Failure to Meet Burden of Proof: For the second issue, the ALJ found that the petitioner bore the burden of proving the HOA violated its CC&Rs and failed to do so. The decision noted:

◦ CC&R Section 7.1 regulates homeowners, requiring them to obtain prior approval for any “exterior addition, change, or alteration.”

◦ The preponderance of evidence, including testimony from the petitioner’s own witness (Ms. Elizalde), showed that changes were made to the surface under the pavers and to the slope of the driveway.

◦ These actions constitute an “alteration” under the CC&Rs.

◦ Because Ms. Magana made these changes without prior approval, she did not establish that the HOA mischaracterized her actions or violated Section 7.1.

• HOA’s Authority to Enforce: The decision affirmed that CC&R Section 10.1 authorizes the respondent to enforce its governing documents.

The final order concluded: “Petitioner has failed to meet her burden to establish that Respondent violated Respondent’s CC&Rs, governing document, or any statutes that regulate planned communities. Petitioner’s petition should be dismissed.”

Case Participants

Petitioner Side

Sally Magana (petitioner)
Also referred to as Complainant
Rita Elizalde (witness)
JLE Heartscape and Design
Also referred to as Rita Estelle
Jesus Ortiz (witness)
Adeline Escudero-Mendoza (witness)
Also referred to as Adeline Escudero

Respondent Side

Ashley Turner (HOA attorney)
CHDB Law
Andrew Hancock (board president/witness)
Wynstone Park Homeowners Association
President of Respondent's Board
Jennifer Irving (board member)
Wynstone Park Homeowners Association
Vice President of the HOA Board
Dawn Feigert (property manager)
Trestle Management Group
Community Manager
Lea Austin (property manager)
Trestle Management Group
Community Manager

Neutral Parties

Velva Moses-Thompson (ALJ)
Office of Administrative Hearings
Susan Nicolson (Commissioner)
Arizona Department of Real Estate

Richard J. Jones v. Desert Oasis of Surprise Master Association

Posted on November 15, 2021 by [email protected]

Case Summary

Case ID	21F-H2121038-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2021-11-15
Administrative Law Judge	Thomas Shedden
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Richard J Jones	Counsel	—
Respondent	Desert Oasis of Surprise Master Association	Counsel	Troy Stratman, Esq.

Alleged Violations

Design Guidelines; CC&Rs Section 4.1.1

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that Petitioner Richard J. Jones failed to meet his burden of proof to show the Association violated its Design Guidelines or engaged in selective enforcement.

Why this result: Petitioner did not show by a preponderance of the evidence that the Association violated the Guidelines or engaged in selective enforcement. Evidence indicated that the Petitioner was in violation of the existing Guidelines by failing to obtain prior approval for his driveway extension and failing to meet the required setback.

Key Issues & Findings

Petitioner alleged the Association violated Design Guidelines regarding setback requirements for driveway extensions and engaged in selective enforcement.

Petitioner filed a single issue petition asserting that Design Guidelines did not require a twelve-inch setback for driveway extensions from the property line and that the Association was selectively enforcing its rules. The Petitioner had installed a concrete driveway extension without obtaining prior ARC approval, and approval was denied due to the lack of the twelve-inch setback.

Orders: Richard J. Jones’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. § 32-2199.02(A)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
Tierra Ranchos Homeowners Ass’n v Kitchukov, 216 Ariz. 173, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: Driveway Extension, Architectural Review Committee, Setback Requirements, Design Guidelines, Selective Enforcement, HOA Violation

Additional Citations:

ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section 32-2199.04
ARIZ. REV. STAT. section 41-1092.09
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
Tierra Ranchos Homeowners Ass’n v Kitchukov, 216 Ariz. 173, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

21F-H2121038-REL Decision – 924982.pdf

Uploaded 2026-01-23T17:36:52 (100.9 KB)

21F-H2121038-REL Decision – 924983.pdf

Uploaded 2026-01-23T17:36:57 (94.9 KB)

Briefing Doc – 21F-H2121038-REL

Briefing Document: Jones v. Desert Oasis of Surprise Master Association

Executive Summary

This document synthesizes the findings and conclusions of the Administrative Law Judge in the case of Richard J. Jones versus the Desert Oasis of Surprise Master Association (Case No. 21F-H2121038-REL). The dispute centered on a concrete driveway extension installed by Mr. Jones without the prior approval of the Association’s Architectural Review Committee (ARC). Mr. Jones contested the Association’s denial of his post-installation application, alleging that the Design Guidelines were misinterpreted and selectively enforced.

The Administrative Law Judge, Thomas Shedden, ultimately dismissed Mr. Jones’s petition. The decision rested on three key determinations:

1. Clear Violation: Mr. Jones was in direct violation of the Design Guidelines by failing to obtain prior approval for the modification and by not adhering to a mandatory 12-inch setback from the common block wall, a fact he acknowledged.

2. Reasonable Interpretation: The Association’s interpretation that the 12-inch setback requirement applied to the entire property line—not just the block wall—was deemed “not unreasonable,” particularly since the common wall is part of the property line.

3. Failure to Prove Selective Enforcement: Mr. Jones did not meet the “preponderance of the evidence” standard to prove his claim of selective enforcement. The Association provided credible evidence demonstrating consistent application of the setback rule to other homeowners.

The final order upholds the Association’s enforcement actions and dismisses the petitioner’s claims.

Case Overview

Parties and Jurisdictional Details

Name / Entity

Representation

Petitioner

Richard J. Jones

On his own behalf

Respondent

Desert Oasis of Surprise Master Association

Troy Stratman, Esq.

Adjudicator

Thomas Shedden

Administrative Law Judge

Case No.

21F-H2121038-REL

Hearing Date

November 2, 2021

Decision Date

November 15, 2021

Core Dispute

The central conflict arose from a concrete driveway extension installed by Richard J. Jones on his property on May 11, 2020. The installation was performed without submitting a request for prior approval to the Association’s Architectural Review Committee (ARC), a violation of the community’s CC&Rs. Following the installation, the ARC denied Mr. Jones’s retroactive application, citing its failure to meet a required 12-inch setback from the property line. This led to a notice of non-compliance and a fine, prompting Mr. Jones to file a petition with the Arizona Department of Real Estate.

Chronology of Events

• April 2020: Mr. Jones contacted AAM, LLC, the Association’s property management company, to inquire about adding concrete strips. He was informed this was not allowed but that an employee could assist with an approval process for a paver driveway extension.

• May 11, 2020: Having not received further guidance from the management company, Mr. Jones proceeded to have the concrete driveway extension installed.

• Post-May 11, 2020: Mr. Jones submitted an application to the ARC for retroactive approval of the already-installed extension.

• December 2, 2020: The ARC formally denied Mr. Jones’s application. The denial letter stated the extension did not meet the 12-inch setback requirement and advised him to reapply after cutting the driveway back from the property line.

• January 12, 2021: The Association issued a Second Notice of Non-compliance/Fine.

• February 12, 2021: Mr. Jones filed a petition with the Department of Real Estate, alleging the Association was misinterpreting and selectively enforcing its Design Guidelines.

• November 2, 2021: The administrative hearing was conducted.

• November 15, 2021: The Administrative Law Judge issued a decision dismissing Mr. Jones’s petition.

Analysis of Arguments and Evidence

Petitioner’s Position (Richard J. Jones)

Mr. Jones’s case was built on two primary arguments:

• Interpretation of Design Guidelines: He contended that the Guidelines in effect at the time of installation required a 12-inch setback from the “common wall” but were silent regarding the “property line.” He argued that since the Guidelines explicitly mandated a property line setback for sidewalks, the absence of such language for driveway extensions meant the requirement did not apply.

• Allegation of Selective Enforcement: He asserted that the Association was applying its Guidelines and Rules inconsistently among homeowners.

During testimony, Mr. Jones acknowledged that his driveway extension did not comply with the 12-inch setback from the common wall and expressed a willingness to correct that specific deficiency. He also testified that his neighbors did not object to the extension as installed.

Respondent’s Position (Desert Oasis of Surprise Master Association)

The Association, represented by counsel, presented a multi-faceted defense:

• Procedural Failure: A core issue was Mr. Jones’s failure to obtain prior approval from the ARC before installation, as mandated by Section 4.1.1 of the CC&Rs.

• Violation of Setback Rule: The Association maintained that the extension violated the required 12-inch setback. The property manager, Paul Favale, testified that this rule is intended to ensure water does not drain onto a neighbor’s property.

• Evidence of Consistent Enforcement: To counter the claim of selective enforcement, the Association submitted an “Architectural Status Report” for the period of August 27, 2020, through April 21, 2021. This report demonstrated that other homeowners’ requests for driveway extensions had also been denied for failing to meet the 12-inch property line setback.

It was also noted that the Design Guidelines have since been modified to explicitly require a 12-inch setback from both the common wall and the property line.

Administrative Law Judge’s Findings and Conclusions

The Judge’s decision was based on a thorough analysis of the evidence presented and the applicable legal standards.

Key Findings of Fact

• Mr. Jones installed the driveway extension on May 11, 2020, without prior approval from the ARC.

• The extension does not have a 12-inch setback from the common block wall, which is part of the property line.

• The Design Guidelines at the time explicitly required a 12-inch setback from the block wall.

• Mr. Jones acknowledged his non-compliance with the block wall setback requirement.

Conclusions of Law

The Judge concluded that Mr. Jones failed to meet his burden of proof, which required demonstrating a violation by the Association by a “preponderance of the evidence.”

1. Petitioner’s Violation: Mr. Jones was found to be in violation of the Guidelines. His acknowledgment that the driveway did not comply with the 12-inch setback from the common wall was a critical factor.

2. Reasonableness of Association’s Interpretation: The Judge determined that the Association’s interpretation of the Guidelines—requiring a 12-inch setback along the entire property line—was “not unreasonable.” This conclusion was supported by two points: the common wall is physically part of the property line, and Mr. Jones had failed to follow the required prior approval process, where such ambiguities would have been clarified.

3. No Evidence of Selective Enforcement: The Association presented “credible evidence” via its Architectural Status Report showing that other members were subject to the same rule. Consequently, Mr. Jones “did not show by a preponderance of the evidence that the Association was selectively enforcing the Guidelines.”

Final Order and Implications

• Order: The Judge ordered that Richard J. Jones’s petition be dismissed.

• Legal Standing: The decision is binding on both parties.

• Appeal Process: The order can only be challenged through a request for rehearing, which must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order (November 15, 2021).

Study Guide – 21F-H2121038-REL

Study Guide: Jones v. Desert Oasis of Surprise Master Association

This guide provides a comprehensive review of the administrative case No. 21F-H2121038-REL, involving Petitioner Richard J. Jones and Respondent Desert Oasis of Surprise Master Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and final judgment.

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Short-Answer Quiz

Answer each of the following questions in 2-3 sentences based on the provided case documents.

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

2. What specific modification did Richard J. Jones make to his property, and on what date did he complete it?

3. What critical step did Mr. Jones fail to take before installing the modification, as required by Section 4.1.1 of the CC&Rs?

4. According to the Design Guidelines in effect at the time of installation, what was the specific rule regarding the placement of driveway extensions that Mr. Jones’s project violated?

5. What was Mr. Jones’s main argument regarding the ambiguity of the Design Guidelines concerning the twelve-inch setback requirement?

6. What justification did the Association’s property manager, Paul Favale, provide for the setback requirement?

7. What were the two primary claims Mr. Jones made against the Association in his petition filed on February 12, 2021?

8. What is the standard of proof required in this matter, and which party carried the burden of meeting that standard?

9. How did the Association counter Mr. Jones’s claim that it was selectively enforcing its rules?

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

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Answer Key

1. The primary parties were the Petitioner, Richard J. Jones, a homeowner who appeared on his own behalf, and the Respondent, the Desert Oasis of Surprise Master Association, which was represented by its counsel, Troy Stratman, Esq.

2. On May 11, 2020, Mr. Jones added a concrete driveway running from the street to a side gate on his property. This modification is referred to in the documents as a “driveway extension.”

3. Mr. Jones did not submit a request for prior approval to the Architectural Review Committee (ARC) before installing his driveway extension. This pre-approval is required for such modifications under the Association’s CC&Rs.

4. The driveway extension violated the rule requiring a twelve-inch setback from the common block wall. Mr. Jones acknowledged that his driveway did not comply with this specific requirement of the Design Guidelines.

5. Mr. Jones argued that since the Design Guidelines explicitly required a twelve-inch setback from the property line for sidewalks but did not explicitly state the same for driveway extensions, the requirement did not apply to his project along the full property line.

6. Mr. Favale testified that the purpose of the setback requirement is functional. It is designed to help ensure that water does not drain from one property onto a neighboring property.

7. Mr. Jones’s petition asserted that the Design Guidelines for driveway extensions did not require a setback from the property line (only the common wall). He also claimed that the Association was selectively enforcing its Guidelines and Rules against him.

8. The standard of proof was a preponderance of the evidence. The Petitioner, Mr. Jones, bore the burden of proof to show that the Association had violated its own guidelines.

9. The Association submitted an Architectural Status Report covering August 27, 2020, to April 21, 2021. This report provided credible evidence that other Association members had also been denied requests for driveway extensions due to a failure to meet the twelve-inch setback requirement.

10. The Administrative Law Judge, Thomas Shedden, ordered that Richard J. Jones’s petition be dismissed. The judge concluded that Mr. Jones had not met his burden of proof to show the Association had violated its guidelines or enforced them selectively.

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Essay Questions

The following questions are designed to encourage deeper analysis of the case. Answers are not provided.

1. Discuss the concept of “burden of proof” and the “preponderance of the evidence” standard as they were applied in this case. Explain specifically how Mr. Jones failed to meet this burden for both of his primary claims.

2. Analyze the legal reasoning used by the Administrative Law Judge to determine that the Association’s interpretation of its Design Guidelines was “not unreasonable.” Consider the judge’s reference to the common wall being part of the property line and Mr. Jones’s failure to obtain prior approval.

3. Trace the timeline of events from Mr. Jones’s initial inquiry to AAM, LLC in April 2020 to the final order in November 2021. Discuss how Mr. Jones’s decision to proceed with construction without explicit approval ultimately weakened his legal position.

4. Evaluate the claim of “selective enforcement.” What kind of evidence would Mr. Jones have needed to present to successfully prove this claim, and why was the Association’s Architectural Status Report considered more compelling evidence by the court?

5. The “Conclusions of Law” section states that the Design Guidelines are part of a contract between the parties. Using the facts of this case, explain the legal and practical implications of this principle for a homeowner living within a master association.

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Glossary of Key Terms

Definition

AAM, LLC

The property management company for the Desert Oasis of Surprise Master Association.

Administrative Law Judge (ALJ)

The judge who presides over administrative hearings and renders decisions. In this case, the ALJ was Thomas Shedden.

Architectural Review Committee (ARC)

The committee within the homeowners’ association responsible for reviewing and granting prior approval for modifications to properties, such as driveway extensions.

Burden of Proof

The obligation on a party in a dispute to provide sufficient evidence to support their claim. In this case, the burden of proof was on the petitioner, Mr. Jones.

An abbreviation for Covenants, Conditions, and Restrictions, which are the governing legal documents for a planned community or homeowners’ association.

Design Guidelines

A set of rules that are part of the contract between homeowners and the association, detailing requirements for property modifications.

Driveway Extension

As defined by the parties, a concrete driveway running from the street to a gate at the side of a house.

Petitioner

The party who files a petition to initiate a legal proceeding. In this case, Richard J. Jones.

Preponderance of the Evidence

The standard of proof required in this case. It is defined as evidence that has “the most convincing force” and is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”

Respondent

The party against whom a petition is filed. In this case, the Desert Oasis of Surprise Master Association.

Selective Enforcement

The legal claim that an association is not applying its rules and guidelines uniformly, instead penalizing some members while allowing others to violate the same rules.

Setback

A required distance that a structure must be located away from a property line or other feature, such as a common wall. In this case, the requirement was for a twelve-inch setback.

Blog Post – 21F-H2121038-REL

He Fought the HOA Over 12 Inches of Concrete—and Lost. Here Are 4 Surprising Lessons from His Case.

Navigating the rules of a Homeowners’ Association (HOA) can feel like walking through a minefield of regulations, where a small misstep can lead to notices, fines, and protracted disputes. For one homeowner, Richard J. Jones, a conflict with his HOA, the Desert Oasis of Surprise Master Association, over a new driveway extension escalated all the way to a formal hearing. The official legal decision in his case reveals several counter-intuitive truths about how these disputes are won and lost, offering valuable lessons for any homeowner living under HOA governance.

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1. “Asking for Forgiveness” is a Losing Strategy.

The first major takeaway is that violating rules first and hoping for retroactive approval is an approach doomed to fail, even when the situation feels complex. The story here is more nuanced than simple defiance. In April 2020, before any work began, Mr. Jones contacted the HOA’s management company about his plans. After being told his initial idea for “two concrete strips” was not allowed, he was directed to another employee for help with an application for a different design. According to the case file, Mr. Jones “did not hear back from her and he had the driveway extension installed” on May 11, 2020.

While his frustration is relatable, this impatient miscalculation was his crucial error. Section 4.1.1 of the community’s CC&Rs requires prior approval from the Architectural Review Committee (ARC). By proceeding without securing this written approval, Mr. Jones was in immediate violation. His subsequent application, submitted only after the work was done, was predictably denied on December 2, 2020. The lesson is stark: a breakdown in communication does not absolve a homeowner of their responsibility to follow procedure. The moment unapproved work begins, you are in breach of the community’s governing documents, and the merits of the project become secondary to the procedural failure.

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2. You Have to Prove the HOA is Wrong—Not the Other Way Around.

Many homeowners assume that in a dispute, the burden is on the HOA to prove the homeowner is wrong. The legal reality is the exact opposite. The Administrative Law Judge’s decision formally stated in Conclusion of Law #2 that Mr. Jones, as the petitioner who brought the case, bore the “burden of proof.”

To win, he had to demonstrate that the Association committed a violation by a “preponderance of the evidence.” The judge’s decision cites the formal definition from Black’s Law Dictionary, which essentially means the evidence presented must be convincing enough to incline a fair and impartial mind to one side of the issue rather than the other. The reality for homeowners is surprising and crucial: in a formal dispute, the legal scales are not neutral. You must actively build a case and convincingly prove the HOA has violated its own rules. Mr. Jones failed to meet this standard.

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3. A Small Loophole Isn’t Enough to Win.

Mr. Jones’s central argument rested on a perceived loophole in the governing documents. He claimed the Design Guidelines required a 12-inch setback from the “common wall” but were silent about the “property line” as a whole, and therefore the rule didn’t apply to the entirety of his project. This highlights a key aspect of HOA governance: the purpose behind a rule matters. The property manager testified that the setback requirement exists to “ensure that water does not drain to the neighbor’s property,” transforming the rule from an arbitrary measurement into a practical and defensible standard.

Ultimately, the judge was unpersuaded by the loophole argument, and the reason is a masterclass in how these cases are decided. The judge’s decision, articulated in Conclusion of Law #7, pointed out that the common wall is fundamentally part of the property line. More importantly, the decision explicitly connected this conclusion to Mr. Jones’s prior actions: “…considering that Mr. Jones did not obtain prior approval from ARC before constructing his driveway extension, the Association’s interpretation…is not unreasonable.” This is the crucial insight: his procedural failure (Lesson #1) directly weakened his ability to argue about ambiguous wording. An HOA’s reasonable interpretation of its own rules is far more likely to be upheld when the homeowner has already disregarded clear procedural mandates. Tellingly, the Association later modified the guidelines to explicitly close this perceived loophole.

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4. Proving “Selective Enforcement” is Harder Than You Think.

A common defense from homeowners is that the HOA is engaging in “selective enforcement”—singling them out while letting others get away with similar violations. Mr. Jones made this exact claim, but the Association came prepared with meticulous documentation to defeat it.

As detailed in Finding of Fact #21, the HOA presented an “Architectural Status Report” covering August 27, 2020 through April 21, 2021. This document provided time-stamped evidence that other homeowners’ requests for similar driveway extensions had also been consistently denied for failing to meet the same 12-inch setback requirement. This report systematically dismantled the selective enforcement argument. For homeowners, this underscores a critical point: the feeling of being singled out is not evidence. To win a selective enforcement claim, you must provide clear proof that other members in the exact same situation were treated differently, a high bar that an HOA with good records can easily overcome.

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Conclusion: A Contract is a Contract

The overarching theme from this case is that HOA governing documents are not merely suggestions; they are legally binding. As stated in Conclusion of Law #5, the Design Guidelines are part of a contract between the homeowner and the association. While HOA rules can often feel arbitrary or frustrating, they carry the weight of a contract. The path to successfully challenging them is narrow and requires a clear, well-documented case that proves the HOA, not the homeowner, has breached its duties.

This case serves as a powerful reminder for all community members. How well do you really know the contract you’re living under?

Case Participants

Petitioner Side

Richard J Jones (petitioner)
Appeared and testified on his own behalf

Respondent Side

Troy Stratman (attorney)
Stratman Law Firm, PLC
Counsel for Respondent
Paul Favale (property manager)
Desert Oasis of Surprise Master Association
Testified for Respondent
Angela Pate (property manager employee)
AAM, LLC
Contacted by Petitioner regarding installation inquiry

Neutral Parties

Thomas Shedden (ALJ)
Office of Administrative Hearings
Louis Dettorre (Commissioner)
Arizona Department of Real Estate
Recipient of decision
AHansen (ADRE staff)
Arizona Department of Real Estate
Recipient of decision (email alias listed)
djones (ADRE staff)
Arizona Department of Real Estate
Recipient of decision (email alias listed)
DGardner (ADRE staff)
Arizona Department of Real Estate
Recipient of decision (email alias listed)
Miranda Alvarez (Staff)
Transmitted decision

Michael and Nancy Berent vs, Bell West Ranch Homeowners Association

Posted on September 11, 2018 by [email protected]

Case Summary

Case ID	18F-H1818047-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-09-11
Administrative Law Judge	Tammy L. Eigenheer
Outcome	total_loss
Filing Fees Refunded	$2,000.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Michael and Nancy Berent	Counsel	—
Respondent	Bell West Ranch Homeowners Association	Counsel	Maria Kupillas

Alleged Violations

A.R.S. § 33-1803(B); CC&Rs Sections 8.02, 8.06, 6.02

Outcome Summary

The Petition was dismissed in its entirety because the Petitioners failed to establish by a preponderance of the evidence that the Bell West Ranch Homeowners Association violated the cited CC&Rs provisions (Sections 8.02, 8.06, 6.02) or A.R.S. § 33-1803(B).

Why this result: Petitioners failed to meet the burden of proof required to establish the alleged violations.

Key Issues & Findings

Alleged violations regarding failure to enforce city fire and municipal codes, failure to procure adequate insurance, and violations of specific CC&R provisions (8.02, 8.06, 6.02)

Petitioners alleged the HOA violated governing documents and statute by approving a neighbor's driveway extension which allegedly violated municipal codes and an easement, and by failing to maintain a properly constituted Architectural Committee. Petitioners failed to establish these violations by a preponderance of the evidence.

Orders: The Petition was dismissed in its entirety.

Filing fee: $2,000.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

A.R.S. § 33-1803(B)
CC&Rs Section 8.02
CC&Rs Section 8.06
CC&Rs Section 6.02

Analytics Highlights

Topics: HOA enforcement, CC&R violation, Architectural Committee, driveway extension, easement, municipal codes

Additional Citations:

A.R.S. § 33-1803(B)
A.R.S. § 41-2198.01
CC&Rs Section 8.02
CC&Rs Section 8.06
CC&Rs Section 6.02

Video Overview

Audio Overview

Decision Documents

18F-H1818047-REL Decision – 659285.pdf

Uploaded 2026-01-23T17:24:27 (142.7 KB)

18F-H1818047-REL Decision – 659287.pdf

Uploaded 2026-01-23T17:24:32 (193.9 KB)

18F-H1818047-REL Decision – 679550.pdf

Uploaded 2026-01-23T17:24:35 (133.6 KB)

18F-H1818047-REL Decision – 952813.pdf

Uploaded 2026-01-23T17:24:39 (42.6 KB)

18F-H1818047-REL Decision – 952828.pdf

Uploaded 2026-01-23T17:24:41 (30.5 KB)

Briefing Doc – 18F-H1818047-REL

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

Executive Summary

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

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

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

1. Case Overview

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

Case Detail

Information

Case Number

18F-H1818047-REL

Petitioners

Michael and Nancy Berent

Respondent

Bell West Ranch Homeowners Association

Office of Administrative Hearings (Phoenix, Arizona)

Tammy L. Eigenheer

Hearing Dates

August 15, 2018, and August 22, 2018

Decision Date

September 11, 2018

2. Central Allegations and Rulings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Key Chronology of Events

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

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

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

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

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

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

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

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

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

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

4. Post-Decision Developments

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

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

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

5. Quoted Provisions and Statutes

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

• CC&R Section 6.02 (Membership):

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

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

• A.R.S. § 33-1803(B):

Case Participants

Petitioner Side

Michael Berent (petitioner)
Appeared on their own behalf
Nancy Berent (petitioner)
Appeared on their own behalf; testified at hearing

Respondent Side

Maria Kupillas (HOA attorney)
Represented Bell West Ranch Homeowners Association
Regis Salazar (witness)
VISION Community Management
Testified for Respondent
Ken Hawkins (ARC member)
Presented Architectural Review Committee report at Board meeting
Larry Bolton (ARC member)
Listed in ARC meeting minutes as committee member/presenter
Kelsey Dressen (HOA attorney)
Copied on 2022 Minute Entry
Kristin Roebuck (HOA attorney)
Bethell Horne Slaton, PLLC
Copied on 2022 Minute Entry
M Alvarez (administrative staff)
Signed transmittal for Bell West Ranch Homeowners Association

Neutral Parties

Tammy L. Eigenheer (ALJ)
OAH
Judy Lowe (ADRE Commissioner)
ADRE
Louis Dettorre (ADRE staff)
ADRE
AHansen (ADRE staff)
ADRE
djones (ADRE staff)
ADRE
DGardner (ADRE staff)
ADRE
ncano (ADRE staff)
ADRE
tandert (ADRE staff)
ADRE
vnunez (ADRE staff)
ADRE

Other Participants

Lana Collins (City staff)
City of Surprise
Development Service Specialist who spoke to Neighbors

Michael and Nancy Berent vs, Bell West Ranch Homeowners Association

Posted on September 11, 2018 by [email protected]

Case Summary

Case ID	18F-H1818047-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-09-11
Administrative Law Judge	Tammy L. Eigenheer
Outcome	total_loss
Filing Fees Refunded	$2,000.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Michael and Nancy Berent	Counsel	—
Respondent	Bell West Ranch Homeowners Association	Counsel	Maria Kupillas

Alleged Violations

A.R.S. § 33-1803(B); CC&Rs Sections 8.02, 8.06, 6.02

Outcome Summary

Why this result: Petitioners failed to meet the burden of proof required to establish the alleged violations.

Key Issues & Findings

Alleged violations regarding failure to enforce city fire and municipal codes, failure to procure adequate insurance, and violations of specific CC&R provisions (8.02, 8.06, 6.02)

Orders: The Petition was dismissed in its entirety.

Filing fee: $2,000.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

A.R.S. § 33-1803(B)
CC&Rs Section 8.02
CC&Rs Section 8.06
CC&Rs Section 6.02

Analytics Highlights

Topics: HOA enforcement, CC&R violation, Architectural Committee, driveway extension, easement, municipal codes

Additional Citations:

A.R.S. § 33-1803(B)
A.R.S. § 41-2198.01
CC&Rs Section 8.02
CC&Rs Section 8.06
CC&Rs Section 6.02

Video Overview

Audio Overview

Decision Documents

18F-H1818047-REL Decision – 659285.pdf

Uploaded 2025-10-09T03:32:56 (142.7 KB)

18F-H1818047-REL Decision – 659287.pdf

Uploaded 2025-10-09T03:32:56 (193.9 KB)

18F-H1818047-REL Decision – 679550.pdf

Uploaded 2025-10-09T03:32:56 (133.6 KB)

18F-H1818047-REL Decision – 952813.pdf

Uploaded 2025-10-09T03:32:56 (42.6 KB)

18F-H1818047-REL Decision – 952828.pdf

Uploaded 2025-10-09T03:32:56 (30.5 KB)