Petitioner sustained its burden of proof establishing that Respondents violated CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31 by operating a cat rescue business (VKNR) from their residence, which involved unauthorized commercial activity, excessive non-pet animals, and creating a nuisance. Violation of 7.29 was not established. The petition was granted.
Key Issues & Findings
Violation of CC&Rs by operating an unauthorized business out of their home and housing dozens of cats in excess of a reasonable number of household pets, creating a nuisance.
Respondents operated a nonprofit cat rescue (VKNR) from their single-family residence, housing 50+ cats in a 3-car garage, which constituted an unauthorized commercial use, exceeded a reasonable number of pets, and created traffic and waste nuisances.
Orders: Petitioner's petition is granted. Respondents must henceforth abide by CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31.
Filing fee: $1,000.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
CC&Rs section 7.2
CC&Rs section 7.3
CC&Rs section 7.25
CC&Rs section 7.26
CC&Rs section 7.28
CC&Rs section 7.31
Analytics Highlights
Topics: Home Business, Pets/Animals, Nuisance, CC&Rs, Enforcement, HOA
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. §§ 41-1092 et seq.
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H003-REL Decision – 1094853.pdf
Uploaded 2026-01-23T18:00:39 (51.0 KB)
24F-H003-REL Decision – 1113338.pdf
Uploaded 2026-01-23T18:00:44 (49.4 KB)
24F-H003-REL Decision – 1125372.pdf
Uploaded 2026-01-23T18:00:48 (65.5 KB)
24F-H003-REL Decision – 1147484.pdf
Uploaded 2026-01-23T18:00:51 (184.8 KB)
Study Guide – 24F-H003-REL
Select all sources
1094853.pdf
1113338.pdf
1113415.aac
1113416.aac
1113417.aac
1125372.pdf
1147484.pdf
No emoji found
Loading
24F-H003-REL
7 sources
In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.
What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?
Thursday, February 12
Save to note
Today • 3:04 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Blog Post – 24F-H003-REL
Select all sources
1094853.pdf
1113338.pdf
1113415.aac
1113416.aac
1113417.aac
1125372.pdf
1147484.pdf
No emoji found
Loading
24F-H003-REL
7 sources
In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.
What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?
Thursday, February 12
Save to note
Today • 3:04 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
Anthony Rossetti(petitioner attorney, property manager) Rossetti Management & Realty Services Represented Petitioner and owned the newly hired management company.
Douglas Karolak(witness, homeowner) VVE-Casa Grande HOA Member Testified on behalf of Petitioner.
Nicole Elliot(property manager) Norris Management Former HOA management committee/manager who issued warning letters.
CD Mai(homeowner/neighbor) VVE-Casa Grande HOA Member Mentioned by Karolak as a vocal opponent/adjacent neighbor to the Eitels.
Respondent Side
Duane Eitel(respondent, witness) VVE-Casa Grande HOA Member Referred to as Duane S Eitel in earlier documents; DE in the decision.
Mary Eitel(respondent) VVE-Casa Grande HOA Member, CEO/Director of Valley Kitten Nursery & Rescue Inc. Referred to as Mary L Eitel in earlier documents.
Kevin Harper(respondent attorney) Harper Law, PLC
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Susan Nicolson(commissioner) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate
vnunez(ADRE staff) Arizona Department of Real Estate
djones(ADRE staff) Arizona Department of Real Estate
labril(ADRE staff) Arizona Department of Real Estate
Christopher Sinco(code compliance officer) Pinal County Animal Control Involved in the 2017/2018 county inspection.
Other Participants
Scott Lenderman(property manager) HOA management administrator (prior to Rossetti) Mentioned as the first HOA management administrator.
The petition was dismissed after the Administrative Law Judge concluded that the Respondent HOA did not violate CC&R Section 5.4, finding that this section applies to use restrictions on individual Lots and Members, not the Association itself.
Why this result: The ALJ found that Petitioner failed to meet the burden of proof to establish the Respondent HOA violated CC&R Section 5.4 because the HOA does not own or operate the nuisance-causing television, and the CC&R section governs restrictions on lot Owners/Members, not the Association. OAH jurisdiction is limited to finding the governing document or statute violated by the respondent.
Petitioner alleged that the Respondent HOA failed to perform its duty to enforce CC&R Section 5.4 by refusing to seek removal of a neighbor's large, outdoor television that created noise disturbances and was deemed a nuisance.
Orders: The petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 32-2199(B)
ARIZ. REV. STAT. §32- 2199.02(A)
CC&R Section 5.4
Analytics Highlights
Topics: Homeowners Association, CC&R, Nuisance, Enforcement, Jurisdiction, Outdoor TV
{ “case”: { “docket_no”: “23F-H041-REL”, “case_title”: “In the Matter of Anthony Payson vs The Foothills Homeowners Association #1”, “decision_date”: “2023-05-01”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can I use the ADRE administrative hearing process to force my HOA to enforce CC&R rules against a neighbor?”, “short_answer”: “Generally no, if the specific rule applies to member conduct rather than Association conduct.”, “detailed_answer”: “The Administrative Law Judge (ALJ) clarified that the dispute process is for determining if the Respondent (the HOA) violated a statute or governing document. If a CC&R provision restricts how a ‘lot’ may be used, a violation of that rule is a breach by the member (the neighbor), not the Association. Therefore, the HOA cannot be found guilty of violating a rule that governs homeowner behavior.”, “alj_quote”: “These provisions refer to what members may and may not do within the Association. Therefore, any breach of this Article would be a breach by a Member, not the Association. Petitioner failed to establish that Respondent violated CC&R Section 5.4.”, “legal_basis”: “CC&R Section 5.4; OAH Jurisdiction”, “topic_tags”: [ “enforcement”, “jurisdiction”, “neighbor disputes” ] }, { “question”: “Does the Office of Administrative Hearings (OAH) have jurisdiction to decide if my HOA was negligent or violated common law duties?”, “short_answer”: “No, the OAH jurisdiction is strictly limited to violations of statutes and governing documents.”, “detailed_answer”: “The tribunal does not have the authority to hear claims based on common law, such as negligence or general failure to perform a duty, unless it is a specific violation of the statutes or the community documents tailored to the Association’s conduct.”, “alj_quote”: “To the extent that Petitioner alleged that Respondent may have violated common law, or any other laws, the OAH lacks jurisdiction to make such a determination.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.01”, “topic_tags”: [ “jurisdiction”, “common law”, “negligence” ] }, { “question”: “What remedies or penalties can I request from the administrative judge if I win my case against the HOA?”, “short_answer”: “Relief is limited to a finding of violation, an order to comply, return of filing fees, and civil penalties.”, “detailed_answer”: “The administrative process cannot award damages for things like pain, suffering, or lost property value. The remedies are strictly defined by statute: finding a violation occurred, ordering the HOA to abide by the provision, returning the petitioner’s filing fee, and levying a civil penalty.”, “alj_quote”: “Petitioner’s relief in this venue is limited to e is limited to a finding that the governing document or statute at issue has been violated by the respondent, an order that Respondent abide by the provision in the future, and to have the filing fee returned to the petitioner and a civil penalty levied against Respondent.”, “legal_basis”: “Ariz. Rev. Stat. §32- 2199.02(A)”, “topic_tags”: [ “remedies”, “penalties”, “civil penalty” ] }, { “question”: “Who is responsible for proving that a violation occurred in an HOA dispute hearing?”, “short_answer”: “The Petitioner (the homeowner filing the complaint) bears the burden of proof.”, “detailed_answer”: “The homeowner bringing the case must provide sufficient evidence to prove their claims. It is not the HOA’s job to disprove the claims initially; the burden lies with the person filing the petition.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated on its CC&Rs by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)”, “topic_tags”: [ “burden of proof”, “evidence”, “legal standard” ] }, { “question”: “What is the ‘preponderance of the evidence’ standard used in these hearings?”, “short_answer”: “It means the claim is more probable than not to be true.”, “detailed_answer”: “This legal standard requires that the evidence presented must convince the judge that the petitioner’s argument is more likely true than the opposing side’s argument. It is described as the ‘greater weight of the evidence.'”, “alj_quote”: ““A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.””, “legal_basis”: “Morris K. Udall, Arizona Law of Evidence”, “topic_tags”: [ “legal standard”, “definitions”, “evidence” ] }, { “question”: “How are vague or ambiguous rules in the CC&Rs interpreted by the judge?”, “short_answer”: “They are construed to give effect to the intent of the parties and the underlying purpose of the document.”, “detailed_answer”: “When interpreting restrictive covenants, the judge looks at the document as a whole. If the covenant is unambiguous, it is enforced exactly as written to match the intent.”, “alj_quote”: ““Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.””, “legal_basis”: “Powell v. Washburn, 211 Ariz. 553”, “topic_tags”: [ “interpretation”, “CC&Rs”, “legal principles” ] } ] }
Blog Post – 23F-H041-REL
{ “case”: { “docket_no”: “23F-H041-REL”, “case_title”: “In the Matter of Anthony Payson vs The Foothills Homeowners Association #1”, “decision_date”: “2023-05-01”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can I use the ADRE administrative hearing process to force my HOA to enforce CC&R rules against a neighbor?”, “short_answer”: “Generally no, if the specific rule applies to member conduct rather than Association conduct.”, “detailed_answer”: “The Administrative Law Judge (ALJ) clarified that the dispute process is for determining if the Respondent (the HOA) violated a statute or governing document. If a CC&R provision restricts how a ‘lot’ may be used, a violation of that rule is a breach by the member (the neighbor), not the Association. Therefore, the HOA cannot be found guilty of violating a rule that governs homeowner behavior.”, “alj_quote”: “These provisions refer to what members may and may not do within the Association. Therefore, any breach of this Article would be a breach by a Member, not the Association. Petitioner failed to establish that Respondent violated CC&R Section 5.4.”, “legal_basis”: “CC&R Section 5.4; OAH Jurisdiction”, “topic_tags”: [ “enforcement”, “jurisdiction”, “neighbor disputes” ] }, { “question”: “Does the Office of Administrative Hearings (OAH) have jurisdiction to decide if my HOA was negligent or violated common law duties?”, “short_answer”: “No, the OAH jurisdiction is strictly limited to violations of statutes and governing documents.”, “detailed_answer”: “The tribunal does not have the authority to hear claims based on common law, such as negligence or general failure to perform a duty, unless it is a specific violation of the statutes or the community documents tailored to the Association’s conduct.”, “alj_quote”: “To the extent that Petitioner alleged that Respondent may have violated common law, or any other laws, the OAH lacks jurisdiction to make such a determination.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.01”, “topic_tags”: [ “jurisdiction”, “common law”, “negligence” ] }, { “question”: “What remedies or penalties can I request from the administrative judge if I win my case against the HOA?”, “short_answer”: “Relief is limited to a finding of violation, an order to comply, return of filing fees, and civil penalties.”, “detailed_answer”: “The administrative process cannot award damages for things like pain, suffering, or lost property value. The remedies are strictly defined by statute: finding a violation occurred, ordering the HOA to abide by the provision, returning the petitioner’s filing fee, and levying a civil penalty.”, “alj_quote”: “Petitioner’s relief in this venue is limited to e is limited to a finding that the governing document or statute at issue has been violated by the respondent, an order that Respondent abide by the provision in the future, and to have the filing fee returned to the petitioner and a civil penalty levied against Respondent.”, “legal_basis”: “Ariz. Rev. Stat. §32- 2199.02(A)”, “topic_tags”: [ “remedies”, “penalties”, “civil penalty” ] }, { “question”: “Who is responsible for proving that a violation occurred in an HOA dispute hearing?”, “short_answer”: “The Petitioner (the homeowner filing the complaint) bears the burden of proof.”, “detailed_answer”: “The homeowner bringing the case must provide sufficient evidence to prove their claims. It is not the HOA’s job to disprove the claims initially; the burden lies with the person filing the petition.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated on its CC&Rs by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)”, “topic_tags”: [ “burden of proof”, “evidence”, “legal standard” ] }, { “question”: “What is the ‘preponderance of the evidence’ standard used in these hearings?”, “short_answer”: “It means the claim is more probable than not to be true.”, “detailed_answer”: “This legal standard requires that the evidence presented must convince the judge that the petitioner’s argument is more likely true than the opposing side’s argument. It is described as the ‘greater weight of the evidence.'”, “alj_quote”: ““A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.””, “legal_basis”: “Morris K. Udall, Arizona Law of Evidence”, “topic_tags”: [ “legal standard”, “definitions”, “evidence” ] }, { “question”: “How are vague or ambiguous rules in the CC&Rs interpreted by the judge?”, “short_answer”: “They are construed to give effect to the intent of the parties and the underlying purpose of the document.”, “detailed_answer”: “When interpreting restrictive covenants, the judge looks at the document as a whole. If the covenant is unambiguous, it is enforced exactly as written to match the intent.”, “alj_quote”: ““Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.””, “legal_basis”: “Powell v. Washburn, 211 Ariz. 553”, “topic_tags”: [ “interpretation”, “CC&Rs”, “legal principles” ] } ] }
Case Participants
Petitioner Side
Anthony Payson(petitioner) Homeowner
Respondent Side
Sean K. Mohnihan(HOA attorney) Smith & Wamsley, PLLC Appeared for Respondent The Foothills Homeowners Association #1
Jason E Smith(attorney) Smith & Wamsley, PLLC Listed with counsel
Gabron(board member) The Foothills Homeowners Association #1 Board representative/potential witness
Linda Armo(board member) The Foothills Homeowners Association #1 Board representative/potential witness
Philip Brown(former HOA attorney) Previously represented the HOA; wrote a letter to Petitioner
Neutral Parties
Velva Moses-Thompson(ALJ) OAH
Susan Nicolson(Commissioner) Arizona Department of Real Estate
Other Participants
Barry Callahan(neighbor) Alleged violator of CC&Rs, neighbor to Petitioner
The Administrative Law Judge dismissed the petition, finding that the HOA (Respondent) did not violate CC&R Section 3.10. The CC&Rs imposed the duty of keeping the drainage area clear primarily on the Unit Owners, and the HOA only retained the right to enforce this requirement, not an explicit obligation.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the CC&Rs because the HOA did not have an obligation to enforce clearance requirements against unit owners under the cited covenant provisions.
Key Issues & Findings
Alleged violation of CC&Rs § 3.10 by failing to require unit owners to remove vegetation and fencing materials from the stormwater channel behind their homes.
Petitioner alleged the HOA violated CC&Rs § 3.10 by failing to compel unit owners to clear vegetation and debris (including chicken wire) from the stormwater drainage channel, asserting this failure created a flood risk to unit 12. The ALJ found that the CC&Rs placed the primary maintenance responsibility on Unit Owners, and the HOA only had the right, but not the obligation, to enforce clearance requirements.
Orders: The petition was denied and dismissed. No action was required of Respondent because Petitioner failed to establish that Respondent violated the CC&Rs regarding maintenance of the drainage easement.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 32-2199.01
Title 33, Chapter 9
A.A.C. R2-19-119(A) and (B)(1)
Vazanno v. Superior Court
A.A.C. R2-19-119(B)(2)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
Powell v. Washburn
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
Video Overview
Audio Overview
Decision Documents
19F-H1918010-REL Decision – 667122.pdf
Uploaded 2026-01-23T17:26:17 (50.0 KB)
19F-H1918010-REL Decision – 678371.pdf
Uploaded 2026-01-23T17:26:21 (129.5 KB)
Briefing Doc – 19F-H1918010-REL
Briefing Document: Sellers vs. Rancho Madera Condominium Association
Executive Summary
This document synthesizes the legal proceedings and outcomes of the case John A Sellers, Petitioner, vs. Rancho Madera Condominium Association, Respondent (Case No. 19F-H1918010-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was a claim by Petitioner John Sellers that his homeowner’s association (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to compel other homeowners to remove vegetation and fencing from a common stormwater drainage channel, which he alleged created a flood risk to his property, Unit 12.
The petitioner’s claim was ultimately unsuccessful. It was denied first in an initial evidentiary hearing and again in a subsequent rehearing. The central finding of the Administrative Law Judges (ALJs) in both decisions was a critical distinction between an HOA’s right to enforce rules and an obligation to do so. The ALJs determined that the CC&Rs placed the primary responsibility for maintaining the drainage easement on the individual unit owners. The HOA’s mandatory duty to intervene was found to be triggered only by actual damage resulting from an owner’s negligence, not by the mere potential for future damage. As no flooding or damage had ever occurred, the HOA was found to have acted within its authority and had not violated the CC&Rs. The petitioner’s personal circumstances, including a contentious divorce and court-ordered sale of the property, were noted but deemed legally irrelevant to the determination of a CC&R violation.
Case Chronology and Procedural History
The case progressed through an initial petition, a hearing, a decision, a request for rehearing, and a final decision on rehearing. A notable procedural anomaly occurred when a hearing scheduled for November 5, 2018, was officially vacated due to a withdrawal notice from the petitioner, yet the hearing proceeded on that date as originally planned.
Details
Aug 23, 2018
Petition Filed
John A. Sellers filed a single-issue petition with the Arizona Department of Real Estate alleging the Rancho Madera Condominium Association violated CC&R § 3.10.
Oct 23, 2018
Hearing Vacated
An order was issued by ALJ Diane Mihalsky vacating the November 5 hearing because the petitioner had notified the Department of his wish to withdraw the petition.
Nov 5 & Dec 12, 2018
Initial Hearing
Despite the prior vacating order, an evidentiary hearing was held before ALJ Mihalsky.
Dec 26, 2018
Initial Decision
ALJ Mihalsky issued a decision finding that the petitioner failed to prove his case. The petition was denied.
Feb 1, 2019
Rehearing Requested
The petitioner filed a request for a rehearing, alleging procedural irregularities and errors in the initial decision.
Feb 22, 2019
Rehearing Granted
The Commissioner of the Department of Real Estate granted the request for a rehearing.
Apr 15, 2019
Rehearing Held
A rehearing was held before a new judge, ALJ Tammy L. Eigenheer.
May 7, 2019
Post-Hearing Filing Stricken
The petitioner submitted an unauthorized supplemental argument after the rehearing. ALJ Eigenheer issued an order striking the filing from the record and closing the record.
May 10, 2019
Final Decision on Rehearing
ALJ Eigenheer issued a final decision, again finding for the respondent and dismissing the petition.
Core Dispute Analysis
Petitioner’s Position and Allegations
• Core Allegation: The petitioner alleged that the Rancho Madera Condominium Association (Respondent) violated CC&R § 3.10 by failing to enforce its rules. Specifically, the Association did not require owners of “Drainage Easement Units” to remove obstructions—such as large succulents, cacti, shrubs, and chicken wire fencing—from a 3′ x 3′ stormwater drainage canal located behind their homes.
• Perceived Risk: The petitioner testified that these items could catch storm debris, clog the channel, and cause flooding that would damage his property, Unit 12. He submitted videos of heavy rains to support his concern.
• Evolving Legal Argument: In the rehearing, the petitioner’s argument shifted. He acknowledged that the CC&Rs gave the Association the right to enforce maintenance standards but argued that “at a certain point exercising a right becomes an obligation,” particularly when matters of safety and property values are implicated.
• Claimed Financial Damages: The petitioner testified he was undergoing a contentious divorce and his condominium was being sold by order of the Maricopa County Superior Court. He asserted that due to the unresolved flood risk, which he was obligated to disclose, the sale price of Unit 12 was “$40,000 less than it would have been.”
Respondent’s Position and Actions
• Denial of Violation: The Association denied it had violated any CC&Rs by its handling of the drainage channel.
• Evidence and Testimony: The Association, represented by its President, Jeffrey Kaplan, presented several key points:
◦ No History of Flooding: Mr. Kaplan testified that Unit 12 had never sustained any flood damage since the development was built in 2012, including during a “100-year storm” in 2014. After a significant rainstorm in August 2018, he personally inspected the easement and saw no water in it.
◦ Origin of Plants: Mr. Kaplan stated that the builder had originally planted the vegetation in the drainage easement that the petitioner was concerned about.
◦ No Other Complaints: No other members of the 46-unit Association had expressed any concerns about drainage.
◦ Proactive Communication: To assuage the petitioner’s concerns, the Association’s management company sent letters to the relevant homeowners on April 18, 2018, and July 19, 2018, reminding them of their responsibility to keep the drainage area free of obstructions.
◦ Due Diligence: Mr. Kaplan contacted officials at the Maricopa County Flood Control District and the Town of Cave Creek, who confirmed the drainage area was not on any official floodplain maps and that the Association was solely responsible for its maintenance.
Key CC&R Provisions and Legal Interpretation
The ALJs’ decisions hinged on a close reading of the Rancho Madera CC&Rs. The analysis consistently differentiated between the duties of individual owners and the duties of the Association.
• CC&R § 3.10.2 — Unit Owner Responsibility: This section places the primary maintenance burden directly on the homeowners of the Drainage Easement Units.
◦ Interpretation: The legal conclusion was that this provision unambiguously makes individual owners responsible for keeping their portion of the easement clear.
• CC&R § 3.10.4 — Association Responsibility: This section defines the specific circumstance under which the Association is required to act.
◦ Interpretation: Both ALJs found that this clause creates a reactionary, not a proactive, duty for the Association. Its obligation to repair is triggered by actual damage occurring, not by a perceived risk of future damage.
• CC&R § 13.1.1 — Association Enforcement Power: This section, highlighted in the rehearing, grants the Association authority to act.
◦ Interpretation: The ALJ in the rehearing ruled that this language grants a discretionary right, not a mandatory obligation. The CC&Rs contain no provision that converts this right into a duty under the circumstances presented by the petitioner.
Judicial Findings and Rulings
Initial Decision (ALJ Diane Mihalsky, Dec 26, 2018)
• Burden of Proof: The petitioner failed to establish his claim by a preponderance of the evidence.
• Findings of Fact: The petitioner successfully established that plants and chicken wire existed in the stormwater canal. However, he failed to establish that these items actually impeded the flow of water.
• Conclusion: The respondent proved that the drainage canal had functioned as intended since 2012 and that Unit 12 had never flooded. The petitioner’s divorce was noted to have “cast a long shadow over his administrative complaint” but was irrelevant to the legal issue. The petition was denied.
Rehearing Decision (ALJ Tammy L. Eigenheer, May 10, 2019)
• Central Legal Finding: The CC&Rs clearly intend for unit owners to bear the primary responsibility for keeping the drainage area clear. The Association’s only specified obligation is to repair damage after it has occurred and bill the responsible owner.
• Right vs. Obligation: The decision explicitly states, “While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”
• Final Order: The petitioner failed to establish that the respondent violated Section 3.10 of the CC&Rs. The petition was dismissed.
Notable Evidence
A key piece of evidence submitted by the respondent was a June 22, 2018, email from the petitioner’s wife, Debborah Sellers, which directly refuted the petitioner’s claims. In the email, she stated:
“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”
Study Guide – 19F-H1918010-REL
Study Guide for Case No. 19F-H1918010-REL: Sellers v. Rancho Madera Condominium Association
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences, drawing exclusively from the information provided in the case documents.
1. What was the specific allegation John A. Sellers made against the Rancho Madera Condominium Association in his petition filed on August 23, 2018?
2. Identify the key responsibilities assigned to individual unit owners of Drainage Easement Units according to Section 3.10.2 of the CC&Rs.
3. Who is Jeffrey Kaplan, and what key testimony did he provide on behalf of the Respondent?
4. What specific actions did the Respondent’s management company take in April and July of 2018 to address the Petitioner’s concerns?
5. According to the decision by Administrative Law Judge Diane Mihalsky, what did the Petitioner fail to establish regarding the plants and chicken wire in the drainage canal?
6. On what grounds did John A. Sellers file his Homeowner’s Association (HOA) Dispute Rehearing Request on February 1, 2019?
7. What was the Petitioner’s core argument regarding the Association’s “right to enforce” the CC&Rs versus an “obligation to enforce” them?
8. What was the final conclusion of Administrative Law Judge Tammy L. Eigenheer regarding the Association’s responsibilities under the CC&Rs?
9. What occurred after the April 15, 2019 rehearing when the Petitioner attempted to submit supplemental information to the Office of Administrative Hearings?
10. Describe the evidence presented in an email from Debborah Sellers and its relevance to the case.
——————————————————————————–
Answer Key
1. John A. Sellers alleged that the Rancho Madera Condominium Association violated Section 3.10 of its Covenants, Conditions, and Restrictions (CC&Rs). He claimed the Association failed to require condominium owners to remove vegetation and fencing materials from the stormwater channel, creating a flood risk for his unit.
2. Section 3.10.2 of the CC&Rs requires each Unit Owner of a Drainage Easement Unit to keep their respective Drainage Easement Area free of weeds and other debris. The purpose is to ensure that stormwater can flow freely and that no improvement, including plant materials, impedes this flow.
3. Jeffrey Kaplan is the President of the Rancho Madera Condominium Association. He testified that the drainage easement had never failed, even during a 100-year storm in 2014, that the original builder had planted the vegetation in question, and that he had consulted with county and town officials about the drainage area.
4. To address the Petitioner’s concerns, the Respondent’s management company sent letters to the owners of the Drainage Easement Units. Letters sent on April 18, 2018, and July 19, 2018, reminded owners of their responsibility to keep the drainage area free of obstructions, weeds, and debris.
5. Judge Mihalsky’s decision on December 26, 2018, concluded that the Petitioner established the presence of plants and chicken wire but failed to establish that these items actually impede the flow of water. The judge found that the drainage system functions as intended and there was no unreasonable risk of flooding.
6. The Petitioner filed for a rehearing based on several alleged issues with the original proceeding. These included an irregularity in the proceedings, the existence of newly discovered evidence, errors in the admission or rejection of evidence, and a belief that the findings of fact or decision were arbitrary, capricious, or not supported by evidence.
7. The Petitioner argued that while the CC&Rs grant the Association the “right to enforce” maintenance requirements, this right becomes an “obligation” when issues of property values and safety are at stake. He maintained that the potential for flooding created such an obligation for the Association to act.
8. Judge Eigenheer concluded that the CC&Rs intend for unit owners to bear the responsibility of keeping the Drainage Easement Area clear. She determined that while the Association has the right to enforce this, nothing in the CC&Rs creates an obligation for it to do so, and its only specified responsibility is to repair damage after it occurs, billing the responsible unit owner.
9. After the rehearing, the Petitioner submitted supplemental authority and argument without having requested leave to do so. The Respondent’s counsel argued this filing was untimely and introduced new arguments, requesting it be struck. On May 7, 2019, Judge Eigenheer ordered the filing struck from the record and closed the record.
10. The Respondent submitted a June 22, 2018 email from Debborah Sellers, the Petitioner’s wife. In the email, she stated there had never been an issue with the storm drain, called his concerns “nonsense,” and noted that the developer had done a good job, undermining the Petitioner’s claim of a significant and obvious flood risk.
——————————————————————————–
Suggested Essay Questions
1. Analyze the legal reasoning used by Administrative Law Judge Tammy L. Eigenheer to dismiss the petition after the rehearing. Contrast her interpretation of the Association’s duties under the CC&Rs with the findings presented by Judge Diane Mihalsky in the initial decision.
2. Discuss the concept of “preponderance of the evidence” as defined in the legal documents. Evaluate the evidence presented by both the Petitioner and the Respondent, explaining why the Petitioner ultimately failed to meet this burden of proof in both hearings.
3. Trace the complete procedural history of case No. 19F-H1918010-REL. Identify and explain the significance of key events, including the initial petition, the vacated hearing, the first Administrative Law Judge Decision, the request for rehearing, and the final order dismissing the case.
4. Examine the role and responsibilities of the Rancho Madera Condominium Association versus the individual unit owners as defined by Sections 3.10, 3.10.2, 3.10.4, and 13.1.1 of the CC&Rs. How did the interpretation of these sections form the basis of the final legal decision?
5. Evaluate the different types of evidence presented in the hearings, including witness testimony (Sellers, Kaplan), documentary evidence (CC&Rs, letters, emails), and physical evidence (photographs, videos). How did each type of evidence contribute to the final outcome of the case?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, takes evidence, and makes legal decisions and orders. In this case, Diane Mihalsky and Tammy L. Eigenheer served as ALJs.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the guidelines for a planned community or condominium association. In this case, the CC&Rs for Rancho Madera were the central document in the dispute.
Drainage Easement
A perpetual, non-exclusive legal right created over a specific portion of property (the eastern five feet of Units 9-18) for constructing and maintaining a stormwater drainage channel.
Drainage Easement Area
The specific portion of land encumbered by the Drainage Easement, defined as the eastern five feet of the designated units.
Drainage Improvements
The physical components of the drainage system, such as the channel, decomposed granite, rip rap (large stones), or concrete, as originally constructed by the developer.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, such as the Department of Real Estate.
Petitioner
The party who initiates a legal action or files a petition seeking a legal remedy. In this case, John A. Sellers.
Preponderance of the Evidence
The standard of proof in this civil administrative case. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of an issue rather than the other, making a contention more probably true than not.
Rehearing
A second hearing of a case, granted by the Commissioner in this instance, to re-examine the issues based on claims such as procedural irregularities, newly discovered evidence, or errors in the original decision.
Respondent
The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, the Rancho Madera Condominium Association.
The Department
Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings from members of condominium unit owners’ associations.
Blog Post – 19F-H1918010-REL
I Read an Entire HOA Lawsuit. Here Are 4 Shocking Lessons About Power, Rules, and Reality.
The Anatomy of a Neighborhood War
Living under a Homeowner’s Association (HOA) often means navigating a complex world of rules, regulations, and neighborhood politics. For most, disagreements are minor annoyances. But sometimes, a seemingly small issue can escalate into a full-blown legal war.
This is the story of one homeowner’s single-minded crusade against his HOA over a stormwater drainage channel he believed was a serious flooding risk. After filing a formal petition, the dispute escalated into a multi-stage legal battle that spanned nearly a year. The official court documents reveal that even after a judge ruled decisively against him, the homeowner doubled down, demanding a rare rehearing.
A deep dive into this protracted case reveals a fascinating and cautionary tale. The legal reasoning that ultimately settled the matter highlights several surprising lessons that apply to anyone living in a planned community.
1. Proving a Rule Was Broken Isn’t the Same as Proving Harm
The initial hearing, held before Administrative Law Judge Diane Mihalsky in late 2018, centered on a seemingly straightforward argument from the petitioner, John Sellers. He pointed out that his neighbors had placed plants—including large succulents, shrubs, and cacti—as well as chicken wire in a stormwater drainage channel. This, he argued, was a clear violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs), which stated that no improvement “shall be constructed, installed or allowed to grow… that may… impede the flow of water.”
But in her December 26, 2018 decision, the judge ruled against him. While Sellers successfully proved the obstructions existed, he failed to meet the legal burden of proof that they actually “impede the flow of water.” His claim was defeated by testimony from the HOA President, Jeffrey Kaplan, who stated that the unit had never sustained any flood damage, not even during a “100-year storm in 2014.”
The lesson from this first round is stark: in this legal context, simply pointing out a technical rule break was not enough. The petitioner had to prove that the violation was causing a tangible, negative impact. Without evidence of actual harm or impeded water flow, the theoretical risk was insufficient to win the case.
2. An HOA’s “Right” to Enforce Is Not an “Obligation”
After losing the first round on a question of evidence, Sellers’ argument evolved. He requested a rehearing, which was granted, and the case landed before a new judge, Tammy L. Eigenheer, in the spring of 2019. This shifted the legal focus from physical proof of impeded water flow to a more fundamental question of the HOA’s duties.
Sellers argued that because safety and property values were at stake, the association had a duty to enforce the CC&Rs and compel his neighbors to clear the drainage channel. He contended that at a certain point, an organization’s “right” to act becomes an “obligation.”
The judge’s final decision on May 10, 2019, was clear, absolute, and is where the most powerful lesson of the entire case lies.
“While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”
This distinction is critical for any homeowner. An HOA can possess the legal power to act but may not be legally compelled to use it. According to the judge’s interpretation, the governing documents placed the responsibility for keeping the channel clear on the individual unit owners. The association’s only stated obligation was to repair damage after it happened, with the cost being billed back to the responsible party.
3. Outside Conflicts Can Cast a Long Shadow
Legal disputes are rarely just about the facts of the case. During the initial hearing, it was revealed that the petitioner was going through a “contentious divorce” and that the condo unit at the center of the dispute was a community asset being sold by the court.
The most dramatic evidence, however, came from an email written by the petitioner’s own wife, Debborah Sellers. The email, submitted as evidence by the HOA, directly undermined his claims about the severity of the drainage issue.
“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”
In her decision, Judge Mihalsky officially stated that the divorce was “not relevant” to the technical question of whether the HOA violated the CC&Rs. However, she immediately added that the situation “cast a long shadow over his administrative complaint,” suggesting that the personal context, and especially the damaging email, severely harmed the petitioner’s credibility.
4. Writing Letters Isn’t the Same as Being Heard
Throughout the dispute, the petitioner made his concerns known by writing “many letters” to the HOA president. He was persistent in his written communications, attempting to force the issue onto the association’s radar.
Yet, this effort was contrasted with a notable lack of direct participation. According to the testimony of HOA President Kaplan during the first hearing, Sellers “never attended any of Respondent’s noticed Board meetings” where his concerns could have been discussed among the board members.
The HOA’s response to his letters was limited; it sent two general reminder letters to all residents in the affected area but did not take direct enforcement action against any specific homeowner. The practical takeaway is that to effect change or be taken seriously in an HOA dispute, visibility and participation are critical. Writing letters is a start, but attending official meetings to present a case in person can be a more effective strategy for ensuring an issue is formally addressed.
A Cautionary Tale for Any Homeowner
What began as a seemingly straightforward complaint about drainage and rule enforcement devolved into a legal battle that consumed nearly a year, involving two multi-day hearings before two different administrative law judges. The petitioner lost his case on the evidence, then lost it again on the law.
It serves as a potent cautionary tale, demonstrating that in the world of HOA disputes, the obvious path is not always the winning one. It leaves every homeowner with a final, thought-provoking question to ponder: When you see a problem in your community, how do you decide if a fight is worth the cost—not just in money, but in time, credibility, and peace?
Case Participants
Petitioner Side
John A Sellers(petitioner)
Respondent Side
Edward D. O’Brien(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP Represented Respondent
The Administrative Law Judge dismissed the petition, finding that the HOA (Respondent) did not violate CC&R Section 3.10. The CC&Rs imposed the duty of keeping the drainage area clear primarily on the Unit Owners, and the HOA only retained the right to enforce this requirement, not an explicit obligation.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the CC&Rs because the HOA did not have an obligation to enforce clearance requirements against unit owners under the cited covenant provisions.
Key Issues & Findings
Alleged violation of CC&Rs § 3.10 by failing to require unit owners to remove vegetation and fencing materials from the stormwater channel behind their homes.
Petitioner alleged the HOA violated CC&Rs § 3.10 by failing to compel unit owners to clear vegetation and debris (including chicken wire) from the stormwater drainage channel, asserting this failure created a flood risk to unit 12. The ALJ found that the CC&Rs placed the primary maintenance responsibility on Unit Owners, and the HOA only had the right, but not the obligation, to enforce clearance requirements.
Orders: The petition was denied and dismissed. No action was required of Respondent because Petitioner failed to establish that Respondent violated the CC&Rs regarding maintenance of the drainage easement.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 32-2199.01
Title 33, Chapter 9
A.A.C. R2-19-119(A) and (B)(1)
Vazanno v. Superior Court
A.A.C. R2-19-119(B)(2)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
Powell v. Washburn
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
Video Overview
Audio Overview
Decision Documents
19F-H1918010-REL Decision – 667122.pdf
Uploaded 2025-10-09T03:33:27 (50.0 KB)
19F-H1918010-REL Decision – 678371.pdf
Uploaded 2025-10-09T03:33:27 (129.5 KB)
Briefing Doc – 19F-H1918010-REL
Briefing Document: Sellers vs. Rancho Madera Condominium Association
Executive Summary
This document synthesizes the legal proceedings and outcomes of the case John A Sellers, Petitioner, vs. Rancho Madera Condominium Association, Respondent (Case No. 19F-H1918010-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was a claim by Petitioner John Sellers that his homeowner’s association (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to compel other homeowners to remove vegetation and fencing from a common stormwater drainage channel, which he alleged created a flood risk to his property, Unit 12.
The petitioner’s claim was ultimately unsuccessful. It was denied first in an initial evidentiary hearing and again in a subsequent rehearing. The central finding of the Administrative Law Judges (ALJs) in both decisions was a critical distinction between an HOA’s right to enforce rules and an obligation to do so. The ALJs determined that the CC&Rs placed the primary responsibility for maintaining the drainage easement on the individual unit owners. The HOA’s mandatory duty to intervene was found to be triggered only by actual damage resulting from an owner’s negligence, not by the mere potential for future damage. As no flooding or damage had ever occurred, the HOA was found to have acted within its authority and had not violated the CC&Rs. The petitioner’s personal circumstances, including a contentious divorce and court-ordered sale of the property, were noted but deemed legally irrelevant to the determination of a CC&R violation.
Case Chronology and Procedural History
The case progressed through an initial petition, a hearing, a decision, a request for rehearing, and a final decision on rehearing. A notable procedural anomaly occurred when a hearing scheduled for November 5, 2018, was officially vacated due to a withdrawal notice from the petitioner, yet the hearing proceeded on that date as originally planned.
Details
Aug 23, 2018
Petition Filed
John A. Sellers filed a single-issue petition with the Arizona Department of Real Estate alleging the Rancho Madera Condominium Association violated CC&R § 3.10.
Oct 23, 2018
Hearing Vacated
An order was issued by ALJ Diane Mihalsky vacating the November 5 hearing because the petitioner had notified the Department of his wish to withdraw the petition.
Nov 5 & Dec 12, 2018
Initial Hearing
Despite the prior vacating order, an evidentiary hearing was held before ALJ Mihalsky.
Dec 26, 2018
Initial Decision
ALJ Mihalsky issued a decision finding that the petitioner failed to prove his case. The petition was denied.
Feb 1, 2019
Rehearing Requested
The petitioner filed a request for a rehearing, alleging procedural irregularities and errors in the initial decision.
Feb 22, 2019
Rehearing Granted
The Commissioner of the Department of Real Estate granted the request for a rehearing.
Apr 15, 2019
Rehearing Held
A rehearing was held before a new judge, ALJ Tammy L. Eigenheer.
May 7, 2019
Post-Hearing Filing Stricken
The petitioner submitted an unauthorized supplemental argument after the rehearing. ALJ Eigenheer issued an order striking the filing from the record and closing the record.
May 10, 2019
Final Decision on Rehearing
ALJ Eigenheer issued a final decision, again finding for the respondent and dismissing the petition.
Core Dispute Analysis
Petitioner’s Position and Allegations
• Core Allegation: The petitioner alleged that the Rancho Madera Condominium Association (Respondent) violated CC&R § 3.10 by failing to enforce its rules. Specifically, the Association did not require owners of “Drainage Easement Units” to remove obstructions—such as large succulents, cacti, shrubs, and chicken wire fencing—from a 3′ x 3′ stormwater drainage canal located behind their homes.
• Perceived Risk: The petitioner testified that these items could catch storm debris, clog the channel, and cause flooding that would damage his property, Unit 12. He submitted videos of heavy rains to support his concern.
• Evolving Legal Argument: In the rehearing, the petitioner’s argument shifted. He acknowledged that the CC&Rs gave the Association the right to enforce maintenance standards but argued that “at a certain point exercising a right becomes an obligation,” particularly when matters of safety and property values are implicated.
• Claimed Financial Damages: The petitioner testified he was undergoing a contentious divorce and his condominium was being sold by order of the Maricopa County Superior Court. He asserted that due to the unresolved flood risk, which he was obligated to disclose, the sale price of Unit 12 was “$40,000 less than it would have been.”
Respondent’s Position and Actions
• Denial of Violation: The Association denied it had violated any CC&Rs by its handling of the drainage channel.
• Evidence and Testimony: The Association, represented by its President, Jeffrey Kaplan, presented several key points:
◦ No History of Flooding: Mr. Kaplan testified that Unit 12 had never sustained any flood damage since the development was built in 2012, including during a “100-year storm” in 2014. After a significant rainstorm in August 2018, he personally inspected the easement and saw no water in it.
◦ Origin of Plants: Mr. Kaplan stated that the builder had originally planted the vegetation in the drainage easement that the petitioner was concerned about.
◦ No Other Complaints: No other members of the 46-unit Association had expressed any concerns about drainage.
◦ Proactive Communication: To assuage the petitioner’s concerns, the Association’s management company sent letters to the relevant homeowners on April 18, 2018, and July 19, 2018, reminding them of their responsibility to keep the drainage area free of obstructions.
◦ Due Diligence: Mr. Kaplan contacted officials at the Maricopa County Flood Control District and the Town of Cave Creek, who confirmed the drainage area was not on any official floodplain maps and that the Association was solely responsible for its maintenance.
Key CC&R Provisions and Legal Interpretation
The ALJs’ decisions hinged on a close reading of the Rancho Madera CC&Rs. The analysis consistently differentiated between the duties of individual owners and the duties of the Association.
• CC&R § 3.10.2 — Unit Owner Responsibility: This section places the primary maintenance burden directly on the homeowners of the Drainage Easement Units.
◦ Interpretation: The legal conclusion was that this provision unambiguously makes individual owners responsible for keeping their portion of the easement clear.
• CC&R § 3.10.4 — Association Responsibility: This section defines the specific circumstance under which the Association is required to act.
◦ Interpretation: Both ALJs found that this clause creates a reactionary, not a proactive, duty for the Association. Its obligation to repair is triggered by actual damage occurring, not by a perceived risk of future damage.
• CC&R § 13.1.1 — Association Enforcement Power: This section, highlighted in the rehearing, grants the Association authority to act.
◦ Interpretation: The ALJ in the rehearing ruled that this language grants a discretionary right, not a mandatory obligation. The CC&Rs contain no provision that converts this right into a duty under the circumstances presented by the petitioner.
Judicial Findings and Rulings
Initial Decision (ALJ Diane Mihalsky, Dec 26, 2018)
• Burden of Proof: The petitioner failed to establish his claim by a preponderance of the evidence.
• Findings of Fact: The petitioner successfully established that plants and chicken wire existed in the stormwater canal. However, he failed to establish that these items actually impeded the flow of water.
• Conclusion: The respondent proved that the drainage canal had functioned as intended since 2012 and that Unit 12 had never flooded. The petitioner’s divorce was noted to have “cast a long shadow over his administrative complaint” but was irrelevant to the legal issue. The petition was denied.
Rehearing Decision (ALJ Tammy L. Eigenheer, May 10, 2019)
• Central Legal Finding: The CC&Rs clearly intend for unit owners to bear the primary responsibility for keeping the drainage area clear. The Association’s only specified obligation is to repair damage after it has occurred and bill the responsible owner.
• Right vs. Obligation: The decision explicitly states, “While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”
• Final Order: The petitioner failed to establish that the respondent violated Section 3.10 of the CC&Rs. The petition was dismissed.
Notable Evidence
A key piece of evidence submitted by the respondent was a June 22, 2018, email from the petitioner’s wife, Debborah Sellers, which directly refuted the petitioner’s claims. In the email, she stated:
“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”
Study Guide – 19F-H1918010-REL
Study Guide for Case No. 19F-H1918010-REL: Sellers v. Rancho Madera Condominium Association
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences, drawing exclusively from the information provided in the case documents.
1. What was the specific allegation John A. Sellers made against the Rancho Madera Condominium Association in his petition filed on August 23, 2018?
2. Identify the key responsibilities assigned to individual unit owners of Drainage Easement Units according to Section 3.10.2 of the CC&Rs.
3. Who is Jeffrey Kaplan, and what key testimony did he provide on behalf of the Respondent?
4. What specific actions did the Respondent’s management company take in April and July of 2018 to address the Petitioner’s concerns?
5. According to the decision by Administrative Law Judge Diane Mihalsky, what did the Petitioner fail to establish regarding the plants and chicken wire in the drainage canal?
6. On what grounds did John A. Sellers file his Homeowner’s Association (HOA) Dispute Rehearing Request on February 1, 2019?
7. What was the Petitioner’s core argument regarding the Association’s “right to enforce” the CC&Rs versus an “obligation to enforce” them?
8. What was the final conclusion of Administrative Law Judge Tammy L. Eigenheer regarding the Association’s responsibilities under the CC&Rs?
9. What occurred after the April 15, 2019 rehearing when the Petitioner attempted to submit supplemental information to the Office of Administrative Hearings?
10. Describe the evidence presented in an email from Debborah Sellers and its relevance to the case.
——————————————————————————–
Answer Key
1. John A. Sellers alleged that the Rancho Madera Condominium Association violated Section 3.10 of its Covenants, Conditions, and Restrictions (CC&Rs). He claimed the Association failed to require condominium owners to remove vegetation and fencing materials from the stormwater channel, creating a flood risk for his unit.
2. Section 3.10.2 of the CC&Rs requires each Unit Owner of a Drainage Easement Unit to keep their respective Drainage Easement Area free of weeds and other debris. The purpose is to ensure that stormwater can flow freely and that no improvement, including plant materials, impedes this flow.
3. Jeffrey Kaplan is the President of the Rancho Madera Condominium Association. He testified that the drainage easement had never failed, even during a 100-year storm in 2014, that the original builder had planted the vegetation in question, and that he had consulted with county and town officials about the drainage area.
4. To address the Petitioner’s concerns, the Respondent’s management company sent letters to the owners of the Drainage Easement Units. Letters sent on April 18, 2018, and July 19, 2018, reminded owners of their responsibility to keep the drainage area free of obstructions, weeds, and debris.
5. Judge Mihalsky’s decision on December 26, 2018, concluded that the Petitioner established the presence of plants and chicken wire but failed to establish that these items actually impede the flow of water. The judge found that the drainage system functions as intended and there was no unreasonable risk of flooding.
6. The Petitioner filed for a rehearing based on several alleged issues with the original proceeding. These included an irregularity in the proceedings, the existence of newly discovered evidence, errors in the admission or rejection of evidence, and a belief that the findings of fact or decision were arbitrary, capricious, or not supported by evidence.
7. The Petitioner argued that while the CC&Rs grant the Association the “right to enforce” maintenance requirements, this right becomes an “obligation” when issues of property values and safety are at stake. He maintained that the potential for flooding created such an obligation for the Association to act.
8. Judge Eigenheer concluded that the CC&Rs intend for unit owners to bear the responsibility of keeping the Drainage Easement Area clear. She determined that while the Association has the right to enforce this, nothing in the CC&Rs creates an obligation for it to do so, and its only specified responsibility is to repair damage after it occurs, billing the responsible unit owner.
9. After the rehearing, the Petitioner submitted supplemental authority and argument without having requested leave to do so. The Respondent’s counsel argued this filing was untimely and introduced new arguments, requesting it be struck. On May 7, 2019, Judge Eigenheer ordered the filing struck from the record and closed the record.
10. The Respondent submitted a June 22, 2018 email from Debborah Sellers, the Petitioner’s wife. In the email, she stated there had never been an issue with the storm drain, called his concerns “nonsense,” and noted that the developer had done a good job, undermining the Petitioner’s claim of a significant and obvious flood risk.
——————————————————————————–
Suggested Essay Questions
1. Analyze the legal reasoning used by Administrative Law Judge Tammy L. Eigenheer to dismiss the petition after the rehearing. Contrast her interpretation of the Association’s duties under the CC&Rs with the findings presented by Judge Diane Mihalsky in the initial decision.
2. Discuss the concept of “preponderance of the evidence” as defined in the legal documents. Evaluate the evidence presented by both the Petitioner and the Respondent, explaining why the Petitioner ultimately failed to meet this burden of proof in both hearings.
3. Trace the complete procedural history of case No. 19F-H1918010-REL. Identify and explain the significance of key events, including the initial petition, the vacated hearing, the first Administrative Law Judge Decision, the request for rehearing, and the final order dismissing the case.
4. Examine the role and responsibilities of the Rancho Madera Condominium Association versus the individual unit owners as defined by Sections 3.10, 3.10.2, 3.10.4, and 13.1.1 of the CC&Rs. How did the interpretation of these sections form the basis of the final legal decision?
5. Evaluate the different types of evidence presented in the hearings, including witness testimony (Sellers, Kaplan), documentary evidence (CC&Rs, letters, emails), and physical evidence (photographs, videos). How did each type of evidence contribute to the final outcome of the case?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, takes evidence, and makes legal decisions and orders. In this case, Diane Mihalsky and Tammy L. Eigenheer served as ALJs.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the guidelines for a planned community or condominium association. In this case, the CC&Rs for Rancho Madera were the central document in the dispute.
Drainage Easement
A perpetual, non-exclusive legal right created over a specific portion of property (the eastern five feet of Units 9-18) for constructing and maintaining a stormwater drainage channel.
Drainage Easement Area
The specific portion of land encumbered by the Drainage Easement, defined as the eastern five feet of the designated units.
Drainage Improvements
The physical components of the drainage system, such as the channel, decomposed granite, rip rap (large stones), or concrete, as originally constructed by the developer.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, such as the Department of Real Estate.
Petitioner
The party who initiates a legal action or files a petition seeking a legal remedy. In this case, John A. Sellers.
Preponderance of the Evidence
The standard of proof in this civil administrative case. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of an issue rather than the other, making a contention more probably true than not.
Rehearing
A second hearing of a case, granted by the Commissioner in this instance, to re-examine the issues based on claims such as procedural irregularities, newly discovered evidence, or errors in the original decision.
Respondent
The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, the Rancho Madera Condominium Association.
The Department
Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings from members of condominium unit owners’ associations.
Blog Post – 19F-H1918010-REL
I Read an Entire HOA Lawsuit. Here Are 4 Shocking Lessons About Power, Rules, and Reality.
The Anatomy of a Neighborhood War
Living under a Homeowner’s Association (HOA) often means navigating a complex world of rules, regulations, and neighborhood politics. For most, disagreements are minor annoyances. But sometimes, a seemingly small issue can escalate into a full-blown legal war.
This is the story of one homeowner’s single-minded crusade against his HOA over a stormwater drainage channel he believed was a serious flooding risk. After filing a formal petition, the dispute escalated into a multi-stage legal battle that spanned nearly a year. The official court documents reveal that even after a judge ruled decisively against him, the homeowner doubled down, demanding a rare rehearing.
A deep dive into this protracted case reveals a fascinating and cautionary tale. The legal reasoning that ultimately settled the matter highlights several surprising lessons that apply to anyone living in a planned community.
1. Proving a Rule Was Broken Isn’t the Same as Proving Harm
The initial hearing, held before Administrative Law Judge Diane Mihalsky in late 2018, centered on a seemingly straightforward argument from the petitioner, John Sellers. He pointed out that his neighbors had placed plants—including large succulents, shrubs, and cacti—as well as chicken wire in a stormwater drainage channel. This, he argued, was a clear violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs), which stated that no improvement “shall be constructed, installed or allowed to grow… that may… impede the flow of water.”
But in her December 26, 2018 decision, the judge ruled against him. While Sellers successfully proved the obstructions existed, he failed to meet the legal burden of proof that they actually “impede the flow of water.” His claim was defeated by testimony from the HOA President, Jeffrey Kaplan, who stated that the unit had never sustained any flood damage, not even during a “100-year storm in 2014.”
The lesson from this first round is stark: in this legal context, simply pointing out a technical rule break was not enough. The petitioner had to prove that the violation was causing a tangible, negative impact. Without evidence of actual harm or impeded water flow, the theoretical risk was insufficient to win the case.
2. An HOA’s “Right” to Enforce Is Not an “Obligation”
After losing the first round on a question of evidence, Sellers’ argument evolved. He requested a rehearing, which was granted, and the case landed before a new judge, Tammy L. Eigenheer, in the spring of 2019. This shifted the legal focus from physical proof of impeded water flow to a more fundamental question of the HOA’s duties.
Sellers argued that because safety and property values were at stake, the association had a duty to enforce the CC&Rs and compel his neighbors to clear the drainage channel. He contended that at a certain point, an organization’s “right” to act becomes an “obligation.”
The judge’s final decision on May 10, 2019, was clear, absolute, and is where the most powerful lesson of the entire case lies.
“While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”
This distinction is critical for any homeowner. An HOA can possess the legal power to act but may not be legally compelled to use it. According to the judge’s interpretation, the governing documents placed the responsibility for keeping the channel clear on the individual unit owners. The association’s only stated obligation was to repair damage after it happened, with the cost being billed back to the responsible party.
3. Outside Conflicts Can Cast a Long Shadow
Legal disputes are rarely just about the facts of the case. During the initial hearing, it was revealed that the petitioner was going through a “contentious divorce” and that the condo unit at the center of the dispute was a community asset being sold by the court.
The most dramatic evidence, however, came from an email written by the petitioner’s own wife, Debborah Sellers. The email, submitted as evidence by the HOA, directly undermined his claims about the severity of the drainage issue.
“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”
In her decision, Judge Mihalsky officially stated that the divorce was “not relevant” to the technical question of whether the HOA violated the CC&Rs. However, she immediately added that the situation “cast a long shadow over his administrative complaint,” suggesting that the personal context, and especially the damaging email, severely harmed the petitioner’s credibility.
4. Writing Letters Isn’t the Same as Being Heard
Throughout the dispute, the petitioner made his concerns known by writing “many letters” to the HOA president. He was persistent in his written communications, attempting to force the issue onto the association’s radar.
Yet, this effort was contrasted with a notable lack of direct participation. According to the testimony of HOA President Kaplan during the first hearing, Sellers “never attended any of Respondent’s noticed Board meetings” where his concerns could have been discussed among the board members.
The HOA’s response to his letters was limited; it sent two general reminder letters to all residents in the affected area but did not take direct enforcement action against any specific homeowner. The practical takeaway is that to effect change or be taken seriously in an HOA dispute, visibility and participation are critical. Writing letters is a start, but attending official meetings to present a case in person can be a more effective strategy for ensuring an issue is formally addressed.
A Cautionary Tale for Any Homeowner
What began as a seemingly straightforward complaint about drainage and rule enforcement devolved into a legal battle that consumed nearly a year, involving two multi-day hearings before two different administrative law judges. The petitioner lost his case on the evidence, then lost it again on the law.
It serves as a potent cautionary tale, demonstrating that in the world of HOA disputes, the obvious path is not always the winning one. It leaves every homeowner with a final, thought-provoking question to ponder: When you see a problem in your community, how do you decide if a fight is worth the cost—not just in money, but in time, credibility, and peace?
Case Participants
Petitioner Side
John A Sellers(petitioner)
Respondent Side
Edward D. O’Brien(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP Represented Respondent
