The Administrative Law Judge concluded that Petitioner met his burden of establishing by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A). Petitioner was deemed the prevailing party, and Respondent was ordered to refund the $500.00 filing fee and comply with the statute in the future.
Key Issues & Findings
Failure to provide access to financial and other records within ten business days.
Respondent violated A.R.S. § 33-1258(A) by failing to allow Petitioner to examine original invoices for May 2024 (requested July 9, 2024) and bank statements from four accounts (requested September 23, 2024) within the required ten business days, despite receiving the requests through board members.
Orders: Respondent was ordered to pay Petitioner his filing fee of $500.00 within thirty (30) days and is directed to comply with the requirements of A.R.S. § 33-1258(A) going forward. No Civil Penalty was found appropriate.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1258(A)
A.R.S. § 32-2199(1)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Analytics Highlights
Topics: HOA, records request, A.R.S. 33-1258, prevailing party, condominium association
Additional Citations:
A.R.S. § 33-1258(A)
A.R.S. § 32-2199(1)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Audio Overview
Decision Documents
25F-H018-REL Decision – 1263777.pdf
Uploaded 2026-01-23T18:14:18 (48.3 KB)
25F-H018-REL Decision – 1288586.pdf
Uploaded 2026-01-23T18:14:22 (105.9 KB)
Briefing Doc – 25F-H018-REL
Briefing Document: Case No. 25F-H018-REL, Allan v. The Springs Condominiums Association
Executive Summary
This briefing document synthesizes the key facts, arguments, and legal conclusions from the administrative hearing and subsequent decision in the matter of Joseph P. Allan (Petitioner) versus The Springs Condominiums Association (Respondent). The central issue was the Respondent’s failure to provide financial records to the Petitioner within the timeframe mandated by Arizona law.
The Petitioner, a homeowner and former board member, formally requested to examine bank statements and original invoices by sending emails directly to the association’s board members. The Respondent, represented by the owner of its property management company, did not fulfill these requests within the statutory ten-business-day period. The primary defense offered was that the requests were not sent to the management company, which is the customary channel for processing such items, and the board failed to forward the requests.
The Administrative Law Judge (ALJ) found conclusively in favor of the Petitioner. The decision established that the legal obligation to comply with Arizona Revised Statutes (A.R.S.) § 33-1258 rests with the association itself, and internal procedural preferences or communication failures between the board and its management agent do not absolve the association of this statutory duty. The documents were ultimately provided on the eve of the hearing, well past the legal deadline. The final order deemed the Petitioner the prevailing party, mandated the refund of his $500 filing fee, and directed the association to ensure future compliance with state law.
Case Overview
Case Number
25F-H018-REL
Jurisdiction
Office of Administrative Hearings, Phoenix, Arizona
Petitioner
Joseph P. Allan
Respondent
The Springs Condominiums Association
Presiding Judge
Administrative Law Judge Velva Moses-Thompson
Hearing Date
March 11, 2025
Decision Date
March 31, 2025
Core Allegation and Legal Framework
The dispute centered on the Petitioner’s allegation that The Springs Condominiums Association violated A.R.S. § 33-1258, which governs a member’s right to access association records.
• Statutory Requirement (A.R.S. § 33-1258 A): The statute mandates that “all financial and other records of the association shall be made reasonably available for examination by any member.” It explicitly states, “The association shall have ten business days to fulfill a request for examination.”
• Specific Violations Alleged: The Petitioner filed a petition with the Arizona Department of Real Estate after the association failed to respond to two separate requests for documents:
1. A request for original invoices for May 2024.
2. A request for bank statements from four association accounts.
Chronology of Events
• July 9, 2024: Mr. Allan emails several board members, including the President and Vice President, requesting to examine original invoices for May 2024.
• September 23, 2024: Mr. Allan emails several board members requesting to examine bank statements from four association accounts.
• October 2024 (approx.): After receiving no response, Mr. Allan files a petition with the Department of Real Estate, alleging the violations. The petition incorrectly listed the request dates as July 29 and September 24, a discrepancy clarified and acknowledged by both parties at the hearing.
• January 16, 2025: An “Order Granting Continuance” is issued at the Petitioner’s request, moving the hearing date.
• March 10, 2025: At 6:45 PM, the evening before the scheduled hearing, the Respondent provides the requested documents to Mr. Allan.
• March 11, 2025: The evidentiary hearing is held before ALJ Velva Moses-Thompson.
• March 31, 2025: The ALJ issues the final decision and order.
Analysis of Testimony and Arguments
Petitioner’s Position (Joseph P. Allan)
Mr. Allan, representing himself, argued that he followed the law by submitting his requests directly to the association. His key points were:
• Direct Communication with the Association: He intentionally sent his requests to the board members (President, Vice President, Treasurer, and Director) because he considers them to be the “association” as defined by the statute.
• Investigation of Management Company: He deliberately bypassed the management company because he was actively investigating its conduct.
• Lack of Timely Response: It was undisputed that the association failed to provide the documents within the 10-day period. He confirmed receipt only on March 10, 2025, months after the requests were made.
• Past Experience: As a former board member for three years, he was familiar with the association’s financial documents and was requesting them to ensure everything was correct due to perceived problems.
Respondent’s Position (The Springs Condominiums Association)
The association was represented by Belen Guzman, the owner of its management company, SSC Property Management. Her defense centered on a procedural failure, not a denial of the Petitioner’s right to the documents.
• Improper Channel of Request: The primary defense was that Mr. Allan failed to follow standard practice by not including the management company in his email requests.
• Board’s Failure to Act: Ms. Guzman testified that the board members who received the emails did not forward them or follow up. She stated she was unaware of the requests until after the official complaint was filed and one of the board members, Petri (the president at the time), forwarded an email to her.
• Lack of Written Policy: Ms. Guzman acknowledged that the association has no written policy requiring requests to be sent to the management company, but stated the board had verbally instructed Mr. Allan in a meeting to include management on such communications.
• Knowledge of Procedure: She argued that as a former board member, Mr. Allan was aware that record requests are typically handled by the management company.
Findings of Fact and Conclusions of Law
The ALJ’s decision provided a clear legal interpretation of the events and the responsibilities of the parties.
Key Findings of Fact
• It was undisputed that the Petitioner is a member of the Respondent association.
• The Petitioner made formal requests for records via email to board members on July 9, 2024, and September 23, 2024.
• These requests were not sent to the Respondent’s property management company.
• The Respondent did not respond to the requests within the ten-business-day timeframe required by law.
• The Respondent provided the requested documents on March 10, 2025.
• The Respondent’s representative, Ms. Guzman, did not dispute that the board members had received the requests.
Key Conclusions of Law
• The Petitioner successfully met his burden to prove by a “preponderance of the evidence” that the Respondent violated A.R.S. § 33-1258(A).
• The Respondent failed to provide any legal authority supporting its defense that a request must be sent to its property management company to be valid.
• The statutory obligation to provide records lies with the “association.” The failure of the board to forward the requests to its management agent does not excuse the association’s non-compliance.
• The ALJ concluded: “Respondent violated A.R.S. section 33-1258(A) when it failed to allow Petitioner to examine the May 2024 original invoices and bank statements from four of Respondent’s accounts, within ten business days of the date of Petitioner’s requests.”
Final Order and Implications
Based on the findings, the ALJ issued a binding order with the following components:
1. Prevailing Party: The Petitioner, Joseph P. Allan, was deemed the prevailing party.
2. Reimbursement: The Respondent was ordered to pay the Petitioner his $500.00 filing fee within thirty days of the order.
3. Future Compliance: The Respondent was formally directed to comply with the requirements of A.R.S. § 33-1258(A) going forward.
4. No Civil Penalty: The judge determined that a civil penalty was not appropriate in this matter.
The primary implication of this decision is that a condominium or homeowner association is directly and legally responsible for fulfilling its statutory obligations. It cannot use internal protocols, informal procedures, or communication breakdowns between its board and third-party vendors (like a management company) as a legal defense for failing to comply with state law.
Study Guide – 25F-H018-REL
{ “case”: { “docket_no”: “25F-H018-REL”, “case_title”: “Allan, Joseph P v. The Springs Condominiums Association”, “decision_date”: “2025-03-31”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I send a records request to the Board but not the management company, can the HOA ignore it?”, “short_answer”: “No. Sending the request to Board members is sufficient to trigger the HOA’s legal obligation to respond.”, “detailed_answer”: “Even if the management company prefers requests to go directly to them, the Association is still obligated to comply with the law if the Board receives the request. In this case, the management company argued they didn’t know about the request because it went to the Board, but the judge ruled the violation still occurred.”, “alj_quote”: “Respondent did present any legal authority to establish that it was not obligated to comply with A.R.S. section 33-1258(A), for the reason that the requests were not sent to Respondent’s property management company.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “HOA obligations”, “property management” ] }, { “question”: “How many days does the HOA have to let me examine the records I requested?”, “short_answer”: “The HOA must make records available for examination within 10 business days.”, “detailed_answer”: “Arizona law grants the Association ten business days to fulfill a request for examination after receiving it.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “timelines”, “records request”, “statutory requirements” ] }, { “question”: “Can the HOA charge me a fee just to look at the records?”, “short_answer”: “No. The HOA cannot charge a member for making material available for review.”, “detailed_answer”: “While the HOA can charge for copies (up to 15 cents per page), they are explicitly prohibited from charging a fee for the act of making materials available for review.”, “alj_quote”: “The association shall not charge a member or any person designated by the member in writing for making material available for review.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “fees”, “records request”, “homeowner rights” ] }, { “question”: “What happens if I win my hearing against the HOA?”, “short_answer”: “You may be deemed the prevailing party and the HOA can be ordered to reimburse your filing fee.”, “detailed_answer”: “If the judge rules in your favor, they can order the HOA to pay back the filing fee you paid to bring the case. In this decision, the HOA was ordered to pay the homeowner $500.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.”, “legal_basis”: “Order”, “topic_tags”: [ “penalties”, “reimbursement”, “ruling” ] }, { “question”: “Does the HOA have to provide original invoices if I request them?”, “short_answer”: “Yes. Financial records, including original invoices, must be made reasonably available.”, “detailed_answer”: “The decision confirms that failure to allow examination of original invoices constitutes a violation of the statute governing association records.”, “alj_quote”: “Respondent violated A.R.S. section 33-1258(A) when it failed to allow Petitioner to examine the May 2024 original invoices and bank statements”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “invoices”, “financial records”, “transparency” ] }, { “question”: “What is the standard of proof for proving the HOA violated the law?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The homeowner must prove their case by showing it is ‘more probably true than not.’ This is the standard evidentiary weight required in these administrative hearings.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated A.R.S. § 33-1258 (A) by a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119(A)”, “topic_tags”: [ “legal standards”, “burden of proof”, “hearing procedures” ] }, { “question”: “Will the HOA always be fined a civil penalty if they break the law?”, “short_answer”: “Not necessarily. The judge has discretion on whether to apply a civil penalty.”, “detailed_answer”: “Even if a violation is found (as it was in this case regarding the records), the judge may decide that a civil penalty is not appropriate based on the circumstances.”, “alj_quote”: “No Civil Penalty is found to be appropriate in this matter.”, “legal_basis”: “Order”, “topic_tags”: [ “civil penalty”, “fines”, “enforcement” ] } ] }
Blog Post – 25F-H018-REL
{ “case”: { “docket_no”: “25F-H018-REL”, “case_title”: “Allan, Joseph P v. The Springs Condominiums Association”, “decision_date”: “2025-03-31”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I send a records request to the Board but not the management company, can the HOA ignore it?”, “short_answer”: “No. Sending the request to Board members is sufficient to trigger the HOA’s legal obligation to respond.”, “detailed_answer”: “Even if the management company prefers requests to go directly to them, the Association is still obligated to comply with the law if the Board receives the request. In this case, the management company argued they didn’t know about the request because it went to the Board, but the judge ruled the violation still occurred.”, “alj_quote”: “Respondent did present any legal authority to establish that it was not obligated to comply with A.R.S. section 33-1258(A), for the reason that the requests were not sent to Respondent’s property management company.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “HOA obligations”, “property management” ] }, { “question”: “How many days does the HOA have to let me examine the records I requested?”, “short_answer”: “The HOA must make records available for examination within 10 business days.”, “detailed_answer”: “Arizona law grants the Association ten business days to fulfill a request for examination after receiving it.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “timelines”, “records request”, “statutory requirements” ] }, { “question”: “Can the HOA charge me a fee just to look at the records?”, “short_answer”: “No. The HOA cannot charge a member for making material available for review.”, “detailed_answer”: “While the HOA can charge for copies (up to 15 cents per page), they are explicitly prohibited from charging a fee for the act of making materials available for review.”, “alj_quote”: “The association shall not charge a member or any person designated by the member in writing for making material available for review.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “fees”, “records request”, “homeowner rights” ] }, { “question”: “What happens if I win my hearing against the HOA?”, “short_answer”: “You may be deemed the prevailing party and the HOA can be ordered to reimburse your filing fee.”, “detailed_answer”: “If the judge rules in your favor, they can order the HOA to pay back the filing fee you paid to bring the case. In this decision, the HOA was ordered to pay the homeowner $500.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.”, “legal_basis”: “Order”, “topic_tags”: [ “penalties”, “reimbursement”, “ruling” ] }, { “question”: “Does the HOA have to provide original invoices if I request them?”, “short_answer”: “Yes. Financial records, including original invoices, must be made reasonably available.”, “detailed_answer”: “The decision confirms that failure to allow examination of original invoices constitutes a violation of the statute governing association records.”, “alj_quote”: “Respondent violated A.R.S. section 33-1258(A) when it failed to allow Petitioner to examine the May 2024 original invoices and bank statements”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “invoices”, “financial records”, “transparency” ] }, { “question”: “What is the standard of proof for proving the HOA violated the law?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The homeowner must prove their case by showing it is ‘more probably true than not.’ This is the standard evidentiary weight required in these administrative hearings.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated A.R.S. § 33-1258 (A) by a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119(A)”, “topic_tags”: [ “legal standards”, “burden of proof”, “hearing procedures” ] }, { “question”: “Will the HOA always be fined a civil penalty if they break the law?”, “short_answer”: “Not necessarily. The judge has discretion on whether to apply a civil penalty.”, “detailed_answer”: “Even if a violation is found (as it was in this case regarding the records), the judge may decide that a civil penalty is not appropriate based on the circumstances.”, “alj_quote”: “No Civil Penalty is found to be appropriate in this matter.”, “legal_basis”: “Order”, “topic_tags”: [ “civil penalty”, “fines”, “enforcement” ] } ] }
Case Participants
Petitioner Side
Joseph P. Allan(petitioner) Appeared on behalf of himself. Name also appears as Joseph P. Allen.
Respondent Side
Belen Guzman(property manager) SSC Property Management Owner of the property management company for the Respondent. Appeared on behalf of the Respondent.
Peetri Ahon(board member) The Springs Condominiums Association Was the President of the board at the time of requests, later identified as a member at large.
Neutral Parties
Velva Moses-Thompson(ALJ) OAH Administrative Law Judge. Name also appears as Fala Moses Thompson.
Susan Nicolson(ADRE Commissioner) Arizona Department of Real Estate
Other Participants
Carmen(homeowner) The Springs Condominiums Association A homeowner who was CC'd on an email.
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
22F-H2221009-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2022-04-25
Administrative Law Judge
Velva Moses-Thompson
Outcome
full
Filing Fees Refunded
$500.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Sam & Pipper O' Shaughnessy Stangl
Counsel
—
Respondent
Sabino Vista Townhouse Association
Counsel
Nathan Tennyson
Alleged Violations
Article VI of the CC&Rs
Outcome Summary
The Administrative Law Judge deemed Petitioners the prevailing party. Respondent HOA violated Article VI of the CC&Rs by failing to maintain and remove rubbish from the natural desert area within the Common Area up to the exterior building lines, as the Board's determination not to maintain the area lacked proper authority without a CC&R amendment. The Respondent was ordered to comply with the CC&Rs and refund the Petitioners' filing fee.
Key Issues & Findings
HOA maintenance obligations for common area up to exterior building lines
Petitioners alleged the HOA failed to maintain and otherwise manage all property up to the exterior building lines and patio enclosures, specifically a natural desert area within the Common Area. The ALJ found that the CC&Rs require the Association to maintain and remove all rubbish within its property up to the exterior building lines, and the Board lacked the authority to refuse maintenance of the natural desert area without amending the CC&Rs.
Orders: Respondent is ordered to comply with the requirements of Article VI of the CC&Rs going forward and must pay Petitioners their filing fee of $500.00 within thirty (30) days.
Stangl v. Sabino Vista Townhouse Association: A Dispute Over Common Area Maintenance
Executive Summary
This briefing document synthesizes the key facts, arguments, and legal decisions in the administrative case of Sam & Pipper O’ Shaughnessy Stangl versus the Sabino Vista Townhouse Association. The central conflict revolves around the Association’s legal obligation, as defined by its Covenants, Conditions, and Restrictions (CC&Rs), to maintain a common area behind the Petitioners’ property.
The Petitioners alleged that the Association violated Article 6 of its CC&Rs by failing to maintain this area for over two decades, resulting in the accumulation of rubbish and the creation of a habitat for pests. The Association countered that the area in question was designated “natural desert” to serve as a buffer, and that maintaining it was not required and would be cost-prohibitive.
An initial hearing in November 2021 resulted in a decision in favor of the Petitioners. The Association was granted a rehearing, which took place in April 2022. Despite new arguments from the Association regarding budget constraints, historical precedent, and alleged interference by the Petitioners, the Administrative Law Judge (ALJ) upheld the original decision.
The final ruling on April 25, 2022, found that the language of CC&R Article 6 is unambiguous and requires the Association to maintain “all property up to the exterior building lines.” The ALJ concluded that the Board of Directors does not have the authority to unilaterally designate a common area as “unmaintained” without formally amending the CC&Rs. Consequently, the Association was ordered to comply with Article 6 and reimburse the Petitioners’ filing fee.
Case Overview
Case Name
Sam & Pipper O’ Shaughnessy Stangl, Petitioners, vs. Sabino Vista Townhouse Association, Respondent.
Petition Filed: August 6, 2021 Initial Hearing: November 8, 2021 Initial Decision: November 29, 2021 Rehearing: April 4, 2022 Final Decision: April 25, 2022
The Central Allegation: Violation of CC&R Article 6
The dispute is founded on the interpretation of Article 6 of the Sabino Vista Townhouse Association’s CC&Rs concerning “Common Maintenance.”
Key Provisions of Article 6:
• Maintenance Obligation: “The Association, or its duly authorized representative, shall maintain and otherwise manage all property up to the exterior building lines and patio enclosures including but not limited to the landscaping… roofs, common elements, decorative walls, drainage… and be responsible for the rubbish removal of all areas within the common properties.”
• Standard of Care: “The Board of Directors of the Association shall use a reasonably high standard of care in providing for the repair, management and maintenance of said property, so that said townhouse project will reflect high pride of ownership.”
Petitioners’ Core Claim: Filed on August 6, 2021, the petition alleged that the Association violated Article 6 by failing to maintain the property behind their townhome unit. They asserted this neglect had persisted for the approximately 24 years they had lived there, leading to overgrowth and pest infestations.
◦ Alleged observing only 12 hours of landscaping work in their immediate back area over 24 years.
◦ Claimed the accumulated rubbish and overgrowth served as a habitat for pests, specifically mentioning “a pack rat for rattlesnakes.”
◦ Submitted a photograph of a rattlesnake skin found in their backyard as evidence.
• Respondent (Sabino Vista Townhouse Association):
◦ Testimony was provided by Charles Taylor Ostermeyer, secretary of the Board of Directors.
◦ Argued the area in question is a “natural desert area and underbrush” that begins 30 to 40 feet behind the homes.
◦ Initially claimed the Board had adopted a rule limiting maintenance to just 4 feet behind residences, citing Board meeting minutes. However, when pressed by the ALJ, Ostermeyer conceded that believing a formal rule was adopted “would be conjecture on my part.”
◦ Asserted it would be too costly to clear the entire region.
◦ Contended that the decision not to maintain the open desert area was a valid exercise of the “business judgment rule” applicable to non-profit organizations.
November 29, 2021 Decision
The ALJ, Velva Moses-Thompson, ruled in favor of the Petitioners.
• Finding: The preponderance of the evidence showed the Respondent failed to maintain the property as required by the unambiguous language of Article 6.
• Reasoning: The Respondent provided “no evidence of an Amendment to Article VI” and “no evidence of a rule properly adopted by the Board that would limit the common area to be maintained.”
• Order: The Petitioners were deemed the prevailing party, and the Association was ordered to reimburse their $500 filing fee and comply with Article 6 going forward.
The Rehearing and Final Decision (April 2022)
The Association’s request for a rehearing was granted, with the new hearing held on April 4, 2022. The Association was represented by Nathan Tennyson, Esq., and presented testimony from John Polasi, a Board member and Chairman of the Landscape Committee.
Rehearing Testimony and Arguments
Petitioner Arguments (Sam O’ Shaughnessy Stangl)
Respondent Arguments (John Polasi, HOA Board)
Core Issue is Deflection: Argued the Association’s narrative was a “deflection from the main issue.” Stated the HOA focused on irrelevant topics to circumvent the court’s correct original ruling.
Area is a “Natural Buffer”: The unmaintained area has existed since 1974 and serves as a natural buffer from Tanque Verde Creek, keeping wildlife out and preventing hikers/bikers from wandering into the neighborhood.
Tree Trimming Incident: Claimed the HOA falsely accused him of “singlehandedly” stopping all tree trimming. Clarified a December 2021 interaction with a contractor (Leon’s Tree Service) lasted only 30 seconds, where he refused permission to cut three shade branches in his private front courtyard.
Petitioner Hindrance: Alleged the Petitioners actively hindered tree trimming in December 2021 by refusing the contractor entry into their courtyard and blocking their driveway with an SUV to prevent the trimming of a low-hanging branch.
Pest Infestations: Maintained that pests are a significant problem, citing a recent rattlesnake sighting on his birthday (March 21) and his personal removal of “252 packrats in the last three years.”
Pest Control is Managed: Stated the HOA contracts “Mr. Packrat” to inspect the entire property quarterly. Polasi testified he had been chairman for a year and had “never heard of a single pack rider or rattlesnake anywhere.”
Misuse of Common Area: Dismissed accusations of misusing the common area as “pure deflection.” He stated his use (grilling, sitting outdoors) was adjudicated in court 18 years prior and found to be in compliance with CC&Rs.
Petitioner Misuse of Common Area: Accused the Petitioners of violating CC&Rs by placing personal items (barbecue, smoker, tables, chairs) in the common area and cutting a hole in their patio wall for water and electric lines.
Developer’s Intent: Cited a statement from Dale Chastine, the original developer, asserting the CC&Rs were written to “strictly forbid any unfettered wild growth” and require all common areas to be maintained in the same manner.
Board Authority and Historical Precedent: Cited 2020 Board Minutes that formally designated the area “35 ft to the south of southern homeowner rear wall” as “unmaintained natural desert landscape.” Referenced 1999 minutes indicating a 4-foot maintenance rule was previously in place.
New Issues: Attempted to introduce new evidence regarding a “complete drainage channel that… is now buried under debris and soil,” but the ALJ did not admit it as it was a new allegation not in the original petition.
Budgetary Constraints: Argued that maintaining the entire two-to-four-acre area would be excessively expensive. He noted the HOA had recently spent $15,000 on front-area tree trimming and $10,000 on tree repairs, and had other costs like a new pool pump.
April 25, 2022 Final Decision
The ALJ again ruled in favor of the Petitioners, affirming the initial decision.
• Core Conclusion: “Although the Board determined that it would not maintain the natural desert, the Board does not have authority under its CC&Rs to refuse to maintain any of the area of its property up to the exterior building lines.”
• Legal Reasoning: The CC&Rs are unambiguous and require the Association to maintain and remove rubbish from all property within its boundaries, including the area designated as “natural desert.”
• Path Forward for HOA: The ALJ explicitly stated, “If the Association does not want to maintain any area within its property up to the exterior building lines, the Association should amend its CC&Rs.”
• Final Order: The order from the November 29, 2021 decision was reiterated: Petitioners were deemed the prevailing party, the Respondent was ordered to pay the $500 filing fee, and the Respondent was directed to comply with Article VI of the CC&Rs.
Study Guide – 22F-H2221009-REL-RHG
Stangl v. Sabino Vista Townhouse Association: A Case Study Guide
This study guide provides a comprehensive review of the administrative case between homeowners Sam & Pipper O’ Shaughnessy Stangl and the Sabino Vista Townhouse Association. It includes a short-answer quiz with a corresponding answer key, a set of essay questions for deeper analysis, and a glossary of key terms found within the case documents.
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Short Answer Quiz
Instructions: Answer the following questions in 2-3 sentences, using only information provided in the source documents.
1. What was the central violation alleged by the Petitioners in their August 6, 2021, petition?
2. According to Article 6 of the CC&Rs, what is the Sabino Vista Townhouse Association’s responsibility regarding property maintenance?
3. In the first hearing on November 8, 2021, what was the Respondent’s primary argument for not maintaining the area behind the Petitioners’ home?
4. What was the outcome of the first Administrative Law Judge Decision issued on November 29, 2021?
5. Who testified for the Respondent at the April 4, 2022, rehearing, and what were his roles within the Association?
6. What two historical documents did the Respondent present at the rehearing to support its maintenance policy for the area in question?
7. Describe the Respondent’s accusation against the Petitioners regarding the tree trimming service in December 2021.
8. What strategic reasons did the Respondent’s witness, John Polasi, give for leaving the desert area unmaintained?
9. In the final decision of April 25, 2022, why did the Administrative Law Judge rule against the Association despite its evidence of a board-approved maintenance plan?
10. What specific orders were issued to the Respondent in the final court decision?
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Answer Key
1. The Petitioners alleged that the Sabino Vista Townhouse Association violated Article 6 of its Covenants, Conditions, and Restrictions (CC&Rs). Specifically, they claimed the Association failed to maintain and otherwise manage all property up to the exterior lines and patio enclosures, focusing on the unkempt two-acre area behind their townhome.
2. Article 6 requires the Association to “maintain and otherwise manage all property up to the exterior building lines and patio enclosures.” This includes landscaping, common elements, and rubbish removal, and mandates that the Board of Directors use a “reasonably high standard of care” so the project reflects a high pride of ownership.
3. In the first hearing, the Respondent argued that it had applied the “business judgment rule” applicable to non-profit organizations. The Association contended it would be too costly to clear out the entire region, which it described as an open desert area with many trees and weeds.
4. The Administrative Law Judge (ALJ) found the Petitioners to be the prevailing party. The ALJ ordered the Respondent to comply with Article 6 of the CC&Rs going forward and to pay the Petitioners their filing fee of $500.00.
5. John Polasi testified for the Respondent at the rehearing. He was identified as a member of the Respondent’s Board of Directors and the Chairman of the Landscaping Committee.
6. The Respondent presented minutes from a Board Meeting in February 1999, which stated that only 4 feet behind residences were maintained, with the remainder left natural. They also presented minutes from a 2020 Board Meeting that revised this policy, designating an area 35 feet from the southern homeowner walls as the maintenance boundary.
7. The Respondent alleged that the Petitioners interfered with and prevented a tree trimming project conducted by Leon’s Tree Service. The witness claimed the Petitioners refused entry into their front patio to trim overhanging limbs and moved a vehicle into their driveway to block the work.
8. John Polasi testified that the unmaintained desert area serves as a “natural buffer.” He stated it keeps animals from the adjacent Tanque Verde Creek area from coming onto homeowner property and also prevents bikers and hikers from wandering into the neighborhood.
9. The ALJ ruled that although the Board had determined it would not maintain the natural desert area, the Board does not have the authority under its CC&Rs to refuse maintenance. The judge concluded that the CC&Rs require the Association to maintain all property up to the exterior lines and that if the Association wishes to change this, it must formally amend its CC&Rs.
10. The final order deemed the Petitioners the prevailing party and directed the Respondent to pay the Petitioners’ $500.00 filing fee within thirty days. It further ordered the Respondent to comply with the requirements of Article VI of the CC&Rs going forward.
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Essay Questions
Instructions: The following questions are designed for essay-length responses to encourage a deeper analysis of the case. Answers are not provided.
1. Analyze the legal reasoning of the Administrative Law Judge in both the initial and final decisions. Why was Article 6 of the CC&Rs consistently interpreted as unambiguous, and how did this interpretation override the Respondent’s “business judgment” defense and subsequent board resolutions?
2. Compare and contrast the evidence and arguments presented by the Respondent in the first hearing versus the rehearing. How did the Association’s defense strategy evolve, and what new evidence did it introduce in the second hearing?
3. Discuss the concept of “preponderance of the evidence” as defined in the case documents. Using specific examples from the testimony and exhibits, explain how the Petitioners met this burden of proof and why the Respondent’s affirmative defenses failed to meet the same standard in both hearings.
4. Examine the tension between a homeowners’ association’s governing documents (like CC&Rs) and the operational decisions made by its Board of Directors. How does this case illustrate the limits of a Board’s authority to interpret or modify its responsibilities without formally amending the core documents?
5. Evaluate the various pieces of evidence introduced during the rehearing, such as the Board Minutes from 1999 and 2020, the letter from Leon’s Tree Service, and the attempted introduction of the developer’s affidavit. What role did each piece of evidence play in shaping the arguments, and why was some evidence given more weight or deemed inadmissible by the judge?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, makes findings of fact, and issues decisions and orders. In this case, the ALJ was Velva Moses-Thompson.
Affidavit
A written statement confirmed by oath or affirmation, for use as evidence in court. An affidavit from the original developer, Dale Chastain, was presented but not admitted into evidence.
Affirmative Defense
A defense in which the defendant introduces evidence that, if found to be credible, will negate liability, even if it is proven that the defendant committed the alleged acts.
Arizona Dept. of Real Estate
The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona.
Business Judgment Rule
A legal principle that grants directors of a corporation (or non-profit association) immunity from liability for losses incurred in corporate transactions if the directors acted in good faith. This was used as a defense by the Respondent in the first hearing.
Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision. The interpretation of Article 6 of the CC&Rs was the central issue of the case.
Common Area
Property in a planned community that is owned by the homeowners’ association and intended for the use and enjoyment of all members. The dispute centered on the maintenance of a common area behind the Petitioners’ home.
Conjecture
An opinion or conclusion formed on the basis of incomplete information. A witness for the Respondent admitted his belief about a maintenance rule was “conjecture.”
Evidentiary Hearing
A formal proceeding where parties present evidence and testimony before a judge to resolve a disputed issue.
Homeowners’ Association (HOA)
An organization in a subdivision, planned community, or condominium building that makes and enforces rules for the properties and its residents. In this case, the Sabino Vista Townhouse Association.
Office of Administrative Hearings
An independent state agency in Arizona where evidentiary hearings are conducted by Administrative Law Judges.
Petitioners
The party that files a petition to initiate a legal proceeding. In this case, Sam & Pipper O’ Shaughnessy Stangl.
Preponderance of the Evidence
The standard of proof in most civil cases, defined as “such proof as convinces the trier of fact that the contention is more probably true than not.” The Petitioners had the burden of proving their case by this standard.
Rehearing
A second hearing of a case, granted upon request, to reconsider the original decision. The April 4, 2022, hearing was a rehearing, treated as a “complete and new hearing.”
Respondent
The party against whom a petition is filed. In this case, the Sabino Vista Townhouse Association.
Restrictive Covenant
A provision in a deed or other legal document that limits the use of real property. The court noted that unambiguous restrictive covenants are enforced to give effect to the intent of the parties.
Riparian Area
An area of land adjacent to a river or stream. The Respondent’s witness described the community as being in a riparian area next to Tanque Verde Creek.
Blog Post – 22F-H2221009-REL-RHG
He Sued His HOA Over Landscaping and Won. They Demanded a Do-Over. He Won Again. Here Are the Lessons.
Introduction: The David vs. Goliath Tale of a Homeowner and His HOA
For many homeowners, dealing with a Homeowners Association (HOA) can feel like a constant struggle. Disputes over rules, maintenance, and responsibilities are common frustrations. But what happens when a homeowner believes their HOA is fundamentally failing to uphold its end of the bargain?
This is the story of Sam O’ Shaughnessy Stangl, a homeowner who took his HOA to court over its failure to maintain a common area behind his home. The outcome was surprising enough: he won. But when the HOA was granted a complete “do-over” hearing to re-argue the case from scratch, he won a second time.
This case, Stangl vs. Sabino Vista Townhouse Association, offers a powerful case study in the hierarchy of governing documents and the legal principle of plain language in contract law. Here are the surprising and powerful lessons from the repeated legal victory that every homeowner should know.
1. An HOA Board Vote Can’t Override Its Own Founding Documents
The HOA’s core defense was that its Board of Directors had made a decision to leave the area behind the homes as an “unmaintained natural desert.” This argument, however, proved legally insufficient across two separate hearings.
In the first hearing, board secretary Charles Taylor Ostermeyer testified that the board had decided to limit maintenance. However, when pressed by the judge, he admitted that claiming this decision was a formal “rule” would be “conjecture on my part.” For the rehearing, the association presented board member John Polaski, who formalized the argument, claiming the unmaintained area served as a “natural buffer.” To support this, they presented minutes from a 2020 board meeting, arguing that the board’s decision recorded in those minutes effectively created a new policy for that common area.
In both instances, the Administrative Law Judge delivered a decisive counter-ruling. The judge found that the association’s primary governing documents—the Covenants, Conditions, and Restrictions (CC&Rs)—were the superior legal authority. A simple board vote recorded in meeting minutes could not nullify the binding requirements of the CC&Rs. The judge’s final order from the rehearing was unequivocal:
Although the Board determined that it would not maintain the natural desert, the Board does not have authority under its CC&Rs to refuse to maintain any of the area of its property up to the exterior building lines. … If the Association does not want to maintain any area within its property up to the exterior building lines, the Association should amend its CC&Rs.
This is a critical lesson for every homeowner. The CC&Rs function as a legally binding contract between the association and its members. A simple board resolution, a new rule, or a long-standing “tradition” cannot legally contradict the foundational covenants.
2. When the Contract is Clear, “All” Simply Means All
The entire case ultimately hinged on a single sentence in Article VI of the Sabino Vista Townhouse Association CC&Rs. This piece of text was so clear and powerful that the judge cited it as the deciding factor in both the original hearing and the rehearing. The language stated:
“The Association, or its duly authorized representative, shall maintain and otherwise manage all property up to the exterior building lines and patio enclosures including but not limited to the landscaping…”
The HOA attempted to argue around this plain language. Its representatives claimed that maintaining the entire area was too costly, that it had been unmaintained since the community was built in 1974, and that it was a “riparian area” (land adjacent to a river or stream) that should be left wild.
In both hearings, the judge rejected these arguments. The word “all” was not open to interpretation. The language of the CC&Rs was unambiguous and therefore had to be enforced as it was written. This illustrates a fundamental legal principle: when contract language is clear, arguments about convenience, cost, or past practice often fail when pitted against the plain text of a governing legal document.
3. Facts are Stubborn, Even in a “Complete New Hearing”
In a highly unusual procedural twist, after losing the first hearing in November 2021, the HOA was granted a “re-hearing” in April 2022. This was not an appeal, which reviews an original decision for errors, but a complete strategic reset. The judge explained its legal significance:
“And this is a re-hearing. So it is a complete and new hearing. … as if the first hearing didn’t happen.”
The HOA used this second chance to launch a new strategy. While the first hearing’s defense centered on cost and a vague, unwritten policy, the second hearing featured a new witness and a new, two-pronged approach: formalizing the “natural buffer” argument and adding an ad hominem strategy that attempted to portray Mr. Stangl as an uncooperative resident who had personally interfered with tree trimming.
But while the HOA’s tactics shifted, the central fact of the case could not be changed. The text of the CC&Rs was the same in April 2022 as it was in November 2021. The final outcome was identical to the first. The judge once again ruled in favor of the homeowner, ordering the HOA to comply with its own CC&Rs and to reimburse Mr. Stangl’s $500 filing fee.
This demonstrates a key legal reality: while procedural tactics can create new opportunities for argument, they cannot alter the foundational text of a contract. The HOA’s strategy shifted, but the CC&Rs—the central fact of the case—remained immutable.
Conclusion: A Final Takeaway for Every Homeowner
The case of Stangl vs. Sabino Vista Townhouse Association offers three profound takeaways for homeowners: the CC&Rs are supreme over board decisions, the plain language of those documents is incredibly powerful, and a fact-based argument is resilient. It serves as a potent reminder that an association’s governing documents are not just suggestions—they are enforceable contracts.
The next time you question an HOA policy, will you stop at their latest newsletter, or will you go back to the source?
Case Participants
Petitioner Side
Sam O' Shaughnessy Stangl(petitioner)
Pipper O' Shaughnessy Stangl(petitioner)
Dale Chastain(witness) Original developer, provided affidavit/statement
Lisa Chastain(witness) Witness who signed affidavit
Respondent Side
Blake R. Johnson(HOA attorney) The Brown Law Group, PLLC Appeared at initial hearing
Nathan Tennyson(HOA attorney) The Brown Law Group, PLLC Appeared at rehearing
Charles Taylor Ostermeyer(board member) Sabino Vista Townhouse Association Secretary; witness at initial hearing
John Polasi(board member) Sabino Vista Townhouse Association Chairman of Landscaping Committee; witness at rehearing
Leon(contractor/witness) Leon's Tree Service Hired by Respondent
Neutral Parties
Velva Moses-Thompson(ALJ) OAH
Louis Dettorre(Commissioner) ADRE
AHansen(ADRE staff) ADRE
djones(ADRE staff) ADRE
DGardner(ADRE staff) ADRE
vnunez(ADRE staff) ADRE
c. serrano(admin staff) Transmitted order
Miranda Alvarez(admin staff) Transmitted order
Other Participants
Barbara Barski(property manager) Former manager, referenced in testimony
The Administrative Law Judge deemed Petitioners the prevailing party. Respondent HOA violated Article VI of the CC&Rs by failing to maintain and remove rubbish from the natural desert area within the Common Area up to the exterior building lines, as the Board's determination not to maintain the area lacked proper authority without a CC&R amendment. The Respondent was ordered to comply with the CC&Rs and refund the Petitioners' filing fee.
Key Issues & Findings
HOA maintenance obligations for common area up to exterior building lines
Petitioners alleged the HOA failed to maintain and otherwise manage all property up to the exterior building lines and patio enclosures, specifically a natural desert area within the Common Area. The ALJ found that the CC&Rs require the Association to maintain and remove all rubbish within its property up to the exterior building lines, and the Board lacked the authority to refuse maintenance of the natural desert area without amending the CC&Rs.
Orders: Respondent is ordered to comply with the requirements of Article VI of the CC&Rs going forward and must pay Petitioners their filing fee of $500.00 within thirty (30) days.
Stangl v. Sabino Vista Townhouse Association: A Dispute Over Common Area Maintenance
Executive Summary
This briefing document synthesizes the key facts, arguments, and legal decisions in the administrative case of Sam & Pipper O’ Shaughnessy Stangl versus the Sabino Vista Townhouse Association. The central conflict revolves around the Association’s legal obligation, as defined by its Covenants, Conditions, and Restrictions (CC&Rs), to maintain a common area behind the Petitioners’ property.
The Petitioners alleged that the Association violated Article 6 of its CC&Rs by failing to maintain this area for over two decades, resulting in the accumulation of rubbish and the creation of a habitat for pests. The Association countered that the area in question was designated “natural desert” to serve as a buffer, and that maintaining it was not required and would be cost-prohibitive.
An initial hearing in November 2021 resulted in a decision in favor of the Petitioners. The Association was granted a rehearing, which took place in April 2022. Despite new arguments from the Association regarding budget constraints, historical precedent, and alleged interference by the Petitioners, the Administrative Law Judge (ALJ) upheld the original decision.
The final ruling on April 25, 2022, found that the language of CC&R Article 6 is unambiguous and requires the Association to maintain “all property up to the exterior building lines.” The ALJ concluded that the Board of Directors does not have the authority to unilaterally designate a common area as “unmaintained” without formally amending the CC&Rs. Consequently, the Association was ordered to comply with Article 6 and reimburse the Petitioners’ filing fee.
Case Overview
Case Name
Sam & Pipper O’ Shaughnessy Stangl, Petitioners, vs. Sabino Vista Townhouse Association, Respondent.
Petition Filed: August 6, 2021 Initial Hearing: November 8, 2021 Initial Decision: November 29, 2021 Rehearing: April 4, 2022 Final Decision: April 25, 2022
The Central Allegation: Violation of CC&R Article 6
The dispute is founded on the interpretation of Article 6 of the Sabino Vista Townhouse Association’s CC&Rs concerning “Common Maintenance.”
Key Provisions of Article 6:
• Maintenance Obligation: “The Association, or its duly authorized representative, shall maintain and otherwise manage all property up to the exterior building lines and patio enclosures including but not limited to the landscaping… roofs, common elements, decorative walls, drainage… and be responsible for the rubbish removal of all areas within the common properties.”
• Standard of Care: “The Board of Directors of the Association shall use a reasonably high standard of care in providing for the repair, management and maintenance of said property, so that said townhouse project will reflect high pride of ownership.”
Petitioners’ Core Claim: Filed on August 6, 2021, the petition alleged that the Association violated Article 6 by failing to maintain the property behind their townhome unit. They asserted this neglect had persisted for the approximately 24 years they had lived there, leading to overgrowth and pest infestations.
◦ Alleged observing only 12 hours of landscaping work in their immediate back area over 24 years.
◦ Claimed the accumulated rubbish and overgrowth served as a habitat for pests, specifically mentioning “a pack rat for rattlesnakes.”
◦ Submitted a photograph of a rattlesnake skin found in their backyard as evidence.
• Respondent (Sabino Vista Townhouse Association):
◦ Testimony was provided by Charles Taylor Ostermeyer, secretary of the Board of Directors.
◦ Argued the area in question is a “natural desert area and underbrush” that begins 30 to 40 feet behind the homes.
◦ Initially claimed the Board had adopted a rule limiting maintenance to just 4 feet behind residences, citing Board meeting minutes. However, when pressed by the ALJ, Ostermeyer conceded that believing a formal rule was adopted “would be conjecture on my part.”
◦ Asserted it would be too costly to clear the entire region.
◦ Contended that the decision not to maintain the open desert area was a valid exercise of the “business judgment rule” applicable to non-profit organizations.
November 29, 2021 Decision
The ALJ, Velva Moses-Thompson, ruled in favor of the Petitioners.
• Finding: The preponderance of the evidence showed the Respondent failed to maintain the property as required by the unambiguous language of Article 6.
• Reasoning: The Respondent provided “no evidence of an Amendment to Article VI” and “no evidence of a rule properly adopted by the Board that would limit the common area to be maintained.”
• Order: The Petitioners were deemed the prevailing party, and the Association was ordered to reimburse their $500 filing fee and comply with Article 6 going forward.
The Rehearing and Final Decision (April 2022)
The Association’s request for a rehearing was granted, with the new hearing held on April 4, 2022. The Association was represented by Nathan Tennyson, Esq., and presented testimony from John Polasi, a Board member and Chairman of the Landscape Committee.
Rehearing Testimony and Arguments
Petitioner Arguments (Sam O’ Shaughnessy Stangl)
Respondent Arguments (John Polasi, HOA Board)
Core Issue is Deflection: Argued the Association’s narrative was a “deflection from the main issue.” Stated the HOA focused on irrelevant topics to circumvent the court’s correct original ruling.
Area is a “Natural Buffer”: The unmaintained area has existed since 1974 and serves as a natural buffer from Tanque Verde Creek, keeping wildlife out and preventing hikers/bikers from wandering into the neighborhood.
Tree Trimming Incident: Claimed the HOA falsely accused him of “singlehandedly” stopping all tree trimming. Clarified a December 2021 interaction with a contractor (Leon’s Tree Service) lasted only 30 seconds, where he refused permission to cut three shade branches in his private front courtyard.
Petitioner Hindrance: Alleged the Petitioners actively hindered tree trimming in December 2021 by refusing the contractor entry into their courtyard and blocking their driveway with an SUV to prevent the trimming of a low-hanging branch.
Pest Infestations: Maintained that pests are a significant problem, citing a recent rattlesnake sighting on his birthday (March 21) and his personal removal of “252 packrats in the last three years.”
Pest Control is Managed: Stated the HOA contracts “Mr. Packrat” to inspect the entire property quarterly. Polasi testified he had been chairman for a year and had “never heard of a single pack rider or rattlesnake anywhere.”
Misuse of Common Area: Dismissed accusations of misusing the common area as “pure deflection.” He stated his use (grilling, sitting outdoors) was adjudicated in court 18 years prior and found to be in compliance with CC&Rs.
Petitioner Misuse of Common Area: Accused the Petitioners of violating CC&Rs by placing personal items (barbecue, smoker, tables, chairs) in the common area and cutting a hole in their patio wall for water and electric lines.
Developer’s Intent: Cited a statement from Dale Chastine, the original developer, asserting the CC&Rs were written to “strictly forbid any unfettered wild growth” and require all common areas to be maintained in the same manner.
Board Authority and Historical Precedent: Cited 2020 Board Minutes that formally designated the area “35 ft to the south of southern homeowner rear wall” as “unmaintained natural desert landscape.” Referenced 1999 minutes indicating a 4-foot maintenance rule was previously in place.
New Issues: Attempted to introduce new evidence regarding a “complete drainage channel that… is now buried under debris and soil,” but the ALJ did not admit it as it was a new allegation not in the original petition.
Budgetary Constraints: Argued that maintaining the entire two-to-four-acre area would be excessively expensive. He noted the HOA had recently spent $15,000 on front-area tree trimming and $10,000 on tree repairs, and had other costs like a new pool pump.
April 25, 2022 Final Decision
The ALJ again ruled in favor of the Petitioners, affirming the initial decision.
• Core Conclusion: “Although the Board determined that it would not maintain the natural desert, the Board does not have authority under its CC&Rs to refuse to maintain any of the area of its property up to the exterior building lines.”
• Legal Reasoning: The CC&Rs are unambiguous and require the Association to maintain and remove rubbish from all property within its boundaries, including the area designated as “natural desert.”
• Path Forward for HOA: The ALJ explicitly stated, “If the Association does not want to maintain any area within its property up to the exterior building lines, the Association should amend its CC&Rs.”
• Final Order: The order from the November 29, 2021 decision was reiterated: Petitioners were deemed the prevailing party, the Respondent was ordered to pay the $500 filing fee, and the Respondent was directed to comply with Article VI of the CC&Rs.
Study Guide – 22F-H2221009-REL
Stangl v. Sabino Vista Townhouse Association: A Case Study Guide
This study guide provides a comprehensive review of the administrative case between homeowners Sam & Pipper O’ Shaughnessy Stangl and the Sabino Vista Townhouse Association. It includes a short-answer quiz with a corresponding answer key, a set of essay questions for deeper analysis, and a glossary of key terms found within the case documents.
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Short Answer Quiz
Instructions: Answer the following questions in 2-3 sentences, using only information provided in the source documents.
1. What was the central violation alleged by the Petitioners in their August 6, 2021, petition?
2. According to Article 6 of the CC&Rs, what is the Sabino Vista Townhouse Association’s responsibility regarding property maintenance?
3. In the first hearing on November 8, 2021, what was the Respondent’s primary argument for not maintaining the area behind the Petitioners’ home?
4. What was the outcome of the first Administrative Law Judge Decision issued on November 29, 2021?
5. Who testified for the Respondent at the April 4, 2022, rehearing, and what were his roles within the Association?
6. What two historical documents did the Respondent present at the rehearing to support its maintenance policy for the area in question?
7. Describe the Respondent’s accusation against the Petitioners regarding the tree trimming service in December 2021.
8. What strategic reasons did the Respondent’s witness, John Polasi, give for leaving the desert area unmaintained?
9. In the final decision of April 25, 2022, why did the Administrative Law Judge rule against the Association despite its evidence of a board-approved maintenance plan?
10. What specific orders were issued to the Respondent in the final court decision?
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Answer Key
1. The Petitioners alleged that the Sabino Vista Townhouse Association violated Article 6 of its Covenants, Conditions, and Restrictions (CC&Rs). Specifically, they claimed the Association failed to maintain and otherwise manage all property up to the exterior lines and patio enclosures, focusing on the unkempt two-acre area behind their townhome.
2. Article 6 requires the Association to “maintain and otherwise manage all property up to the exterior building lines and patio enclosures.” This includes landscaping, common elements, and rubbish removal, and mandates that the Board of Directors use a “reasonably high standard of care” so the project reflects a high pride of ownership.
3. In the first hearing, the Respondent argued that it had applied the “business judgment rule” applicable to non-profit organizations. The Association contended it would be too costly to clear out the entire region, which it described as an open desert area with many trees and weeds.
4. The Administrative Law Judge (ALJ) found the Petitioners to be the prevailing party. The ALJ ordered the Respondent to comply with Article 6 of the CC&Rs going forward and to pay the Petitioners their filing fee of $500.00.
5. John Polasi testified for the Respondent at the rehearing. He was identified as a member of the Respondent’s Board of Directors and the Chairman of the Landscaping Committee.
6. The Respondent presented minutes from a Board Meeting in February 1999, which stated that only 4 feet behind residences were maintained, with the remainder left natural. They also presented minutes from a 2020 Board Meeting that revised this policy, designating an area 35 feet from the southern homeowner walls as the maintenance boundary.
7. The Respondent alleged that the Petitioners interfered with and prevented a tree trimming project conducted by Leon’s Tree Service. The witness claimed the Petitioners refused entry into their front patio to trim overhanging limbs and moved a vehicle into their driveway to block the work.
8. John Polasi testified that the unmaintained desert area serves as a “natural buffer.” He stated it keeps animals from the adjacent Tanque Verde Creek area from coming onto homeowner property and also prevents bikers and hikers from wandering into the neighborhood.
9. The ALJ ruled that although the Board had determined it would not maintain the natural desert area, the Board does not have the authority under its CC&Rs to refuse maintenance. The judge concluded that the CC&Rs require the Association to maintain all property up to the exterior lines and that if the Association wishes to change this, it must formally amend its CC&Rs.
10. The final order deemed the Petitioners the prevailing party and directed the Respondent to pay the Petitioners’ $500.00 filing fee within thirty days. It further ordered the Respondent to comply with the requirements of Article VI of the CC&Rs going forward.
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Essay Questions
Instructions: The following questions are designed for essay-length responses to encourage a deeper analysis of the case. Answers are not provided.
1. Analyze the legal reasoning of the Administrative Law Judge in both the initial and final decisions. Why was Article 6 of the CC&Rs consistently interpreted as unambiguous, and how did this interpretation override the Respondent’s “business judgment” defense and subsequent board resolutions?
2. Compare and contrast the evidence and arguments presented by the Respondent in the first hearing versus the rehearing. How did the Association’s defense strategy evolve, and what new evidence did it introduce in the second hearing?
3. Discuss the concept of “preponderance of the evidence” as defined in the case documents. Using specific examples from the testimony and exhibits, explain how the Petitioners met this burden of proof and why the Respondent’s affirmative defenses failed to meet the same standard in both hearings.
4. Examine the tension between a homeowners’ association’s governing documents (like CC&Rs) and the operational decisions made by its Board of Directors. How does this case illustrate the limits of a Board’s authority to interpret or modify its responsibilities without formally amending the core documents?
5. Evaluate the various pieces of evidence introduced during the rehearing, such as the Board Minutes from 1999 and 2020, the letter from Leon’s Tree Service, and the attempted introduction of the developer’s affidavit. What role did each piece of evidence play in shaping the arguments, and why was some evidence given more weight or deemed inadmissible by the judge?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, makes findings of fact, and issues decisions and orders. In this case, the ALJ was Velva Moses-Thompson.
Affidavit
A written statement confirmed by oath or affirmation, for use as evidence in court. An affidavit from the original developer, Dale Chastain, was presented but not admitted into evidence.
Affirmative Defense
A defense in which the defendant introduces evidence that, if found to be credible, will negate liability, even if it is proven that the defendant committed the alleged acts.
Arizona Dept. of Real Estate
The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona.
Business Judgment Rule
A legal principle that grants directors of a corporation (or non-profit association) immunity from liability for losses incurred in corporate transactions if the directors acted in good faith. This was used as a defense by the Respondent in the first hearing.
Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision. The interpretation of Article 6 of the CC&Rs was the central issue of the case.
Common Area
Property in a planned community that is owned by the homeowners’ association and intended for the use and enjoyment of all members. The dispute centered on the maintenance of a common area behind the Petitioners’ home.
Conjecture
An opinion or conclusion formed on the basis of incomplete information. A witness for the Respondent admitted his belief about a maintenance rule was “conjecture.”
Evidentiary Hearing
A formal proceeding where parties present evidence and testimony before a judge to resolve a disputed issue.
Homeowners’ Association (HOA)
An organization in a subdivision, planned community, or condominium building that makes and enforces rules for the properties and its residents. In this case, the Sabino Vista Townhouse Association.
Office of Administrative Hearings
An independent state agency in Arizona where evidentiary hearings are conducted by Administrative Law Judges.
Petitioners
The party that files a petition to initiate a legal proceeding. In this case, Sam & Pipper O’ Shaughnessy Stangl.
Preponderance of the Evidence
The standard of proof in most civil cases, defined as “such proof as convinces the trier of fact that the contention is more probably true than not.” The Petitioners had the burden of proving their case by this standard.
Rehearing
A second hearing of a case, granted upon request, to reconsider the original decision. The April 4, 2022, hearing was a rehearing, treated as a “complete and new hearing.”
Respondent
The party against whom a petition is filed. In this case, the Sabino Vista Townhouse Association.
Restrictive Covenant
A provision in a deed or other legal document that limits the use of real property. The court noted that unambiguous restrictive covenants are enforced to give effect to the intent of the parties.
Riparian Area
An area of land adjacent to a river or stream. The Respondent’s witness described the community as being in a riparian area next to Tanque Verde Creek.
Blog Post – 22F-H2221009-REL
He Sued His HOA Over Landscaping and Won. They Demanded a Do-Over. He Won Again. Here Are the Lessons.
Introduction: The David vs. Goliath Tale of a Homeowner and His HOA
For many homeowners, dealing with a Homeowners Association (HOA) can feel like a constant struggle. Disputes over rules, maintenance, and responsibilities are common frustrations. But what happens when a homeowner believes their HOA is fundamentally failing to uphold its end of the bargain?
This is the story of Sam O’ Shaughnessy Stangl, a homeowner who took his HOA to court over its failure to maintain a common area behind his home. The outcome was surprising enough: he won. But when the HOA was granted a complete “do-over” hearing to re-argue the case from scratch, he won a second time.
This case, Stangl vs. Sabino Vista Townhouse Association, offers a powerful case study in the hierarchy of governing documents and the legal principle of plain language in contract law. Here are the surprising and powerful lessons from the repeated legal victory that every homeowner should know.
1. An HOA Board Vote Can’t Override Its Own Founding Documents
The HOA’s core defense was that its Board of Directors had made a decision to leave the area behind the homes as an “unmaintained natural desert.” This argument, however, proved legally insufficient across two separate hearings.
In the first hearing, board secretary Charles Taylor Ostermeyer testified that the board had decided to limit maintenance. However, when pressed by the judge, he admitted that claiming this decision was a formal “rule” would be “conjecture on my part.” For the rehearing, the association presented board member John Polaski, who formalized the argument, claiming the unmaintained area served as a “natural buffer.” To support this, they presented minutes from a 2020 board meeting, arguing that the board’s decision recorded in those minutes effectively created a new policy for that common area.
In both instances, the Administrative Law Judge delivered a decisive counter-ruling. The judge found that the association’s primary governing documents—the Covenants, Conditions, and Restrictions (CC&Rs)—were the superior legal authority. A simple board vote recorded in meeting minutes could not nullify the binding requirements of the CC&Rs. The judge’s final order from the rehearing was unequivocal:
Although the Board determined that it would not maintain the natural desert, the Board does not have authority under its CC&Rs to refuse to maintain any of the area of its property up to the exterior building lines. … If the Association does not want to maintain any area within its property up to the exterior building lines, the Association should amend its CC&Rs.
This is a critical lesson for every homeowner. The CC&Rs function as a legally binding contract between the association and its members. A simple board resolution, a new rule, or a long-standing “tradition” cannot legally contradict the foundational covenants.
2. When the Contract is Clear, “All” Simply Means All
The entire case ultimately hinged on a single sentence in Article VI of the Sabino Vista Townhouse Association CC&Rs. This piece of text was so clear and powerful that the judge cited it as the deciding factor in both the original hearing and the rehearing. The language stated:
“The Association, or its duly authorized representative, shall maintain and otherwise manage all property up to the exterior building lines and patio enclosures including but not limited to the landscaping…”
The HOA attempted to argue around this plain language. Its representatives claimed that maintaining the entire area was too costly, that it had been unmaintained since the community was built in 1974, and that it was a “riparian area” (land adjacent to a river or stream) that should be left wild.
In both hearings, the judge rejected these arguments. The word “all” was not open to interpretation. The language of the CC&Rs was unambiguous and therefore had to be enforced as it was written. This illustrates a fundamental legal principle: when contract language is clear, arguments about convenience, cost, or past practice often fail when pitted against the plain text of a governing legal document.
3. Facts are Stubborn, Even in a “Complete New Hearing”
In a highly unusual procedural twist, after losing the first hearing in November 2021, the HOA was granted a “re-hearing” in April 2022. This was not an appeal, which reviews an original decision for errors, but a complete strategic reset. The judge explained its legal significance:
“And this is a re-hearing. So it is a complete and new hearing. … as if the first hearing didn’t happen.”
The HOA used this second chance to launch a new strategy. While the first hearing’s defense centered on cost and a vague, unwritten policy, the second hearing featured a new witness and a new, two-pronged approach: formalizing the “natural buffer” argument and adding an ad hominem strategy that attempted to portray Mr. Stangl as an uncooperative resident who had personally interfered with tree trimming.
But while the HOA’s tactics shifted, the central fact of the case could not be changed. The text of the CC&Rs was the same in April 2022 as it was in November 2021. The final outcome was identical to the first. The judge once again ruled in favor of the homeowner, ordering the HOA to comply with its own CC&Rs and to reimburse Mr. Stangl’s $500 filing fee.
This demonstrates a key legal reality: while procedural tactics can create new opportunities for argument, they cannot alter the foundational text of a contract. The HOA’s strategy shifted, but the CC&Rs—the central fact of the case—remained immutable.
Conclusion: A Final Takeaway for Every Homeowner
The case of Stangl vs. Sabino Vista Townhouse Association offers three profound takeaways for homeowners: the CC&Rs are supreme over board decisions, the plain language of those documents is incredibly powerful, and a fact-based argument is resilient. It serves as a potent reminder that an association’s governing documents are not just suggestions—they are enforceable contracts.
The next time you question an HOA policy, will you stop at their latest newsletter, or will you go back to the source?
Case Participants
Petitioner Side
Sam O' Shaughnessy Stangl(petitioner)
Pipper O' Shaughnessy Stangl(petitioner)
Dale Chastine(developer/witness) Original developer who provided an affidavit supporting petitioners
Lisa Chastine(witness) Signed father's affidavit as a witness
Respondent Side
Blake R. Johnson(HOA attorney) The Brown Law Group, PLLC
Nathan Tennyson(HOA attorney) The Brown Law Group, PLLC Appeared for rehearing; also referred to as Nathan Henderson in transcript
Charles Taylor Ostermeyer(board member) Sabino Vista Townhouse Association Secretary of Board; testified at original hearing
John Polasi(board member) Sabino Vista Townhouse Association Chairman of the Landscaping Committee; testified at rehearing
Leon(contractor) Leon's Tree Service Tree trimmer hired by HOA; provided a signed statement/testimony
Neutral Parties
Velva Moses-Thompson(ALJ)
Louis Dettorre(Commissioner) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate Email recipient
djones(ADRE staff) Arizona Department of Real Estate Email recipient
DGardner(ADRE staff) Arizona Department of Real Estate Email recipient
vnunez(ADRE staff) Arizona Department of Real Estate Email recipient
c. serrano(clerk) Transmitted order
Miranda Alvarez(clerk) Transmitted order
Other Participants
Barbara Barski(property manager) Former manager of the association
CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5
Outcome Summary
The ALJ concluded that Foothills demonstrated Respondents' violation of the community governing documents by commencing and continuing construction of a second-story Addition without obtaining the required Architectural Committee approval. Foothills was deemed the prevailing party, and Respondents' appeal was dismissed.
Key Issues & Findings
Unauthorized 2nd story addition
Respondents constructed a second-story Addition to their property without first obtaining approval from the Foothills Architectural Committee, violating the community governing documents.
Orders: Respondents’ appeal is dismissed, and Foothills is deemed the prevailing party with regard to its Petition.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_win
Cited:
CC&Rs Article 7, Section 7.3
CC&R Article 9, Section 9.3
CC&R Article 9, Section 9.4
CC&R Article 9, Section 9.5
Analytics Highlights
Topics: architectural review, cc&r violation, unapproved construction, second story addition, prevailing party
Additional Citations:
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. §§ 32-2199(2)
A.R.S. §§ 32-2199.01(D)
A.R.S. §§ 32-2199.02
A.R.S. § 32-2199.05
A.R.S. § 41-1092
A.R.S. §32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
21F-H2120004-REL Decision – 839537.pdf
Uploaded 2026-01-23T17:34:43 (135.4 KB)
Briefing Doc – 21F-H2120004-REL
Briefing Document: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust
Executive Summary
This document synthesizes the findings and decision in the case of Foothills Club West Homeowners Association v. Subrahmanyam & Sudhakar Living Trust (No. 21F-H2120004-REL), adjudicated by the Arizona Office of Administrative Hearings. The core dispute involved the construction of a second-story addition by homeowners (Respondents) without the prior approval of the Homeowners Association (Petitioner), a direct violation of the community’s governing documents.
The Administrative Law Judge (ALJ) found conclusively in favor of the Foothills Club West HOA. The evidence demonstrated that the Respondents not only began construction without seeking approval but continued the project even after receiving a formal denial from the HOA’s Architectural Committee. A subsequent agreement between the parties, wherein the Respondents would demolish the addition in exchange for a waiver of fines, was not honored by the Respondents. The ALJ dismissed the Respondents’ appeal and declared the HOA the prevailing party, validating its authority to enforce the community’s architectural standards as outlined in its Covenants, Conditions, and Restrictions (CC&Rs).
I. Case Overview
• Case Name: Foothills Club West Homeowners Association, Petitioner, v. Subrahmanyam & Sudhakar Living Trust, Respondent.
• Case Number: 21F-H2120004-REL
• Jurisdiction: Arizona Office of Administrative Hearings
• Administrative Law Judge: Kay Abramsohn
• Hearing Date: October 5, 2020
• Decision Date: November 27, 2020
• Central Issue: The petition filed by Foothills HOA on July 24, 2020, alleged that the Respondents constructed an unauthorized and unapproved second-story addition to their property. This action was alleged to be in violation of CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5.
II. Chronology of Key Events
The hearing record established the following undisputed sequence of events:
Oct. 2018
Respondents begin construction of the second-story addition.
Nov. 7, 2018
The City of Phoenix issues a stop-work order, noting a permit is required.
Nov. 7, 2018
Foothills HOA issues a violation notice to the Respondents.
Dec. 17, 2018
Respondents obtain a permit from the City of Phoenix.
Jan. 18, 2019 (approx.)
Respondents submit a request for approval to the Foothills Architectural Committee.
Jan. 18, 2019
Foothills HOA issues a penalty notice to the Respondents, with further notices issued monthly.
Feb. 22, 2019
Foothills HOA issues a formal denial of the application.
Mar. 15, 2019
The City of Phoenix gives final approval to the construction and issues a Certificate of Occupancy.
Post Feb. 2019
The parties reach an agreement for Respondents to demolish the addition in exchange for a waiver of fines.
July 24, 2020
Foothills HOA files its petition, noting Respondents have not complied with the demolition agreement.
Oct. 5, 2020
The administrative hearing is held.
Nov. 27, 2020
The Administrative Law Judge issues the final decision.
III. Arguments of the Parties
A. Petitioner: Foothills Club West HOA
• Violation of CC&Rs: The HOA argued that the Respondents violated CC&R Article 9, Section 9.3 by commencing construction without first obtaining approval from the Architectural Committee.
• Disregard for Denial: The HOA asserted that the Respondents completed the addition after receiving a formal denial of their application.
• Breach of Agreement: The HOA noted that the parties had reached a settlement agreement for demolition, which the Respondents failed to honor. The HOA requested that the Tribunal enforce this agreement.
• Jurisdictional Distinction: The HOA maintained that approval from the City of Phoenix was a separate matter and did not negate the requirement to obtain approval from the HOA as mandated by the governing documents.
B. Respondents: Subrahmanyam & Sudhakar Living Trust
• Initial Ignorance: Respondents claimed they were initially unaware of the HOA approval requirements.
• Attempted Compliance: They argued that once notified, they followed the association’s guidance, met with the Board, and sought approval.
• Vague Denial: Respondents stated they did not understand the meaning of the denial reason, “Fails aesthetics of surrounding community,” or how the addition specifically violated community rules.
• Lack of Due Process: They argued they did not receive a letter indicating an appeal process was available and therefore felt they had not received a final “denial.”
• Demolition Delay: While not disputing the existence of the demolition agreement, Respondents cited COVID-19 issues and safety concerns for their at-risk family as reasons for requesting more time.
• Final Appeal: At the hearing, Respondents reversed their position on the agreement and requested to be allowed to keep the addition.
IV. Analysis of Governing Documents
The decision centered on specific provisions within the Foothills Club West governing documents, which constitute the contract between the HOA and the homeowners.
• CC&R Article 9, Section 9.3 (Architectural Approval): This section was central to the case. It states in pertinent part:
• CC&R Article 9, Section 9.4 (Obligation to Obtain Approval): This provision explicitly sets forth a homeowner’s obligation to secure approval from the Architectural Committee.
• CC&R Article 9, Section 9.5 (Exterior Appearance): This section clarifies that while the HOA cannot limit interior remodeling, it retains jurisdiction over any changes that are “visible from outside such [home] … or affects the exterior appearance of such [home].”
• Amended Architectural Guidelines (2013): These guidelines reinforce the CC&Rs, specifying that a homeowner’s plans must be submitted for approval through the Architectural Committee on a case-by-case basis.
V. Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions of law provided a clear framework for the final order.
A. Burden of Proof
The ALJ established that in this proceeding, the petitioner (Foothills HOA) bore the burden of proving by a “preponderance of the evidence” that the Respondents had violated the governing documents. A preponderance of the evidence is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”
B. Core Conclusion on Violations
The ALJ found that the HOA had successfully met its burden of proof. The central conclusion of law states:
“The Administrative Law Judge concludes that Foothills has demonstrated Respondents’ violation of the community governing documents, as stated in CC&R Article 9, Sections 9.3, 9.4, and 9.5, because Respondents began to construct a modification, the Addition, to their existing home prior to obtaining approval from Foothills Architectural Committee and, further, Respondents continued to construct the Addition despite receiving a denial of approval from Foothills Architectural Committee.”
This finding affirmed that the Respondents committed two distinct violations: starting work without approval and continuing work after being explicitly denied approval.
VI. Final Order and Implications
Based on the findings of fact and conclusions of law, the ALJ issued a decisive order.
• Order:
• Binding Nature: The decision notes that the order is binding on both parties unless a rehearing is requested. Pursuant to A.R.S. § 41-1092.09, a request for rehearing must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of the order.
Study Guide – 21F-H2120004-REL
Study Guide: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust
This guide provides a detailed review of the Administrative Law Judge Decision in case No. 21F-H2120004-REL. It includes a short-answer quiz to test factual recall, essay questions for deeper analysis, and a comprehensive glossary of key terms found within the document.
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Short-Answer Quiz
Instructions: Answer the following ten questions in 2-3 sentences each, based on the information provided in the source document.
1. Who are the Petitioner and Respondent in this case, and what is their relationship?
2. What was the single issue raised in the petition filed by Foothills Club West Homeowners Association?
3. According to the Petition, which specific articles and sections of the governing documents did the Respondents allegedly violate?
4. What action did the City of Phoenix take on November 7, 2018, regarding the Respondents’ construction project?
5. What reasons did the Foothills Architectural Committee provide for denying the Respondents’ application on February 22, 2019?
6. Prior to the hearing, what agreement did the parties reach in an attempt to resolve the dispute?
7. What was the Respondents’ primary argument for their actions and for their failure to comply with the association’s denial?
8. What is the legal standard of proof required in this case, and which party bore the burden of meeting it?
9. Explain the difference between the City of Phoenix’s approval and the Foothills Architectural Committee’s approval, as argued by the Petitioner.
10. What was the final order issued by the Administrative Law Judge in this matter?
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Answer Key
1. The Petitioner is the Foothills Club West Homeowners Association (“Foothills”). The Respondent is the Subrahmanyam & Sheila Sudhakar Living Trust. Their relationship is that of a homeowners’ association and a member homeowner residing within the planned community for 22 years.
2. The single issue raised was that the Respondents constructed an unauthorized and unapproved second-story addition to their property. The construction was completed even after the Foothills Architectural Committee had issued a denial of the project.
3. Foothills alleged that the Respondents violated the CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5. These articles pertain to the rights and obligations of the association and the architectural standards requiring prior approval for modifications.
4. On November 7, 2018, the City of Phoenix issued a stop-work order for the Respondents’ construction project. The order noted that the work being performed required a permit, which had not yet been obtained.
5. The Foothills Architectural Committee denied the application because it needed copies of the City permit, the plans were incomplete, and there was no documentation on the roof line or roofing materials. Furthermore, the denial stated that the project “Fails aesthetics of surrounding community.”
6. The parties came to an agreement wherein the Respondents would complete the demolition of the second-story addition. In exchange, Foothills agreed to waive the penalties that had been imposed on the Respondents for the violation.
7. The Respondents argued that they initially did not know what was required and that they cooperated with the association’s Board once notified. They claimed they did not understand what “Fails aesthetics” meant, did not receive a letter about an appeal process, and therefore did not feel they had received a final “denial.”
8. The legal standard of proof is a “preponderance of the evidence,” which is defined as proof that convinces the trier of fact that a contention is more probably true than not. The Petitioner, Foothills, bore the burden of proving the Respondents’ violation by this standard.
9. Foothills argued that approval from the City of Phoenix and approval from the association’s Architectural Committee were two different and separate matters. Even though the Respondents eventually received a City permit and a Certificate of Occupancy, this did not override the CC&R requirement to first obtain approval from Foothills.
10. The Administrative Law Judge ordered that the Respondents’ appeal be dismissed. The Judge deemed Foothills the prevailing party with regard to its petition, finding that Foothills had demonstrated the Respondents’ violation of the community’s governing documents.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Formulate an essay-style answer for each, drawing evidence and support directly from the provided legal decision.
1. Analyze the arguments presented by both the Petitioner (Foothills) and the Respondents at the hearing. Discuss the key evidence and claims each party used to support their position and explain why the Administrative Law Judge ultimately found the Petitioner’s case more persuasive.
2. Explain the distinct roles and jurisdictions of the Homeowners Association’s Architectural Committee and the City of Phoenix regarding the Respondents’ construction project. Why was obtaining a City permit and a Certificate of Occupancy insufficient for the Respondents to proceed without violating the community’s governing documents?
3. Trace the procedural history of case No. 21F-H2120004-REL, from the filing of the initial petition to the final order. Discuss key filings, motions, and deadlines mentioned in the document, including the Respondents’ attempt to consolidate another case.
4. Discuss the significance of the “contract” between the parties, as defined in footnote 15. How do the CC&Rs and the amended Architectural Guidelines function as this contract, and which specific sections were central to the judge’s conclusion that a violation occurred?
5. Evaluate the Respondents’ attempt to justify their failure to demolish the addition as per their agreement with Foothills, citing COVID-19 issues. How did their request at the hearing to keep the addition conflict with their prior agreement, and what does this reveal about their position in the dispute?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Kay Abramsohn, who presides over administrative hearings at the Office of Administrative Hearings and issues decisions.
Architectural Committee
A committee appointed by the Foothills HOA, as established by CC&R Article 9, with the authority to review, approve, or disapprove plans for construction, modifications, and additions to properties within the community.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These are the governing documents that form a binding contract between the homeowners association and the property owners, outlining their rights and obligations.
Disclosure
The formal process by which parties in a legal case provide evidence, exhibits, and information to each other before a hearing. The deadline for disclosure in this case was September 29, 2020.
Governing Documents
The set of rules for the planned community, including the CC&Rs and the amended Architectural Guidelines, which have the same force and effect as association rules.
Petitioner
The party who initiates a legal proceeding by filing a petition. In this case, the Foothills Club West Homeowners Association.
Petition
The formal document filed with the Arizona Department of Real Estate to initiate a hearing concerning violations of community governing documents. In this case, it was a “single-issue petition.”
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Subrahmanyam & Sheila Sudhakar Living Trust.
Tribunal
The Arizona Office of Administrative Hearings, the state agency authorized by statute to hear and decide contested matters referred to it, such as this dispute.
Blog Post – 21F-H2120004-REL
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21F-H2120004-REL
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This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings concerning a dispute between the Foothills Club West Homeowners Association and the Subrahmanyam & Sudhakar Living Trust. The Petitioner, the Foothills Club West Homeowners Association, filed a petition alleging that the Respondents constructed an unauthorized second-story addition to their property in violation of the association’s governing documents, specifically the CC&Rs Article 9, Sections 9.3, 9.4, and 9.5. The Administrative Law Judge determined that the Respondents violated these community documents by beginning construction prior to obtaining approval from the Foothills Architectural Committee and continuing the work despite receiving a denial. The judge ultimately concluded that Foothills was the prevailing party and dismissed the Respondents’ appeal, effectively upholding the violation finding.
What are the specific governing document violations alleged and proven against the homeowners?
How did the legal and administrative process address the unauthorized construction dispute?
What was the final resolution ordered regarding the unapproved second-story home addition?
Based on 1 source
Case Participants
Petitioner Side
John Halk(HOA attorney) BROWN/OLCOTT, PLLC Represented Petitioner Foothills Club West Homeowners Association
Nathan Tennyson(HOA attorney) BROWN/OLCOTT, PLLC Counsel for Petitioner
Respondent Side
Mary T. Hone(Respondent attorney) Mary T. Hone, PLLC Counsel for Respondent Trustees Subrahmanyam & Sheila Sudhakar
Subrahmanyam Sudhakar(respondent) Subrahmanyam & Sheila Sudhakar Living Trust Trustee of the Respondent Living Trust
Sheila Sudhakar(respondent) Subrahmanyam & Sheila Sudhakar Living Trust Trustee of the Respondent Living Trust
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings Administrative Law Judge
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
AHansen(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
djones(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
DGardner(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
ncano(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
18F-H1818052-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-01-17
Administrative Law Judge
Thomas Shedden
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Lawrence M. Stewart
Counsel
—
Respondent
Canyon Gate Condominium Association, Inc.
Counsel
Nicolas C. S. Nogami
Alleged Violations
Association Bylaws section 5.4
Outcome Summary
The Administrative Law Judge dismissed Petitioner Lawrence M. Stewart's petition and deemed the Respondent, Canyon Gate Condominium Association, Inc., to be the prevailing party.
Why this result: Petitioner failed to prove the Association violated Bylaws Section 5.4 or acted unreasonably or in bad faith when denying his request for a variance. The Bylaw section cited was determined to be a liability shield for the Board, not a source of duty owed to the homeowner.
Key Issues & Findings
Alleged failure of HOA Board to act in good faith when denying Petitioner's request for a variance for unauthorized common area changes
Petitioner made changes to the common area without permission and the Board denied his subsequent request for a variance. Petitioner alleged the Board violated Bylaws Section 5.4 by failing to act in good faith and showing bias. The ALJ found that Section 5.4 is a liability shield for the Board, not a duty imposed upon them, and Petitioner failed to meet the burden of proof to show bad faith or unreasonableness.
Orders: Petitioner Lawrence M. Stewart’s petition is dismissed. Respondent is deemed to be the prevailing party in this matter.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA governance, variance denial, common area modifications, good faith requirement, board liability shield, prevailing party
Additional Citations:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Briefing Document: Stewart v. Canyon Gate Condominium Association, Inc.
Executive Summary
This document synthesizes the findings and conclusions from an administrative legal case involving Petitioner Lawrence M. Stewart and Respondent Canyon Gate Condominium Association, Inc. The core of the dispute revolves around Mr. Stewart’s unauthorized modifications to a common area, for which the Association’s Board of Directors denied a retroactive variance. Mr. Stewart alleged the Board violated its bylaws by acting in bad faith, that a specific Board member was biased against him, and that he was subjected to unfair treatment compared to other homeowners.
The Administrative Law Judge, in both an initial hearing and a subsequent rehearing, consistently ruled against Mr. Stewart. The judge determined that the specific bylaw cited (Section 5.4) was an indemnification clause that shields the Board from liability and does not impose a duty of action. Crucially, Mr. Stewart failed to meet the legal burden of proving his claims by a “preponderance of the evidence.” The Board’s rationale for the denial—to avoid setting a precedent, or “opening a Pandora’s Box”—was deemed a reasonable position for a condominium association. Evidence presented to support claims of bias and unequal treatment was found to be insufficient or not probative. Ultimately, Mr. Stewart’s petition was dismissed in its entirety.
Case Overview
This matter, designated as No. 18F-H1818052-REL, was adjudicated by the Office of Administrative Hearings under the authority of the Arizona Department of Real Estate. The case centered on a petition filed by Mr. Stewart on May 21, 2018, alleging a violation of the Association’s Bylaws by the Board of Directors.
Parties Involved
Name / Entity
Representation
Petitioner
Lawrence M. Stewart
On his own behalf
Respondent
Canyon Gate Condominium Association, Inc.
Mark K. Sahl, Esq. & Nichols C. S. Nogami, Esq.
Administrative Law Judge Thomas Shedden
Case Chronology
• November 15, 2017: The Association’s counsel informs Mr. Stewart in a letter that he is in violation of section 5.1 of the CC&Rs for making unapproved changes to a common/limited common area.
• Post-November 15, 2017: Mr. Stewart, then a member of the Board, requests a variance for the changes.
• December 27, 2017: The Association’s attorney sends a letter stating an understanding that Mr. Stewart had recused himself and that the other two Board members (Sandra Fernandez and David Larson) had required the area to be restored.
• January 4, 2018: Mr. Stewart writes to the other Board members, refuting that he had agreed to recuse himself and requesting a formal meeting to consider his variance request.
• February 18, 2018: At a Board meeting, Mr. Stewart resigns from the Board. The remaining two members vote to deny his variance request and require him to restore the area to its original condition.
• May 21, 2018: Mr. Stewart files his petition with the Arizona Department of Real Estate.
• September 6, 2018: The initial administrative hearing is conducted.
• September 14, 2018: The Administrative Law Judge (ALJ) issues a decision dismissing Mr. Stewart’s petition.
• January 2, 2019: A rehearing is conducted.
• January 17, 2019: The ALJ issues a final decision following the rehearing, again dismissing the petition.
Petitioner’s Central Allegations
Mr. Stewart’s case rested on four primary claims against the Association’s Board.
1. Violation of Bylaws Section 5.4
The formal petition alleged a violation of Association Bylaws Article V, Section 5.4 (Liability), which states in part:
“So long as he/she has acted in good faith on the basis of information actually possessed, neither the Board nor any member of the Board nor any officer of the ASSOCIATION shall be liable to the ASSOCIATION, any OWNER, or to any other party for any damage, loss, or prejudice suffered or claimed on account of: (i) the approval or disapproval of any plans, drawings, or specifications, whether or not defective…or (v) any act or failure to act by the ASSOCIATION, or Board.”
Mr. Stewart cited this section because it was the only part of the governing documents he could find that included a “good faith” requirement.
2. Lack of Good Faith by the Board
Mr. Stewart asserted that the Board did not act in good faith when it denied his variance request. He based this claim on several points:
• He resigned from the Board during the February 18, 2018 meeting because he “got the sense ‘right away’ that the other Board members’ minds were made up and that they would not approve his request.”
• He presented unrebutted testimony that the Board members were unwilling to physically look at the changes he had made and only gave a “cursory look” at photographs he provided.
• The Board’s decision appeared to have been made prior to the meeting, as evidenced by the attorney’s December 27, 2017 letter which erroneously stated he had recused himself.
3. Bias of Board Member David Larson
A significant portion of Mr. Stewart’s argument was that Board member David Larson was personally biased against him. The evidence presented to support this included:
• Initial Hearing Evidence:
◦ A biography of Mr. Larson prepared by the property manager. When questioned, Mr. Stewart could not identify specific information showing bias but stated the “entire document coupled with the other statements shows a bias.”
◦ Notes from a November 28, 2017 Board meeting where Mr. Larson informed members that enforcement actions (towing, violation notices) would begin immediately and that he was “too busy to talk to people about Board business in driveways.”
• Rehearing Evidence:
◦ A letter dated October 3, 2018, from Mr. Larson to Association members urging them not to vote for Mr. Stewart in an upcoming election.
4. Unfair and Unequal Treatment
Mr. Stewart claimed he was treated unfairly because other units in the condominium were also not in conformity with the CC&Rs.
• He presented photos of units he believed were out of compliance.
• He testified that he had verified with the Association that none of these units had received a variance in the last two years.
• However, he acknowledged he did not know if variances had been granted more than two years prior or if the changes had received pre-approval, which would not require a variance.
Respondent’s Position and Legal Arguments
The Canyon Gate Condominium Association, represented by counsel, did not present witnesses but argued on legal grounds.
• Inapplicability of Bylaws Section 5.4: The Association’s core argument was that Section 5.4 was not applicable to Mr. Stewart’s complaint. They contended the section is an indemnification clause designed to act as a “shield” to protect Board members from liability when they act in good faith, not a “sword” that imposes an affirmative duty on them that can be violated.
• Reasonableness of Board Decision: The Association maintained that the Board’s decision was reasonable. According to Mr. Stewart’s own testimony, the Board’s basis for denial was the fear that granting his variance would “open a Pandora’s Box where other unit owners would request variances.”
Administrative Law Judge’s Rulings and Conclusions
The ALJ’s decisions in both the initial hearing and the rehearing were consistent, ultimately finding in favor of the Respondent.
Legal Framework
• Burden of Proof: The ALJ established that Mr. Stewart, as the petitioner, bore the burden of proof. The standard of proof was a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is sufficient “to incline a fair and impartial mind to one side of the issue rather than the other.”
• Board’s Duty: The judge noted that while the Bylaws are a contract, the Association, in exercising its authority, must “act reasonably.”
Analysis of Bylaws Section 5.4
• The judge agreed entirely with the Association’s interpretation, concluding that Section 5.4 “does not impose any duty on the Board members, but rather merely shields them from liability if they act in good faith.”
• In the initial hearing, the judge noted Mr. Stewart “appeared to acknowledge that section 5.4 acts as a ‘shield’ and not a ‘sword.'”
• By the rehearing, this was solidified, with the finding that “Mr. Stewart acknowledges that the Association has not violated Bylaws Section 5.4.”
Assessment of ‘Good Faith’ and Bias Claims
• The ALJ concluded that even if Section 5.4 were applicable, Mr. Stewart “has not shown by a preponderance of the evidence that the Board did not act in good faith, that it had a bias against him, or that it treated him unfairly.”
• The judge found the Board’s reasoning for the denial—the “Pandora’s Box” concern—was “not an unreasonable position for the Board of a condominium association.”
• Given this reasoning, the judge stated that “the specifics of the changes Mr. Stewart made would not be germane to the decision,” thereby neutralizing the claim that the Board failed to properly inspect the modifications.
Evaluation of Unfair Treatment Claim
• The evidence of other non-compliant units was deemed “not probative of the issue at hand.”
• The judge reasoned that there was “no evidence to show that they had requested that the Board grant variances,” meaning their situations were not comparable to Mr. Stewart’s, who had made unapproved changes and was subsequently denied a variance.
Final Disposition
• Initial Decision (September 14, 2018): IT IS ORDERED that Petitioner Lawrence M. Stewart’s petition is dismissed. This order was subject to a request for rehearing within 30 days.
• Rehearing Decision (January 17, 2019): IT IS ORDERED that Petitioner Lawrence M. Stewart’s petition is dismissed. This final order was noted as binding on the parties, with any further appeal requiring judicial review filed with the superior court within 35 days.
Study Guide – 18F-H1818052-REL-RHG
Study Guide: Stewart v. Canyon Gate Condominium Association, Inc.
This guide provides a review of the administrative case Lawrence M. Stewart, Petitioner, vs. Canyon Gate Condominium Association, Inc., Respondent (No. 18F-H1818052-REL), including the initial hearing and a subsequent rehearing.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, based on the provided case documents.
1. What action by Petitioner Lawrence M. Stewart initiated the dispute with the Canyon Gate Condominium Association?
2. What specific provision of the Association Bylaws did Mr. Stewart allege was violated in his petition?
3. Why did Mr. Stewart resign from the Association’s Board during the February 18, 2018 meeting?
4. What was the Board’s stated reason for denying Mr. Stewart’s request for a variance?
5. Explain the legal interpretation of Bylaws Section 5.4 as a “shield” and not a “sword.”
6. List two pieces of evidence Mr. Stewart presented at the initial hearing to support his claim that Board member David Larson was biased against him.
7. What was the legal standard of proof in this case, and which party was required to meet it?
8. How did Mr. Stewart attempt to prove he was being treated unfairly in comparison to other unit owners, and why did the judge find this evidence unconvincing?
9. At the rehearing, what new evidence did Mr. Stewart present regarding Mr. Larson’s alleged bias?
10. What was the final outcome of both the initial administrative hearing and the subsequent rehearing?
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Answer Key
1. Mr. Stewart initiated the dispute by making changes to the common area and/or limited common area around his unit without first receiving permission from the Association. The Association informed him in a letter dated November 15, 2017, that this was a violation of section 5.1 of the CC&Rs.
2. Mr. Stewart alleged in his petition that the Association violated Bylaws Section 5.4. He later acknowledged this section was not technically violated but cited it because it was the only provision in the governing documents he could find that included a “good faith” requirement.
3. Mr. Stewart resigned from the Board because he “got the sense ‘right away’ that the other Board members’ minds were made up” and that they would not approve his request for a variance, regardless of the details.
4. The Board denied Mr. Stewart’s request on the basis that approving it would “open a Pandora’s Box” where other unit owners would then also request variances. The Administrative Law Judge found this was not an unreasonable position for a condominium association board to take.
5. The interpretation of Section 5.4 is that it acts as a “shield” to protect, or indemnify, Board members from liability for damages, loss, or prejudice, provided they have acted in good faith. It is not a “sword” that imposes an affirmative duty on the Board that Mr. Stewart could use to compel a certain action or claim a violation.
6. At the initial hearing, Mr. Stewart presented two of the following: (1) a biography of Mr. Larson; (2) notes from a November 28, 2017 meeting where Mr. Larson stated that enforcement actions would begin immediately; and (3) a letter from the Association’s attorney that erroneously stated Mr. Stewart had recused himself, suggesting the matter was decided without him.
7. The standard of proof was a “preponderance of the evidence.” The burden of proof rested entirely on the petitioner, Mr. Stewart, to show that the Association had acted improperly.
8. Mr. Stewart presented testimony and photos of other units that he believed were not in conformity with the CC&Rs. The judge found this evidence was not probative because Mr. Stewart provided no evidence that those owners had requested and been denied variances, and he acknowledged he did not know if they had received variances more than two years prior or had received preapproval.
9. At the rehearing, Mr. Stewart entered into evidence an October 3, 2018 letter from Mr. Larson to the Association’s members. In this letter, Mr. Larson urged the members not to vote for Mr. Stewart in an upcoming election.
10. In both the initial decision (September 14, 2018) and the decision following the rehearing (January 17, 2019), the Administrative Law Judge ordered that Mr. Stewart’s petition be dismissed. The Respondent, Canyon Gate Condominium Association, Inc., was deemed the prevailing party in the matter.
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Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response for each prompt, citing specific facts and legal conclusions from the case documents.
1. Analyze the Administrative Law Judge’s reasoning for concluding that Bylaws Section 5.4 was not applicable to Mr. Stewart’s petition. How did Mr. Stewart’s own testimony during the legal proceedings support this conclusion?
2. Discuss the concept of “preponderance of the evidence” as defined in the case documents. Evaluate the evidence Mr. Stewart presented across both hearings and explain why the judge found it insufficient to meet this standard regarding his claims of bias, bad faith, and unfair treatment.
3. Examine the Canyon Gate Board’s justification for denying the variance request (the “Pandora’s Box” argument). Based on the legal principles cited in the decisions, why was this considered a reasonable position for a condominium association board to take, and why did it render the specifics of Mr. Stewart’s changes non-germane?
4. Trace the procedural timeline of this case from the Association’s initial notice of violation on November 15, 2017, to the final binding order issued on January 17, 2019. Identify the key events, arguments, and decisions at each stage of the administrative process.
5. Mr. Stewart argued that he was treated unfairly because other units were also out of compliance with the CC&Rs. Deconstruct this argument and explain why the judge dismissed this line of reasoning as not being probative to the issue at hand in both the initial hearing and the rehearing.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official (Thomas Shedden) who presides over hearings at the Office of Administrative Hearings and issues a decision on the matter.
Association
The Canyon Gate Condominium Association, Inc., the entity responsible for enforcing the Bylaws and CC&Rs. In this case, it is the Respondent.
The governing body of the Association, which at the time of the variance request included Lawrence M. Stewart, Sandra Fernandez, and David Larson.
Burden of Proof
The obligation to prove one’s assertion. In this case, the burden of proof was on the Petitioner, Mr. Stewart.
Bylaws
A contract between the Association and its members. The parties are required to comply with its terms, and the Association must act reasonably in exercising its authority under them.
Covenants, Conditions, and Restrictions. Mr. Stewart was found to be in violation of section 5.1 of the CC&Rs for making unapproved changes.
Common Area / Limited Common Area
The property around a condominium unit that is shared or has restricted use. Mr. Stewart made unauthorized changes to this area.
Good Faith
A standard of conduct mentioned in Bylaws Section 5.4. It protects Board members from liability so long as they act in good faith based on information they possess. Mr. Stewart claimed the Board failed to meet this standard.
Indemnification
The act of compensating for loss or damage. Bylaws Article V, which contains Section 5.4, pertains to indemnification.
Petitioner
The party who files a petition initiating a legal case. In this matter, the petitioner was Lawrence M. Stewart.
Preponderance of the Evidence
The standard of proof required in this case, defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Rehearing
A second hearing granted in a legal matter. A rehearing was conducted on January 2, 2019, after which the judge issued a final, binding order.
Respondent
The party against whom a petition is filed. In this matter, the respondent was Canyon Gate Condominium Association, Inc.
Variance
An official exception or deviation from a rule. Mr. Stewart requested a variance to allow the unapproved changes he had made, which the Board denied.
Blog Post – 18F-H1818052-REL-RHG
A Homeowner Sued His HOA and Lost—The Surprising Reasons Why Might Save You Thousands
Introduction: The Perennial Battle Between Homeowner and HOA
For many homeowners, the relationship with their Homeowners’ Association (HOA) can feel like a constant source of friction. From landscaping rules to paint colors, the potential for disputes is endless. But what happens when a homeowner feels so strongly wronged that they take the ultimate step of suing their association? More importantly, what happens when they lose?
This is the story of a homeowner who was also a board member. After making unauthorized changes to his property, he was denied his request for a variance to approve the changes he had already made. Believing the Board had acted in bad faith, he sued the association. His case failed, not on a minor technicality, but due to fundamental misunderstandings of how HOA law and governing documents function.
This outcome highlights a common, and costly, misconception about HOA governance. We will explore the surprising legal realities revealed in the case of Lawrence M. Stewart vs. Canyon Gate Condominium Association, Inc., offering several crucial takeaways for any homeowner before they decide to challenge their HOA.
1. A “Good Faith” Clause Can Be a Shield, Not a Sword
Mr. Stewart based his entire case on the claim that the Board violated Section 5.4 of the bylaws by not acting in “good faith,” as this was the only section in the governing documents he could find that mentioned the phrase.
This is where the case pivots on a crucial legal distinction. The court found that this clause was not intended to impose a duty on the board that a homeowner could sue over (a “sword”). Instead, its function was to protect board members from liability if they acted in good faith (a “shield”). Legally, this is an indemnification clause. Think of it as a form of insurance, designed to protect volunteer board members from being personally sued for making reasonable decisions, not a weapon for homeowners to attack those decisions.
In his testimony, Mr. Stewart even acknowledged this “shield” versus “sword” distinction but proceeded with the argument anyway. The lesson for homeowners is unequivocal: you must understand the precise legal function of a clause within your governing documents, not just its keywords.
2. The “Pandora’s Box” Defense Is a Powerful Argument
The Board’s primary reason for denying Mr. Stewart’s variance request was its fear that approval “would open a Pandora’s Box where other unit owners would request variances.” While a homeowner might hear “Pandora’s Box” and think it’s a lazy excuse, the court viewed it as the board performing its fundamental duty.
The judge stated this reasoning “was not an unreasonable position for the Board of a condominium association.” This validation is incredibly impactful because it shifts the focus from the merits of one homeowner’s request to the Board’s overarching fiduciary duty to uphold the rules consistently for the entire community. It shows that an HOA’s duty to maintain consistent enforcement and avoid setting a messy precedent is a legally sound basis for a decision, making the specific details of one homeowner’s changes irrelevant.
3. Being on the Board Won’t Give You a Pass
In a surprising twist, Mr. Stewart was a member of the HOA Board at the very time he made the unauthorized changes and requested the variance. This created a clear conflict of interest and ultimately did not help his case.
The situation culminated in Mr. Stewart resigning from the Board during the meeting where his request was considered. He stated he resigned because he felt “the other Board members’ minds were made up” and they would not approve his request. This incident serves as a stark reminder: holding a position on the board does not grant special privileges or exceptions to the rules. In fact, it can complicate personal matters and highlight a direct conflict between a board member’s duties to the association and their personal interests.
4. “Whataboutism” Is Not a Legal Strategy
Like many homeowners in a dispute, Mr. Stewart argued that he was being treated unfairly because other units in the community were also out of compliance with the CC&Rs. This is a common defense, but its legal failure in this case is a masterclass in what courts actually require for proof.
Mr. Stewart’s effort was commendable but legally insufficient. He presented photos of other non-conforming units and even “verified with the Association that none of these units had received a variance in the last two years.” However, his evidence collapsed under cross-examination when he “acknowledged… he did not know if any of these units had received variances more than two years ago or whether preapproval for the changes had been granted.”
The judge dismissed his evidence entirely. This transforms the lesson from a simple “don’t point fingers” to a much more sophisticated legal principle: to prove selective enforcement, you must prove others in the identical procedural situation were treated differently, and incomplete evidence is no evidence at all.
5. The Burden of Proof Is Everything
Perhaps the most stunning fact from the case is that the Association “presented no witnesses” at either the initial hearing or the subsequent rehearing. They won the case without putting a single person on the stand to testify.
They could do this because the legal system placed the “burden of proof” squarely on Mr. Stewart. As the petitioner, it was his job to prove his claims of bad faith, bias, and unfair treatment by a “preponderance of the evidence.” The Association didn’t have to prove it acted in good faith; Mr. Stewart had to prove it acted in bad faith. He failed to meet this standard. In other words, he had to prove that his claims were more likely to be true than not—even if only by a 51% to 49% margin.
The court document formally defines this legal standard as:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
In a legal dispute with your HOA, the case is not about who is morally right or wrong. It’s about who can meet their required burden of proof with convincing, relevant evidence.
Conclusion: Know the Rules Before You Fight the Rulers
The case of Lawrence M. Stewart is a cautionary tale that every homeowner should internalize. His failed lawsuit, which likely became a five-figure mistake when factoring in legal fees for both sides, underscores that HOA governing documents are a binding contract. Challenging the Board requires more than a sense of unfairness. It demands a precise, evidence-backed legal argument that aligns with the specific terms of that contract and the applicable legal standards.
Before you declare war on your HOA, ask yourself: are you prepared to prove your case with irrefutable evidence, or are you just banking on a feeling of being wronged?
Case Participants
Petitioner Side
Lawrence M. Stewart(petitioner) Also served as a Board member for Respondent until resigning during the variance request consideration.
Respondent Side
Mark K. Sahl(attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent in the initial hearing.
Nicolas C. S. Nogami(attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent in both the initial hearing (listed as 'Nichols C. S. Nogami') and the rehearing.
Sandra Fernandez(board member) Canyon Gate Condominium Association, Inc. Voted to deny Petitioner's variance request.
David Larson(board member) Canyon Gate Condominium Association, Inc. Voted to deny Petitioner's variance request; Petitioner alleged he was biased.
Neutral Parties
Thomas Shedden(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate Recipient of the decision copies.
F. Del Sol(administrative staff) Office of Administrative Hearings Signed the transmission of the decision copies.
The Administrative Law Judge dismissed Petitioner Lawrence M. Stewart's petition and deemed the Respondent, Canyon Gate Condominium Association, Inc., to be the prevailing party.
Why this result: Petitioner failed to prove the Association violated Bylaws Section 5.4 or acted unreasonably or in bad faith when denying his request for a variance. The Bylaw section cited was determined to be a liability shield for the Board, not a source of duty owed to the homeowner.
Key Issues & Findings
Alleged failure of HOA Board to act in good faith when denying Petitioner's request for a variance for unauthorized common area changes
Petitioner made changes to the common area without permission and the Board denied his subsequent request for a variance. Petitioner alleged the Board violated Bylaws Section 5.4 by failing to act in good faith and showing bias. The ALJ found that Section 5.4 is a liability shield for the Board, not a duty imposed upon them, and Petitioner failed to meet the burden of proof to show bad faith or unreasonableness.
Orders: Petitioner Lawrence M. Stewart’s petition is dismissed. Respondent is deemed to be the prevailing party in this matter.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA governance, variance denial, common area modifications, good faith requirement, board liability shield, prevailing party
Additional Citations:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
The Administrative Law Judge dismissed Petitioner Lawrence M. Stewart's petition and deemed the Respondent, Canyon Gate Condominium Association, Inc., to be the prevailing party.
Why this result: Petitioner failed to prove the Association violated Bylaws Section 5.4 or acted unreasonably or in bad faith when denying his request for a variance. The Bylaw section cited was determined to be a liability shield for the Board, not a source of duty owed to the homeowner.
Key Issues & Findings
Alleged failure of HOA Board to act in good faith when denying Petitioner's request for a variance for unauthorized common area changes
Petitioner made changes to the common area without permission and the Board denied his subsequent request for a variance. Petitioner alleged the Board violated Bylaws Section 5.4 by failing to act in good faith and showing bias. The ALJ found that Section 5.4 is a liability shield for the Board, not a duty imposed upon them, and Petitioner failed to meet the burden of proof to show bad faith or unreasonableness.
Orders: Petitioner Lawrence M. Stewart’s petition is dismissed. Respondent is deemed to be the prevailing party in this matter.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA governance, variance denial, common area modifications, good faith requirement, board liability shield, prevailing party
Additional Citations:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
18F-H1818052-REL Decision – 660026.pdf
Uploaded 2025-10-09T03:33:02 (91.5 KB)
18F-H1818052-REL Decision – 720468.pdf
Uploaded 2025-10-09T03:33:02 (103.5 KB)
This is a concise summary of the administrative law proceedings concerning Lawrence M. Stewart's petition against the Canyon Gate Condominium Association, Inc., drawing from the original hearing (September 6, 2018) and the subsequent rehearing (January 2, 2019).
Summary of Administrative Law Case: Stewart v. Canyon Gate Condominium Association, Inc.
Key Facts
The Petitioner, Lawrence M. Stewart, an owner and former Board member, made changes to the common or limited common area around his unit without prior permission, violating section 5.1 of the CC&Rs. After being informed of the violation, Mr. Stewart requested a variance from the Association Board while he was still a member. At a Board meeting on February 18, 2018, Mr. Stewart resigned, and the two remaining Board members (Sandra Fernandez and David Larson) voted to deny his variance request, requiring him to restore the areas to their original condition.
Main Issues and Petitioner's Arguments
Mr. Stewart filed a petition with the Arizona Department of Real Estate alleging the Association violated Bylaws section 5.4. His central argument was that the Board did not act in good faith when denying the variance request. He asserted that Board member David Larson was biased against him and that the denial was unfair because other units were also non-conforming with the CC&Rs. Mr. Stewart cited Bylaws Section 5.4 because he testified it was the only section referring to a “good faith” requirement in the governing documents.
Key Legal Points and Analysis
Burden of Proof: Mr. Stewart bore the burden of proof by a preponderance of the evidence. The Bylaws are considered a contract, and the Respondent (Association) is required to act reasonably in exercising its authority.
Applicability of Section 5.4: The Administrative Law Judge (ALJ) concluded that Bylaws Article V, Section 5.4 (Liability/Indemnification) does not impose any duty on the Board members; rather, it merely shields them from liability if they act in good faith. Mr. Stewart eventually acknowledged that the Association had not technically violated Section 5.4.
Reasonableness of Board Action: The Board's stated reason for denying the variance was fear of "open[ing] a Pandora’s Box" where other unit owners would request variances. The ALJ found this concern to be a not unreasonable position for a condominium association board.
Lack of Evidence for Bias/Unfairness: The ALJ found that Mr. Stewart did not demonstrate by a preponderance of the evidence that the Board lacked good faith, was biased against him, or treated him unfairly. Regarding the assertion of other non-conforming units, there was no evidence that those owners had requested variances, making that testimony not probative of the issue at hand.
Outcome
The Administrative Law Judge determined that Mr. Stewart failed to meet his burden of proof. Consequently, Petitioner Lawrence M. Stewart’s petition was dismissed in both the initial decision (September 14, 2018) and the binding order issued after the rehearing (January 17, 2019). The Respondent, Canyon Gate Condominium Association, Inc., was deemed the prevailing party.
Study Guide – 18F-H1818052-REL
Study Guide: Stewart v. Canyon Gate Condominium Association, Inc.
This study guide provides a review of the administrative legal case Lawrence M. Stewart v. Canyon Gate Condominium Association, Inc. (Case No. 18F-H1818052-REL). It covers the key facts, legal arguments, and outcomes of the initial hearing and subsequent rehearing as detailed in the decisions issued by the Arizona Office of Administrative Hearings.
Short-Answer Quiz
Answer the following ten questions based on the provided case documents. Each answer should be approximately two to three sentences long.
1. What initial action taken by Lawrence M. Stewart prompted the Canyon Gate Condominium Association to contact him with a notice of violation?
2. What specific section of the Association Bylaws did Mr. Stewart allege was violated in his petition to the Department of Real Estate?
3. What was Mr. Stewart’s position within the Association at the time he requested a variance for the changes he had made?
4. According to Mr. Stewart, what was the Board’s primary reason for denying his variance request?
5. Why did Mr. Stewart ultimately resign from the Association’s Board during the February 18, 2018 meeting?
6. In the initial hearing, what three pieces of evidence did Mr. Stewart present to support his allegation that Board member David Larson was biased against him?
7. What is the legal standard of proof required in this matter, and which party bears the burden of meeting that standard?
8. How did the Administrative Law Judge interpret the function of Bylaws Section 5.4, characterizing it as either a “shield” or a “sword”?
9. During the rehearing, what new piece of evidence did Mr. Stewart introduce to support his claim of bias from Mr. Larson?
10. What was the final ruling in both the initial hearing (September 14, 2018) and the rehearing (January 17, 2019)?
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Quiz Answer Key
1. Mr. Stewart made changes to the common area and/or limited common area around his condominium unit without first getting permission from the Association. This action was a violation of section 5.1 of the CC&Rs, leading the Association’s counsel to send him a letter on November 15, 2017.
2. Mr. Stewart’s petition alleged that the Association violated Bylaws Section 5.4. He later clarified that he cited this specific section because it was the only one in the governing documents that included a “good faith” requirement, which he believed the Board had failed to meet.
3. At the time he requested a variance to approve the changes he had made, Mr. Stewart was an active member of the Association’s Board of Directors. The other two members were Sandra Fernandez and David Larson.
4. The Board denied his request because they feared it would “open a Pandora’s Box,” leading other unit owners to request variances for changes to the common area. The judge found this was not an unreasonable position for a condominium association board to take.
5. Mr. Stewart resigned from the Board because he got the sense “right away” that the other two board members, Ms. Fernandez and Mr. Larson, had already made up their minds to deny his request and would not approve it.
6. To support his bias claim, Mr. Stewart relied on: (1) a biography of Mr. Larson prepared by the property manager, (2) statements Mr. Larson made in notes from a November 28, 2017 Board meeting, and (3) his belief that the other members had already decided the matter without his input.
7. The standard of proof is a “preponderance of the evidence.” The burden of proof to meet this standard rests entirely on the Petitioner, Mr. Stewart.
8. The judge concluded that Section 5.4 acts as a “shield” to protect Board members from liability when they act in good faith. It does not impose a duty on them and cannot be used as a “sword” by an owner to force a particular action from the Board.
9. At the rehearing, Mr. Stewart entered into evidence an October 3, 2018 letter written by Mr. Larson to the Association’s members. In the letter, Mr. Larson urged the members not to vote for Mr. Stewart in an upcoming election.
10. In both the initial hearing and the rehearing, the Administrative Law Judge ordered that Mr. Stewart’s petition be dismissed. The Respondent, Canyon Gate Condominium Association, Inc., was deemed the prevailing party in the matter.
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Essay Questions
1. Analyze the legal reasoning behind the Administrative Law Judge’s conclusion that Bylaws Section 5.4 was not applicable to Mr. Stewart’s claim. How did Mr. Stewart’s interpretation of the section as a “sword” versus a “shield” contribute to this outcome?
2. Discuss the concept of “preponderance of the evidence” as defined in the case documents. Evaluate the evidence Mr. Stewart presented to prove bias and unfair treatment, and explain why the judge found it insufficient to meet this standard.
3. Examine the Board’s justification for denying the variance request (the “Pandora’s Box” argument). Based on the court’s conclusions, discuss why this was considered a “reasonable position” for a condominium association board, even without a detailed inspection of Mr. Stewart’s specific changes.
4. Trace the evolution of Mr. Stewart’s arguments and evidence from the initial hearing on September 6, 2018, to the rehearing on January 2, 2019. What new evidence was introduced, and did it fundamentally change the core issues or the final outcome of the case?
5. Explore the principle established in the “Conclusions of Law” that Association Bylaws function as a contract between the parties. How does this principle require both homeowners and the Association Board to act, and how did it influence the judge’s final decision in this matter?
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Glossary of Key Terms
Definition in the Context of the Case
Administrative Law Judge (ALJ)
The official, Thomas Shedden, who presided over the hearings, reviewed the evidence, and issued the final decisions in this matter.
Bylaws
A contract between the Association and its members. The parties are required to comply with its terms, and the Association must act reasonably in exercising its authority under them. Mr. Stewart alleged a violation of Bylaws Section 5.4.
Covenants, Conditions, and Restrictions. Mr. Stewart was found to be in violation of section 5.1 of the CC&Rs for making unapproved changes to a common area.
Common Area
An area around a condominium unit that is not privately owned. Mr. Stewart made unauthorized changes to the common and/or limited common area around his unit.
Good Faith
A standard of conduct mentioned in Bylaws Section 5.4, which shields Board members from liability if they act accordingly. Mr. Stewart’s core argument was that the Board did not act in good faith when denying his variance request.
Indemnification
The subject of Article V of the Bylaws. Section 5.4, titled “Liability,” falls under this article and serves to protect, or indemnify, the Board from liability.
Petitioner
The party who initiates a legal action by filing a petition. In this case, the Petitioner was Lawrence M. Stewart.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win the case. It is defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Recuse
To formally withdraw from a decision-making process due to a conflict of interest. The Association’s attorney incorrectly stated in a letter that Mr. Stewart had recused himself from voting on his own variance request.
Respondent
The party against whom a petition is filed. In this case, the Respondent was Canyon Gate Condominium Association, Inc.
Variance
A formal request for an exception to the established rules (the CC&Rs). Mr. Stewart requested a variance to gain approval for the changes he had already made to the common area.
Blog Post – 18F-H1818052-REL
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4 sources
These documents consist of Administrative Law Judge Decisions from the Office of Administrative Hearings in Arizona, detailing a dispute between Petitioner Lawrence M. Stewart and the Canyon Gate Condominium Association, Inc. The core issue revolves around Mr. Stewart making unauthorized changes to the common area of his unit and his subsequent failed attempt to obtain a variance from the Association’s Board. The sources include an initial decision (dated September 14, 2018) and two decisions stemming from a rehearing (both dated January 17, 2019, though one is more detailed), all concluding that Mr. Stewart’s petition must be dismissed. The Administrative Law Judge determined that Mr. Stewart failed to prove by a preponderance of the evidence that the Association acted in bad faith or was biased against him when it denied his request, despite his reliance on a Bylaws section regarding indemnity which the court found acted as a “shield” for the Board rather than a source of duty.
Based on 4 sources
Case Participants
Petitioner Side
Lawrence M. Stewart(petitioner) Was also a board member during the variance request period, but resigned prior to the vote to deny his request
Respondent Side
Mark K. Sahl(Respondent Attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Nicolas C. S. Nogami(Respondent Attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Also appears as 'Nichols C. S. Nogami'
Sandra Fernandez(board member) Canyon Gate Condominium Association, Inc. Voted to deny Petitioner's variance request
David Larson(board member) Canyon Gate Condominium Association, Inc. Voted to deny Petitioner's variance request; Petitioner alleged bias against him
Neutral Parties
Thomas Shedden(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
F. Del Sol(Administrative Staff) Transmitted copies of the decision
Camelback Country Club Estates I & II Homeowners Association
Counsel
Diana J. Elston, J. Gary Linder
Alleged Violations
CC&Rs Section 12
Outcome Summary
The Administrative Law Judge denied the petition related to landscaping (18F-H1818030-REL), but deemed Petitioner the prevailing party and ordered the refund of the $500 filing fee regarding the petition concerning the additional mailbox (18F-H1818031-REL) because the HOA improperly based the fine on CC&R Section 12.
Why this result: Petitioner failed to prove the olive tree was alive, and a dead tree could be reasonably considered a violation of CC&R Section 28 requiring neatly trimmed/properly cultivated plantings (Case 18F-H1818030-REL).
Key Issues & Findings
Improper fine regarding additional freestanding mailbox
Petitioner challenged fines for an additional mailbox lacking architectural approval. The ALJ found that CC&R Section 12 (related to 'building') could not be applied to a mailbox, rendering the fine imposed under that section a violation by the Respondent. Petitioner was deemed the prevailing party in this docket number (18F-H1818031-REL).
Orders: Respondent ordered to pay Petitioner $500.00 filing fee refund within thirty days.
Briefing Document: Holyoak v. Camelback Country Club Estates HOA
Executive Summary
This briefing document synthesizes the findings and conclusions from an Administrative Law Judge Decision concerning two consolidated petitions filed by homeowner Jon Paul Holyoak against the Camelback Country Club Estates I & II Homeowners Association (HOA). The disputes centered on HOA-issued violations for landscaping maintenance and the presence of a freestanding mailbox.
The final judgment produced a split decision. The Petitioner, Mr. Holyoak, failed to prove the HOA acted improperly in the landscaping case and his petition was denied. However, he was deemed the prevailing party in the mailbox case, with the judge concluding the HOA had violated its own community documents (CC&Rs) by imposing a fine based on an inapplicable section. As the prevailing party in one of the two matters, Mr. Holyoak was awarded his $500 filing fee, to be paid by the HOA. The initial decision document required two subsequent nunc pro tunc orders to correct typographical errors.
Key Takeaways:
• Landscaping Petition (Denied): Mr. Holyoak was cited for failing to remove a “dead” olive tree. He argued the tree was merely “in distress.” The judge ruled that a reasonable person would consider the tree dead and that Mr. Holyoak failed to provide sufficient evidence to the contrary. A dead tree was found to be a potential violation of CC&R Section 28, which requires plantings to be “neatly trimmed” and “properly cultivated.”
• Mailbox Petition (Upheld): Mr. Holyoak was cited for an “additional mailbox” that was present when he purchased the property in 2012. The judge found the HOA’s enforcement problematic for two primary reasons:
1. The HOA cited three different CC&R sections across multiple notices.
2. The fine was ultimately based on Section 12, which pertains to “buildings” and was deemed inapplicable to a mailbox.
• Final Order: The HOA was ordered to pay the Petitioner’s $500 filing fee. The decision is binding on the parties.
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Case Overview
The matter involves two petitions filed on February 2, 2018, by Petitioner Jon Paul Holyoak with the Arizona Department of Real Estate against the Respondent, Camelback Country Club Estates I & II Homeowners Association. The petitions alleged that the HOA had improperly cited Mr. Holyoak for violations of the community’s Conditions, Covenants, and Restrictions (CC&Rs). The two cases were consolidated for a single hearing.
This petition alleged that the HOA improperly cited Mr. Holyoak for violating Section 28 of the CC&Rs, which governs landscape maintenance.
HOA Actions and Timeline
The HOA, through its inspection team Associa Arizona, issued a series of notices regarding the landscaping on Mr. Holyoak’s property.
Notice Type
Description
Oct 17, 2017
Courtesy Notice
“Please remove the dead foliage on your lot.”
Dec 13, 2017
Courtesy Notice
“Please remove the dead olive tree in the front yard.”
Dec 13, 2017
Courtesy Notice
“There are several other trees that need to be removed as they have dead branches including the cassia…”
Jan 25, 2018
Notice of Violation
“2nd notice…There are several other trees that need to be removed as they have dead branches…” (Included photo of backyard).
Arguments Presented
• Petitioner’s Position (Holyoak):
◦ The olive tree in the front yard was not “dead” but rather “in distress,” and he was actively trying to nurse it back to health. He eventually had the tree removed on April 25, 2018, after months of effort.
◦ Regarding the backyard photo attached to the fine notice, he argued that the olive tree visible was healthy and that no dead trees were depicted.
◦ He requested that the fine be abated.
• Respondent’s Position (HOA):
◦ Board member Terry Rogers testified that the front yard olive tree had no leaves, appeared dead from the roadway, and was therefore not “properly trimmed” as required.
◦ He stated the backyard notice referred to a eucalyptus tree with several dead branches visible from the sidewalk bordering the property.
Administrative Law Judge’s Findings and Conclusion
The judge ruled in favor of the HOA in this matter.
• Burden of Proof: The Petitioner failed to present sufficient evidence, beyond “his self-serving statements,” that the olive tree was alive.
• Reasonable Interpretation: The judge concluded that “Any reasonable person viewing the olive tree, as depicted in the photographs presented, would understand the tree to be dead.”
• Violation of CC&Rs: A dead tree could reasonably be considered as not being “neatly trimmed” or “properly cultivated” in accordance with Section 28.
• Verdict: The Petitioner’s petition was denied. The judge found that the HOA had not improperly fined him for the landscaping violation.
This petition alleged that the HOA improperly cited Mr. Holyoak for having an “additional mailbox” in violation of the CC&Rs.
HOA Actions and Timeline
The HOA’s notices for the mailbox cited three different sections of the CC&Rs over time.
Notice Type
Description
CC&R Section Cited
Oct 17, 2017
Courtesy Notice
“Please remove the additional mailbox on your lot.”
Section 27
Dec 14, 2017
Courtesy Notice
“…there is an additional mailbox on your lot. In research of our files, there is no architectural application on file for the modification.”
Section 12
Jan 25, 2018
Notice of Violation
“2nd notice…Please remove the mailbox or provide the approved architectural application.” (Mailbox was painted bright pink and yellow at this time).
Section 12
Jan 25, 2018¹
Notice of Violation
“3rd notice…Please remove the mailbox or provide the approved architectural application.”
Section 8
¹The decision document states this notice was sent on January 25, 2018, but references a violation noted on March 15, 2018. The judge’s conclusions later clarify a notice referencing Section 8 was issued April 11, 2018, and was not properly before the tribunal.
Arguments Presented
• Petitioner’s Position (Holyoak):
◦ The freestanding mailbox was already in place when he purchased the home in 2012.
◦ At the time of purchase, he received a statement that there were no known covenant violations on the property.
◦ He argued the mailbox is required by the United States Postal Service (USPS), which no longer provides walking delivery and requires mailboxes to be reachable from a vehicle. The home’s other mailbox, built into a monument, is approximately 15 feet from the curb.
◦ A USPS mail carrier had confirmed this delivery requirement.
• Respondent’s Position (HOA):
◦ Board member Terry Rogers testified that the USPS mail carrier told him he would prefer to deliver to the permanent monument mailbox because the freestanding one was not secure.
◦ The mailbox had become an “eyesore,” as it was faded, peeling, and “listing to one side.”
◦ Of the 61 homes in the community, only three have freestanding mailboxes, and the Petitioner is the only one with two mailboxes.
Administrative Law Judge’s Findings and Conclusion
The judge ruled in favor of the Petitioner in this matter.
• Inconsistent Enforcement: The judge found it “problematic” that the HOA relied on three different sections of the CC&Rs in its notices.
• Pre-existing Structure: The Petitioner established that the mailbox was present at the time of his 2012 home purchase and that he was told of no existing violations. Therefore, the HOA’s argument regarding the lack of an architectural approval was “without merit.”
• Inapplicable CC&R Section: The fine was imposed based on Section 12 of the CC&Rs. The judge determined the plain language of this section relates to a “building” and “cannot be read to apply to Petitioner’s mailbox.”
• Violation by HOA: By imposing a fine based on an inapplicable section, the HOA was in violation of the CC&Rs.
• Verdict: The Petitioner was deemed the prevailing party. The judge noted that the HOA could potentially impose fines for failure to maintain the mailbox or for painting it without approval, but those specific violations were not before the court.
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Final Order and Subsequent Corrections
• Order of May 25, 2018:
1. Petitioner’s petition in Case Number 18F-H1818030-REL (Landscaping) is denied.
2. Petitioner is deemed the prevailing party in Case Number 18F-H1818031-REL (Mailbox).
3. Respondent (HOA) is ordered to pay Petitioner his $500.00 filing fee within thirty days.
• Order Nunc Pro Tunc of May 30, 2018:
◦ This order corrected a typographical error in the original decision. The original text mistakenly stated the petition for the mailbox case (31-REL) was denied.
◦ Correction: The denial was correctly applied to the landscaping case: “it is ORDERED that Petitioner’s petition in Case Number 18F-H1818031-REL 18F-H1818030-REL is denied.”
• Order Nunc Pro Tunc of May 31, 2018:
◦ This order corrected a typographical error in the May 30 order, which had misstated the date of the original decision.
◦ Correction: “On April 26 May 25, 2018, the Administrative Law Judge issued the Administrative Law Judge Decision…”
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Key CC&R Sections Cited
• Section 8 (Architectural Control): Requires written approval from the Committee before any “building or other structure” is erected, altered, or repaired. This includes exterior finish, color, and architectural style.
• Section 12 (Buildings): States that “No building may be erected or maintained upon any Lot except one single family dwelling with private appurtenant garage and customary outbuildings” without prior written approval.
• Section 27 (Maintenance): Prohibits any building or structure from falling into disrepair and requires owners to keep them in good condition and adequately painted.
• Section 28 (Landscaping): Requires the owner of each lot to “at all times keep shrubs, trees, grass and plantings of every kind, on his lot mostly trimmed, properly cultivated, and free of trash, weeds and other unsightly material.”
Study Guide – 18F-H1818030-REL
Study Guide: Holyoak v. Camelback Country Club Estates I & II HOA
This guide provides a comprehensive review of the administrative hearing case between petitioner Jon Paul Holyoak and the respondent, Camelback Country Club Estates I & II Homeowners Association. It covers the core disputes, arguments, legal interpretations, and the final decision rendered by the Administrative Law Judge.
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case documents.
1. Who were the primary parties in this administrative case, and what were their roles?
2. What were the two distinct case numbers, and what violation did each one address?
3. According to Section 28 of the CC&Rs, what is the responsibility of a lot owner regarding landscaping?
4. What was the petitioner’s primary defense regarding the citation for a “dead” olive tree in his front yard?
5. What was the respondent’s argument for why the olive tree was a violation of the CC&Rs?
6. What key fact did the petitioner establish regarding the freestanding mailbox that was central to the judge’s decision in that matter?
7. Why did the Administrative Law Judge find the respondent’s enforcement actions regarding the mailbox to be “problematic”?
8. On what grounds did the Administrative Law Judge rule that the respondent violated the CC&Rs by fining the petitioner for the mailbox under Section 12?
9. What was the final outcome and financial penalty ordered in the consolidated cases?
10. What is an “Order Nunc Pro Tunc,” and why were two such orders issued after the initial decision?
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Answer Key
1. The primary parties were Jon Paul Holyoak, the homeowner, who acted as the Petitioner. The Respondent was the Camelback Country Club Estates I & II Homeowners Association, which was represented by Gary Linder and Diana Elston.
2. The first case, No. 18F-H1818030-REL, addressed alleged landscaping violations under Section 28 of the CC&Rs concerning dead trees and foliage. The second case, No. 18F-H1818031-REL, addressed an alleged violation for an additional freestanding mailbox, primarily under Section 12 of the CC&Rs.
3. Section 28 of the CC&Rs requires that the owner of each lot shall at all times keep shrubs, trees, grass, and plantings neatly trimmed, properly cultivated, and free of trash, weeds, and other unsightly material.
4. The petitioner testified that the olive tree was not “dead” but was “in distress,” and that he and his landscaper were actively trying to nurse it back to health. He argued he should not be forced to remove a tree with dead branches while attempting to save it.
5. The respondent’s board member, Terry Rogers, testified that the olive tree had no leaves and appeared dead from the roadway. He contended that a dead tree could not be considered “properly trimmed” as required by the CC&Rs.
6. The petitioner established by a preponderance of the evidence that the freestanding mailbox was already in place when he purchased the property in 2012. Furthermore, at the time of purchase, he was notified that there were no known covenant violations on the property.
7. The Judge found the respondent’s actions problematic because, over the course of four notices sent to the petitioner about the mailbox, the respondent relied on three different sections of the CC&Rs (Sections 27, 12, and 8). This inconsistency weakened the respondent’s position.
8. The Judge ruled that the plain language of Section 12 of the CC&Rs relates to a “building,” such as a single-family dwelling or garage. The Judge concluded that a mailbox cannot be considered a “building” under this section, making the fine imposed under this rule a violation of the CC&Rs by the respondent.
9. The petitioner’s petition regarding landscaping (18F-H1818030-REL) was denied. However, the petitioner was deemed the prevailing party in the mailbox case (18F-H1818031-REL), and the respondent was ordered to pay the petitioner’s $500.00 filing fee.
10. “Nunc Pro Tunc” is a legal term for an order that corrects a clerical error in a prior court decision, with the correction being retroactive. The first order corrected the case number in the final ruling, and the second order corrected a date referenced in the first corrective order.
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Essay Questions
Instructions: Consider the following questions. Formulate a detailed response that synthesizes facts and arguments from the case documents to support your position.
1. Explain the concept of “preponderance of the evidence” as defined in the decision and analyze how the petitioner met this burden of proof in the mailbox case but failed to meet it in the landscaping case.
2. Discuss the legal significance of the HOA’s inconsistent application of its CC&Rs in the mailbox dispute. Why did citing three different sections (27, 12, and 8) undermine the HOA’s case?
3. Analyze the Administrative Law Judge’s interpretation of Section 12 of the CC&Rs. How does the “plain language” of the rule factor into the decision that a mailbox is not a “building”?
4. Examine the arguments presented by both parties regarding the freestanding mailbox, including the conflicting accounts of conversations with the USPS mail carrier. Evaluate the strengths and weaknesses of each party’s position.
5. The Judge noted that while the fine under Section 12 was improper, the HOA could potentially impose fines for failure to maintain the mailbox or for painting it without approval. Based on the facts presented, construct a hypothetical argument the HOA could have made that might have been successful.
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Glossary of Key Terms
Definition
To reduce or remove. In the context of the hearing, the Petitioner asked that the fines be abated, meaning he requested they be cancelled or removed.
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions, similar to a judge in a court of law. In this case, the ALJ was Tammy L. Eigenheer.
Conditions, Covenants, and Restrictions (CC&Rs)
The governing legal documents that set forth the rules and regulations for a planned community or subdivision. The petitioner and respondent both based their arguments on interpretations of these documents.
Conclusions of Law
The section of a legal decision where the judge applies legal principles and rules (like the CC&Rs and state statutes) to the facts of the case to reach a final judgment.
Findings of Fact
The section of a legal decision that establishes the factual record of the case based on the evidence and testimony presented during the hearing.
Jurisdiction
The official power to make legal decisions and judgments. The Arizona Department of Real Estate was determined to have jurisdiction to hear disputes between a property owner and a homeowners association.
Nunc Pro Tunc
A Latin phrase meaning “now for then.” It refers to a legal order that corrects a clerical error in a previous order, making the correction retroactive to the original date of the decision.
Petitioner
The party who initiates a lawsuit or files a petition seeking a legal remedy. In this case, Jon Paul Holyoak was the Petitioner.
Preponderance of the Evidence
The standard of proof in most civil cases. It means the greater weight of the evidence shows that a fact is more likely than not to be true. The Petitioner bore this burden of proof.
Prevailing Party
The party in a lawsuit who is found to have won the legal dispute. In case 18F-H1818031-REL, the Petitioner was deemed the prevailing party, which entitled him to have his filing fee reimbursed.
Respondent
The party against whom a petition is filed; the defending party. In this case, the Camelback Country Club Estates I & II Homeowners Association was the Respondent.
Blog Post – 18F-H1818030-REL
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18F-H1818030-REL
3 sources
The sources document an Administrative Law Judge Decision concerning a dispute between Jon Paul Holyoak (Petitioner) and the Camelback Country Club Estates I & II Homeowners Association (Respondent), along with subsequent orders correcting clerical errors. The initial decision addresses two consolidated petitions: one regarding landscaping violations (dead trees) under CC&R Section 28, and a second concerning a disputed mailbox under various CC&R sections, particularly Section 12. While the Petitioner failed to prove the association improperly fined him for the dead tree, the judge determined the association was in violation of the CC&Rs for improperly citing Section 12 for the mailbox issue, leading the Petitioner to be deemed the prevailing party in the mailbox case and awarded his $500 filing fee. The subsequent documents, titled Order Nunc Pro Tunc, are procedural corrections to typographical errors found in the original decision’s text and date.
Based on 3 sources
Case Participants
Petitioner Side
John Paul Holyoak(petitioner) Also appears as 'Jon Paul Holyoak'
Respondent Side
Terry Rogers(board member) Camelback Country Club Estates I & II HOA Testified at hearing
Gary Linder(attorney) Jones, Skelton & Hochuli, P.L.C. Also listed as 'J. Gary Linder'
Diana J. Elston(attorney) Jones, Skelton & Hochuli, P.L.C.
Neutral Parties
Tammy L. Eigenheer(ALJ)
Judy Lowe(commissioner) Arizona Department of Real Estate (ADRE)
Felicia Del Sol(clerk) Transmitting agent
LDettorre(ADRE staff) Arizona Department of Real Estate (ADRE)
AHansen(ADRE staff) Arizona Department of Real Estate (ADRE)
djones(ADRE staff) Arizona Department of Real Estate (ADRE)
DGardner(ADRE staff) Arizona Department of Real Estate (ADRE)
ncano(ADRE staff) Arizona Department of Real Estate (ADRE)
Camelback Country Club Estates I & II Homeowners Association
Counsel
Diana J. Elston, J. Gary Linder
Alleged Violations
CC&Rs Section 12
Outcome Summary
The Administrative Law Judge denied the petition related to landscaping (18F-H1818030-REL), but deemed Petitioner the prevailing party and ordered the refund of the $500 filing fee regarding the petition concerning the additional mailbox (18F-H1818031-REL) because the HOA improperly based the fine on CC&R Section 12.
Why this result: Petitioner failed to prove the olive tree was alive, and a dead tree could be reasonably considered a violation of CC&R Section 28 requiring neatly trimmed/properly cultivated plantings (Case 18F-H1818030-REL).
Key Issues & Findings
Improper fine regarding additional freestanding mailbox
Petitioner challenged fines for an additional mailbox lacking architectural approval. The ALJ found that CC&R Section 12 (related to 'building') could not be applied to a mailbox, rendering the fine imposed under that section a violation by the Respondent. Petitioner was deemed the prevailing party in this docket number (18F-H1818031-REL).
Orders: Respondent ordered to pay Petitioner $500.00 filing fee refund within thirty days.
Briefing Document: Holyoak v. Camelback Country Club Estates HOA
Executive Summary
This briefing document synthesizes the findings and conclusions from an Administrative Law Judge Decision concerning two consolidated petitions filed by homeowner Jon Paul Holyoak against the Camelback Country Club Estates I & II Homeowners Association (HOA). The disputes centered on HOA-issued violations for landscaping maintenance and the presence of a freestanding mailbox.
The final judgment produced a split decision. The Petitioner, Mr. Holyoak, failed to prove the HOA acted improperly in the landscaping case and his petition was denied. However, he was deemed the prevailing party in the mailbox case, with the judge concluding the HOA had violated its own community documents (CC&Rs) by imposing a fine based on an inapplicable section. As the prevailing party in one of the two matters, Mr. Holyoak was awarded his $500 filing fee, to be paid by the HOA. The initial decision document required two subsequent nunc pro tunc orders to correct typographical errors.
Key Takeaways:
• Landscaping Petition (Denied): Mr. Holyoak was cited for failing to remove a “dead” olive tree. He argued the tree was merely “in distress.” The judge ruled that a reasonable person would consider the tree dead and that Mr. Holyoak failed to provide sufficient evidence to the contrary. A dead tree was found to be a potential violation of CC&R Section 28, which requires plantings to be “neatly trimmed” and “properly cultivated.”
• Mailbox Petition (Upheld): Mr. Holyoak was cited for an “additional mailbox” that was present when he purchased the property in 2012. The judge found the HOA’s enforcement problematic for two primary reasons:
1. The HOA cited three different CC&R sections across multiple notices.
2. The fine was ultimately based on Section 12, which pertains to “buildings” and was deemed inapplicable to a mailbox.
• Final Order: The HOA was ordered to pay the Petitioner’s $500 filing fee. The decision is binding on the parties.
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Case Overview
The matter involves two petitions filed on February 2, 2018, by Petitioner Jon Paul Holyoak with the Arizona Department of Real Estate against the Respondent, Camelback Country Club Estates I & II Homeowners Association. The petitions alleged that the HOA had improperly cited Mr. Holyoak for violations of the community’s Conditions, Covenants, and Restrictions (CC&Rs). The two cases were consolidated for a single hearing.
This petition alleged that the HOA improperly cited Mr. Holyoak for violating Section 28 of the CC&Rs, which governs landscape maintenance.
HOA Actions and Timeline
The HOA, through its inspection team Associa Arizona, issued a series of notices regarding the landscaping on Mr. Holyoak’s property.
Notice Type
Description
Oct 17, 2017
Courtesy Notice
“Please remove the dead foliage on your lot.”
Dec 13, 2017
Courtesy Notice
“Please remove the dead olive tree in the front yard.”
Dec 13, 2017
Courtesy Notice
“There are several other trees that need to be removed as they have dead branches including the cassia…”
Jan 25, 2018
Notice of Violation
“2nd notice…There are several other trees that need to be removed as they have dead branches…” (Included photo of backyard).
Arguments Presented
• Petitioner’s Position (Holyoak):
◦ The olive tree in the front yard was not “dead” but rather “in distress,” and he was actively trying to nurse it back to health. He eventually had the tree removed on April 25, 2018, after months of effort.
◦ Regarding the backyard photo attached to the fine notice, he argued that the olive tree visible was healthy and that no dead trees were depicted.
◦ He requested that the fine be abated.
• Respondent’s Position (HOA):
◦ Board member Terry Rogers testified that the front yard olive tree had no leaves, appeared dead from the roadway, and was therefore not “properly trimmed” as required.
◦ He stated the backyard notice referred to a eucalyptus tree with several dead branches visible from the sidewalk bordering the property.
Administrative Law Judge’s Findings and Conclusion
The judge ruled in favor of the HOA in this matter.
• Burden of Proof: The Petitioner failed to present sufficient evidence, beyond “his self-serving statements,” that the olive tree was alive.
• Reasonable Interpretation: The judge concluded that “Any reasonable person viewing the olive tree, as depicted in the photographs presented, would understand the tree to be dead.”
• Violation of CC&Rs: A dead tree could reasonably be considered as not being “neatly trimmed” or “properly cultivated” in accordance with Section 28.
• Verdict: The Petitioner’s petition was denied. The judge found that the HOA had not improperly fined him for the landscaping violation.
This petition alleged that the HOA improperly cited Mr. Holyoak for having an “additional mailbox” in violation of the CC&Rs.
HOA Actions and Timeline
The HOA’s notices for the mailbox cited three different sections of the CC&Rs over time.
Notice Type
Description
CC&R Section Cited
Oct 17, 2017
Courtesy Notice
“Please remove the additional mailbox on your lot.”
Section 27
Dec 14, 2017
Courtesy Notice
“…there is an additional mailbox on your lot. In research of our files, there is no architectural application on file for the modification.”
Section 12
Jan 25, 2018
Notice of Violation
“2nd notice…Please remove the mailbox or provide the approved architectural application.” (Mailbox was painted bright pink and yellow at this time).
Section 12
Jan 25, 2018¹
Notice of Violation
“3rd notice…Please remove the mailbox or provide the approved architectural application.”
Section 8
¹The decision document states this notice was sent on January 25, 2018, but references a violation noted on March 15, 2018. The judge’s conclusions later clarify a notice referencing Section 8 was issued April 11, 2018, and was not properly before the tribunal.
Arguments Presented
• Petitioner’s Position (Holyoak):
◦ The freestanding mailbox was already in place when he purchased the home in 2012.
◦ At the time of purchase, he received a statement that there were no known covenant violations on the property.
◦ He argued the mailbox is required by the United States Postal Service (USPS), which no longer provides walking delivery and requires mailboxes to be reachable from a vehicle. The home’s other mailbox, built into a monument, is approximately 15 feet from the curb.
◦ A USPS mail carrier had confirmed this delivery requirement.
• Respondent’s Position (HOA):
◦ Board member Terry Rogers testified that the USPS mail carrier told him he would prefer to deliver to the permanent monument mailbox because the freestanding one was not secure.
◦ The mailbox had become an “eyesore,” as it was faded, peeling, and “listing to one side.”
◦ Of the 61 homes in the community, only three have freestanding mailboxes, and the Petitioner is the only one with two mailboxes.
Administrative Law Judge’s Findings and Conclusion
The judge ruled in favor of the Petitioner in this matter.
• Inconsistent Enforcement: The judge found it “problematic” that the HOA relied on three different sections of the CC&Rs in its notices.
• Pre-existing Structure: The Petitioner established that the mailbox was present at the time of his 2012 home purchase and that he was told of no existing violations. Therefore, the HOA’s argument regarding the lack of an architectural approval was “without merit.”
• Inapplicable CC&R Section: The fine was imposed based on Section 12 of the CC&Rs. The judge determined the plain language of this section relates to a “building” and “cannot be read to apply to Petitioner’s mailbox.”
• Violation by HOA: By imposing a fine based on an inapplicable section, the HOA was in violation of the CC&Rs.
• Verdict: The Petitioner was deemed the prevailing party. The judge noted that the HOA could potentially impose fines for failure to maintain the mailbox or for painting it without approval, but those specific violations were not before the court.
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Final Order and Subsequent Corrections
• Order of May 25, 2018:
1. Petitioner’s petition in Case Number 18F-H1818030-REL (Landscaping) is denied.
2. Petitioner is deemed the prevailing party in Case Number 18F-H1818031-REL (Mailbox).
3. Respondent (HOA) is ordered to pay Petitioner his $500.00 filing fee within thirty days.
• Order Nunc Pro Tunc of May 30, 2018:
◦ This order corrected a typographical error in the original decision. The original text mistakenly stated the petition for the mailbox case (31-REL) was denied.
◦ Correction: The denial was correctly applied to the landscaping case: “it is ORDERED that Petitioner’s petition in Case Number 18F-H1818031-REL 18F-H1818030-REL is denied.”
• Order Nunc Pro Tunc of May 31, 2018:
◦ This order corrected a typographical error in the May 30 order, which had misstated the date of the original decision.
◦ Correction: “On April 26 May 25, 2018, the Administrative Law Judge issued the Administrative Law Judge Decision…”
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Key CC&R Sections Cited
• Section 8 (Architectural Control): Requires written approval from the Committee before any “building or other structure” is erected, altered, or repaired. This includes exterior finish, color, and architectural style.
• Section 12 (Buildings): States that “No building may be erected or maintained upon any Lot except one single family dwelling with private appurtenant garage and customary outbuildings” without prior written approval.
• Section 27 (Maintenance): Prohibits any building or structure from falling into disrepair and requires owners to keep them in good condition and adequately painted.
• Section 28 (Landscaping): Requires the owner of each lot to “at all times keep shrubs, trees, grass and plantings of every kind, on his lot mostly trimmed, properly cultivated, and free of trash, weeds and other unsightly material.”
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
17F-H1717038-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2017-12-11
Administrative Law Judge
Thomas Shedden
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
James and Shawna Larson
Counsel
Lisa M. Hanger
Respondent
Tempe Gardens Townhouse Corporation
Counsel
Nathan Tennyson
Alleged Violations
A.R.S. § 33-1255(C); CC&R sections 9 and 9(b)
Outcome Summary
The ALJ dismissed the petition, ruling that the HOA acted reasonably and had the authority under the CC&Rs to require the removal of the homeowner's patio cover for necessary painting and repairs. The ALJ determined that because the patio cover is a limited common element, the Petitioners must bear the cost of removal and reinstallation according to A.R.S. § 33-1255(C).
Why this result: Petitioners failed to prove the HOA violated CC&Rs or acted unreasonably, and statutory law assigned the expense burden for the limited common element to the homeowner.
Key Issues & Findings
Authority of HOA to mandate removal of homeowner's patio cover for maintenance and assignment of removal/reinstallation costs.
Petitioners challenged the Respondent HOA's authority and reasonableness in requiring them to remove their patio cover, a limited common element, for building painting and repair, and disputed the requirement that Petitioners bear the costs. The ALJ concluded that the HOA's plan was reasonable, the HOA had the authority under CC&R sections 9 and 9(b), and Petitioners must bear the cost of removal and reinstallation under A.R.S. § 33-1255(C).
Orders: Petitioners’ petition is dismissed. Respondent is deemed the prevailing party. Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Analytics Highlights
Topics: HOA authority, limited common element, maintenance costs, patio cover, CC&Rs, statutory interpretation, dismissal, prevailing party
Briefing on Larson v. Tempe Gardens Townhouse Corporation
Executive Summary
This briefing document synthesizes the legal dispute between homeowners James and Shawna Larson (Petitioners) and the Tempe Gardens Townhouse Corporation (Respondent). The core conflict centered on the Respondent’s requirement that Petitioners remove their patio cover at their own expense to facilitate a community-wide building repair and painting project. The case initially faced a jurisdictional challenge, with an Administrative Law Judge (ALJ) recommending dismissal due to the speculative nature of the Respondent’s threat to remove the cover. This recommendation was rejected by the Commissioner of the Department of Real Estate, who found the matter ripe for adjudication and ordered a new hearing.
The final Administrative Law Judge Decision ultimately ruled in favor of the Respondent. The decision found the HOA’s plan to remove the patio covers was reasonable, necessary for the safe and proper completion of the project, and authorized under the community’s CC&Rs. Crucially, the ruling established that the patio cover is a “limited common element” under Arizona statute. Consequently, the financial responsibility for its removal and potential reinstallation rests solely with the Petitioners as the homeowners to whom the element is assigned. The Petitioners’ petition was dismissed, and the Respondent was deemed the prevailing party.
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Procedural History
The case progressed through several distinct legal phases, beginning with a petition and culminating in a final administrative decision after a rehearing.
Outcome/Significance
June 15-16, 2017
Petition Filed
James and Shawna Larson filed a petition with the Department of Real Estate alleging a violation of the Respondent’s CC&Rs.
August 25, 2017
Order Recommending Dismissal
Administrative Law Judge Suzanne Marwil recommended dismissing the petition, finding no “justiciable controversy” because the Respondent had not yet acted on its threat to remove the patio cover, rendering the issue speculative.
August 31, 2017
Order Rejecting Recommendation
Judy Lowe, Commissioner of the Department of Real Estate, rejected the ALJ’s recommendation. Citing a June 1, 2017 letter from the Respondent, the Commissioner determined the matter was “ripe for adjudication” and ordered the hearing to be rescheduled.
September 1, 2017
Notice of Re-Hearing Issued
The Arizona Department of Real Estate formally scheduled a new hearing in the matter.
November 20, 2017
Rehearing Conducted
A full hearing on the merits was conducted before Administrative Law Judge Thomas Shedden.
December 11, 2017
Final Administrative Law Judge Decision
ALJ Thomas Shedden issued a final decision, dismissing the Petitioners’ petition and finding in favor of the Respondent.
Core Dispute Analysis
The conflict arose from a maintenance project initiated by the Tempe Gardens Townhouse Corporation, which consists of 169 units. The project involved repairing and painting the exteriors of the community’s twenty-five two-story buildings.
Respondent’s (HOA’s) Mandate and Rationale
• Project Requirement: The HOA informed homeowners with patio covers that they were required to remove the covers at their own expense before repairs and painting could begin.
• Enforcement Threat: In a letter dated June 1, 2017, the HOA stated that if the Larsons’ patio cover was not removed within ten days, the HOA would remove it under the authority of CC&R section 10(a) and charge the homeowners for the cost.
• Legal Justification: The HOA asserted its authority based on:
◦ CC&R Section 9(b): Grants the Respondent responsibility for maintaining the building exteriors.
◦ CC&R Section 9: States, “Any cooperative action necessary or appropriate to the proper maintenance and upkeep of the … [building] exteriors … shall be taken by the [Respondent].”
• Practical Necessity: The HOA argued that removal was essential for the project’s proper and safe completion, a position supported by its project manager.
Petitioners’ (Larsons’) Objections and Counter-Arguments
• Initial Legal Position: In their brief, the Petitioners stated that “the true issues underlying this issue are not about whether Respondent’s current threatened actions are a violation of the CC&Rs. The true issues relate to Respondent Association’s actions and inactions that have lead up to the point where the Parties now find themselves addressing this administrative law panel.”
• Lack of Authority: In a May 19, 2017 letter, the Larsons’ counsel argued the HOA had no legal authority to support its request.
• Unreasonable Cost: The Petitioners asserted that the cost of removal and reinstallation would be “thousands of dollars” and provided bids ranging from $3,980 to $5,975.
• Historical Precedent: The patio cover was in place when the Larsons purchased their unit in 1999, and they argued the HOA did not disclose any violation at that time.
• Proposed Alternatives:
1. The Larsons offered to have the back of their unit painted at their own expense, which the HOA rejected over concerns about project warranty and management.
2. During the November 20 hearing, after hearing testimony, the Larsons offered not to reinstall their patio cover if the Respondent would pay for its removal.
Key Evidence and Testimony
The final decision heavily relied on the testimony of Wayne King, the project manager hired by the HOA, and an analysis of competing cost estimates.
Testimony of Wayne King (Project Manager)
• Project Scope: King testified that the project involved not only painting but also repairing damaged siding, much of which was caused by improperly flashed patio covers. To “do the job right,” the process required sanding, power washing, and patching before painting.
• Contractor Requirements: All five contractors who bid on the project required the patio covers to be removed.
• Safety and Logistics: King explained why working around the covers was not viable:
◦ Scaffolding: “Regular” scaffolding would not fit, and commercial scaffolding would not provide access to the entire building.
◦ Lifts: Using a “reach” or forklift was not an option due to overhead powerlines creating a safety hazard.
◦ Worker Safety: Allowing painters to walk on homeowners’ patio covers was not a safe option. He noted that changes in safety laws since the buildings were last painted necessitated different methods.
• Warranty: King testified that the paint company would not provide a warranty for the project if individual homeowners, like the Larsons, painted their own units.
Cost Estimates and Discrepancies
• Petitioners’ Estimates: The Larsons submitted two bids for their wooden patio cover:
◦ Bid 1: $1,250 to remove and dispose; $3,980 to remove and rebuild with new wood.
◦ Bid 2: $5,975 to remove and replace the structure.
• Respondent’s Estimates:
◦ The HOA’s initial letter offered a contractor who would remove aluminum covers for $150. The cost for the Larsons’ wood cover was stated as $225, though this was not a firm price.
◦ Wayne King testified that the Petitioners’ estimates were “very high” and opined that $1,000 should cover the cost of removing and rebuilding, assuming existing materials were reused. He acknowledged decking material would likely need replacement but estimated 80% of rafters could be reused.
Legal Findings and Final Decision
The Administrative Law Judge Decision of December 11, 2017, provided a comprehensive legal analysis that concluded in the Respondent’s favor.
Governing Authority and Reasonableness
• Deference to the HOA: Citing Tierra Ranchos Homeowners Ass’n v. Kitchukov, the decision established that the tribunal must accord the HOA deference in its decisions regarding maintenance and repair, provided it acts reasonably.
• Finding of Reasonableness: Based on the credible testimony of Wayne King, the judge found that the Respondent’s proposed plan for repairing and painting was reasonable, as the buildings could not be “properly and safely painted without the patio covers being removed.”
• Authorization under CC&Rs: The judge concluded that CC&R sections 9 and 9(b) were “sufficient to show that Respondent has the authority to remove Petitioners’ patio to complete the painting work.”
“Limited Common Element” Doctrine and Cost Allocation
The central legal issue of financial responsibility was resolved by applying Arizona state statutes.
1. Classification: The Petitioners’ patio cover was classified as a limited common element within the meaning of ARIZ. REV. STAT. section 33-1212(4).
2. Statutory Rule: The judge then applied ARIZ. REV. STAT. section 33-1255(C), which states:
3. Conclusion on Cost: Based on a “reasonable reading” of this statute, the decision concluded that the Petitioners must bear the cost of removing the patio cover and, should they choose to do so, the cost of reinstalling it.
Final Ruling
• The evidence supported the conclusion that the Respondent had the authority to require the removal of the patio cover at the Petitioners’ expense.
• IT IS ORDERED that the petition filed by James and Shawna Larson is dismissed.
• The Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party.
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Key Parties and Representatives
Name(s)
Representation
Petitioners
James and Shawna Larson
Lisa M. Hanger, Esq.
Respondent
Tempe Gardens Townhouse Corporation
Nathan Tennyson, Esq. (Brown Alcott PLLC)
ALJ (Initial)
Suzanne Marwil
Office of Administrative Hearings
ALJ (Final)
Thomas Shedden
Office of Administrative Hearings
Commissioner
Judy Lowe
Arizona Department of Real Estate
Study Guide – 17F-H1717038-REL-RHG
Study Guide for Larson v. Tempe Gardens Townhouse Corporation
This study guide provides a comprehensive review of the administrative case between James and Shawna Larson and the Tempe Gardens Townhouse Corporation, culminating in the Administrative Law Judge Decision of December 11, 2017. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.
Short-Answer Quiz
Instructions: Answer the following ten questions based on the provided source documents. Each answer should be two to three sentences long.
1. Who were the primary parties in this case, and what was their relationship?
2. What was the initial reason given by Administrative Law Judge (ALJ) Suzanne Marwil for recommending the dismissal of the Larsons’ petition?
3. Why did Commissioner of the Department of Real Estate Judy Lowe reject the initial recommendation for dismissal?
4. What was the central issue adjudicated at the November 20, 2017 hearing before ALJ Thomas Shedden?
5. According to the Respondent, Tempe Gardens Townhouse Corporation, which specific sections of the CC&Rs granted it the authority to require the removal of patio covers?
6. Who was Wayne King, and what was the substance of his testimony during the hearing?
7. How did the Arizona Revised Statutes (A.R.S.) classify the Petitioners’ patio cover, and why was this classification legally significant for the case’s outcome?
8. What safety and logistical reasons were provided to justify the necessity of removing the patio covers for the painting project?
9. What was the final decision issued by ALJ Thomas Shedden on December 11, 2017?
10. According to the final ruling, who is financially responsible for the removal and potential reinstallation of the Petitioners’ patio cover, and what was the legal basis for this conclusion?
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Answer Key
1. The primary parties were the Petitioners, homeowners James and Shawna Larson, and the Respondent, their homeowner’s association, Tempe Gardens Townhouse Corporation. The dispute arose from the Respondent’s requirement that the Petitioners remove a patio cover at their unit.
2. ALJ Suzanne Marwil recommended dismissal on August 25, 2017, for a lack of a “justiciable controversy.” She reasoned that the Respondent’s threat to take down the patio cover had not yet been undertaken, making the issue speculative and more appropriate for a declaratory judgment action in superior court.
3. Commissioner Judy Lowe rejected the recommendation on August 31, 2017, stating the matter was “ripe for adjudication.” Her decision was based on a letter from June 1, 2017, in which the Respondent alleged a violation of the governing documents, thus creating a tangible controversy for the administrative tribunal to rule upon.
4. The central issue was whether the Respondent had the authority to mandate the removal of the Petitioners’ patio cover to facilitate a large-scale building repair and painting project. A secondary issue was determining who was financially responsible for the cost of removal and reinstallation.
5. The Respondent cited CC&R sections 9 and 9(b) as the source of its authority. Section 9(b) makes the Respondent responsible for maintaining building exteriors, and section 9 grants it the power to take “any cooperative action necessary or appropriate” for that maintenance.
6. Wayne King was the project manager hired by the Respondent for the painting project. He provided expert testimony that removing the patio covers was necessary to properly and safely repair and paint the buildings, noting that all five bidding contractors required their removal and that alternative methods were not viable or safe.
7. The patio cover was classified as a “limited common element” under A.R.S. § 33-1212(4). This was significant because A.R.S. § 33-1255(C) states that common expenses associated with the maintenance or repair of a limited common element shall be assessed against the units to which it is assigned, placing the financial burden on the Petitioners.
8. Project manager Wayne King testified that removal was necessary to accommodate the 14-foot by 8-foot area required for scaffolding. He explained that using a forklift was unsafe due to overhead powerlines, and allowing painters to walk on the covers was also a safety hazard, especially given changes in safety laws since the last painting project.
9. ALJ Thomas Shedden dismissed the Petitioners’ petition and deemed the Respondent, Tempe Gardens Townhouse Corporation, to be the prevailing party. The order found that the Respondent’s plan was reasonable and that it had the authority to require the patio cover’s removal.
10. The final ruling concluded that the Petitioners, James and Shawna Larson, were responsible for the cost to remove the patio cover and the cost to reinstall it if they chose to do so. The legal basis was A.R.S. § 33-1255(C), which assigns expenses related to a “limited common element” (the patio cover) exclusively to the unit owner it benefits.
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Essay Questions
Instructions: The following questions are designed to test a deeper, more analytical understanding of the case. Formulate a comprehensive response for each, drawing evidence from the provided source documents.
1. Trace the procedural history of case No. 17F-H1717038-REL from the initial petition to the final decision. Explain the reasoning behind each major procedural step, including the initial recommendation for dismissal, its rejection by the Commissioner, and the final order.
2. Analyze the legal arguments presented by both the Petitioners (James and Shawna Larson) and the Respondent (Tempe Gardens Townhouse Corporation) at the November 20, 2017 hearing. Discuss the key pieces of evidence, including witness testimony, cost estimates, and CC&R provisions, that each side used to support its position.
3. Explain the concept of “justiciable controversy” as it was applied by ALJ Suzanne Marwil in her recommendation for dismissal. Contrast her interpretation with Commissioner Judy Lowe’s reasoning for why the matter was “ripe for adjudication.”
4. Discuss the legal significance of classifying the patio cover as a “limited common element.” How did this classification, in conjunction with Arizona Revised Statutes and the community’s CC&Rs, ultimately determine the outcome of the case regarding financial responsibility?
5. Evaluate the role of expert testimony in the final administrative hearing. How did the testimony of Wayne King influence ALJ Thomas Shedden’s findings of fact and conclusions of law regarding the reasonableness and necessity of the Respondent’s actions?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judge who presides over administrative hearings at a government agency, such as the Office of Administrative Hearings. In this case, Suzanne Marwil and Thomas Shedden served as ALJs.
A.R.S. (Arizona Revised Statutes)
The official compilation of the laws of the state of Arizona. Key statutes cited include A.R.S. § 32-2199, § 33-1212(4), and § 33-1255(C).
CC&Rs (Covenants, Conditions & Restrictions)
The governing documents for a planned community or condominium association that outline the rights and obligations of the homeowners and the association. In this case, sections 9, 9(b), and 10(a) were specifically mentioned.
Declaratory Judgment Action
A legal action filed in superior court where a party asks the court to provide a binding ruling on the rights and obligations of the parties before an actual injury has occurred.
Justiciable Controversy
A real, substantial legal dispute that is appropriate for a court or tribunal to resolve. It cannot be a hypothetical, speculative, or advisory matter.
Limited Common Element
As defined in A.R.S. § 33-1212(4), a common element of a condominium assigned for the exclusive use of one or more units, but fewer than all of them. The Larsons’ patio cover was classified as such.
Petition
The formal written request filed by a party to initiate a case with an administrative body. The Larsons filed their petition with the Department of Real Estate on June 15/16, 2017.
Petitioner
The party who initiates a legal action by filing a petition. In this case, James and Shawna Larson were the Petitioners.
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It means the greater weight of the evidence is sufficient to incline a fair and impartial mind to one side of an issue over the other.
Respondent
The party against whom a petition is filed. In this case, Tempe Gardens Townhouse Corporation was the Respondent.
Tribunal
A body, such as the Office of Administrative Hearings, with the authority to judge, adjudicate on, or determine claims or disputes.
Blog Post – 17F-H1717038-REL-RHG
They Fought the HOA Over a Patio and Lost: 3 Shocking Legal Lessons for Every HOA Member
It’s the letter every homeowner dreads. An official-looking envelope from the Homeowner’s Association (HOA) lands in your mailbox, and the message inside is not a friendly neighborhood greeting. It’s a demand.
This is exactly what happened to Arizona couple James and Shawna Larson. Their HOA, Tempe Gardens Townhouse Corporation, was planning a large-scale project to repair and paint the building exteriors. To do the job properly, the HOA demanded that the Larsons remove their wooden patio cover—at their own expense. The Larsons, believing this was an unreasonable overreach, refused. That refusal kicked off a legal battle that serves as a masterclass in the often-shocking realities of HOA power.
This post distills the most important lessons from their fight. These are the legal realities that every homeowner should understand before they find themselves on the receiving end of a similar notice.
You Can Win the First Round and Still Lose the Case
In the first stage of the dispute, the Administrative Law Judge actually recommended that the Larsons’ petition be dismissed. The judge’s reasoning was based on a crucial legal doctrine: ripeness. Because the HOA had only threatened to remove the patio cover and hadn’t physically done it yet, the judge found the issue “speculative.” In the court’s view, there was no “justiciable controversy” to rule on yet.
The initial ruling contained a powerful statement highlighting the confusion:
Both parties fundamentally misunderstand the limits of this Tribunal’s jurisdiction.
But this initial victory was short-lived. In a surprising twist, the Commissioner of the Department of Real Estate rejected the judge’s recommendation. The Commissioner found that the core question—whether the patio cover violated the association’s rules—was “ripe for adjudication” and ordered the case back to court for a full hearing. This highlights a key principle: administrative bodies often prefer to rule on the substance of a dispute rather than dismiss it on procedural grounds, ensuring that core community conflicts are actually resolved.
A case isn’t over until it’s over. An initial procedural win (or loss) can be overturned, shifting the entire battlefield. With the case now officially back on, the court turned to the central question of the dispute: who was financially responsible for the patio cover?
It’s Your Patio, So It’s Your Bill—Even When the HOA Forces the Work
The central conflict boiled down to one question: who should pay? The Larsons believed that since the HOA required the patio cover to be removed for its maintenance project, the HOA should bear the associated costs. This seems like common sense, but HOA law operates on a different logic.
The case was decided by a key legal concept: the patio cover was legally classified as a “limited common element.” For most homeowners, this is where their jaw hits the floor. A limited common element is part of the common area (like exterior walls or roofs) but is assigned for the exclusive use of a single unit owner. The logic behind this law is that while the HOA maintains general common areas, elements that provide an exclusive benefit to one owner—like their personal patio, balcony, or assigned parking spot—carry an exclusive financial responsibility, even for HOA-mandated work.
This classification has a devastating financial consequence spelled out in Arizona statute A.R.S. § 33-1255(C). The law states that common expenses associated with a limited common element are assessed against the unit it’s assigned to. The judge’s final conclusion was direct and absolute:
Because the patio cover is a limited common element, under a reasonable reading of ARIZ. REV. STAT. section 33-1255(C), Petitioners must bear the cost of removing the patio cover and, if they choose to do so, the cost of reinstalling it.
Under the law, because the patio exclusively benefitted the Larsons, they were solely responsible for all costs associated with it, even when the work was demanded by the HOA for its own project.
Deference is Given to a Well-Prepared HOA
The HOA didn’t win just because of a legal statute; it won because it built a sound, well-documented case for its demand. They didn’t just issue an order; they presented extensive evidence that their plan was “reasonable.”
The testimony of their project manager, Wayne King, was particularly compelling. He laid out a series of facts that were difficult to dispute:
• The project involved necessary repairs to siding and flashing, not just cosmetic painting.
• All five painting contractors who bid on the project required the patio covers to be removed.
• Removal was essential to comply with modern safety laws for scaffolding and to allow for proper work, including sanding and power washing.
• Safety laws had changed since the buildings were last painted, making old methods unsafe and illegal.
• Allowing individual homeowners to paint their own sections would void the painter’s warranty for the entire project.
Faced with this mountain of meticulously documented evidence, the judge ruled that the HOA’s plan was “reasonable.” Because of this, the court was legally bound to “accord Respondent deference in decisions regarding maintenance and repair of the common areas.” In other words, when an HOA acts logically, documents its process, and prioritizes safety and proper procedure, courts will give it significant authority to enforce its decisions.
Conclusion: Knowledge is Power in an HOA
The Larsons’ case is a stark reminder that in an HOA, what feels fair is irrelevant. The only things that matter are procedural correctness (even a ‘win’ can be temporary), the fine print of legal definitions (you can be forced to pay to remove your own property), and an HOA’s documented reasonableness (a well-prepared board is nearly unbeatable). These principles are found not in a sense of fairness, but in the specific, often surprising language of state law and a community’s own CC&Rs.
This case was about a patio cover, but the principles apply to fences, doors, and windows—do you truly know what you own and what you’re responsible for?
Case Participants
Petitioner Side
James Larson(petitioner)
Shawna Larson(petitioner)
Lisa M. Hanger(petitioner attorney)
Respondent Side
Nathan Tennyson(respondent attorney) Brown Alcott PLLC
Wayne King(witness) Project Manager for painting project hired by Respondent
Neutral Parties
Suzanne Marwil(ALJ) Issued initial Recommended Order of Dismissal (August 25, 2017)
Thomas Shedden(ALJ) Issued Administrative Law Judge Decision (December 11, 2017)
Judy Lowe(Commissioner) Arizona Department of Real Estate Rejected initial recommendation of dismissal
Dan Gardner(HOA Coordinator) Transmitted Commissioner's order
