David G. Iadevavia v. Ventana Shadows Homeowners Association, Inc.

Case Summary

Case ID 22F-H2222044-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-07-29
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner David G. Iadevavia Counsel
Respondent Ventana Shadows Homeowners Association, Inc. Counsel Carolyn B. Goldschmidt, Esq.

Alleged Violations

CC&R Section 2.16

Outcome Summary

The HOA did not violate its duties by selectively enforcing CC&R Section 2.16 against Petitioner regarding his mobile observatory.

Why this result: Petitioner failed to prove that the mobile observatory was not a trailer under the plain and obvious meaning of CC&R Section 2.16, or that the HOA's enforcement constituted illegal selective enforcement.

Key Issues & Findings

Selective enforcement of CC&R Section 2.16 regarding vehicles/trailers.

Petitioner alleged that the HOA selectively enforced CC&R Section 2.16 (regarding parking/vehicles/trailers) against him concerning his 'mobile observatory' while failing to enforce the rule or similar rules against other homeowners (sheds).

Orders: The Administrative Law Judge determined that the HOA did not violate its duties by selectively enforcing CC&R Section 2.16 against the Petitioner.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • Arizona Biltmore Estates vs. TZAC, 868 T2 1030
  • Arizona Biltmore Estates vs. TZAC, 177 Arizona 47
  • Burke versus Voice Screen Wireless Corporation, 87P381
  • Burke versus Voice Screen Wireless Corporation, 207 Arizona 393
  • Restatement (Third) of Property: Servitudes § 6.13(1)(b),(c) (2000)
  • A.R.S. §32-2199.02(B)
  • A.R.S. § 41-1092.09
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • A.R.S. 41-1092.07
  • A.A.C. R2-19-106(D)
  • A.A.C. R2-19-113(A)(3) and (4)
  • A.A.C. R2-19-116

Analytics Highlights

Topics: HOA, CC&Rs, Selective Enforcement, Trailer, Mobile Observatory, Parking
Additional Citations:

  • CC&R Section 2.16
  • Restatement (Third) of Property: Servitudes
  • Arizona Biltmore Estates vs. TZAC
  • Burke versus Voice Screen Wireless Corporation

Video Overview

Audio Overview

Decision Documents

22F-H2222044-REL Decision – 973802.pdf

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22F-H2222044-REL Decision – 974694.pdf

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22F-H2222044-REL Decision – 975118.pdf

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22F-H2222044-REL Decision – 977059.pdf

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22F-H2222044-REL Decision – 977202.pdf

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22F-H2222044-REL Decision – 977294.pdf

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22F-H2222044-REL Decision – 978417.pdf

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22F-H2222044-REL Decision – 978990.pdf

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22F-H2222044-REL Decision – 978991.pdf

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22F-H2222044-REL Decision – 979005.pdf

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22F-H2222044-REL Decision – 982403.pdf

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22F-H2222044-REL Decision – 993469.pdf

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Questions

Question

Can I claim that my HOA violated a CC&R provision meant to regulate homeowner behavior, such as parking rules?

Short Answer

No. CC&R provisions regulating conduct like parking are rules for homeowners to follow, not the HOA.

Detailed Answer

The ALJ clarified that a homeowner cannot successfully argue that the HOA violated a CC&R section designed to regulate homeowner conduct (e.g., parking restrictions). Such sections govern what a homeowner can or cannot do, but do not impose a direct duty on the HOA itself that can be violated in the manner described.

Alj Quote

This is a CC&R that regulates the homeowners. A homeowner may violate this section, but not the HOA… This is not a section that the HOA would violate in and of itself.

Legal Basis

CC&R Interpretation

Topic Tags

  • CC&R Violations
  • HOA Obligations
  • Legal Standards

Question

Am I entitled to a rebuttal closing argument after the hearing record closes?

Short Answer

No. Rebuttal closing arguments are generally not permitted under OAH rules.

Detailed Answer

Homeowners should make all necessary arguments during the hearing. The procedural rules for the Office of Administrative Hearings do not entitle a petitioner to a rebuttal closing argument, especially if one was not requested during the hearing itself.

Alj Quote

Petitioner is not entitled to a rebuttal closing argument pursuant to the rules that govern hearings at the Office of Administrative Hearings. … Furthermore, Petitioner did not request a rebuttal closing at the time of the hearing.

Legal Basis

Arizona Administrative Code R2-19-116

Topic Tags

  • Hearing Procedures
  • Homeowner Rights
  • Closing Arguments

Question

Can I amend the hearing issue to include general claims about the HOA's duty to treat members fairly?

Short Answer

The tribunal may deny such amendments if it lacks jurisdiction over broad common law claims.

Detailed Answer

In this case, a motion to amend the hearing issue to include violations of duties to 'treat members fairly' and 'act reasonably' (citing the Restatement of Property) was denied by the ALJ specifically due to a lack of jurisdiction.

Alj Quote

IT IS ORDERED that Petitioner’s motion to amend the hearing issue is denied due to lack of jurisdiction.

Legal Basis

Jurisdiction

Topic Tags

  • Jurisdiction
  • Amending Claims
  • Fairness

Question

Will my request for a subpoena automatically be granted?

Short Answer

No. Subpoena requests must strictly follow the Arizona Administrative Code requirements.

Detailed Answer

A homeowner's request for a subpoena will be denied if it fails to satisfy the specific requirements outlined in the administrative rules (R2-19-113). It is not automatic; the correct form and substance are required.

Alj Quote

IT IS ORDERED that the request for subpoena is denied. The request does not satisfy the requirements of Arizona Administrative Code R2-19-113(A)(3) and (4).

Legal Basis

Arizona Administrative Code R2-19-113

Topic Tags

  • Evidence
  • Subpoenas
  • Procedural Requirements

Question

Does the filing fee cover multiple unrelated issues in my petition?

Short Answer

No. The filing fee is tied to the number of issues; additional issues require additional payment.

Detailed Answer

If a petition includes multiple distinct issues (e.g., CC&R violation, notice violation, open meeting violation), the homeowner may be required to pay a higher fee. In this case, three issues required a total of $1,500, whereas a single issue was $500.

Alj Quote

With the violation of CC&R 2.16 and also 33-1803 and 33-1804. Those would be three separate issues and that would require a total payment of $1,500.

Legal Basis

Filing Fees

Topic Tags

  • Filing Fees
  • Petition Process
  • Costs

Question

Can the hearing be conducted virtually instead of in person?

Short Answer

Yes. The ALJ can order the hearing to be conducted via video conferencing or telephone.

Detailed Answer

The Office of Administrative Hearings utilizes platforms like Google Meet to allow parties to appear virtually for hearings.

Alj Quote

IT IS ORDERED that the hearing in this matter will be conducted either by video conferencing or telephone participation through Google Meet

Legal Basis

Hearing Procedures

Topic Tags

  • Virtual Hearing
  • Accessibility
  • Procedure

Case

Docket No
22F-H2222044-REL
Case Title
David G. Iadevavia vs. Ventana Shadows Homeowners Association, Inc.
Decision Date
2022-07-08
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I claim that my HOA violated a CC&R provision meant to regulate homeowner behavior, such as parking rules?

Short Answer

No. CC&R provisions regulating conduct like parking are rules for homeowners to follow, not the HOA.

Detailed Answer

The ALJ clarified that a homeowner cannot successfully argue that the HOA violated a CC&R section designed to regulate homeowner conduct (e.g., parking restrictions). Such sections govern what a homeowner can or cannot do, but do not impose a direct duty on the HOA itself that can be violated in the manner described.

Alj Quote

This is a CC&R that regulates the homeowners. A homeowner may violate this section, but not the HOA… This is not a section that the HOA would violate in and of itself.

Legal Basis

CC&R Interpretation

Topic Tags

  • CC&R Violations
  • HOA Obligations
  • Legal Standards

Question

Am I entitled to a rebuttal closing argument after the hearing record closes?

Short Answer

No. Rebuttal closing arguments are generally not permitted under OAH rules.

Detailed Answer

Homeowners should make all necessary arguments during the hearing. The procedural rules for the Office of Administrative Hearings do not entitle a petitioner to a rebuttal closing argument, especially if one was not requested during the hearing itself.

Alj Quote

Petitioner is not entitled to a rebuttal closing argument pursuant to the rules that govern hearings at the Office of Administrative Hearings. … Furthermore, Petitioner did not request a rebuttal closing at the time of the hearing.

Legal Basis

Arizona Administrative Code R2-19-116

Topic Tags

  • Hearing Procedures
  • Homeowner Rights
  • Closing Arguments

Question

Can I amend the hearing issue to include general claims about the HOA's duty to treat members fairly?

Short Answer

The tribunal may deny such amendments if it lacks jurisdiction over broad common law claims.

Detailed Answer

In this case, a motion to amend the hearing issue to include violations of duties to 'treat members fairly' and 'act reasonably' (citing the Restatement of Property) was denied by the ALJ specifically due to a lack of jurisdiction.

Alj Quote

IT IS ORDERED that Petitioner’s motion to amend the hearing issue is denied due to lack of jurisdiction.

Legal Basis

Jurisdiction

Topic Tags

  • Jurisdiction
  • Amending Claims
  • Fairness

Question

Will my request for a subpoena automatically be granted?

Short Answer

No. Subpoena requests must strictly follow the Arizona Administrative Code requirements.

Detailed Answer

A homeowner's request for a subpoena will be denied if it fails to satisfy the specific requirements outlined in the administrative rules (R2-19-113). It is not automatic; the correct form and substance are required.

Alj Quote

IT IS ORDERED that the request for subpoena is denied. The request does not satisfy the requirements of Arizona Administrative Code R2-19-113(A)(3) and (4).

Legal Basis

Arizona Administrative Code R2-19-113

Topic Tags

  • Evidence
  • Subpoenas
  • Procedural Requirements

Question

Does the filing fee cover multiple unrelated issues in my petition?

Short Answer

No. The filing fee is tied to the number of issues; additional issues require additional payment.

Detailed Answer

If a petition includes multiple distinct issues (e.g., CC&R violation, notice violation, open meeting violation), the homeowner may be required to pay a higher fee. In this case, three issues required a total of $1,500, whereas a single issue was $500.

Alj Quote

With the violation of CC&R 2.16 and also 33-1803 and 33-1804. Those would be three separate issues and that would require a total payment of $1,500.

Legal Basis

Filing Fees

Topic Tags

  • Filing Fees
  • Petition Process
  • Costs

Question

Can the hearing be conducted virtually instead of in person?

Short Answer

Yes. The ALJ can order the hearing to be conducted via video conferencing or telephone.

Detailed Answer

The Office of Administrative Hearings utilizes platforms like Google Meet to allow parties to appear virtually for hearings.

Alj Quote

IT IS ORDERED that the hearing in this matter will be conducted either by video conferencing or telephone participation through Google Meet

Legal Basis

Hearing Procedures

Topic Tags

  • Virtual Hearing
  • Accessibility
  • Procedure

Case

Docket No
22F-H2222044-REL
Case Title
David G. Iadevavia vs. Ventana Shadows Homeowners Association, Inc.
Decision Date
2022-07-08
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • David G. Iadevavia (petitioner)
  • Jill H. Perrella (attorney)
    Snell & Wilmer LLP

Respondent Side

  • Carolyn B. Goldschmidt (HOA attorney)
    Goldschmidt | Shupe, PLLC
  • Bill Borg (witness/board member)
  • Jason Bader (witness/board member)

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • c. serrano (OAH staff)
  • M Alvarez (OAH staff)
  • A. Hansen (ADRE staff)
    Arizona Department of Real Estate
  • V. Nunez (ADRE staff)
    Arizona Department of Real Estate
  • D. Jones (ADRE staff)
    Arizona Department of Real Estate
  • L. Abril (ADRE staff)
    Arizona Department of Real Estate

Other Participants

  • Rick Abbott (spectator)

Judy Clapp v. Forest Trails Homeowners Association

Case Summary

Case ID 22F-H2221026-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-03-29
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Judy Clapp Counsel Kevin Harper
Respondent Forest Trails Homeowners Association Counsel Edward D. O'Brien; Edith I. Rudder

Alleged Violations

Declaration § 2.2; Declaration § 2.21; Architectural Guidelines

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove that the Forest Trails Homeowners Association violated its governing documents when it approved landscaping that obstructed parking in a common area.

Why this result: The Petitioner failed to meet the evidentiary burden that the HOA violated the Declaration or related statutes. The ALJ found that the Declaration permits landscaping in the common area (Section 2.2) and the petitioner presented no legal authority mandating the disputed area remain solely available for parking.

Key Issues & Findings

Alleged violation concerning landscaping in common area preventing parking.

Petitioner Judy Clapp alleged the HOA improperly approved the adjacent homeowner's (Normans) landscaping project in the common area next to Lot 1473 Trailhead. She claimed this blocked a historical parking area used by multiple homeowners, violating Declaration Section 2.2 (common area use for benefit of all members, including parking as a permitted use) and Architectural Guidelines (prohibiting exclusive use of common area).

Orders: The petition was dismissed. The ALJ found that the Petitioner failed to meet the burden of proof to establish that the Respondent violated the Declaration or any statute.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Declaration § 2.2
  • Declaration § 2.21
  • Architectural Guidelines
  • A.R.S. § 32-2199(B)
  • Declaration § 3.4
  • Declaration § 4.1

Analytics Highlights

Topics: Common Area, Landscaping, Parking, Architectural Control Committee, Exclusive Use, HOA Governance
Additional Citations:

  • Declaration § 2.2
  • Declaration § 2.21
  • Architectural Guidelines
  • A.R.S. § 32-2199(B)
  • Declaration § 3.4
  • Declaration § 4.1

Audio Overview

Decision Documents

22F-H2221026-REL Decision – 944374/HO22-21026_ElectronicNotice_Hearing.pdf

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22F-H2221026-REL Decision – 944374/HO22-21026_ElectronicNotice_Petition.pdf

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22F-H2221026-REL Decision – 944374/HO22-21026_Hearing_Scheduled.pdf

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22F-H2221026-REL Decision – 944374/HO22-21026_Notice_AppearanceRespondent.pdf

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22F-H2221026-REL Decision – 944374/HO22-21026_Notice_Hearing.pdf

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22F-H2221026-REL Decision – 944374/HO22-21026_Notice_Petition.pdf

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22F-H2221026-REL Decision – 944374/HO22-21026_Payment.pdf

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22F-H2221026-REL Decision – 944374/HO22-21026_Petition.pdf

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22F-H2221026-REL Decision – 944374/HO22-21026_Response_Petition_Form.pdf

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22F-H2221026-REL Decision – 958497.pdf

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22F-H2221026-REL Decision – HO22-21026_ElectronicNotice_Hearing.pdf

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22F-H2221026-REL Decision – HO22-21026_ElectronicNotice_Petition.pdf

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22F-H2221026-REL Decision – HO22-21026_Hearing_Scheduled.pdf

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22F-H2221026-REL Decision – HO22-21026_Notice_AppearanceRespondent.pdf

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22F-H2221026-REL Decision – HO22-21026_Notice_Hearing.pdf

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22F-H2221026-REL Decision – HO22-21026_Notice_Petition.pdf

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22F-H2221026-REL Decision – HO22-21026_Payment.pdf

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22F-H2221026-REL Decision – HO22-21026_Petition.pdf

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22F-H2221026-REL Decision – HO22-21026_Response_Petition_Form.pdf

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Briefing Doc – 22F-H2221026-REL


Case Briefing: Judy Clapp v. Forest Trails Homeowners Association

Executive Summary

This document synthesizes the proceedings of the administrative hearing held on March 9, 2022, regarding Docket Number 22F-H2221026-l. The dispute involves a challenge by petitioner Judy Clapp against the Forest Trails Homeowners Association (HOA) concerning the landscaping of an eight-foot unpaved common area adjacent to 1473 Trail Head (the “Norman lot”).

The central conflict involves the Board’s decision to allow a homeowner to install a rock berm on association-owned land that had historically functioned as a parking lane for residents accessing a nearby trail head. The petitioner alleges this action violates the community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) by granting exclusive use of common area to one homeowner and eliminating a long-standing community benefit. The association contends that the Board acted within its authority to approve architectural requests, maintained consistency with community-wide landscaping standards, and addressed legitimate nuisance and erosion concerns.

——————————————————————————–

Case Overview and Hearing Details

Date of Hearing: March 9, 2022

Administrative Law Judge: Alvin Moses Thompson

Petitioner: Judy Clapp (Represented by Kevin Harper)

Respondent: Forest Trails Homeowners Association (Represented by Ed O’Brien)

Key Witnesses: Judy Clapp (Petitioner); Dean Meyers (Board Member/Witness for Respondent)

Subject Property: Common area adjacent to 1473 Trail Head, Prescott, Arizona.

——————————————————————————–

Primary Legal and Regulatory Framework

The dispute centers on the interpretation of specific governing documents produced as evidence:

Amended Declaration of Covenants, Conditions, and Restrictions (CC&Rs)

Section 2.2 (Common Areas and Open Space): States that common areas “shall be for the use and benefit of all members” and should be left in their natural state unless used for specific purposes, including “trails, walkways, driveways, parking areas, appropriate signs, recreational amenities, [and] landscaping.”

Section 3.4: Grants the association the authority to “own, repair, manage, operate, and maintain” common areas according to the plat.

Section 3.4.9: Designates the Architectural Control Committee (ACC) as the “judge of all aesthetic matters” on the common area.

Section 4.1: Provides the Board with flexibility in its decision-making regarding association property.

Architectural Guidelines

Landscaping Provisions: Permitted on the unpaved association-owned area (approx. 8 feet) between the lot line and the street only with ACC approval.

Exclusive Use Restriction: Mandates that any such approval “will not give the property owner exclusive use of this association property.”

——————————————————————————–

Main Themes and Arguments

1. Historical Use vs. New Architectural Approval

The petitioner argues that the area in question served as a de facto parking lane for approximately 15–20 years, accommodating up to three vehicles.

Petitioner Position: The removal of this parking area harms residents who now must walk an additional mile or more to access trail heads. Clapp asserts the association consistently denied similar requests in the past to protect common area access.

Respondent Position: The HOA argues that parking was never a “guaranteed right” or a “written amenity” in the declaration. They contend the Board could not “say no” to the Normans’ request because hundreds of other homeowners have similar roadside landscaping.

2. Allegations of “Exclusive Use”

A major point of contention is whether the rock berm constitutes a violation of the rule against “exclusive use.”

Petitioner’s Argument: The installation of large boulders and a rock berm makes it impossible for vehicles to park and “unsafe” or “risky” for pedestrians to walk over, effectively gifting the land to the adjacent homeowner.

Respondent’s Argument: The area is not fenced or walled. Members of the public or homeowners can still theoretically walk on it, meaning use is not exclusive. Dean Meyers testified that the area is “less accessible” but still accessible at the ends.

3. Nuisance Mitigation and Safety

The HOA justifies the landscaping as a solution to long-standing issues.

Respondent’s Evidence: Dean Meyers testified that the parking area created nuisances including noise (dogs, yelling), trash, and public intrusion 40 feet from the Normans’ kitchen. Furthermore, Meyers cited an erosion issue where water was undermining the cement curb, a problem he claims the landscaping resolved.

Petitioner’s Rebuttal: Clapp, a former board member of 10 years, testified she never heard of safety, noise, or trash complaints regarding this site until February 2021, four months after the rocks were installed. She suggested the “safety” argument was an after-the-fact justification.

4. Conflict of Interest and Procedure

The petitioner raised concerns regarding the motivations behind the approval.

Self-Serving Motivation: Witness Dean Meyers is a permanent board member and also the owner of the landscaping company hired by the Normans to perform the work.

Lack of Formal Vote: Clapp testified that the work appeared to be allowed without a formal board vote, though respondent minutes from October 27, 2020, show the board requested gravel samples for the project.

——————————————————————————–

Critical Evidence and Testimony

Photographic Evidence (Exhibit 6)

The hearing reviewed nine photographs showing the evolution of the site:

Before: A dirt “parking lane” capable of holding cars.

After: A “rock berm” consisting of large boulders and smaller rocks that completely prohibit vehicle access.

Comparison to Other Amenities

Clapp pointed to the community tennis courts as evidence of unfair treatment.

Tennis Court Parking: The HOA recently expanded and paved parking for tennis players (Exhibits 17, 18).

Trail Head Parking: Conversely, the HOA eliminated parking for hikers at the trail head, which Clapp described as the community’s only other amenity.

Legal Opinion of Jim Atkinson

An email exchange (Exhibit 7) involving former Board President and attorney Jim Atkinson was introduced. Atkinson’s noted opinion stated:

• The 8-foot area is common area property, “no different than its ownership of the paved areas.”

• Parking is a permitted use under Section 2.2.

• The Board “never agreed to allow a lot owner to block access to the shoulder area.”

——————————————————————————–

Conclusions and Sought Relief

The Petitioner seeks an order confirming that the CC&Rs prohibit these specific landscaping changes and requiring the association to restore the common area to its original condition.

The Respondent maintains that the Board acted within its discretionary authority to manage common areas and treat all members fairly by approving a standard landscaping request. They argue the Petitioner is seeking a “prescriptive easement” to park in a specific spot, a right they claim does not exist under the governing documents or Arizona law.

Summary Table of Arguments

Petitioner’s View

Respondent’s View

Land Use

Reserved for the benefit of all members (parking/trails).

Subject to Board management and aesthetic discretion.

Accessibility

Rock berm creates “exclusive use” by blocking access.

No fence exists; property remains technically accessible.

Safety/Nuisance

No evidence of prior complaints; “punitive” decision.

Resolved erosion, trash, and noise nuisances.

Consistency

Association has historically denied such requests.

Hundreds of other lots have identical landscaping.

Board Ethics

Decision was self-serving (witness was the contractor).

Business was private between the contractor and homeowner.






Study Guide – 22F-H2221026-REL


Study Guide: Judy Clapp v. Forest Trails Homeowners Association (Docket No. 22F-H2221026-I)

This study guide provides a comprehensive overview of the administrative hearing held on March 9, 2022, regarding a dispute over common area usage, landscaping rights, and parking access within the Forest Trails community.

——————————————————————————–

Part I: Short-Answer Quiz

Instructions: Answer the following questions in 2–3 sentences based on the provided hearing transcript and documents.

1. What is the central issue of the dispute between Judy Clapp and the Forest Trails Homeowners Association?

2. How does Section 2.2 of the Forest Trails Declaration define the purpose and permitted uses of “common areas”?

3. What physical modification to the area near 1473 Trail Head triggered this legal action, and who performed the work?

4. What is the Petitioner’s primary argument regarding the “exclusive use” of the landscaped common area?

5. How does the Association justify its decision to approve the Normans’ landscaping request despite member objections?

6. What did the 2002–2003 review of the plat and CC&Rs reveal to the Association board regarding the 8-foot strips alongside the roadways?

7. What “nuisances” did the Respondent cite as reasons for prohibiting parking at the trail head location?

8. How does the Petitioner use the example of the community tennis courts to argue that the Association’s parking policy is inconsistent?

9. According to the testimony of Dean Myers, what is the Association’s policy regarding damage to homeowner-installed landscaping caused by snowplows?

10. What specific legal relief is the Petitioner seeking from the Administrative Law Judge?

——————————————————————————–

Part II: Answer Key

1. The dispute centers on the Association’s decision to allow a specific homeowner (the Normans) to landscape a common area in a way that prohibits long-standing member parking. The Petitioner argues this violates the Declaration’s provision that common areas benefit all members, while the Association claims the right to manage aesthetics and address nuisances.

2. Section 2.2 states that common areas are for the “use and benefit of all members” and should generally be left in their natural state. However, it explicitly allows these areas to be used for specific purposes, including trails, walkways, driveways, parking areas, landscaping, and utility easements.

3. The Normans installed large boulders and a rock berm on the association-owned unpaved roadway shoulder to prevent vehicles from parking there. This work was executed by Dean Myers, who is a permanent member of the Association’s Board of Directors and the owner of a landscaping company.

4. The Petitioner argues that the installation of the rock berm effectively grants the Normans “exclusive use” of the common area by making it physically inaccessible to others. She contends this violates the Architectural Guidelines, which state that landscaping approval shall not give a property owner exclusive use of association property.

5. The Association argues it must treat all members fairly, noting that hundreds of other residents have been allowed to landscape the common area up to the roadside. They assert that denying the Normans’ request would have unfairly “singled them out” when similar requests are universally approved.

6. The board realized that the 8-foot unpaved areas on each side of the paved roads were not private property but were actually “common areas” owned and managed by the Association. Following this discovery, the Association took over maintenance responsibilities, such as weed control and erosion management, for these strips.

7. The Respondent claimed that parking at the trail head created nuisances including trash, noise, and “public intrusion” from non-residents. Additionally, Dean Myers testified that parking was exacerbating erosion issues that were beginning to undermine the concrete street curb.

8. The Petitioner points out that the Association recently expanded and paved parking at the community tennis courts to benefit members who play tennis. She argues it is discriminatory to improve amenities for one group of members while removing a traditional parking benefit for those who use the hiking trails.

9. The Association generally holds the homeowner responsible for the costs of repairing any landscaping that extends into the common area if it is damaged by a snowplow. This serves as a condition of allowing private landscaping on association-owned land; the board only pays if the plow operator acted “stupidly.”

10. The Petitioner is seeking an order confirming that the Declaration prohibits these specific landscaping changes. Furthermore, she is requesting that the Association be ordered to restore the common area to its original condition to allow for continued member parking.

——————————————————————————–

Part III: Essay Questions

Instructions: Use the source context to develop comprehensive responses to the following prompts. (Answers not provided).

1. Aesthetics vs. Utility: Analyze the tension between the Board’s authority to judge “aesthetic matters” (Section 3.4.9) and the “permitted uses” of common areas (Section 2.2). Which authority should take precedence when a visual improvement eliminates a functional use?

2. The Definition of Exclusive Use: Evaluate the Respondent’s argument that the rock berm does not constitute “exclusive use” because there is no fence. Contrast this with the Petitioner’s testimony regarding the physical safety and accessibility of the area for members.

3. Conflicts of Interest in Governance: Discuss the implications of Dean Myers serving as both the board member approving (or allowing) the project and the contractor performing the work. How does this dual role affect the Association’s “fairness” argument?

4. Safety and Nuisance as Justification: Examine the evidence provided for safety concerns and nuisances at the trail head. Was the Association’s response (permitting boulders) a proportionate and evidenced-based solution to the problems described?

5. Historical Practice vs. Written Code: Explore the legal weight of “decades of practice” versus the literal interpretation of the Plat and Declaration. Should sixteen years of uninterrupted use by members create a protected right to park, even if not explicitly marked on a plat map?

——————————————————————————–

Part IV: Glossary of Key Terms

Definition

Architectural Control Committee (ACC)

The body (often the Board of Directors in this case) responsible for reviewing and approving or denying changes to property and common areas.

Common Area

Land owned by the Homeowners Association for the use, benefit, and enjoyment of all members, such as the 8-foot strips adjacent to roadways.

Declaration (CC&Rs)

The “Amended Declaration of Covenant Conditions and Restrictions,” which serves as the primary governing document for the Forest Trails community.

Developer Position

A permanent seat on the Board of Directors reserved for the original developer or their representative (currently held by Dean Myers).

Easement

A legal right to use another’s land for a specific limited purpose; in this case, the trail head access is described as an easement between two lots.

Exclusive Use

The sole right to use a portion of property to the exclusion of others; prohibited for private owners on association common areas.

GIS (Geographic Information System)

Digital mapping technology used in the hearing to show property lines and the relationship between lots and association-owned streets.

Natural State

The original, undeveloped condition of land; Section 2.2 mandates common areas be kept this way unless used for specific permitted purposes like trails or parking.

Petitioner

The party initiating the legal grievance or “petition” (Judy Clapp).

Plat / Plat Map

An official map drawn to scale, showing the divisions of a piece of land, including lots, streets, and common areas.

Respondent

The party responding to the legal grievance (Forest Trails Homeowners Association).

Rock Berm

A man-made barrier or mound constructed of rocks and boulders used in this case to physically block vehicle access to a shoulder.






Blog Post – 22F-H2221026-REL


Study Guide: Judy Clapp v. Forest Trails Homeowners Association (Docket No. 22F-H2221026-I)

This study guide provides a comprehensive overview of the administrative hearing held on March 9, 2022, regarding a dispute over common area usage, landscaping rights, and parking access within the Forest Trails community.

——————————————————————————–

Part I: Short-Answer Quiz

Instructions: Answer the following questions in 2–3 sentences based on the provided hearing transcript and documents.

1. What is the central issue of the dispute between Judy Clapp and the Forest Trails Homeowners Association?

2. How does Section 2.2 of the Forest Trails Declaration define the purpose and permitted uses of “common areas”?

3. What physical modification to the area near 1473 Trail Head triggered this legal action, and who performed the work?

4. What is the Petitioner’s primary argument regarding the “exclusive use” of the landscaped common area?

5. How does the Association justify its decision to approve the Normans’ landscaping request despite member objections?

6. What did the 2002–2003 review of the plat and CC&Rs reveal to the Association board regarding the 8-foot strips alongside the roadways?

7. What “nuisances” did the Respondent cite as reasons for prohibiting parking at the trail head location?

8. How does the Petitioner use the example of the community tennis courts to argue that the Association’s parking policy is inconsistent?

9. According to the testimony of Dean Myers, what is the Association’s policy regarding damage to homeowner-installed landscaping caused by snowplows?

10. What specific legal relief is the Petitioner seeking from the Administrative Law Judge?

——————————————————————————–

Part II: Answer Key

1. The dispute centers on the Association’s decision to allow a specific homeowner (the Normans) to landscape a common area in a way that prohibits long-standing member parking. The Petitioner argues this violates the Declaration’s provision that common areas benefit all members, while the Association claims the right to manage aesthetics and address nuisances.

2. Section 2.2 states that common areas are for the “use and benefit of all members” and should generally be left in their natural state. However, it explicitly allows these areas to be used for specific purposes, including trails, walkways, driveways, parking areas, landscaping, and utility easements.

3. The Normans installed large boulders and a rock berm on the association-owned unpaved roadway shoulder to prevent vehicles from parking there. This work was executed by Dean Myers, who is a permanent member of the Association’s Board of Directors and the owner of a landscaping company.

4. The Petitioner argues that the installation of the rock berm effectively grants the Normans “exclusive use” of the common area by making it physically inaccessible to others. She contends this violates the Architectural Guidelines, which state that landscaping approval shall not give a property owner exclusive use of association property.

5. The Association argues it must treat all members fairly, noting that hundreds of other residents have been allowed to landscape the common area up to the roadside. They assert that denying the Normans’ request would have unfairly “singled them out” when similar requests are universally approved.

6. The board realized that the 8-foot unpaved areas on each side of the paved roads were not private property but were actually “common areas” owned and managed by the Association. Following this discovery, the Association took over maintenance responsibilities, such as weed control and erosion management, for these strips.

7. The Respondent claimed that parking at the trail head created nuisances including trash, noise, and “public intrusion” from non-residents. Additionally, Dean Myers testified that parking was exacerbating erosion issues that were beginning to undermine the concrete street curb.

8. The Petitioner points out that the Association recently expanded and paved parking at the community tennis courts to benefit members who play tennis. She argues it is discriminatory to improve amenities for one group of members while removing a traditional parking benefit for those who use the hiking trails.

9. The Association generally holds the homeowner responsible for the costs of repairing any landscaping that extends into the common area if it is damaged by a snowplow. This serves as a condition of allowing private landscaping on association-owned land; the board only pays if the plow operator acted “stupidly.”

10. The Petitioner is seeking an order confirming that the Declaration prohibits these specific landscaping changes. Furthermore, she is requesting that the Association be ordered to restore the common area to its original condition to allow for continued member parking.

——————————————————————————–

Part III: Essay Questions

Instructions: Use the source context to develop comprehensive responses to the following prompts. (Answers not provided).

1. Aesthetics vs. Utility: Analyze the tension between the Board’s authority to judge “aesthetic matters” (Section 3.4.9) and the “permitted uses” of common areas (Section 2.2). Which authority should take precedence when a visual improvement eliminates a functional use?

2. The Definition of Exclusive Use: Evaluate the Respondent’s argument that the rock berm does not constitute “exclusive use” because there is no fence. Contrast this with the Petitioner’s testimony regarding the physical safety and accessibility of the area for members.

3. Conflicts of Interest in Governance: Discuss the implications of Dean Myers serving as both the board member approving (or allowing) the project and the contractor performing the work. How does this dual role affect the Association’s “fairness” argument?

4. Safety and Nuisance as Justification: Examine the evidence provided for safety concerns and nuisances at the trail head. Was the Association’s response (permitting boulders) a proportionate and evidenced-based solution to the problems described?

5. Historical Practice vs. Written Code: Explore the legal weight of “decades of practice” versus the literal interpretation of the Plat and Declaration. Should sixteen years of uninterrupted use by members create a protected right to park, even if not explicitly marked on a plat map?

——————————————————————————–

Part IV: Glossary of Key Terms

Definition

Architectural Control Committee (ACC)

The body (often the Board of Directors in this case) responsible for reviewing and approving or denying changes to property and common areas.

Common Area

Land owned by the Homeowners Association for the use, benefit, and enjoyment of all members, such as the 8-foot strips adjacent to roadways.

Declaration (CC&Rs)

The “Amended Declaration of Covenant Conditions and Restrictions,” which serves as the primary governing document for the Forest Trails community.

Developer Position

A permanent seat on the Board of Directors reserved for the original developer or their representative (currently held by Dean Myers).

Easement

A legal right to use another’s land for a specific limited purpose; in this case, the trail head access is described as an easement between two lots.

Exclusive Use

The sole right to use a portion of property to the exclusion of others; prohibited for private owners on association common areas.

GIS (Geographic Information System)

Digital mapping technology used in the hearing to show property lines and the relationship between lots and association-owned streets.

Natural State

The original, undeveloped condition of land; Section 2.2 mandates common areas be kept this way unless used for specific permitted purposes like trails or parking.

Petitioner

The party initiating the legal grievance or “petition” (Judy Clapp).

Plat / Plat Map

An official map drawn to scale, showing the divisions of a piece of land, including lots, streets, and common areas.

Respondent

The party responding to the legal grievance (Forest Trails Homeowners Association).

Rock Berm

A man-made barrier or mound constructed of rocks and boulders used in this case to physically block vehicle access to a shoulder.


Case Participants

Petitioner Side

  • Judy Clapp (Petitioner)
    Homeowner
    Also referred to as Judith Ellen Black
  • Kevin Harper (Petitioner Attorney)
    Harper Law PLC
  • Rick Ohanesian (Petitioner)
    Homeowner
    Listed in Respondent's Amended Notice of Appearance
  • Lucy McMillan (Former Board Member)
    Forest Trails HOA
    Listed as witness but not present

Respondent Side

  • Edward D. O'Brien (Respondent Attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Edith I. Rudder (Respondent Attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Dean Meyers (Board Member)
    Forest Trails HOA Board
    Developer position on board; Professional landscaper hired by the Normans; Witness
  • James Norman (Homeowner)
    Forest Trails HOA
    Owner of lot 30; requested landscaping
  • Cynthia Norman (Homeowner)
    Forest Trails HOA
    Owner of lot 30
  • Jim Atkinson (HOA Attorney)
    Former Board President; identified as Association attorney in testimony
  • Nancy Char (Board President)
    Forest Trails HOA
    Current president mentioned in testimony
  • Marissa (Property Manager)
    Community Asset Management LLC
    Mentioned in meeting minutes regarding sample handling

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
    Transcribed as 'Alvin Moses Thompson' in audio transcript
  • Dan Gardner (HOA Coordinator)
    ADRE
  • Louis Dettorre (Commissioner)
    ADRE

Other Participants

  • Lenor Hemphill (Former Board Member)
    Forest Trails HOA
    Sent email regarding landscaping issue

The Sun Groves Homeowners Association v. David L & Makenzie Lockhart

Case Summary

Case ID 21F-H2120019-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-02-10
Administrative Law Judge Adam D. Stone
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Sun Groves Homeowners Association Counsel Robert H. Willis, Esq.
Respondent David L. and Stephanie J. Lockhart Counsel Andrew Ellis, Esq.

Alleged Violations

Article 10.11.1 of the SGHA CC&R’s

Outcome Summary

The Petitioner (HOA) prevailed as the Respondents stipulated they violated the CC&R Article 10.11.1 concerning parking, and were ordered to pay the Petitioner's $500.00 filing fees.

Why this result: Respondents stipulated that they were in violation of Article 10.11.1 of the SGHA CC&R’s.

Key Issues & Findings

Violation of parking restrictions

Respondents stipulated that they were in violation of the SGHA CC&R’s regarding parking restrictions.

Orders: Petition granted; Respondents assessed the cost of Petitioner’s filing fees in the amount of $500.00.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 32-2199(B)

Analytics Highlights

Topics: Stipulation, CC&R Violation, Parking
Additional Citations:

  • A.R.S. § 32-2199(B)
  • Title 33, Chapter 16

Video Overview

Audio Overview

Decision Documents

21F-H2120019-REL Decision – 854057.pdf

Uploaded 2026-01-23T17:35:42 (84.7 KB)

Questions

Question

Can my HOA restrict parking on the street or in front of my house?

Short Answer

Yes, if the CC&Rs specifically restrict parking to garages or driveways.

Detailed Answer

The ALJ upheld a CC&R provision that prohibited parking private passenger automobiles or pickup trucks anywhere on the property or adjacent roadways, except within a garage or private driveway.

Alj Quote

No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.

Legal Basis

CC&R Article 10.11.1

Topic Tags

  • Parking
  • CC&Rs
  • Restrictions

Question

If I admit to a violation during a hearing, what happens?

Short Answer

The judge will accept the admission and issue a finding that the violation occurred.

Detailed Answer

When a homeowner stipulates (agrees) that they were in violation of a specific rule, the tribunal accepts this admission as fact and rules accordingly without needing further evidence.

Alj Quote

Pursuant to the stipulation of the parties, the tribunal finds that Respondents violated Article 10.11.1 of the SGHA CC&R’s.

Legal Basis

Stipulation of Parties

Topic Tags

  • Hearing Procedure
  • Stipulation
  • Evidence

Question

Can the HOA force me to pay their filing fees if they win?

Short Answer

Yes, the judge can order the homeowner to pay the HOA's filing fees.

Detailed Answer

In this case, the homeowners agreed to pay the HOA's $500.00 filing fee as part of the stipulation that the HOA was the prevailing party, and the judge ordered this assessment.

Alj Quote

IT IS FURTHER ORDERED assessing the cost of Petitioner’s filing fees in the amount of $500.00.

Legal Basis

Administrative Order

Topic Tags

  • Fines
  • Fees
  • Costs

Question

Does the Department of Real Estate have authority to hear HOA violation cases?

Short Answer

Yes, state law allows owners or HOAs to file petitions regarding violations of community documents.

Detailed Answer

Arizona statute permits planned community organizations (HOAs) or owners to file petitions with the Department regarding violations, which are then heard by the Office of Administrative Hearings.

Alj Quote

A.R.S. § 32-2199(B) permits an owner or a planned community organization to file a petition with the Department for a hearing concerning violations of planned community documents under the authority Title 33, Chapter 16.

Legal Basis

A.R.S. § 32-2199(B)

Topic Tags

  • Jurisdiction
  • ADRE
  • Process

Question

Is the Administrative Law Judge's decision final?

Short Answer

Yes, the order is binding unless a rehearing is granted.

Detailed Answer

The decision issued by the ALJ is legally binding on both the homeowner and the HOA unless a request for a rehearing is successfully granted.

Alj Quote

Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04.

Legal Basis

A.R.S. § 32-2199.02(B)

Topic Tags

  • Legal Status
  • Appeals
  • Binding Order

Question

How much time do I have to appeal or request a rehearing?

Short Answer

You must file a request for rehearing within 30 days of the service of the order.

Detailed Answer

If a party wishes to challenge the decision, they must file a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days.

Alj Quote

Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

  • Appeals
  • Deadlines
  • Procedure

Case

Docket No
21F-H2120019-REL
Case Title
The Sun Groves Homeowners Association vs. David L & Makenzie Lockhart
Decision Date
2021-02-10
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA restrict parking on the street or in front of my house?

Short Answer

Yes, if the CC&Rs specifically restrict parking to garages or driveways.

Detailed Answer

The ALJ upheld a CC&R provision that prohibited parking private passenger automobiles or pickup trucks anywhere on the property or adjacent roadways, except within a garage or private driveway.

Alj Quote

No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.

Legal Basis

CC&R Article 10.11.1

Topic Tags

  • Parking
  • CC&Rs
  • Restrictions

Question

If I admit to a violation during a hearing, what happens?

Short Answer

The judge will accept the admission and issue a finding that the violation occurred.

Detailed Answer

When a homeowner stipulates (agrees) that they were in violation of a specific rule, the tribunal accepts this admission as fact and rules accordingly without needing further evidence.

Alj Quote

Pursuant to the stipulation of the parties, the tribunal finds that Respondents violated Article 10.11.1 of the SGHA CC&R’s.

Legal Basis

Stipulation of Parties

Topic Tags

  • Hearing Procedure
  • Stipulation
  • Evidence

Question

Can the HOA force me to pay their filing fees if they win?

Short Answer

Yes, the judge can order the homeowner to pay the HOA's filing fees.

Detailed Answer

In this case, the homeowners agreed to pay the HOA's $500.00 filing fee as part of the stipulation that the HOA was the prevailing party, and the judge ordered this assessment.

Alj Quote

IT IS FURTHER ORDERED assessing the cost of Petitioner’s filing fees in the amount of $500.00.

Legal Basis

Administrative Order

Topic Tags

  • Fines
  • Fees
  • Costs

Question

Does the Department of Real Estate have authority to hear HOA violation cases?

Short Answer

Yes, state law allows owners or HOAs to file petitions regarding violations of community documents.

Detailed Answer

Arizona statute permits planned community organizations (HOAs) or owners to file petitions with the Department regarding violations, which are then heard by the Office of Administrative Hearings.

Alj Quote

A.R.S. § 32-2199(B) permits an owner or a planned community organization to file a petition with the Department for a hearing concerning violations of planned community documents under the authority Title 33, Chapter 16.

Legal Basis

A.R.S. § 32-2199(B)

Topic Tags

  • Jurisdiction
  • ADRE
  • Process

Question

Is the Administrative Law Judge's decision final?

Short Answer

Yes, the order is binding unless a rehearing is granted.

Detailed Answer

The decision issued by the ALJ is legally binding on both the homeowner and the HOA unless a request for a rehearing is successfully granted.

Alj Quote

Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04.

Legal Basis

A.R.S. § 32-2199.02(B)

Topic Tags

  • Legal Status
  • Appeals
  • Binding Order

Question

How much time do I have to appeal or request a rehearing?

Short Answer

You must file a request for rehearing within 30 days of the service of the order.

Detailed Answer

If a party wishes to challenge the decision, they must file a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days.

Alj Quote

Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

  • Appeals
  • Deadlines
  • Procedure

Case

Docket No
21F-H2120019-REL
Case Title
The Sun Groves Homeowners Association vs. David L & Makenzie Lockhart
Decision Date
2021-02-10
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Robert H. Willis (attorney)
    Burdman Willis, PLLC

Respondent Side

  • David L. Lockhart (respondent)
  • Stephanie J. Lockhart (respondent)
    Proper co-Respondent in this matter
  • Makenzie Lockhart (listed respondent)
    Respondent’s daughter
  • Andrew Ellis (attorney)

Neutral Parties

  • Adam D. Stone (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Wendy Ellsworth v. Vincenz Homeowners’ Association

Case Summary

Case ID 20F-H2020043-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-08
Administrative Law Judge Velva Moses-Thompson
Outcome total_loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Wendy Ellsworth Counsel Brian Hatch
Respondent Vincenz Homeowners' Association Counsel Mark K. Sahl

Alleged Violations

VHA CC&R Article 10 § 10.11.1

Outcome Summary

The petition concerning the alleged violation of CC&R section 10.11.1 by the HOA was dismissed because the Petitioner failed to meet the burden of proof, and the tribunal lacked jurisdiction over the declaratory judgment request regarding waiver of enforcement.

Why this result: Petitioner failed to establish that VHA violated CC&R section 10.11.1 by a preponderance of the evidence. Furthermore, the tribunal lacked jurisdiction to rule on the declaratory judgment requested by the Petitioner regarding VHA's waiver of its enforcement rights.

Key Issues & Findings

Violation of CC&R Article 10, Section 10.11.1 regarding parking enforcement and waiver

Petitioner alleged VHA waived its right to enforce CC&R 10.11.1 (parking prohibition) because violations had been frequent since inception. The tribunal found Petitioner failed to establish VHA violated section 10.11.1, and the tribunal lacked jurisdiction regarding the requested declaratory judgment on waiver of enforcement.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Analytics Highlights

Topics: HOA Enforcement, CC&R Violation, Parking, Waiver, Jurisdiction
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

20F-H2020043-REL Decision – 820839.pdf

Uploaded 2026-01-23T17:31:39 (95.4 KB)





Briefing Doc – 20F-H2020043-REL


Briefing: Ellsworth v. Vincenz Homeowners’ Association (No. 20F-H2020043-REL)

Executive Summary

This briefing analyzes the Administrative Law Judge Decision in the case of Wendy Ellsworth versus the Vincenz Homeowners’ Association (VHA). The case centered on Ms. Ellsworth’s petition alleging that the VHA had waived its right to enforce a specific parking restriction outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The Administrative Law Judge dismissed the petition in its entirety.

The dismissal was based on two fundamental conclusions. First, the petitioner, Ms. Ellsworth, failed to meet her burden of proof. Her petition did not allege, nor did she provide evidence, that the VHA itself had violated the parking rule. Instead, her claim focused on the VHA’s alleged failure to enforce the rule against others. Second, and more decisively, the judge determined that the Office of Administrative Hearings (OAH) lacks the jurisdiction to issue a declaratory judgment. Ms. Ellsworth was effectively asking the tribunal to declare that the VHA had waived its enforcement rights, a legal determination beyond the OAH’s statutory authority. The VHA successfully argued that the OAH’s jurisdiction is limited to hearing alleged violations committed by the association, not to adjudicating the association’s future enforcement capabilities.

Case Background

Petitioner: Wendy Ellsworth, a property owner within the Vincenz community.

Respondent: Vincenz Homeowners’ Association (VHA).

Tribunal: Arizona Office of Administrative Hearings (OAH).

Presiding Judge: Administrative Law Judge Velva Moses-Thompson.

Filing Date: Ms. Ellsworth filed a petition with the Arizona Department of Real Estate on or about January 15, 2020.

Hearing Date: An evidentiary hearing was held on August 19, 2020.

Decision Date: The final decision was issued on September 8, 2020.

The matter was referred to the OAH to determine whether VHA was in violation of its community documents as alleged by the petitioner.

Central Dispute: CC&R Article 10, Section 10.11.1

The entire dispute revolved around the enforcement of a specific vehicle parking rule within the VHA’s Covenants, Conditions, and Restrictions.

Article 10 § 10.11.1 provides:

Vehicles. No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.

This provision explicitly restricts the parking of personal vehicles to approved locations: garages, private driveways, or other areas specifically designated by the VHA Board.

Positions of the Parties

Petitioner’s Position (Wendy Ellsworth)

Ms. Ellsworth’s central argument was not that the VHA had violated the parking rule, but that it had lost the ability to enforce it through inaction.

Core Allegation: The petition claimed VHA had waived its ability to enforce Article 10, Section 10.11.1.

Stated Rationale: Ms. Ellsworth intended to prove that “violations of the street parking prohibition have been ‘frequent’ since Vincenz’s inception” and that the community’s CC&Rs “do not contain a relevant non-waiver provision.”

Testimony: At the August 19, 2020 hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, under cross-examination, she later conceded that she was unsure whether the VHA had ever enforced it.

Respondent’s Position (Vincenz Homeowners’ Association)

The VHA argued for a complete dismissal of the petition, primarily on procedural and jurisdictional grounds.

Core Argument: The petition failed to state a valid claim because it did not contend that VHA itself had improperly parked a vehicle in violation of the CC&Rs.

Jurisdictional Challenge: VHA contended that the OAH’s jurisdiction, granted under ARIZ. REV. STAT. § 32-2199.01(A), is strictly limited to hearing petitions about alleged violations of community documents or state statutes by the association.

Declaratory Judgment: The VHA characterized Ms. Ellsworth’s request as one for a “declaratory judgment”—a ruling on the VHA’s legal right to enforce the rule—which it argued the OAH has no legal authority to issue.

Administrative Law Judge’s Findings and Conclusions

The Administrative Law Judge (ALJ) sided entirely with the Respondent, concluding that the petition must be dismissed. The decision was based on a failure of proof by the petitioner and a critical lack of jurisdiction by the tribunal.

Legal Standards Applied

Standard

Description

Burden of Proof

The Petitioner bears the burden to prove a violation by a preponderance of the evidence.

Preponderance of the Evidence

Defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with “the most convincing force.”

Covenant Interpretation

In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties and must be interpreted as a whole.

Conclusion 1: Failure to Establish a Violation

The ALJ found that Ms. Ellsworth failed to meet her burden of proof. The decision notes:

• Ms. Ellsworth “did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”

• Because no violation by the VHA was alleged or proven, the core requirement for a successful petition was absent.

Conclusion 2: Lack of Jurisdiction

The most significant finding was that the tribunal lacked the authority to grant the relief Ms. Ellsworth sought.

• The ALJ explicitly stated: “To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”

• This conclusion affirmed the VHA’s central argument that the OAH is not the proper forum for determining an association’s prospective enforcement rights.

Final Order and Implications

Based on the findings, the final order was unambiguous:

“IT IS ORDERED, the petition is dismissed.”

The decision document includes a notice outlining the next steps available to the parties. Pursuant to Arizona Revised Statutes, the order is binding unless a party files a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.






Study Guide – 20F-H2020043-REL


Study Guide: Ellsworth v. Vincenz Homeowners’ Association (Case No. 20F-H2020043-REL)

This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Wendy Ellsworth and Respondent Vincenz Homeowners’ Association (VHA). It covers the key facts, legal arguments, and the final ruling of the Office of Administrative Hearings (OAH).

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Review Quiz

Instructions: Answer the following questions in 2-3 sentences, based on the information provided in the case document.

1. Who were the primary parties in this case, and what were their respective roles?

2. What specific rule, or covenant, was at the center of the dispute?

3. What was the core allegation made by the petitioner, Wendy Ellsworth, in her initial petition?

4. What was the primary legal argument made by the respondent, Vincenz Homeowners’ Association, for why the petition should be dismissed?

5. What change occurred in Ms. Ellsworth’s testimony during the hearing?

6. According to the decision, what is the legal standard for the “burden of proof” in this type of hearing?

7. How does Arizona law interpret “restrictive covenants” when their language is unambiguous?

8. What two key reasons did the Administrative Law Judge give for dismissing the petition?

9. Which government body has jurisdiction to hear petitions from homeowners concerning violations of planned community documents?

10. What action could the parties take after the order was issued, and within what timeframe?

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Answer Key

1. The primary parties were Petitioner Wendy Ellsworth, a homeowner, and Respondent Vincenz Homeowners’ Association (VHA). Ms. Ellsworth initiated the legal action by filing a petition against the VHA.

2. The rule at the center of the dispute was Article 10, Section 10.11.1 of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs). This section prohibits the parking of private passenger automobiles or pickup trucks on the property or adjacent roadways, except in garages, private driveways, or other Board-designated areas.

3. Ms. Ellsworth’s core allegation was that the VHA had waived its ability to enforce the street parking prohibition (CC&R 10.11.1). She claimed that violations had been “frequent” since the community’s inception and that the VHA’s CC&Rs lacked a relevant non-waiver provision.

4. The VHA argued that the petition should be dismissed because Ms. Ellsworth never alleged that the VHA itself had violated the parking rule. The VHA contended that the OAH only has jurisdiction over alleged violations by the association, not over a homeowner’s request for a declaratory judgment on the right to enforce a rule.

5. During the hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, upon cross-examination, she admitted that she was unsure whether the VHA had ever enforced it.

6. The legal standard for the burden of proof is “a preponderance of the evidence.” This standard requires the petitioner to provide proof that convinces the trier of fact that their contention is more probably true than not.

7. In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. The covenants must be construed as a whole and interpreted in view of their underlying purposes.

8. The judge dismissed the petition for two main reasons. First, Ms. Ellsworth failed to establish that the VHA itself had violated section 10.11.1. Second, the tribunal (the OAH) does not have the jurisdiction to issue a declaratory judgment stating that the VHA has waived its right to enforce the covenant.

9. The Arizona Department of Real Estate is the government body that receives petitions for hearings concerning violations of planned community documents. These hearings are then referred to the Office of Administrative Hearings (OAH).

10. After the order was issued on September 8, 2020, either party could file a request for a rehearing with the Commissioner of the Department of Real Estate. This request had to be filed within 30 days of the service of the Order.

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Essay Questions

Instructions: The following questions are designed for longer, more analytical responses. Use the facts and legal principles from the case to construct your arguments. No answer key is provided.

1. Explain the concept of “waiver” as argued by the petitioner. Why was this argument ultimately ineffective before the Office of Administrative Hearings in this specific case?

2. Analyze the jurisdictional limitations of the Office of Administrative Hearings (OAH) as demonstrated in this decision. Discuss the difference between adjudicating a violation of community documents and issuing a declaratory judgment.

3. Describe the “preponderance of the evidence” standard and explain how the petitioner, Wendy Ellsworth, failed to meet this burden of proof. Consider both her initial claim and her testimony during the hearing.

4. Evaluate the petitioner’s legal strategy. What was the central flaw in her petition that prevented the Administrative Law Judge from ruling on the merits of her non-enforcement claim?

5. Based on the legal precedent cited (Powell v. Washburn), discuss the principles Arizona courts use to interpret CC&Rs. How did the judge apply this principle to the specific language of Article 10, Section 10.11.1?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official (in this case, Velva Moses-Thompson) who presides over hearings at an administrative agency (like the OAH) and issues decisions.

Affirmative Defense

A set of facts other than those alleged by the petitioner which, if proven by the respondent, defeats or mitigates the legal consequences of the respondent’s otherwise unlawful conduct.

ARIZ. REV. STAT. (A.R.S.)

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this case, the petitioner had the burden to prove the VHA violated its CC&Rs.

Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision.

Declaratory Judgment

A binding judgment from a court defining the legal relationship between parties and their rights in a matter before any actual harm has occurred. The OAH determined it lacked jurisdiction to issue such a judgment in this case.

Jurisdiction

The official power to make legal decisions and judgments. The OAH’s jurisdiction was limited to hearing alleged violations of community documents, not requests for declaratory judgments.

Office of Administrative Hearings (OAH)

The state agency where the evidentiary hearing for this case was held. It conducts hearings for other state agencies.

Petitioner

The party who initiates a lawsuit or files a petition to start a legal action. In this case, Wendy Ellsworth.

Preponderance of the Evidence

The standard of proof in most civil cases, meaning that the evidence presented is more convincing and likely to be true than not. It is a lower standard than “beyond a reasonable doubt.”

Respondent

The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, Vincenz Homeowners’ Association.

Restrictive Covenant

A provision in a deed or a set of CC&Rs that limits the use of the property and prohibits certain uses.

Waiver

The intentional or voluntary relinquishment of a known right. The petitioner argued that the VHA, through its inaction, had waived its right to enforce the parking rule.






Blog Post – 20F-H2020043-REL


Why This Homeowner’s Lawsuit Against Her HOA Was Doomed From the Start: 3 Critical Lessons

The frustration is real. You see your neighbors breaking the rules—parking on the street, letting their lawn go—and it feels like your Homeowners’ Association (HOA) is doing nothing about it. This sense of inconsistent enforcement is one of the most common complaints homeowners have. For Wendy Ellsworth, this frustration led her to file a legal petition against the Vincenz Homeowners’ Association (VHA).

Her case, however, was dismissed. It wasn’t lost on a minor technicality or a surprise piece of evidence. It was doomed from the start because of fundamental strategic errors. By examining where she went wrong, we can uncover three powerful lessons for any homeowner considering a similar fight.

Lesson 1: You Must Accuse the Right Party of the Right Violation

Ms. Ellsworth’s core grievance was that the VHA was not enforcing its own on-street parking rules against other residents. Her formal petition, however, made a critical mistake: it accused the HOA itself of violating the community’s parking rule, CC&R Article 10 § 10.11.1.

This was a fatal flaw. That specific rule governs the actions of homeowners—prohibiting them from parking automobiles or trucks on roadways except in designated areas. It places no duty on the HOA. In her legal filing, Ms. Ellsworth failed to point to any specific rule that the HOA, as an entity, had actually broken. Her petition essentially accused the HOA of illegally parking a car, which was not her complaint at all. The judge noted this fundamental disconnect:

“Ms. Ellsworth did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”

A viable petition would have needed to identify a completely different rule—one that placed a specific duty on the HOA Board to enforce the community documents—and then allege that the Board had violated that duty. This fundamental error of misidentifying the violation was compounded by the fact that she was asking the tribunal for a remedy it had no power to grant. Accusing the wrong party of breaking the wrong rule can cause an entire case to be dismissed before its merits are even considered.

Lesson 2: The “Burden of Proof” is More Than Just a Legal Phrase

In any legal action, the person making the claim (the “petitioner”) has the “burden of proof.” This means it is their responsibility to present evidence that convinces the judge their claim is true. Ms. Ellsworth, as the petitioner, was responsible for proving her case by a “preponderance of the evidence.”

The court defined this standard as:

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Making an accusation is easy; proving it is hard. Ms. Ellsworth’s own testimony failed to meet this standard. At the hearing, she initially testified that the VHA had never enforced the parking rule. However, when questioned further during cross-examination, she admitted that she was “unsure” whether the HOA had ever enforced it. This admission transformed her claim from an assertion of fact into mere speculation. In court, “I’m unsure” is the equivalent of having no evidence at all on that point, making it impossible for the judge to conclude her version of events was “more probably true than not.”

The lesson here is that winning requires more than just a belief you are right. You must present evidence that is solid, consistent, and more convincing than the other side’s. Weak or self-contradictory testimony undermines your own credibility and makes it nearly impossible to meet the burden of proof.

Lesson 3: You Have to Knock on the Right Legal Door

The legal system is highly specialized, and different courts and tribunals have the authority—or “jurisdiction”—to hear different types of cases. A major part of Ms. Ellsworth’s petition was the request for a “declaratory judgment,” essentially asking the judge to declare that the VHA had waived its right to enforce the parking rule in the future because of its alleged past non-enforcement.

The problem was that she brought this request to the wrong venue. The Office of Administrative Hearings (OAH) is designed to answer a simple question: “Did the HOA violate an existing rule?” Ms. Ellsworth was asking a far more complex question: “Based on past behavior, should the court declare that this rule is no longer enforceable in the future?” That forward-looking request for a “declaratory judgment” belongs in a court of general jurisdiction (like a state Superior Court), which has broader powers to interpret contracts and establish future rights, not in a specialized administrative tribunal.

The Administrative Law Judge made this point unequivocally:

“To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”

Even if her argument about waiver had merit, it was brought before a body that was legally powerless to grant her request. This serves as a crucial reminder: filing a case in the wrong court is an automatic loss. Understanding the specific jurisdiction of the court or tribunal you are petitioning is a non-negotiable step in legal strategy.

Conclusion: Thinking Like a Lawyer, Not Just a Homeowner

Ms. Ellsworth’s case failed not because of three separate errors, but because of a single, comprehensive breakdown in legal strategy. The “what” (the specific accusation), the “how” (the burden of proof), and the “where” (the legal venue) were all fundamentally misaligned with her ultimate goal. This misalignment created a case that was legally impossible to win, regardless of how valid her underlying frustration may have been.

While a homeowner’s anger may be entirely justified, this case demonstrates that passion alone doesn’t win lawsuits. A sound legal strategy is essential. Before you challenge your HOA, have you moved past the frustration to build a case that can actually win?


Case Participants

Petitioner Side

  • Wendy Ellsworth (petitioner)
    Testified at hearing
  • Brian Hatch (petitioner attorney)
    Brian A. Hatch PLLC

Respondent Side

  • Mark K. Sahl (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Wendy Ellsworth v. Vincenz Homeowners’ Association

Case Summary

Case ID 20F-H2020043-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-08
Administrative Law Judge Velva Moses-Thompson
Outcome total_loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Wendy Ellsworth Counsel Brian Hatch
Respondent Vincenz Homeowners' Association Counsel Mark K. Sahl

Alleged Violations

VHA CC&R Article 10 § 10.11.1

Outcome Summary

The petition concerning the alleged violation of CC&R section 10.11.1 by the HOA was dismissed because the Petitioner failed to meet the burden of proof, and the tribunal lacked jurisdiction over the declaratory judgment request regarding waiver of enforcement.

Why this result: Petitioner failed to establish that VHA violated CC&R section 10.11.1 by a preponderance of the evidence. Furthermore, the tribunal lacked jurisdiction to rule on the declaratory judgment requested by the Petitioner regarding VHA's waiver of its enforcement rights.

Key Issues & Findings

Violation of CC&R Article 10, Section 10.11.1 regarding parking enforcement and waiver

Petitioner alleged VHA waived its right to enforce CC&R 10.11.1 (parking prohibition) because violations had been frequent since inception. The tribunal found Petitioner failed to establish VHA violated section 10.11.1, and the tribunal lacked jurisdiction regarding the requested declaratory judgment on waiver of enforcement.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Analytics Highlights

Topics: HOA Enforcement, CC&R Violation, Parking, Waiver, Jurisdiction
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

20F-H2020043-REL Decision – 820839.pdf

Uploaded 2025-10-09T03:34:53 (95.4 KB)





Briefing Doc – 20F-H2020043-REL


Briefing: Ellsworth v. Vincenz Homeowners’ Association (No. 20F-H2020043-REL)

Executive Summary

This briefing analyzes the Administrative Law Judge Decision in the case of Wendy Ellsworth versus the Vincenz Homeowners’ Association (VHA). The case centered on Ms. Ellsworth’s petition alleging that the VHA had waived its right to enforce a specific parking restriction outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The Administrative Law Judge dismissed the petition in its entirety.

The dismissal was based on two fundamental conclusions. First, the petitioner, Ms. Ellsworth, failed to meet her burden of proof. Her petition did not allege, nor did she provide evidence, that the VHA itself had violated the parking rule. Instead, her claim focused on the VHA’s alleged failure to enforce the rule against others. Second, and more decisively, the judge determined that the Office of Administrative Hearings (OAH) lacks the jurisdiction to issue a declaratory judgment. Ms. Ellsworth was effectively asking the tribunal to declare that the VHA had waived its enforcement rights, a legal determination beyond the OAH’s statutory authority. The VHA successfully argued that the OAH’s jurisdiction is limited to hearing alleged violations committed by the association, not to adjudicating the association’s future enforcement capabilities.

Case Background

Petitioner: Wendy Ellsworth, a property owner within the Vincenz community.

Respondent: Vincenz Homeowners’ Association (VHA).

Tribunal: Arizona Office of Administrative Hearings (OAH).

Presiding Judge: Administrative Law Judge Velva Moses-Thompson.

Filing Date: Ms. Ellsworth filed a petition with the Arizona Department of Real Estate on or about January 15, 2020.

Hearing Date: An evidentiary hearing was held on August 19, 2020.

Decision Date: The final decision was issued on September 8, 2020.

The matter was referred to the OAH to determine whether VHA was in violation of its community documents as alleged by the petitioner.

Central Dispute: CC&R Article 10, Section 10.11.1

The entire dispute revolved around the enforcement of a specific vehicle parking rule within the VHA’s Covenants, Conditions, and Restrictions.

Article 10 § 10.11.1 provides:

Vehicles. No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.

This provision explicitly restricts the parking of personal vehicles to approved locations: garages, private driveways, or other areas specifically designated by the VHA Board.

Positions of the Parties

Petitioner’s Position (Wendy Ellsworth)

Ms. Ellsworth’s central argument was not that the VHA had violated the parking rule, but that it had lost the ability to enforce it through inaction.

Core Allegation: The petition claimed VHA had waived its ability to enforce Article 10, Section 10.11.1.

Stated Rationale: Ms. Ellsworth intended to prove that “violations of the street parking prohibition have been ‘frequent’ since Vincenz’s inception” and that the community’s CC&Rs “do not contain a relevant non-waiver provision.”

Testimony: At the August 19, 2020 hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, under cross-examination, she later conceded that she was unsure whether the VHA had ever enforced it.

Respondent’s Position (Vincenz Homeowners’ Association)

The VHA argued for a complete dismissal of the petition, primarily on procedural and jurisdictional grounds.

Core Argument: The petition failed to state a valid claim because it did not contend that VHA itself had improperly parked a vehicle in violation of the CC&Rs.

Jurisdictional Challenge: VHA contended that the OAH’s jurisdiction, granted under ARIZ. REV. STAT. § 32-2199.01(A), is strictly limited to hearing petitions about alleged violations of community documents or state statutes by the association.

Declaratory Judgment: The VHA characterized Ms. Ellsworth’s request as one for a “declaratory judgment”—a ruling on the VHA’s legal right to enforce the rule—which it argued the OAH has no legal authority to issue.

Administrative Law Judge’s Findings and Conclusions

The Administrative Law Judge (ALJ) sided entirely with the Respondent, concluding that the petition must be dismissed. The decision was based on a failure of proof by the petitioner and a critical lack of jurisdiction by the tribunal.

Legal Standards Applied

Standard

Description

Burden of Proof

The Petitioner bears the burden to prove a violation by a preponderance of the evidence.

Preponderance of the Evidence

Defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with “the most convincing force.”

Covenant Interpretation

In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties and must be interpreted as a whole.

Conclusion 1: Failure to Establish a Violation

The ALJ found that Ms. Ellsworth failed to meet her burden of proof. The decision notes:

• Ms. Ellsworth “did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”

• Because no violation by the VHA was alleged or proven, the core requirement for a successful petition was absent.

Conclusion 2: Lack of Jurisdiction

The most significant finding was that the tribunal lacked the authority to grant the relief Ms. Ellsworth sought.

• The ALJ explicitly stated: “To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”

• This conclusion affirmed the VHA’s central argument that the OAH is not the proper forum for determining an association’s prospective enforcement rights.

Final Order and Implications

Based on the findings, the final order was unambiguous:

“IT IS ORDERED, the petition is dismissed.”

The decision document includes a notice outlining the next steps available to the parties. Pursuant to Arizona Revised Statutes, the order is binding unless a party files a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.






Study Guide – 20F-H2020043-REL


Study Guide: Ellsworth v. Vincenz Homeowners’ Association (Case No. 20F-H2020043-REL)

This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Wendy Ellsworth and Respondent Vincenz Homeowners’ Association (VHA). It covers the key facts, legal arguments, and the final ruling of the Office of Administrative Hearings (OAH).

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Review Quiz

Instructions: Answer the following questions in 2-3 sentences, based on the information provided in the case document.

1. Who were the primary parties in this case, and what were their respective roles?

2. What specific rule, or covenant, was at the center of the dispute?

3. What was the core allegation made by the petitioner, Wendy Ellsworth, in her initial petition?

4. What was the primary legal argument made by the respondent, Vincenz Homeowners’ Association, for why the petition should be dismissed?

5. What change occurred in Ms. Ellsworth’s testimony during the hearing?

6. According to the decision, what is the legal standard for the “burden of proof” in this type of hearing?

7. How does Arizona law interpret “restrictive covenants” when their language is unambiguous?

8. What two key reasons did the Administrative Law Judge give for dismissing the petition?

9. Which government body has jurisdiction to hear petitions from homeowners concerning violations of planned community documents?

10. What action could the parties take after the order was issued, and within what timeframe?

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Answer Key

1. The primary parties were Petitioner Wendy Ellsworth, a homeowner, and Respondent Vincenz Homeowners’ Association (VHA). Ms. Ellsworth initiated the legal action by filing a petition against the VHA.

2. The rule at the center of the dispute was Article 10, Section 10.11.1 of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs). This section prohibits the parking of private passenger automobiles or pickup trucks on the property or adjacent roadways, except in garages, private driveways, or other Board-designated areas.

3. Ms. Ellsworth’s core allegation was that the VHA had waived its ability to enforce the street parking prohibition (CC&R 10.11.1). She claimed that violations had been “frequent” since the community’s inception and that the VHA’s CC&Rs lacked a relevant non-waiver provision.

4. The VHA argued that the petition should be dismissed because Ms. Ellsworth never alleged that the VHA itself had violated the parking rule. The VHA contended that the OAH only has jurisdiction over alleged violations by the association, not over a homeowner’s request for a declaratory judgment on the right to enforce a rule.

5. During the hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, upon cross-examination, she admitted that she was unsure whether the VHA had ever enforced it.

6. The legal standard for the burden of proof is “a preponderance of the evidence.” This standard requires the petitioner to provide proof that convinces the trier of fact that their contention is more probably true than not.

7. In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. The covenants must be construed as a whole and interpreted in view of their underlying purposes.

8. The judge dismissed the petition for two main reasons. First, Ms. Ellsworth failed to establish that the VHA itself had violated section 10.11.1. Second, the tribunal (the OAH) does not have the jurisdiction to issue a declaratory judgment stating that the VHA has waived its right to enforce the covenant.

9. The Arizona Department of Real Estate is the government body that receives petitions for hearings concerning violations of planned community documents. These hearings are then referred to the Office of Administrative Hearings (OAH).

10. After the order was issued on September 8, 2020, either party could file a request for a rehearing with the Commissioner of the Department of Real Estate. This request had to be filed within 30 days of the service of the Order.

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Essay Questions

Instructions: The following questions are designed for longer, more analytical responses. Use the facts and legal principles from the case to construct your arguments. No answer key is provided.

1. Explain the concept of “waiver” as argued by the petitioner. Why was this argument ultimately ineffective before the Office of Administrative Hearings in this specific case?

2. Analyze the jurisdictional limitations of the Office of Administrative Hearings (OAH) as demonstrated in this decision. Discuss the difference between adjudicating a violation of community documents and issuing a declaratory judgment.

3. Describe the “preponderance of the evidence” standard and explain how the petitioner, Wendy Ellsworth, failed to meet this burden of proof. Consider both her initial claim and her testimony during the hearing.

4. Evaluate the petitioner’s legal strategy. What was the central flaw in her petition that prevented the Administrative Law Judge from ruling on the merits of her non-enforcement claim?

5. Based on the legal precedent cited (Powell v. Washburn), discuss the principles Arizona courts use to interpret CC&Rs. How did the judge apply this principle to the specific language of Article 10, Section 10.11.1?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official (in this case, Velva Moses-Thompson) who presides over hearings at an administrative agency (like the OAH) and issues decisions.

Affirmative Defense

A set of facts other than those alleged by the petitioner which, if proven by the respondent, defeats or mitigates the legal consequences of the respondent’s otherwise unlawful conduct.

ARIZ. REV. STAT. (A.R.S.)

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this case, the petitioner had the burden to prove the VHA violated its CC&Rs.

Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision.

Declaratory Judgment

A binding judgment from a court defining the legal relationship between parties and their rights in a matter before any actual harm has occurred. The OAH determined it lacked jurisdiction to issue such a judgment in this case.

Jurisdiction

The official power to make legal decisions and judgments. The OAH’s jurisdiction was limited to hearing alleged violations of community documents, not requests for declaratory judgments.

Office of Administrative Hearings (OAH)

The state agency where the evidentiary hearing for this case was held. It conducts hearings for other state agencies.

Petitioner

The party who initiates a lawsuit or files a petition to start a legal action. In this case, Wendy Ellsworth.

Preponderance of the Evidence

The standard of proof in most civil cases, meaning that the evidence presented is more convincing and likely to be true than not. It is a lower standard than “beyond a reasonable doubt.”

Respondent

The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, Vincenz Homeowners’ Association.

Restrictive Covenant

A provision in a deed or a set of CC&Rs that limits the use of the property and prohibits certain uses.

Waiver

The intentional or voluntary relinquishment of a known right. The petitioner argued that the VHA, through its inaction, had waived its right to enforce the parking rule.






Blog Post – 20F-H2020043-REL


Why This Homeowner’s Lawsuit Against Her HOA Was Doomed From the Start: 3 Critical Lessons

The frustration is real. You see your neighbors breaking the rules—parking on the street, letting their lawn go—and it feels like your Homeowners’ Association (HOA) is doing nothing about it. This sense of inconsistent enforcement is one of the most common complaints homeowners have. For Wendy Ellsworth, this frustration led her to file a legal petition against the Vincenz Homeowners’ Association (VHA).

Her case, however, was dismissed. It wasn’t lost on a minor technicality or a surprise piece of evidence. It was doomed from the start because of fundamental strategic errors. By examining where she went wrong, we can uncover three powerful lessons for any homeowner considering a similar fight.

Lesson 1: You Must Accuse the Right Party of the Right Violation

Ms. Ellsworth’s core grievance was that the VHA was not enforcing its own on-street parking rules against other residents. Her formal petition, however, made a critical mistake: it accused the HOA itself of violating the community’s parking rule, CC&R Article 10 § 10.11.1.

This was a fatal flaw. That specific rule governs the actions of homeowners—prohibiting them from parking automobiles or trucks on roadways except in designated areas. It places no duty on the HOA. In her legal filing, Ms. Ellsworth failed to point to any specific rule that the HOA, as an entity, had actually broken. Her petition essentially accused the HOA of illegally parking a car, which was not her complaint at all. The judge noted this fundamental disconnect:

“Ms. Ellsworth did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”

A viable petition would have needed to identify a completely different rule—one that placed a specific duty on the HOA Board to enforce the community documents—and then allege that the Board had violated that duty. This fundamental error of misidentifying the violation was compounded by the fact that she was asking the tribunal for a remedy it had no power to grant. Accusing the wrong party of breaking the wrong rule can cause an entire case to be dismissed before its merits are even considered.

Lesson 2: The “Burden of Proof” is More Than Just a Legal Phrase

In any legal action, the person making the claim (the “petitioner”) has the “burden of proof.” This means it is their responsibility to present evidence that convinces the judge their claim is true. Ms. Ellsworth, as the petitioner, was responsible for proving her case by a “preponderance of the evidence.”

The court defined this standard as:

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Making an accusation is easy; proving it is hard. Ms. Ellsworth’s own testimony failed to meet this standard. At the hearing, she initially testified that the VHA had never enforced the parking rule. However, when questioned further during cross-examination, she admitted that she was “unsure” whether the HOA had ever enforced it. This admission transformed her claim from an assertion of fact into mere speculation. In court, “I’m unsure” is the equivalent of having no evidence at all on that point, making it impossible for the judge to conclude her version of events was “more probably true than not.”

The lesson here is that winning requires more than just a belief you are right. You must present evidence that is solid, consistent, and more convincing than the other side’s. Weak or self-contradictory testimony undermines your own credibility and makes it nearly impossible to meet the burden of proof.

Lesson 3: You Have to Knock on the Right Legal Door

The legal system is highly specialized, and different courts and tribunals have the authority—or “jurisdiction”—to hear different types of cases. A major part of Ms. Ellsworth’s petition was the request for a “declaratory judgment,” essentially asking the judge to declare that the VHA had waived its right to enforce the parking rule in the future because of its alleged past non-enforcement.

The problem was that she brought this request to the wrong venue. The Office of Administrative Hearings (OAH) is designed to answer a simple question: “Did the HOA violate an existing rule?” Ms. Ellsworth was asking a far more complex question: “Based on past behavior, should the court declare that this rule is no longer enforceable in the future?” That forward-looking request for a “declaratory judgment” belongs in a court of general jurisdiction (like a state Superior Court), which has broader powers to interpret contracts and establish future rights, not in a specialized administrative tribunal.

The Administrative Law Judge made this point unequivocally:

“To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”

Even if her argument about waiver had merit, it was brought before a body that was legally powerless to grant her request. This serves as a crucial reminder: filing a case in the wrong court is an automatic loss. Understanding the specific jurisdiction of the court or tribunal you are petitioning is a non-negotiable step in legal strategy.

Conclusion: Thinking Like a Lawyer, Not Just a Homeowner

Ms. Ellsworth’s case failed not because of three separate errors, but because of a single, comprehensive breakdown in legal strategy. The “what” (the specific accusation), the “how” (the burden of proof), and the “where” (the legal venue) were all fundamentally misaligned with her ultimate goal. This misalignment created a case that was legally impossible to win, regardless of how valid her underlying frustration may have been.

While a homeowner’s anger may be entirely justified, this case demonstrates that passion alone doesn’t win lawsuits. A sound legal strategy is essential. Before you challenge your HOA, have you moved past the frustration to build a case that can actually win?


Case Participants

Petitioner Side

  • Wendy Ellsworth (petitioner)
    Testified at hearing
  • Brian Hatch (petitioner attorney)
    Brian A. Hatch PLLC

Respondent Side

  • Mark K. Sahl (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Pointe Tapatio Community Association v. Lanye C. and Devin E. Willey

Case Summary

Case ID 19F-H1919044-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-07
Administrative Law Judge Thomas Shedden
Outcome partial
Filing Fees Refunded $0.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Pointe Tapatio Community Association Counsel Lauren Vie
Respondent Lanye C. Wilkey and Devin E. Wilkey Counsel Joseph Velez

Alleged Violations

CC&R Article 3, section 3.1

Outcome Summary

The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.

Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.

Key Issues & Findings

Violation of Residential Use covenant prohibiting traffic/parking generation by business

The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.

Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.

Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: HOA, CC&Rs, Business Use, Home Business, Parking, Traffic, Civil Penalty
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Pointe Tapatio Community Association v. Lanye C. and Devin E. Willey

Case Summary

Case ID 19F-H1919044-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-07
Administrative Law Judge Thomas Shedden
Outcome partial
Filing Fees Refunded $0.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Pointe Tapatio Community Association Counsel Lauren Vie
Respondent Lanye C. Wilkey and Devin E. Wilkey Counsel Joseph Velez

Alleged Violations

CC&R Article 3, section 3.1

Outcome Summary

The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.

Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.

Key Issues & Findings

Violation of Residential Use covenant prohibiting traffic/parking generation by business

The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.

Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.

Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: HOA, CC&Rs, Business Use, Home Business, Parking, Traffic, Civil Penalty
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Pointe Tapatio Community Association v. Lanye C. and Devin E. Willey

Case Summary

Case ID 19F-H1919044-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-07
Administrative Law Judge Thomas Shedden
Outcome partial
Filing Fees Refunded $0.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Pointe Tapatio Community Association Counsel Lauren Vie
Respondent Lanye C. Wilkey and Devin E. Wilkey Counsel Joseph Velez

Alleged Violations

CC&R Article 3, section 3.1

Outcome Summary

The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.

Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.

Key Issues & Findings

Violation of Residential Use covenant prohibiting traffic/parking generation by business

The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.

Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.

Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: HOA, CC&Rs, Business Use, Home Business, Parking, Traffic, Civil Penalty
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Pointe Tapatio Community Association v. Lanye C. and Devin E. Willey

Case Summary

Case ID 19F-H1919044-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-07
Administrative Law Judge Thomas Shedden
Outcome partial
Filing Fees Refunded $0.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Pointe Tapatio Community Association Counsel Lauren Vie
Respondent Lanye C. Wilkey and Devin E. Wilkey Counsel Joseph Velez

Alleged Violations

CC&R Article 3, section 3.1

Outcome Summary

The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.

Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.

Key Issues & Findings

Violation of Residential Use covenant prohibiting traffic/parking generation by business

The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.

Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.

Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: HOA, CC&Rs, Business Use, Home Business, Parking, Traffic, Civil Penalty
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Pointe Tapatio Community Association v. Lanye C. and Devin E. Willey

Case Summary

Case ID 19F-H1919044-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-07
Administrative Law Judge Thomas Shedden
Outcome partial
Filing Fees Refunded $0.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Pointe Tapatio Community Association Counsel Lauren Vie
Respondent Lanye C. Wilkey and Devin E. Wilkey Counsel Joseph Velez

Alleged Violations

CC&R Article 3, section 3.1

Outcome Summary

The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.

Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.

Key Issues & Findings

Violation of Residential Use covenant prohibiting traffic/parking generation by business

The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.

Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.

Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: HOA, CC&Rs, Business Use, Home Business, Parking, Traffic, Civil Penalty
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09