John Shields vs. Will Rogers Equestrian Ranch

Posted on October 11, 2017 by [email protected]

Case Summary

Case ID	17F-H1717034-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2018-02-26
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	John L. Shields	Counsel	—
Respondent	Will Rogers Equestrian Ranch	Counsel	Maria R. Kupillas

Alleged Violations

CC&R § 6.2(A)

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove the HOA violated its CC&Rs by approving the wall extension, as the HOA’s approval duties were limited to aesthetic considerations under CC&R § 7.2 and did not extend to enforcing or ensuring adjoining owner approval required by CC&R § 6.2(A).

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent erroneously approved the proposal, as Respondent's duties under CC&R § 7.2 did not require considering adjoining neighbor approval specified in CC&R § 6.2(A).

Key Issues & Findings

Alleged violation of CC&Rs by HOA improperly approving a neighbor's block wall extension without adjoining owner's approval.

Petitioner alleged that the Respondent HOA violated CC&R § 6.2(A) by approving a neighbor's block wall extension that served as a party wall because Petitioner, the adjoining owner, had not approved the wall. Respondent argued their approval duties under CC&R § 7.2 only concerned aesthetics, not ensuring neighbor approval.

Orders: The petition is dismissed and no action is required of Respondent.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 32-2199.01
CC&R § 6.2(A)
CC&R § 7.2

Analytics Highlights

Topics: HOA, CC&R, Architectural Control Committee, Fence, Party Wall, Rehearing, Burden of Proof

Additional Citations:

A.R.S. § 32-2199.01
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
A.R.S. § 32-2199.02(B)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

17F-H1717034-REL Decision – 619560.pdf

Uploaded 2026-04-24T11:05:20 (90.8 KB)

17F-H1717034-REL Decision – 592935.pdf

Uploaded 2026-04-24T11:05:24 (115.2 KB)

Briefing Document: Analysis of Administrative Law Judge Decision in Shields v. Will Rogers Equestrian Ranch

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Decision in Case No. 17F-H1717034-REL-RHG, dated February 26, 2018. The central issue was a petition filed by homeowner John L. Shields against the Will Rogers Equestrian Ranch Homeowners’ Association (HOA), alleging the HOA improperly approved a wall extension built by his neighbor, Joe Johnson, without Mr. Shields’ required consent.

The petition was ultimately dismissed. The Administrative Law Judge (ALJ) concluded that the petitioner, Mr. Shields, failed to establish by a preponderance of the evidence that the HOA had violated its Covenants, Conditions, and Restrictions (CC&Rs). The decision rests on a critical distinction between the responsibilities of a homeowner and the responsibilities of the HOA under separate articles of the CC&Rs. The ALJ determined that the obligation to secure an adjoining neighbor’s approval for a wall alteration (under CC&R § 6.2) falls exclusively on the homeowner undertaking the project. In contrast, the HOA’s duty (under CC&R § 7.2) is limited to an aesthetic review of the proposed alteration, which it conducted appropriately. The HOA had no legal obligation to enforce or verify neighbor-to-neighbor approval.

I. Case Overview

Case Name

John L. Shields (Petitioner) vs. Will Rogers Equestrian Ranch (Respondent)

Case Number

17F-H1717034-REL-RHG

Jurisdiction

Office of Administrative Hearings, Phoenix, Arizona

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Date of Decision

February 26, 2018

Core Dispute

The petitioner alleged the HOA violated CC&R § 6.2(A) by approving a neighbor’s approximately 5’ x 6’ block wall extension without the petitioner’s consent.

Final Outcome

The petition was dismissed, with no action required of the respondent HOA.

II. Petitioner’s Claim and Arguments

John L. Shields, a homeowner at 20431 E. Bronco Drive within the Will Rogers Equestrian Ranch development, filed a petition against the HOA concerning a wall extension built by his next-door neighbor, Joe Johnson.

• Core Allegation: After vacillating on the specifics of his complaint during the hearing, Mr. Shields firmly asserted that his single issue was that the HOA improperly approved Mr. Johnson’s proposal to build a block wall extension and move his gate forward.

• Basis of Claim: The petitioner argued that under CC&R § 6.2, the HOA should have withheld its approval because Mr. Johnson had not demonstrated that he had first obtained Mr. Shields’ approval for the wall extension between their properties.

• Evidence and Testimony: Mr. Shields denied ever having approved the wall. He submitted a photograph he had taken from his front porch and testified that the block wall extension “was an eyesore.”

III. Respondent’s Position and Evidence

The Will Rogers Equestrian Ranch HOA, represented by board president Kristi Hancock, denied all complaint items and argued its actions were consistent with the governing CC&Rs.

• Basis of Approval: The HOA contended that its approval was based solely on the criteria outlined in CC&R § 7.2. The board, acting as the Architectural Control Committee, reviewed Mr. Johnson’s proposal for its aesthetic qualities and consistency with other properties in the development.

• Aesthetic Review: Ms. Hancock testified that the board inspected other wall extensions and gates and found Mr. Johnson’s proposal to be “aesthetically pleasing and consistent with the other properties.”

• Neighbor Consent Issue: The HOA acknowledged its awareness of Mr. Shields’ objection to the wall after it was built. However, Ms. Hancock testified that the board’s understanding of whether Mr. Shields had approved the wall before construction was unclear. She stated that “at least four witnesses had stated that they heard Petitioner either actually approve of or fail to state an objection to the block wall extension while, in Petitioner’s presence, Mr. Johnson discussed having the block wall extension built.”

• Separation of Duties: The HOA’s position was that its duty under § 7.2 was distinct from the homeowner’s duty under § 6.2. The HOA was not responsible for obtaining or verifying neighbor approval.

IV. Chronology of Key Events

1. October 13, 2016 (approx.): Mr. Johnson has the block wall extension built without first obtaining approval from the HOA’s board or committee.

2. October 16, 2016 (approx.): Mr. Shields expresses his disapproval of the newly built wall to Mr. and Mrs. Johnson.

3. November 2, 2016 (approx.): Mr. Johnson retroactively submits his proposal for the wall extension and a plan to move his gate forward to the Architectural Control Committee for approval.

4. November 2016: The HOA’s newly elected board meets as the Committee and verbally approves Mr. Johnson’s wall but advises him that “he will need to seek neighboring property owner’s approval.”

5. January 2017: The board formally approves Mr. Johnson’s proposal for the wall extension and gate move.

6. May 3, 2017 (approx.): Mr. Shields files a single-issue petition with the Arizona Department of Real Estate.

7. September 27, 2017: An initial hearing is held, and Administrative Law Judge Diane Mihalsky dismisses the petition.

8. December 5, 2017: The Real Estate Commissioner grants Mr. Shields’ request for a rehearing based on his claims of legal errors and judicial misconduct.

9. February 5, 2018: A rehearing is held before Administrative Law Judge Tammy L. Eigenheer.

V. Analysis of Covenants, Conditions, and Restrictions (CC&Rs)

The judge’s decision hinged on the distinct and separate functions of two key CC&R sections.

This section governs alterations to shared fences and walls.

Such Party Walls and Fences shall not be altered, or changed in design, color, material or construction from the original installation made by the Developer without [the] approval of the adjoining Owner(s), if any, and the [Architectural Control] Committee.

• Interpretation: The ALJ interpreted this section as creating two separate approval requirements for the homeowner making the alteration: one from the adjoining owner and one from the Committee. It does not obligate the Committee to enforce the adjoining owner’s approval.

This section defines the scope and limits of the Architectural Control Committee’s power.

No . . . fences . . . shall be commenced [or] erected . . . until the plans and specifications showing the same shall have been submitted to and approved by the Committee. Approval shall not be unreasonably withheld. However, the Committee shall have the right to refuse to approve any Alteration which is not suitable or desirable in their opinion for aesthetic or other reasons…

• Interpretation: The ALJ found that this section limits the Committee’s review to specific criteria, including aesthetics, harmony with surroundings, and effect on neighboring property. It explicitly states that approval “shall not be unreasonably withheld” and does not require the Committee to verify compliance with other CC&Rs or city ordinances.

VI. Judge’s Conclusions of Law and Rationale for Dismissal

The ALJ’s decision to dismiss the petition was based on a clear legal interpretation of the CC&Rs and the petitioner’s failure to meet the burden of proof.

• Distinct and Separate Obligations: The core of the ruling is that the CC&Rs create parallel but separate responsibilities.

1. Homeowner’s Responsibility: The duty to obtain an adjoining neighbor’s approval for a shared wall alteration under § 6.2(A) rests solely with the homeowner performing the work (Mr. Johnson).

2. HOA’s Responsibility: The HOA’s duty under § 7.2 is limited to reviewing the project on its aesthetic merits and consistency within the community.

• Key Legal Finding: The decision explicitly states the separation of these duties:

• Scope of HOA Review: The ALJ affirmed that the HOA’s scope of review was properly limited.

• Failure to Meet Burden of Proof: Because the HOA acted within the authority and limitations defined by CC&R § 7.2, the petitioner failed to prove by a preponderance of the evidence that the HOA had violated its governing documents.

• Other Responsibilities: The decision also noted that the responsibility for ensuring compliance with City of Queen Creek ordinances (related to the gate move) ultimately rested with Mr. Johnson, not the HOA.

VII. Final Order

Based on the findings of fact and conclusions of law, the Administrative Law Judge ordered that the petition be dismissed.

• No action is required of the Respondent, Will Rogers Equestrian Ranch HOA.

• The decision, issued as a result of a rehearing, is binding on the parties.

• Any appeal must be filed with the superior court within thirty-five days from the date the order was served.

Study Guide: Shields v. Will Rogers Equestrian Ranch

This guide provides a comprehensive review of the Administrative Law Judge Decision in case number 17F-H1717034-REL-RHG, involving John L. Shields and the Will Rogers Equestrian Ranch homeowners’ association. It includes a short-answer quiz to test factual recall, an answer key for verification, essay questions for deeper analysis, and a glossary of key terms as defined and used within the context of the legal decision.

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the provided legal decision.

1. Who are the Petitioner and the Respondent in this case, and what is their relationship?

2. What was the specific, single-issue claim that the Petitioner, John L. Shields, filed with the Arizona Department of Real Estate on May 3, 2017?

3. What is a “party wall” according to CC&R § 6.2(A), and what specific approval is required to alter one?

4. What was the timeline of the wall extension’s construction and Mr. Johnson’s subsequent submission for approval to the Committee?

5. On what grounds did the Respondent’s board, acting as the Architectural Control Committee, approve Mr. Johnson’s proposal?

6. What was the Petitioner’s central argument for why the Respondent should not have approved Mr. Johnson’s proposal?

7. Why was a rehearing granted after the initial hearing on September 27, 2017?

8. What contradictory evidence did the Respondent’s board consider regarding whether the Petitioner had approved the wall extension before it was built?

9. What is the “preponderance of the evidence” standard, and who bore the burden of proof in this case?

10. What was the final recommended order from Administrative Law Judge Tammy L. Eigenheer, and what was the core legal reasoning for this decision?

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Answer Key

1. The Petitioner is John L. Shields, who owns a home at 20431 E. Bronco Drive. The Respondent is the Will Rogers Equestrian Ranch, a homeowners’ association in Queen Creek, Arizona. Mr. Shields is a member of the Respondent association.

2. The Petitioner alleged that the Respondent violated § 6.2(A) of its Covenants, Conditions, and Restrictions (CC&Rs). The violation claim was based on the Respondent approving a common block wall extension built by his neighbor, Joe Johnson, without the Petitioner’s required approval.

3. According to CC&R § 6.2(A), a “party wall” is a fence constructed upon the back of a lot. To alter or change the design, color, material, or construction of such a wall, approval is required from both the adjoining owner(s) and the Architectural Control Committee.

4. Mr. Johnson had the wall extension built on or about October 13, 2016, without prior approval. He subsequently submitted his proposal to the Committee for approval on or about November 2, 2016.

5. The board approved the proposal based on the criteria in CC&R § 7.2, which required it to consider if the alteration was aesthetically pleasing and harmonious with its surroundings. The board inspected other extensions in the development and found Mr. Johnson’s proposal to be consistent with them.

6. The Petitioner argued that the Respondent’s approval was improper because Mr. Johnson had not demonstrated that he had first obtained the Petitioner’s approval for the block wall extension, which is a stated requirement in CC&R § 6.2.

7. A rehearing was granted by Commissioner Judy Lowe on December 5, 2017. The Petitioner requested it based on claims of errors in the admission or rejection of evidence, other errors of law, and alleged misconduct by the initial Administrative Law Judge that deprived him of a fair hearing.

8. The board knew the Petitioner objected to the wall after it was built. However, the board was also aware of at least four witnesses who stated they heard the Petitioner either actually approve of the extension or fail to object while Mr. Johnson discussed building it in his presence.

9. “Preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. In this case, the Petitioner, John L. Shields, bore the burden of proof to establish his claim by this standard.

10. The judge ordered that the petition be dismissed and that no action was required of the Respondent. The reasoning was that under CC&R § 6.2(A), the responsibility to get an adjoining neighbor’s approval lies with the property owner (Mr. Johnson), not the Respondent, and CC&R § 7.2 only required the Respondent to consider aesthetic factors, which it did.

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Essay Questions

Instructions: The following questions are designed to provoke deeper analysis of the case. Formulate a comprehensive response to each, structuring your answer in a standard essay format.

1. Analyze the distinct responsibilities assigned to the homeowner (Mr. Johnson) and the homeowners’ association (Respondent) by CC&R § 6.2(A) and § 7.2. How did the separation of these duties form the crux of the Administrative Law Judge’s final decision?

2. Discuss the legal standard of “preponderance of the evidence” as it is defined in the decision. Explain why the evidence presented by the Petitioner, including his testimony and photograph of the wall, failed to meet this burden of proof against the Respondent.

3. Examine the role and limitations of the Architectural Control Committee as described in CC&R § 7.2. In your analysis, consider what the committee is required to evaluate, what it is explicitly not responsible for, and the provision that its approval “shall not be unreasonably withheld.”

4. Trace the procedural history of this case, from the initial petition filing to the final order after the rehearing. What does this progression reveal about the administrative hearing process and the grounds upon which a rehearing can be granted?

5. Although the petition was dismissed, the facts indicate that Mr. Johnson built the wall extension before receiving any approval and that the City of Queen Creek later found his plan to move the gate violated city codes. Argue whether the Respondent (the HOA) bears any ethical, if not legal, responsibility in a situation where its approval process is disconnected from neighbor consent and municipal law compliance.

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Glossary of Key Terms

Definition in Context

Administrative Law Judge (ALJ)

An official, in this case Tammy L. Eigenheer, from the Office of Administrative Hearings who presides over evidentiary hearings and issues decisions on matters referred by state agencies like the Department of Real Estate.

Architectural Control Committee (“the Committee”)

A body within the homeowners’ association, in this case comprised of the board members, responsible for reviewing and approving or denying proposed alterations to properties, such as fences, based on aesthetic and other specified criteria.

A.R.S. § 32-2199.01

The Arizona Revised Statute that permits an owner in a planned community to file a petition with the Department of Real Estate concerning violations of community documents.

Burden of Proof

The obligation of a party in a legal case to provide evidence that proves its claim. In this case, the Petitioner bore the burden to prove his claim by a “preponderance of the evidence.”

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set forth the rules for a planned community. This case centers on the interpretation of § 6.2(A) and § 7.2 of the Will Rogers Equestrian Ranch CC&Rs.

Homeowners’ Association (HOA)

An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents. The Respondent, Will Rogers Equestrian Ranch, is an HOA.

Party Wall

As defined in CC&R § 6.2(A), a fence constructed upon the back of any lot that is shared between adjoining properties. Alterations require approval from the adjoining owner and the Committee.

Petitioner

The party who initiates a legal action or petition. In this case, John L. Shields, a homeowner and member of the Respondent association.

Preponderance of the Evidence

The standard of proof required in this civil administrative hearing. It is defined as evidence that is more convincing and has superior weight, making it more probable that a contention is true than not.

Rehearing

A second hearing of a case, granted in this instance because the Petitioner claimed there were errors of law and misconduct by the judge in the first proceeding that deprived him of a fair hearing.

Respondent

The party against whom a petition is filed. In this case, the Will Rogers Equestrian Ranch homeowners’ association.

4 Surprising Lessons From a Homeowner’s Lawsuit Against His HOA

It’s a scenario many homeowners can imagine: a neighbor erects a new wall along the property line without your consent. Your first instinct is to escalate the issue to your Homeowners’ Association (HOA), assuming it’s their job to enforce the community’s rules. This common assumption—that the HOA is the ultimate authority responsible for mediating all disputes between neighbors—is powerful, but is it always correct?

A real-life administrative court case, Shields v. Will Rogers Equestrian Ranch, provides a valuable case study in the delineation of duties within a planned community, revealing that the answer can be a surprising “no.” This case offers critical insights into the true roles and responsibilities of an HOA. Here are the top four counter-intuitive takeaways from this legal decision that every homeowner should understand.

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1. Your HOA Isn’t a Referee for Neighbor-to-Neighbor Agreements

Mr. Shields sued his HOA because it approved a neighbor’s wall extension that he, the adjoining owner, had not approved. He believed this violated the community’s Covenants, Conditions, and Restrictions (CC&Rs), specifically § 6.2(A), which requires approval from the adjoining owner for such changes.

The Administrative Law Judge, however, found the HOA had no legal duty to enforce this particular rule. The responsibility to secure the neighbor’s approval fell solely on the property owner making the change, not the HOA. The judge’s finding on this point was direct and unambiguous:

CC&R § 6.2(A) required that the property owner, Mr. Johnson, obtain the adjoining property owner’s, Petitioner’s, approval before he built the block wall extension. Respondent [the HOA] had no obligation under CC&R § 6.2(A) to obtain or ensure Petitioner approved the block wall extension.

This ruling clarifies that an HOA’s role is not that of a quasi-judicial body for resolving all private disputes; its enforcement powers are limited to the specific duties enumerated in its governing documents. CC&R § 6.2(A) effectively creates a private right of action between neighbors, which the HOA is not a party to. The HOA’s role is to enforce rules that obligate the homeowner to the association, not necessarily to other homeowners.

2. The Architectural Committee’s Job Is Narrower Than You Think

In its defense, the HOA’s board, acting as the Architectural Control Committee, argued that its review was based on a different rule entirely: CC&R § 7.2. The judge agreed, highlighting the Committee’s very narrow scope of responsibility.

According to the case findings, the Committee’s only legal obligation was to determine if the proposed wall was “aesthetically pleasing and consistent” with other properties in the development. Its review under § 7.2 did not require it to confirm whether the neighbor had obtained Mr. Shields’ approval as mandated by the separate rule. This legal structure isolates the two duties, and the homeowner’s error was conflating them. The HOA’s limited aesthetic review reinforces the conclusion from our first lesson: it is not responsible for policing the separate neighbor-approval requirement. An architectural green light is often purely about community harmony, not a verification of compliance with every other covenant.

3. Building First and Asking Permission Later Creates Confusion

The sequence of events in this case was disorderly, which ultimately clouded the legal issues. From the outset, the petitioner himself “vacillated on whether his issue with Respondent was that it improperly approved Mr. Johnson’s proposal… or that it failed to enforce the requirement that Mr. Johnson had to obtain Petitioner’s approval,” foreshadowing the difficulty in proving a specific violation.

The timeline further illustrates the breakdown in process:

• October 13, 2016: The neighbor, Mr. Johnson, built the wall extension before seeking any approval.

• October 16, 2016: Mr. Shields expressed his disapproval directly to the neighbor.

• November 2, 2016: The neighbor submitted his proposal to the HOA for approval—weeks after the wall was already built.

• November 2016: The HOA Board verbally approved the wall but astutely “advised him that ‘he will need to seek neighboring property owner’s approval.’”

This retroactive process, combined with a dispute clouded by conflicting testimony—four witnesses claimed they heard Mr. Shields either approve of the wall or fail to object—muddied the waters, making it impossible for the petitioner to meet his burden of proof regarding the HOA’s actions. The messiness of the facts directly contributed to the legal failure.

4. The Burden of Proof Rests Entirely on You

In a legal dispute with an HOA, the “burden of proof” falls on the petitioner. Mr. Shields had to establish his case by a “preponderance of the evidence,” which the court defines simply as “such proof as convinces the trier of fact that the contention is more probably true than not.”

Crucially, he had to prove that the HOA specifically violated a statute or a rule within the CC&Rs. It wasn’t enough to demonstrate that his neighbor violated a rule or that the situation felt unjust. He had to prove the HOA failed to perform a duty for which it was explicitly responsible.

The judge ultimately dismissed the petition because Mr. Shields could not meet this burden. He failed to prove the HOA had a duty to deny the application based on his lack of approval. A subjective sense of unfairness is insufficient to meet the legal standard; a petitioner must prove a direct breach of a specified duty by the association.

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Conclusion: Know Your Rules, Not Just Your Rights

The overarching lesson from the Shields case is that CC&Rs are a legal contract with a precise, and sometimes non-obvious, allocation of responsibilities among the homeowner, their neighbors, and the association itself. The HOA is not an all-powerful enforcer but an organization with a defined, and sometimes surprisingly limited, set of duties. Homeowners, in turn, have their own responsibilities—including, at times, enforcing certain rights directly with their neighbors.

Before escalating your next neighborhood issue, have you read the fine print to see who is truly responsible for what?

Case Participants

Petitioner Side

John Shields (petitioner)

Respondent Side

Maria R. Kupillas (HOA attorney)
Law Offices of Farley Choate & Bergin
Represented Respondent Will Rogers Equestrian Ranch
Joe Johnson (neighbor/member)
Lot owner who built the wall extension; Husband of Sandy Johnson
Sandy Johnson (neighbor/witness)
Wife of Joe Johnson; next-door neighbor to Petitioner; testified in initial hearing
Dean Kabanuk (board member/witness)
Will Rogers Equestrian Ranch Board
Respondent’s board president; testified in initial hearing
Kristi Hancock (board member/witness)
Will Rogers Equestrian Ranch Board
Attorney; served as VP (Nov 2016-Nov 2017) and President (since Nov 2017); testified in both hearings
Brenda Campbell (property manager/witness)
Will Rogers Equestrian Ranch
Respondent’s community manager; testified in initial hearing
A.J. Denardo (witness)
Lives near Petitioner; testified in initial hearing regarding Petitioner's tacit approval

Neutral Parties

Diane Mihalsky (ALJ)
Office of Administrative Hearings
Issued the initial Administrative Law Judge Decision (October 11, 2017)
Tammy L. Eigenheer (ALJ)
Office of Administrative Hearings
Issued the Administrative Law Judge Decision following rehearing (February 26, 2018)
Judy Lowe (ADRE Commissioner)
Arizona Department of Real Estate
Granted Petitioner's request for rehearing; decision transmitted to Commissioner
Felicia Del Sol (OAH staff)
Office of Administrative Hearings
Transmitted the rehearing decision

Richard Long vs. Pebble Creek Resort Community

Posted on September 6, 2017 by [email protected]

Case Summary

Case ID	17F-H1717037-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2017-09-06
Administrative Law Judge	Diane Mihalsky
Outcome	The ALJ denied the petition, concluding that the homeowner failed to meet the burden of proof demonstrating the HOA violated community documents by refusing the requested block wall. The wall was prohibited by CC&Rs and ALC Guidelines because it was planned for just inside the property line and excluded the adjacent owner from use, potentially leading to prohibited parallel walls.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Richard Long	Counsel	—
Respondent	Pebble Creek Resort Community	Counsel	—

Alleged Violations

A.R.S. § 41-2198.01; CC&Rs § 1(Hh), 2(P)(i); ALC Guideline SS(4)(a)

Outcome Summary

The ALJ denied the petition, concluding that the homeowner failed to meet the burden of proof demonstrating the HOA violated community documents by refusing the requested block wall. The wall was prohibited by CC&Rs and ALC Guidelines because it was planned for just inside the property line and excluded the adjacent owner from use, potentially leading to prohibited parallel walls.

Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated the CC&Rs and ALC Guidelines.

Key Issues & Findings

Refusal to approve construction of a 10’ long, 6’ high block wall for privacy

Petitioner sought approval for a 10’ long, 6’ high block wall for privacy, built a foot or so inside his property line, designed to prevent adjacent neighbors (the Rohlmans) from using it. Respondent denied the wall based on community documents restricting such constructions to avoid parallel walls and requiring party walls to be on or immediately adjacent to the property line, granting contiguous owners the right to use them.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 41-2198.01
CC&R § 1(Hh)
CC&R § 2(P)(i)
ALC Guideline SS(4)(a)
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)

Analytics Highlights

Topics: HOA, Block Wall, Privacy Wall, CC&Rs, ALC Guidelines, Party Wall

Additional Citations:

A.R.S. § 41-2198.01
A.R.S. § 32-2199.02(B)
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
CC&R § 1(Hh)
CC&R § 2(P)(i)
ALC Guideline SS(4)(a)

Video Overview

Audio Overview

Decision Documents

17F-H1717037-REL Decision – 586501.pdf

Uploaded 2026-04-24T11:05:32 (117.9 KB)

17F-H1717037-REL Decision – 588547.pdf

Uploaded 2026-04-24T11:05:36 (1013.5 KB)

Briefing: Case No. 17F-H1717037-REL, Long v. Pebble Creek Resort Community

Executive Summary

This document provides a comprehensive analysis of the administrative hearing and final decision concerning a dispute between homeowner Richard Long (“Petitioner”) and the Pebble Creek Resort Community homeowners’ association (“Respondent”). The core of the dispute was the Petitioner’s request to build a 10-foot long, 6-foot high block privacy wall approximately one foot inside his property line, which the Respondent’s Architectural Landscape Committee (ALC) denied.

The Administrative Law Judge (ALJ) ultimately denied the petition, a decision that was subsequently adopted as a Final Order by the Arizona Department of Real Estate. The central finding was that the Respondent’s governing documents—specifically the Covenants, Conditions, and Restrictions (CC&Rs) and ALC Guidelines—unequivocally prohibit the proposed wall. The ALJ concluded that a wall built so close to a property line is defined as a “Party Wall,” which must be constructed “on or immediately adjacent to” the boundary and be usable by both property owners. The Petitioner’s proposal violated these foundational rules by being set back from the property line with the explicit intent of preventing neighbor access and use.

The Respondent had offered a conditional variance for a wall to be built directly on the property line, but this required a mutual “Party Wall/Fence Agreement” with the adjacent neighbor, who refused to sign, citing concerns over property value and the legal complexity of a perpetual easement. The final ruling affirmed the Respondent’s authority to enforce its governing documents as written.

Case Overview

The matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed by the Petitioner with the Arizona Department of Real Estate. The Petitioner alleged that the Respondent HOA had violated its own governing documents by refusing to approve his proposed wall.

Case Detail

Information

Case Name

Richard Long, Petitioner, v. Pebble Creek Resort Community, Respondent

Case Number

No. 17F-H1717037-REL / HO 17-17/037

Office of Administrative Hearings (Phoenix, Arizona)

Petitioner

Richard Long (Appeared on his own behalf)

Respondent

Pebble Creek Resort Community (Represented by Jack Sarsam, SVP for Robson Communities)

Administrative Law Judge

Diane Mihalsky

Real Estate Commissioner

Judy Lowe

Hearing Date

August 30, 2017

ALJ Decision Date

September 6, 2017

Final Order Date

September 14, 2017

Core Dispute and Party Positions

Petitioner’s Proposal and Argument (Richard Long)

• Project: A 10-foot long, 6-foot high block wall intended to provide privacy between his patio and the patio of his adjacent neighbors, the Rohlmans.

• Proposed Location: “A foot or so inside his side of the property line.”

• Stated Intent: To construct a wall to which his neighbors could not attach or otherwise use. The Petitioner testified that if the Rohlmans later wanted their own wall (e.g., for a pool or pet), they could build a separate, parallel wall on their property.

• Rejection of Alternatives: The Petitioner acknowledged that the ALC would approve a “privacy panel wall” made of alumawood or lattice, but he rejected this option, deeming it “unsightly and flimsy.”

• Core Claim: The Petitioner argued that the Respondent’s CC&Rs and ALC Guidelines did not explicitly prohibit the construction of his proposed block wall at its intended location inside his property line.

Respondent’s Position and Actions (Pebble Creek HOA)

• Initial Action: The ALC denied the Petitioner’s request.

• Rationale for Denial: The Respondent explained that walls near lot lines can become problematic, particularly if they result in “two parallel walls.” This situation can create a narrow, inaccessible space between the walls that is difficult to maintain and “becomes filled with refuse, leaves, insects, nests and rodents.”

• Conditional Variance: On May 1, 2017, the Respondent offered to approve a variance with several key conditions:

1. The wall must be constructed directly on the property line.

2. Both the Petitioner and the Rohlmans must sign a written “Party Wall/Fence Agreement” (Form ALC 48).

3. This agreement must grant current and future owners permission to “extend/complete the wall” and must be disclosed upon the sale of either home.

4. The signed agreement would be kept in the ALC files for both properties.

Neighbor’s Position (The Rohlmans)

• The Rohlmans declined to sign the Party Wall/Fence Agreement proposed by the Respondent.

• In an email submitted as evidence, they outlined their reasons for refusal:

◦ Property Value: They believed a wall on the property line would negatively affect the “current and future value” of both properties.

◦ Legal Complexity: The agreement would require granting a perpetual easement, which they identified as a legal document entailing legal expenses.

◦ Disclosure upon Sale: The easement would have to be disclosed to future buyers, which they argued “lowers the value of the property.”

◦ Future Construction: A wall on the property line could be extended by either party or future owners “without the agreement of the other party.”

◦ They concluded that “All of these requirements are onerous.”

Analysis of Governing Documents

The ALJ’s decision rested on a direct interpretation of four key sections of the community’s CC&Rs and ALC Guidelines.

• CC&R § 1(Hh) – Definition of “Party Walls”

◦ This section defines a party wall as: “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.”

◦ The ALJ found that the Petitioner’s proposal for a wall “a foot or so inside” the property line did not meet this definition.

• CC&R § 2(P)(i) – Use of Party Walls

◦ This rule states: “Each Owner shall have the right to use the Party Wall, provided that such use does not interfere with the other Owner’s use and enjoyment thereof.”

◦ This directly contradicted the Petitioner’s goal of building a wall that his neighbors would be prohibited from using.

• ALC Guideline SS(4)(a) – Parallel Walls

◦ This guideline explicitly states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.”

◦ The Petitioner’s own testimony acknowledged the possibility of his neighbor building a parallel wall in the future, a scenario the guidelines are designed to prevent.

• ALC Guideline JJ – “Privacy Panel Wall”

◦ This section details the pre-approved alternative for privacy screening. Such a wall must be:

▪ Free-standing alumawood.

▪ Six feet in height and no more than sixteen feet in length.

▪ Located “at least three (3) feet from the property line.”

◦ This demonstrates a clear distinction in the rules between a shared “Party Wall” near the boundary and a private “Privacy Panel” set significantly back from it.

Administrative Law Judge’s Decision and Rationale

The ALJ, Diane Mihalsky, concluded that the Petitioner failed to meet his burden of proof to establish that the Respondent had violated its governing documents.

• Key Findings of Law:

1. A block wall built “a foot inside the property line” does not conform to CC&R § 1(Hh), which requires a party wall to be “on or immediately adjacent to” the boundary.

2. The Petitioner’s intent to deny his neighbor the use of the wall violates CC&R § 2(P)(i), which grants both owners rights to use a party wall.

3. The Petitioner’s proposal creates the potential for prohibited parallel walls, violating ALC Guideline SS(4)(a).

• Conclusion: The ALJ stated that the community’s documents “unequivocally prohibit Respondent from building a 6’ high, 10’ long block wall a foot from his property line that the Rohlmans are not permitted to use.”

• Recommended Order: On September 6, 2017, the ALJ issued a recommended order that the Petitioner’s petition be denied.

Final Order and Subsequent Actions

• Adoption of Decision: On September 14, 2017, Judy Lowe, Commissioner of the Arizona Department of Real Estate, issued a Final Order adopting the ALJ’s decision in its entirety.

• Effect of Order: The denial of the petition became final, binding, and effective immediately.

• Conditions for Rehearing: The Final Order stipulated that a rehearing could be granted pursuant to A.R.S. § 32-2199.04, but only for one of the following reasons:

1. Irregularity in proceedings or abuse of discretion by the ALJ.

2. Misconduct by the Department, ALJ, or prevailing party.

3. Accident or surprise that could not have been prevented.

4. Newly discovered material evidence.

5. Excessive or insufficient penalties.

6. Error in the admission or rejection of evidence.

7. The decision is arbitrary, capricious, or an abuse of discretion.

8. The findings of fact are not supported by the evidence or are contrary to law.

• Judicial Review: The order is subject to judicial review through the filing of a complaint pursuant to state law.

Study Guide: Long v. Pebble Creek Resort Community (Case No. 17F-H1717037-REL)

This study guide provides a review of the administrative hearing decision concerning a dispute between homeowner Richard Long and the Pebble Creek Resort Community homeowners’ association. It covers the facts of the case, the arguments presented, the relevant community rules, and the final legal outcome.

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Short-Answer Quiz

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

1. What was the specific structure that the Petitioner, Richard Long, proposed to build, and what was its intended purpose?

2. On what grounds did the Respondent, Pebble Creek Resort Community, justify its restrictions against the type of wall the Petitioner proposed?

3. What conditional variance did the Respondent offer to the Petitioner on May 1, 2017?

4. What were the primary concerns expressed by the Petitioner’s neighbors, the Rohlmans, which led them to decline the proposed wall agreement?

5. According to ALC Guideline JJ, what alternative structure could the Petitioner have built for privacy, and what were its key requirements?

6. How do the CC&Rs define a “Party Wall,” and what right does CC&R § 2(P)(i) grant to contiguous property owners regarding such a wall?

7. What rule from the ALC Guidelines prohibits the construction of two parallel walls side-by-side, and why is this rule in place?

8. What is the legal standard of “preponderance of the evidence” as defined in the hearing decision?

9. Who held the burden of proof to establish that the homeowners’ association violated its governing documents?

10. What was the final, binding outcome of the case after the Administrative Law Judge’s decision was reviewed?

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Answer Key

1. The Petitioner proposed to build a 10-foot long, 6-foot high block wall for privacy between his patio and his neighbor’s patio. The wall was to be located a foot or so inside his side of the property line, so his neighbors could not attach to it.

2. The Respondent explained that walls built near, but not on, the property line can lead to problems. This can result in two parallel walls being built, creating an unmaintainable space between them that collects refuse, leaves, insects, nests, and rodents.

3. The Respondent approved a variance on the condition that the wall be built on the property line. Both the Petitioner and his neighbors (the Rohlmans) had to agree in writing that current or future owners could extend the wall, with this agreement being disclosed upon sale of either house.

4. The Rohlmans declined because they believed a wall on the property line would negatively affect their property’s value. They were also concerned about the legal expense and perpetual nature of an easement, and the possibility that future owners could lengthen the wall without consent.

5. ALC Guideline JJ permits a “privacy panel wall,” which is a free-standing alumawood wall. This wall must be 6 feet high, no longer than 16 feet, and located at least 3 feet from the property line. The Petitioner rejected this option, feeling it was “unsightly and flimsy.”

6. CC&R § 1(Hh) defines a “Party Wall” as a wall constructed on or immediately adjacent to the common boundary of lots. CC&R § 2(P)(i) states that each owner of a contiguous property has the right to use the Party Wall, provided it does not interfere with the other owner’s use.

7. ALC Guideline SS(4)(a) states that an existing party wall along a joint property line “precludes any adjacent parallel party wall.” This rule is in place to prevent the negative situation described by the Respondent where a difficult-to-maintain space is created between two walls.

8. A “preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. It is also described as “the greater weight of the evidence” that is sufficient to incline a fair mind to one side of an issue over the other.

9. The Petitioner, Richard Long, bore the burden of proof. He had to establish by a preponderance of the evidence that the Respondent violated the CC&Rs and ALC Guidelines.

10. The Administrative Law Judge (ALJ) denied the Petitioner’s petition, and this decision was adopted by the Commissioner of the Department of Real Estate, becoming a Final Order. The Order is binding on the parties unless a rehearing is granted.

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Essay Questions

Instructions: The following questions are designed for a longer, essay-style response. Use the case documents to formulate a comprehensive answer supported by specific facts and citations to the community’s governing documents.

1. Analyze the conflict between the Petitioner’s desire for a specific type of privacy structure and the Respondent’s interpretation of the community’s CC&Rs and ALC Guidelines. How did the governing documents prioritize community standards and potential future problems over an individual homeowner’s preference?

2. Discuss the role and reasoning of the Petitioner’s neighbors, the Rohlmans. Evaluate their concerns regarding property value, easements, and future modifications as presented in their email, and explain how their refusal to sign the agreement was a critical factor in the dispute.

3. Explain the legal reasoning used by Administrative Law Judge Diane Mihalsky to reach her decision. Detail which specific sections of the CC&Rs and ALC Guidelines were most influential and how she applied them to unequivocally deny the Petitioner’s request.

4. Compare and contrast the two types of structures discussed for ensuring privacy: the block wall proposed by the Petitioner and the “privacy panel wall” permitted by ALC Guideline JJ. What are the key differences in their material, specifications, placement, and the implications of those differences within the community’s rules?

5. Trace the procedural path of this dispute, from the initial petition to the Final Order. Describe the distinct roles and authority of the Arizona Department of Real Estate, the Architectural Landscape Committee (ALC), the Office of Administrative Hearings, the Administrative Law Judge, and the Commissioner.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over hearings at an administrative agency (in this case, the Office of Administrative Hearings) and makes decisions on disputes. In this case, the ALJ was Diane Mihalsky.

Architectural Landscape Committee (ALC)

The committee within the homeowners’ association responsible for reviewing and approving or denying proposed changes to properties, such as walls and fences, based on the community’s guidelines.

Burden of Proof

The obligation to prove one’s assertion. In this case, the Petitioner bore the burden of proof to establish that the Respondent violated the community documents.

Covenants, Conditions and Restrictions. These are the governing legal documents that set out the guidelines for a planned community or homeowners’ association.

The Department

The Arizona Department of Real Estate, which is authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations.

Homeowners’ Association (HOA)

The organization that creates and enforces rules for the properties within its jurisdiction. In this case, the Pebble Creek Resort Community homeowners’ association was the Respondent.

Party Wall

As defined in CC&R § 1(Hh), “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.” CC&R § 2(P)(i) grants each owner the right to use the Party Wall.

Petitioner

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

Preponderance of the Evidence

The standard of proof in this civil case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and “[t]he greater weight of the evidence.”

Respondent

The party against whom a petition is filed. In this case, the Pebble Creek Resort Community homeowners’ association.

Why Your HOA Can Control a Wall Built Entirely on Your Property

Introduction: The Privacy Paradox

Imagine you want a bit more privacy from your next-door neighbor. The solution seems simple: build a wall. To avoid any disputes, you decide to build it entirely on your land, a good foot inside your property line. It’s your property, your wall, your right. But what if your Homeowners’ Association (HOA) tells you that you can’t? This is not a hypothetical scenario; it’s precisely what happened to homeowner Richard Long when he tried to build a 10’ long, 6’ high block wall.

Mr. Long proposed building the wall just one foot inside his property line, believing this would make it a private structure, free from the shared-property rules that often complicate neighborly relations. The HOA denied his request, sparking a legal dispute. The outcome of this case provides surprising and counter-intuitive lessons that every homeowner in a planned community should understand about property rights, community rules, and the hidden logic that governs them.

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1. The Hidden Logic: Preventing the “Rodent Run”

At first glance, the HOA’s rule might seem like arbitrary overreach. Why should they care if a wall is on the property line or one foot away from it? The answer reveals a practical, long-term logic designed to prevent a specific, unpleasant problem: two parallel walls built side-by-side.

The HOA’s governing documents were written to avoid a scenario where a small, unmaintainable gap is created between two separate walls on adjacent properties. If Mr. Long built his wall a foot inside his line, and his neighbor later decided to do the same, a narrow dead space would be created between the homes. In its official written answer, the HOA vividly described the issue this creates:

This is not a good situation in that there often isn’t room between the walls to properly maintain either wall, and the area in between the two walls becomes filled with refuse, leaves, insects, nests and rodents.

This reveals a core principle of planned community management: rules are often designed not to restrict current owners, but to mitigate future risks and liabilities for the entire community. This preventative governance aims to protect the community from future blight, sanitation issues, and pest infestations.

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2. The “Immediately Adjacent” Rule: Your Property Isn’t an Island

The homeowner’s central argument was that by building the wall a foot inside his property, it was his private wall, not a shared “party wall” subject to joint rules. It was a clever attempt to circumvent the regulations, but it failed because of the precise wording in the community’s Covenants, Conditions, and Restrictions (CC&Rs).

Here, the dispute hinged on two seemingly innocuous words. The community’s CC&Rs define a “Party Wall” as a wall constructed “on or immediately adjacent to the common boundary.” The Administrative Law Judge interpreted a wall built only a foot away as falling under the definition of “immediately adjacent.” This single phrase effectively negated the homeowner’s entire strategy.

The judge’s determination that the wall qualified as “immediately adjacent” was critical. By legally defining it as a Party Wall, another rule from the CC&Rs automatically kicked in: the adjoining neighbor’s explicit right to use it. This completely undermined the homeowner’s central goal of creating a purely private structure.

As if that weren’t definitive enough, another, even more explicit rule served as the final nail in the coffin. ALC Guideline SS(4)(a) states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.” This rule directly forbids the exact “rodent run” scenario, showing that the governing documents had multiple, overlapping prohibitions against his plan.

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3. The Neighbor’s Veto: It’s a Three-Party Problem

In an attempt to find a middle ground, the HOA offered a potential compromise. They would approve the wall, but only if it were built directly on the property line and if both Mr. Long and his neighbors, the Rohlmans, signed a formal “Party Wall/Fence Agreement.” This solution, however, revealed another layer of complexity. The neighbors refused to sign.

The Rohlmans explained their reasoning in an email, highlighting concerns that went beyond simple aesthetics. They worried about the financial and legal implications of a shared wall on the property line.

[We] declined to have a wall built on the property line between our homes because it affects the current and future value of our property – and yours. Furthermore, each of us would have to grant the other an easement in perpetuity, which is a legal document… Upon the sale of our home, we would have to inform the purchaser of the easement, which lowers the value of the property.

This demonstrates a common blind spot for homeowners: disputes are rarely bilateral. The rights and financial interests of adjacent property owners create a complex, multi-party dynamic. More often than not, an HOA dispute is a three-party negotiation, and a neighbor’s consent—or lack thereof—can be the deciding factor.

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Conclusion: The Rules You Don’t Know Can Hurt You

The final outcome was decisive. The Administrative Law Judge upheld the HOA’s decision, and the homeowner’s petition was denied. The judge concluded that the community’s governing documents “unequivocally prohibit” the proposed wall. However, this was not a total denial of privacy. Mr. Long did have an approved option: a free-standing “alumawood” privacy panel, provided it was located three feet from the property line. He rejected this alternative because he felt it was “unsightly and flimsy.”

This case serves as a powerful reminder that an HOA’s governing documents are not mere suggestions; they are legally binding contracts. The conflict was ultimately not between a homeowner’s right to privacy and the HOA, but between the homeowner’s specific aesthetic preference and the community’s established architectural standards. What you can do on your own land is deeply intertwined with the collective rules you agreed to when you purchased your home.

Before your next home improvement project, does your plan align not just with your vision, but also with the shared vision encoded in your community’s rules?

Case Participants

Petitioner Side

Richard Long (petitioner)
Appeared on his own behalf
Petitioner's wife (interested party)
Required, along with Petitioner, to agree in writing to the wall conditions for variance approval (Unit 39 Lot 12)

Respondent Side

Jack Sarsam (executive/witness)
Robson Communities
Senior Vice President for Robson Communities, overseeing Respondent's operations; testified for Respondent

Neutral Parties

Diane Mihalsky (ALJ)
Administrative Law Judge who issued the decision
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Commissioner who adopted the ALJ decision in the Final Order
Dan Gardner (HOA Coordinator)
Contact for rehearing requests; listed as HOA Coordinator

Other Participants

The Rohlmans (neighbor/interested party)
Adjacent neighbors (Unit 39 lot 11) whose refusal to sign the party wall agreement was central to the dispute

Paul Gounder vs. Royal Riviera Condominium Association

Posted on October 18, 2016 by [email protected]

Case Summary

Case ID	17F-H1716002-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2017-06-12
Administrative Law Judge	Suzanne Marwil
Outcome	partial
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Paul Gounder	Counsel	—
Respondent	Royal Riviera Condominium Association	Counsel	Mark Kristopher Sahl

Alleged Violations

A.R.S. § 33-1250(C)(2)

Outcome Summary

The Administrative Law Judge found Respondent violated A.R.S. § 33-1250(C)(2) by using two substantively different ballots during the 2016 board election,. Respondent was ordered to reimburse the Petitioner’s $500.00 filing fee,. The Administrative Law Judge concluded Respondent did not violate A.R.S. § 33-1250(C)(4),.

Why this result: Petitioner failed to prove violation of A.R.S. § 33-1250(C)(4), which specifies timing requirements for ballots; the ALJ noted that a meeting ballot did not need to contain a received-by date or be mailed seven days in advance if it had been substantively the same as the compliant absentee ballot,,,.

Key Issues & Findings

Ballot must provide an opportunity to vote for or against each proposed action.

The use of two substantively different ballots in the March 2016 election violated A.R.S. § 33-1250(C)(2) because members who did not attend the meeting were unaware of an additional candidate (Eric Thompson) listed on the meeting ballot, thereby denying those members the opportunity to vote for or against each proposed action contained in the meeting ballot,. This finding does not require ballots to be identical, but substantive changes must be presented to all members,,.

Orders: Petitioner's Petition was granted, and Respondent was ordered to reimburse Petitioner's filing fee of $500.00,. No other relief was available.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 33-1250(C)(2)
A.R.S. § 32-2199.02
A.R.S. § 41-1092.08

Analytics Highlights

Topics: HOA, Condominium, Board Election, Absentee Ballot, Statutory Violation, Filing Fee Reimbursement

Additional Citations:

A.R.S. § 33-1250(C)(2)
A.R.S. § 33-1250(C)(4)
A.R.S. § 33-1250(C)
A.R.S. § 41-2198.01
Article VII CC&Rs

Video Overview

Audio Overview

Decision Documents

17F-H1716002-REL Decision – 564851.pdf

Uploaded 2026-04-24T10:59:29 (44.2 KB)

17F-H1716002-REL Decision – 567887.pdf

Uploaded 2026-04-24T10:59:37 (79.0 KB)

17F-H1716002-REL Decision – 575055.pdf

Uploaded 2026-04-24T10:59:43 (689.5 KB)

17F-H1716002-REL Decision – 523915.pdf

Uploaded 2026-04-24T10:59:47 (103.0 KB)

Briefing Document: Gounder v. Royal Riviera Condominium Association

Executive Summary

This briefing document synthesizes the key events, arguments, and legal conclusions from the administrative case of Paul Gounder versus the Royal Riviera Condominium Association (Case No. 17F-H1716002-REL-RHG). The central issue revolved around the Association’s use of two substantively different ballots for its March 14, 2016, board member election.

The Petitioner, Paul Gounder, alleged that the use of a separate mail-in ballot and an in-person meeting ballot, which contained different candidate lists, violated Arizona statute A.R.S. § 33-1250(C)(2). Specifically, the ballot distributed at the meeting included the name of a seventh candidate, Eric Thompson, who was not listed on the mail-in ballot, thereby denying absentee voters the opportunity to vote for all candidates.

After an initial hearing resulted in a recommended dismissal, a rehearing was granted. Administrative Law Judge (ALJ) Suzanne Marwil ultimately concluded that the Association’s actions constituted a statutory violation. The Judge found that because members voting by mail were not informed of Mr. Thompson’s candidacy, they were denied their right to vote “for or against each proposed action.” The Respondent’s argument that the matter was moot due to a subsequent election was rejected.

The Department of Real Estate adopted the ALJ’s decision, issuing a Final Order on June 12, 2017. The Order granted the petition and required the Royal Riviera Condominium Association to reimburse Mr. Gounder’s $500.00 filing fee. The ruling establishes that while election ballots are not required to be identical, any substantive changes must be presented to all members to ensure an equal opportunity to vote.

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I. Case Overview and Background

This matter was brought before the Arizona Department of Real Estate and the Office of Administrative Hearings.

• Petitioner: Paul Gounder, a condominium owner and member of the Association.

• Respondent: Royal Riviera Condominium Association, a homeowners’ association for a development of approximately 32 condominiums.

• Initial Petition: Filed on or about June 23, 2016.

• Core Allegation: The Association violated A.R.S. § 33-1250(C)(2) and its own CC&Rs by using two substantively different ballots to elect Board members at its March 14, 2016, annual meeting.

II. Procedural History

1. Initial Hearing (October 17, 2016): A hearing was held before Administrative Law Judge Diane Mihalsky.

2. Recommended Dismissal (October 18, 2016): Judge Mihalsky recommended the petition be dismissed, concluding:

3. Rehearing Granted (February 17, 2017): The Petitioner requested a rehearing, which the Department of Real Estate granted. The Department’s order specifically requested a review of A.R.S. § 33-1250, with a focus on subsection (C)(4).

4. Rehearing (May 17, 2017): A rehearing was held before Administrative Law Judge Suzanne Marwil. At this hearing, the Respondent raised a procedural question regarding the correct statutory subsection for review, leading to a temporary order holding the record open until May 24, 2017, for clarification.

5. ALJ Decision (June 2, 2017): Judge Marwil issued a decision finding that the Respondent had committed a statutory violation.

6. Final Order (June 12, 2017): The Commissioner of the Department of Real Estate, Judy Lowe, accepted the ALJ’s decision and issued a Final Order making the decision binding.

III. The Core Dispute: The Two-Ballot System

The parties stipulated that two different ballots were used for the March 14, 2016, board election, which had seven open positions. The key differences are outlined below.

Feature

Mail Ballot (Absentee)

Meeting Ballot (In-Person)

“Mail Ballot”

“Ballot”

Candidates Listed

Six names

Seven names (added Eric Thompson)

Write-in Option

Included a blank line for a write-in candidate

No space provided for write-in candidates

Distribution

Distributed at least seven days before the meeting

Handed out to members attending the meeting

Return Deadline

Specified the date by which it had to be returned

Did not specify when it needed to be returned

IV. Arguments of the Parties

A. Petitioner’s Position (Paul Gounder)

• Violation of A.R.S. § 33-1250(C)(2): The addition of Eric Thompson’s name to the meeting ballot deprived members who voted by mail of their right “to vote for or against each proposed action,” as they had no opportunity to vote for Mr. Thompson.

• Violation of A.R.S. § 33-1250(C)(4): The meeting ballot violated this subsection because it was not mailed to all members at least seven days in advance of the meeting and did not provide a date by which it had to be received to be counted.

B. Respondent’s Position (Royal Riviera Condominium Association)

• No Violation: The statutes do not explicitly require the use of identical ballots for an election.

• Common Practice: It is a common practice for homeowners’ associations to use a different absentee ballot and meeting ballot.

• Mootness: The issue is moot because the Association had already held another election in 2017 and seated a new board, which included the Petitioner’s wife as a member.

V. Administrative Law Judge’s Findings and Conclusions

In her June 2, 2017 decision, ALJ Suzanne Marwil made the following key legal conclusions:

The ALJ found that the Association’s use of two substantively different ballots did violate this statute.

• Reasoning: Members who did not attend the meeting in person were not notified of Mr. Thompson’s willingness to run for the board. As a result, “these members did not have the opportunity to vote for him and hence were denied their right to vote for or against each proposed action contained in the meeting ballot.”

• Clarification: The ruling explicitly states that this finding does not impose a requirement that all ballots must be identical; however, it establishes that “substantive changes to ballots must be presented to all members.”

The ALJ concluded that no violation of this subsection occurred.

• Reasoning: The Petitioner conceded that the absentee ballot itself complied with the statutory requirements (e.g., being mailed seven days in advance with a return-by date). The judge reasoned that a meeting ballot handed out in person would not need to contain this information if it were “substantively the same as the absentee ballot.” The legal problem arose not from a failure to mail the second ballot, but from the substantive difference between the two.

The ALJ determined that the matter was not rendered moot by the 2017 election and the seating of a new board. The Judge affirmed that the tribunal “can and does find that Respondent committed a statutory violation in the course of holding its 2016 election.”

VI. Final Order and Outcome

• ALJ Recommended Order (June 2, 2017):

◦ The Petitioner’s petition should be granted.

◦ The Respondent must reimburse the Petitioner’s filing fee.

◦ No other relief was available to the Petitioner.

• Department of Real Estate Final Order (June 12, 2017):

◦ The Commissioner of the Department of Real Estate accepted and adopted the ALJ’s decision.

◦ The Order is a final administrative action, effective immediately.

◦ The Royal Riviera Condominium Association was ordered to reimburse the Petitioner’s filing fee of $500.00 within thirty (30) days.

◦ The parties were notified that the Order could be appealed via a complaint for judicial review.

Study Guide: Gounder v. Royal Riviera Condominium Association

This study guide provides a comprehensive review of the administrative case Paul Gounder v. Royal Riviera Condominium Association, Case No. 17F-H1716002-REL-RHG. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms based on the provided legal documents.

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Short-Answer Quiz

Instructions: Answer the following ten questions in 2-3 sentences each, based on the information in the case documents.

1. What was the central allegation made by the Petitioner, Paul Gounder, in his initial petition?

2. Describe the two different ballots used by the Royal Riviera Condominium Association for its March 14, 2016, board election.

3. What were the two primary legal arguments made by the Respondent, Royal Riviera Condominium Association, to defend its actions?

4. What was the initial outcome of the hearing held on October 17, 2016, before Administrative Law Judge Diane Mihalsky?

5. What was Administrative Law Judge Suzanne Marwil’s final conclusion regarding the alleged violation of A.R.S. § 33-1250(C)(2)?

6. How did Judge Marwil explain her finding that A.R.S. § 33-1250(C)(4), which deals with ballot delivery timelines, was not violated?

7. How did the Respondent argue that the case was moot, and why did Judge Marwil reject this argument?

8. According to the Final Order issued by the Commissioner of the Department of Real Estate, what specific relief was granted to the Petitioner?

9. What is the standard of proof in this matter, and which party has the burden of proof?

10. What specific action did the Department of Real Estate request be reviewed when it granted the request for a rehearing?

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Answer Key

1. The Petitioner, Paul Gounder, alleged that the Respondent violated A.R.S. § 33-1250(C)(2) and its own CC&Rs. The violation occurred by using two substantively different ballots for the election of Board members at the annual meeting on March 14, 2016.

2. The first ballot was an absentee “Mail Ballot” with six candidate names and a blank line for a write-in. The second ballot, handed out at the meeting, was titled “Ballot” and included the names of seven candidates (adding Eric Thompson) but had no space for a write-in candidate.

3. The Respondent argued that it committed no violation because the statutes do not explicitly require the use of identical ballots and that using different absentee and meeting ballots is common practice. It also maintained that the matter was moot because a new election had already occurred in 2017.

4. Following the initial hearing, Judge Diane Mihalsky recommended the dismissal of the Petition on October 18, 2016. She concluded that no statute or bylaw prevented the Respondent from adding the names of willing members to the ballot used at the annual election.

5. Judge Suzanne Marwil found that the use of two substantively different ballots did violate A.R.S. § 33-1250(C)(2). Because members voting by mail were not informed of Eric Thompson’s candidacy, they were denied their right to vote for or against each proposed action.

6. Judge Marwil concluded A.R.S. § 33-1250(C)(4) was not violated because the absentee ballot itself complied with the statute’s requirements for delivery timelines. She reasoned that a meeting ballot would not need to meet these requirements if it were substantively the same as the compliant absentee ballot; the problem arose only because the ballots were different.

7. The Respondent argued the case was moot because a new board had been seated in a 2017 election. Judge Marwil rejected this, stating that the fact a new board is seated does not prevent an Administrative Law Judge from finding that a statutory violation occurred in a past election.

8. The Final Order, issued by Commissioner Judy Lowe on June 12, 2017, granted the Petitioner’s petition. It ordered the Respondent to reimburse the Petitioner’s filing fee of $500.00 within thirty (30) days.

9. The standard of proof is a “preponderance of the evidence,” as stated in A.A.C. R2-19-119(A). Pursuant to A.A.C. R2-19-119(B), the Petitioner has the burden of proof in the matter.

10. In its February 17, 2017, Order Granting Request for Rehearing, the Department of Real Estate specifically requested a review of A.R.S. § 33-1250, and in particular, A.R.S. § 33-1250(C)(4).

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, hears evidence, and makes legal findings and recommendations. In this case, Diane Mihalsky and Suzanne Marwil served as ALJs.

A.R.S. (Arizona Revised Statutes)

The codified collection of laws for the state of Arizona. This case centered on the interpretation of A.R.S. § 33-1250.

Arizona Department of Real Estate (the Department)

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona. It granted the rehearing and accepted the final ALJ decision.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set up the rules for a planned community or condominium. The Petitioner alleged the Respondent violated Article VII of its CC&Rs.

Final Order

The concluding and binding decision in an administrative case. In this matter, the Final Order was issued by the Commissioner of the Department of Real Estate on June 12, 2017, accepting the ALJ’s decision.

A legal term for a matter that is no longer in controversy or has become irrelevant. The Respondent unsuccessfully argued the case was moot because a subsequent election had been held.

Office of Administrative Hearings (OAH)

An independent state agency that conducts administrative hearings for other state agencies. The Department of Real Estate referred this case to the OAH for a hearing.

Petitioner

The party who files a petition initiating a legal or administrative action. In this case, the Petitioner was Paul Gounder.

Preponderance of the Evidence

The standard of proof required in this administrative hearing. It means the party with the burden of proof must convince the judge that there is a greater than 50% chance that their claim is true.

Rehearing

A second hearing of a case to review the decision made in the first hearing. The Petitioner requested and was granted a rehearing after the initial recommendation to dismiss his petition.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the Royal Riviera Condominium Association.

Your HOA’s Election Rules Might Be Unfair. This Court Case Explains Why.

Introduction: The Devil in the Details

Living in a community governed by a Homeowners’ Association (HOA) often means navigating a complex web of rules, regulations, and procedures. While most are designed to maintain property values and community standards, the enforcement of these rules can sometimes feel arbitrary. But what happens when the very process for electing the board that enforces those rules is flawed?

A fascinating legal challenge demonstrates that even a single, seemingly minor discrepancy in an HOA election can have significant consequences. But the victory was anything but certain. In the case of Paul Gounder versus the Royal Riviera Condominium Association, the homeowner’s initial petition was actually recommended for dismissal by the first judge. It was only through persistence—requesting a rehearing—that the homeowner ultimately prevailed. This case serves as a powerful real-world example of why procedural fairness in community governance is not just important—it’s legally required—and reveals several surprising lessons for any homeowner who values a fair and transparent election process.

Takeaway 1: “Common Practice” Isn’t a Legal Defense

When challenged on its election procedures, the Royal Riviera Condominium Association’s defense was simple: it was merely following “common practice.” The board argued that many HOAs use a different absentee and in-person ballot, so they had done nothing wrong. However, the Administrative Law Judge disregarded this argument entirely, focusing instead on the explicit requirements of Arizona statute A.R.S. § 33-1250(C)(2). This decision provides a crucial lesson for all homeowners: an association’s internal habits or traditions do not override clear legal statutes. If a state law or the community’s own governing documents dictate a specific procedure, the HOA must follow it, regardless of what other associations might be doing. This empowers homeowners by showing that the law, not just internal tradition, is the ultimate authority governing their association’s actions.

Takeaway 2: A “Small” Change Can Invalidate an Election

The dispute in the March 14, 2016 election centered on two different ballots used for the same board election. The mail-in ballot, sent to members voting absentee, listed six names and included a blank line for a write-in candidate. The in-person ballot, distributed to members at the meeting, listed seven names—adding candidate Eric Thompson—and provided no space for write-ins. This difference was not seen as a minor error but as a “substantive” change that fundamentally altered the election. The judge reasoned that members who voted by mail “did not have the opportunity to vote for him and hence were denied their right to vote for or against each proposed action contained in the meeting ballot.”

The judge made a critical distinction about what constitutes a fair process, clarifying that the issue wasn’t about perfection, but equality of opportunity.

Finding this violation does not impose a requirement that ballots be identical; it simply states that substantive changes to ballots must be presented to all members.

This point is not about minor cosmetic differences like fonts or paper color. It’s about ensuring every single voting member has the exact same set of choices. Adding or removing a candidate on one version of a ballot creates two different elections, disenfranchising one group of voters. This ruling affirms that a fair election requires that all members have an equal opportunity to vote on all candidates and measures.

Takeaway 3: Accountability Matters, Even After the Fact

The association attempted to have the case dismissed by arguing that the issue was “moot.” Because a new election had already been held in 2017 and a new board was in place, the HOA claimed the flawed 2016 election no longer mattered. The Administrative Law Judge explicitly rejected this argument. The decision stated that “the fact that a new board is currently seated does not render the matter moot as the Administrative Law Judge can and does find that Respondent committed a statutory violation in the course of holding its 2016 election.” The final order granted the homeowner’s petition and required the Royal Riviera Condominium Association to reimburse his $500.00 filing fee. This is an impactful takeaway for any homeowner who feels it’s too late to act. It demonstrates that an HOA can be held legally accountable for past procedural violations, establishing an important precedent for the community and putting the board on notice for future conduct.

Conclusion: Knowledge is Power

The case of Gounder v. Royal Riviera Condominium Association is a powerful reminder that procedural fairness, strict adherence to legal statutes, and the vigilance of individual homeowners are essential checks on the power of an HOA board. The core lesson is clear: seemingly small details in an election process can have major legal consequences. Homeowners who take the time to understand the specific laws and bylaws governing their community can successfully challenge their associations. But this case also teaches a deeper lesson about perseverance. Faced with an initial recommendation for dismissal, the homeowner could have given up. Instead, he challenged the ruling and won on rehearing, proving that knowledge combined with conviction is a powerful force for ensuring the principles of fairness and equality are upheld.

Does your own community’s voting process ensure every member has an equal voice, and would it stand up to this kind of scrutiny?

Case Participants

Petitioner Side

Paul Gounder (petitioner)
Frederick C. Zehm (witness)
Royal Riviera Condominium Association member
Testified for Petitioner
Marlys Kleck (witness)
Royal Riviera Condominium Association member
Testified for Petitioner

Respondent Side

Mark Kristopher Sahl (HOA attorney)
Carpenter Hazlewood Delgado & Bolen PLC
Dan Peterson (property manager)
Owner of Respondent's management company

Neutral Parties

Diane Mihalsky (ALJ)
Presided over initial hearing
Suzanne Marwil (ALJ)
Presided over rehearing
Judy Lowe (ADRE Commissioner)
Arizona Department of Real Estate
Abby Hansen (ADRE staff/HOA Coordinator)
Arizona Department of Real Estate
Also listed as AHansen
LDettorre (ADRE staff)
Arizona Department of Real Estate
djones (ADRE staff)
Arizona Department of Real Estate
jmarshall (ADRE staff)
Arizona Department of Real Estate
ncano (ADRE staff)
Arizona Department of Real Estate
M. Aguirre (staff)
Transmitted order

Other Participants

Eric Thompson (member/candidate)
Candidate added to meeting ballot
Al DeFalco (member/candidate)
Nominated from the floor