Sam & Pipper O’ Shaughnessy Stangl v. Sabino Vista Townhouse

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.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • Article VI of the CC&Rs
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Analytics Highlights

Topics: HOA Maintenance, CC&R Interpretation, Common Area Maintenance, Filing Fee Refund, Prevailing Party
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

22F-H2221009-REL Decision – 959583.pdf

Uploaded 2026-04-24T11:38:59 (49.7 KB)

22F-H2221009-REL Decision – 964651.pdf

Uploaded 2026-04-24T11:39:03 (18.7 KB)

22F-H2221009-REL Decision – 964655.pdf

Uploaded 2026-04-24T11:39:07 (99.7 KB)

22F-H2221009-REL Decision – 927714.pdf

Uploaded 2026-04-24T11:39:13 (95.3 KB)

22F-H2221009-REL Decision – 927747.pdf

Uploaded 2026-04-24T11:39:19 (37.5 KB)

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.

Case Numbers

22F-H2221009-REL (Initial Hearing)
22F-H2221009-REL-RHG (Rehearing)

Adjudicating Body

Arizona Office of Administrative Hearings

Administrative Law Judge

Velva Moses-Thompson

Key Dates

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.

The First Hearing and Decision (November 2021)

Summary of Arguments

Petitioners (Sam & Pipper O’ Shaughnessy Stangl):

◦ 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.

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.

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

Foothills Club West Homeowners Association v. Subrahmanyam & Sheila

Case Summary

Case ID 21F-H2120004-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-11-27
Administrative Law Judge Kay Abramsohn
Outcome 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.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Foothills Club West Homeowners Association Counsel John Halk, Esq.
Respondent Subrahmanyam & Sudhakar Living Trust Counsel Mary T. Hone, Esq.

Alleged Violations

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 2026-04-28T10:53:36 (135.4 KB)

21F-H2120004-REL Decision – 839537.pdf

Uploaded 2026-01-23T17:34:43 (135.4 KB)

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: 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.

Select all sources
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21F-H2120004-REL

1 source

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.

1 source

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

John Paul Holyoak vs. Camelback Country Club Estates I & II

Case Summary

Case ID 18F-H1818030-REL, 18F-H1818031-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-05-25
Administrative Law Judge Tammy L. Eigenheer
Outcome 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.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jon Paul Holyoak Counsel
Respondent 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.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 33-1805(A)
  • A.A.C. R2-19-119
  • CC&Rs Section 8
  • CC&Rs Section 12
  • CC&Rs Section 27

Analytics Highlights

Topics: landscape_maintenance, architectural_review, fines, mailbox, ccrs, consolidated_cases, prevailing_party
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 33-1805(A)
  • A.A.C. R2-19-119
  • CC&Rs Section 8
  • CC&Rs Section 12
  • CC&Rs Section 27
  • CC&Rs Section 28

Video Overview

Audio Overview

Decision Documents

18F-H1818030-REL Decision – 636748.pdf

Uploaded 2026-04-28T10:41:00 (130.5 KB)

18F-H1818030-REL Decision – 637227.pdf

Uploaded 2026-04-28T10:41:12 (57.9 KB)

18F-H1818030-REL Decision – 637433.pdf

Uploaded 2026-04-28T10:41:23 (56.5 KB)

18F-H1818030-REL Decision – 636748.pdf

Uploaded 2026-04-24T11:11:00 (130.5 KB)

18F-H1818030-REL Decision – 637227.pdf

Uploaded 2026-04-24T11:11:06 (57.9 KB)

18F-H1818030-REL Decision – 637433.pdf

Uploaded 2026-04-24T11:11:10 (56.5 KB)

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.

Detail

Information

Case Numbers

18F-H1818030-REL (Landscaping)
18F-H1818031-REL (Mailbox)

Petitioner

Jon Paul Holyoak

Respondent

Camelback Country Club Estates I & II Homeowners Association (represented by Gary Linder and Diana Elston)

Hearing Date

May 2, 2018

Decision Date

May 25, 2018

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Legal Framework

The Petitioner bore the burden of proving by a preponderance of the evidence that the Respondent violated the community CC&Rs and A.R.S. § 33-1805(A).

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Petition 1: Landscaping Violations (Case No. 18F-H1818030-REL)

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.

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Petition 2: Unapproved Structure/Mailbox (Case No. 18F-H1818031-REL)

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: 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.

Select all sources
636748.pdf
637227.pdf
637433.pdf

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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.

3 sources

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)

James and Shawna Larson vs. Tempe Gardens Townhouse Corporation

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
Additional Citations:

  • 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
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092.09
  • ARIZ. ADMIN. CODE § R2-19-119
  • Gutierrez v. Industrial Commission of Arizona

Video Overview

Audio Overview

Decision Documents

17F-H1717038-REL Decision – 605540.pdf

Uploaded 2026-04-24T11:05:44 (105.0 KB)

17F-H1717038-REL Decision – 583987.pdf

Uploaded 2026-04-24T11:05:48 (53.0 KB)

17F-H1717038-REL Decision – 585505.pdf

Uploaded 2026-04-24T11:05:53 (385.9 KB)

Briefing on Larson v. Tempe Gardens Townhouse Corporation

Executive Summary

This briefing synthesizes the legal dispute between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation (the “Respondent” or “HOA”). The core conflict centered on the HOA’s directive that the Larsons remove their wooden patio cover at their own expense to facilitate a community-wide building repair and painting project.

The case progressed through two distinct phases. Initially, an Administrative Law Judge (ALJ) recommended dismissing the Larsons’ petition for a lack of a “justiciable controversy,” reasoning that the HOA had not yet acted on its threat to remove the patio cover, rendering the dispute speculative. However, the Commissioner of the Department of Real Estate rejected this recommendation, finding the matter was “ripe for adjudication,” and ordered a full hearing on the merits.

In the final decision, a second ALJ dismissed the Larsons’ petition and ruled in favor of the HOA. The judge found the HOA’s plan to be reasonable and necessary for the proper and safe completion of the project, based on credible testimony from the project manager. The decision affirmed the HOA’s authority under its CC&Rs to require the removal of the structure. Crucially, the ruling established that the patio cover is a “limited common element” under Arizona law. Consequently, pursuant to Arizona Revised Statutes, the homeowners (the Larsons) are exclusively responsible for all costs associated with it, including its removal and potential reinstallation.

Procedural History and Jurisdictional Rulings

Initial Petition and Dismissal Recommendation

On June 16, 2017, James and Shawna Larson filed a petition with the Department of Real Estate against their HOA, alleging a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). However, the initial filing did not specify which provisions had been violated.

Upon inquiry, the Petitioners’ counsel admitted via email that no specific provision of the CC&Rs had yet been violated. Instead, their concern was that section 10(a) would be violated if the HOA acted on its threat to forcibly remove their patio cover and charge them for the cost.

This led to the “ORDER RECOMMENDING DISMISSAL FOR LACK OF JUSTICIABLE CONTROVERSY,” issued on August 25, 2017, by Administrative Law Judge Suzanne Marwil. The key findings of this order were:

Speculative Harm: The Judge found that the HOA’s actions “have not yet been undertaken and our [are] speculative at this juncture.”

Lack of Jurisdiction: The order stated that the Office of Administrative Hearings’ jurisdiction, per A.R.S. § 32-2199, is limited to adjudicating existing violations of community documents, not potential future ones.

Misunderstanding by Both Parties: The order noted, “Both parties fundamentally misunderstand the limits of this Tribunal’s jurisdiction.” The Petitioners were seeking a ruling on a future action, while the Respondent was urging the Tribunal to find the Petitioners had violated the CC&Rs, which was not the subject of the petition.

Recommended Forum: The Judge suggested that the appropriate forum for the Petitioners would be a declaratory judgment action in superior court.

Rejection of Dismissal and Re-Hearing

On August 31, 2017, Judy Lowe, the Commissioner of the Department of Real Estate, issued an “ORDER REJECTING RECOMMENDATION OF DISMISSAL.”

• The Commissioner rejected the ALJ’s finding that the matter lacked a justiciable controversy.

• The order cited a letter from the Respondent dated June 1, 2017, which posed the question: “Is the presence of the awning a violation of the Association’s governing documents?”

• This question was deemed sufficient to make the matter “ripe for adjudication.”

• The Commissioner requested that the hearing be rescheduled for a ruling on the matter. A re-hearing was subsequently conducted on November 20, 2017, before Administrative Law Judge Thomas Shedden.

Analysis of the Merits of the Dispute

The re-hearing focused on the substantive conflict: whether the HOA had the authority to compel the Larsons to remove their patio cover at their own expense for the maintenance project.

Respondent’s (HOA) Case

The HOA, consisting of 169 units, initiated a project to make necessary repairs to its twenty-five buildings and then have them painted. The HOA’s position was based on the following points:

Legal Authority: The HOA asserted its authority under sections 9 and 9(b) of its CC&Rs, which state that the HOA is responsible for maintaining building exteriors and that “Any cooperative action necessary or appropriate to the proper maintenance and upkeep of the… [building] exteriors… shall be taken by the [Respondent].”

Project Necessity: The project manager, Wayne King, provided testimony that the HOA’s board deemed credible and reasonable.

Safety: King stated that all five bidding contractors required the patio covers to be removed to ensure a safe work environment as mandated by the Arizona Department of Occupational Safety and Health (OSHA).

Logistics: Standard scaffolding would not fit without removing the covers, commercial scaffolding would not provide full access, a forklift was not viable due to overhead power lines, and allowing painters to walk on homeowner patio covers was unsafe.

Quality of Work: The project involved sanding, power washing, and patching before painting to “do the job right.” Many covers had been improperly flashed, causing damage to the buildings that needed repair.

Warranty: The paint company would not provide a warranty for the project if individual homeowners, such as the Larsons, were permitted to paint their own units.

Petitioners’ (Larsons’) Case

The Larsons, who purchased their unit in 1999 with the wooden patio cover already in place, contested the HOA’s demands.

Challenge to Authority: The Petitioners argued that the HOA had no legal authority to demand the removal of their patio cover.

Unreasonable Cost: They asserted that the cost of removal and reinstallation was unreasonable, submitting two bids:

◦ One bid quoted $1,250 to remove and dispose of the cover and $3,980 to remove and rebuild it with new wood.

◦ A second bid quoted $5,975 to remove and then replace the structure.

Proposed Alternative: In a letter dated May 19, 2017, the Larsons offered to have the back of their unit painted at their own expense.

Compromise Offer: During the November 20, 2017 hearing, after hearing the project manager’s testimony, Ms. Larson offered that they would agree not to reinstall the patio cover if the HOA would pay for its removal.

Final Administrative Law Judge Decision

On December 11, 2017, ALJ Thomas Shedden issued a final decision dismissing the Larsons’ petition and finding in favor of the Respondent, Tempe Gardens Townhouse Corporation.

Key Findings and Conclusions of Law

Finding/Conclusion

Details

Standard of Review

The HOA’s decisions regarding maintenance and repair are given deference, provided they act reasonably.

Reasonableness of HOA Action

Based on the “credible testimony” of Wayne King, the Judge found that the HOA’s proposed plan for repairing and painting the buildings, which required the removal of patio covers, was reasonable.

HOA Authority

CC&R sections 9 and 9(b) were found to be “sufficient to show that Respondent has the authority to remove Petitioners’ patio to complete the painting work.”

Patio Cover Classification

The Petitioners’ patio cover was legally classified as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4).

Cost Responsibility

The central issue of payment was decided by statute. The Judge concluded that under a “reasonable reading of ARIZ. REV. STAT. section 33-1255(C),” any common expense associated with a limited common element “shall be assessed exclusively against the units benefitted.”

Final Order

Based on these findings, the Administrative Law Judge ordered the following:

“The evidence of record supports a conclusion that Respondent has authority to require Petitioners to remove their patio cover to allow the building to be properly and safely painted, and that Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.”

The final order was that the Petitioners’ petition be dismissed, and the Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party.

Study Guide: Larson v. Tempe Gardens Townhouse Corporation

This study guide provides a comprehensive review of the administrative case between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms based on the provided legal documents.

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Short-Answer Quiz

Answer the following questions in 2-3 sentences each, based on the information in the provided source documents.

1. Who were the primary parties involved 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 the Commissioner of the Department of Real Estate, Judy Lowe, reject the initial recommendation for dismissal?

4. What was the central dispute that was ultimately decided in the November 20, 2017, hearing?

5. According to the final Administrative Law Judge Decision, what is the legal classification of the petitioners’ patio cover?

6. Which specific sections of the CC&Rs did the Respondent, Tempe Gardens Townhouse Corporation, cite as the basis for its authority?

7. What key reasons did project manager Wayne King provide to justify the necessity of removing the patio covers for the painting project?

8. Describe the significant difference in the cost estimates for removing and replacing the patio cover as presented by the Petitioners versus the Respondent’s project manager.

9. What was the final ruling regarding who was financially responsible for the removal and potential reinstallation of the patio cover?

10. What was the ultimate outcome of the Larsons’ petition following the final hearing, and which party was deemed the “prevailing party”?

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Answer Key

1. The primary parties were the Petitioners, homeowners James and Shawna Larson, and the Respondent, the Tempe Gardens Townhouse Corporation, which is their homeowner’s association (HOA). The dispute arose from the HOA’s plan to repair and paint the building exteriors.

2. ALJ Marwil initially recommended dismissal due to a “lack of justiciable controversy.” She found that the Petitioners had failed to cite any provision of the CC&Rs that the Respondent had currently violated, as the threatened action to remove the patio cover was speculative and had not yet occurred.

3. Commissioner Lowe rejected the dismissal because she found the matter was “ripe for adjudication.” Her decision was based on a June 1, 2017 letter from the Respondent that questioned whether “the presence of the awning [is] a violation of the Association’s governing documents,” which she interpreted as the Respondent alleging a violation.

4. The central dispute was whether the Tempe Gardens Townhouse Corporation had the authority to mandate that homeowners, specifically the Larsons, remove their patio covers at their own expense to facilitate a building repair and painting project.

5. The final decision classifies the Petitioners’ patio cover as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4). This classification was crucial to determining financial responsibility.

6. The Respondent cited sections 9 and 9(b) of the CC&Rs. Section 9(b) makes the Respondent responsible for maintaining building exteriors, and section 9 grants it the authority to take “Any cooperative action necessary or appropriate to the proper maintenance and upkeep” of those exteriors.

7. Wayne King testified that removal was necessary to properly and safely complete the work using scaffolding, as required by modern safety laws. He also stated that removal was needed to repair improperly flashed areas behind the covers and to ensure the painting contractor would provide a warranty for the project.

8. The Petitioners presented bids showing the cost to remove and rebuild the cover would be between $3,980 and $5,975. In contrast, Mr. King opined these estimates were very high and that the cost should be closer to $1,000 if existing materials were reused.

9. The final ruling, based on ARIZ. REV. STAT. section 33-1255(C), was that the Petitioners must bear the cost of removing the patio cover and, if they choose, the cost of reinstalling it. This is because the patio cover is a limited common element assigned specifically to their unit.

10. The final outcome was the dismissal of the Larsons’ petition. The Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party in the matter.

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Essay Questions

The following questions are designed for a more in-depth analysis. Use the provided documents to construct a detailed, evidence-based response.

1. Trace the procedural history of this case from the initial filing to the final decision. Discuss the key turning points, including the initial recommendation for dismissal, its rejection by the Commissioner, and the reasoning behind the final judgment.

2. Analyze the legal arguments presented by both the Petitioners and the Respondent in the November 2017 hearing. On what specific statutes and CC&R provisions did each side rely, and how did the Administrative Law Judge ultimately interpret these documents?

3. Evaluate the role of expert testimony in this case, specifically focusing on the evidence provided by project manager Wayne King. How did his testimony regarding safety, project requirements, and cost estimates influence the Administrative Law Judge’s findings on the reasonableness of the Respondent’s actions?

4. Discuss the legal concept of a “limited common element” as defined and applied in the source documents. Explain how this classification was central to the final decision regarding financial responsibility for the patio cover’s removal and reinstallation.

5. The initial Administrative Law Judge found no “justiciable controversy,” while the Commissioner later found the matter “ripe for adjudication.” Based on the details in all three documents, explain the arguments for both positions and analyze why the case ultimately proceeded to a full hearing.

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Glossary of Key Terms

Definition from Source Context

Administrative Law Judge (ALJ)

An official in the Office of Administrative Hearings who adjudicates complaints regarding condominium and planned community documents and ensures compliance with relevant statutes.

Covenants, Conditions, and Restrictions. The documents that govern the community and are described as a contract between the homeowner’s association and the homeowners.

Justiciable Controversy

A real dispute that a tribunal has the authority to resolve. The initial petition was recommended for dismissal for a lack of a justiciable controversy because the Respondent’s threatened actions were deemed speculative.

Limited Common Element

A legal classification for property defined under ARIZ. REV. STAT. section 33-1212(4). In this case, the Petitioners’ patio cover was classified as such, meaning any common expense associated with its maintenance, repair, or replacement is assessed against the unit to which it is assigned.

Petition

The formal document filed with the Department of Real Estate to initiate a complaint against a homeowner’s association.

Petitioner

The party that files a petition initiating a legal action. In this case, the homeowners James and Shawna Larson.

Preponderance of the Evidence

The standard of proof required in this matter, 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.”

Prevailing Party

The party that is successful in a legal dispute. In the final order, the Respondent was deemed the prevailing party.

Respondent

The party against whom a petition is filed. In this case, the Tempe Gardens Townhouse Corporation.

Ripe for Adjudication

A term used by the Commissioner of the Department of Real Estate to indicate that a dispute is ready to be formally heard and decided by the Administrative Law Judge.

Select all sources
583987.pdf
585505.pdf
605540.pdf

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17F-H1717038-REL-RHG

3 sources

These documents chronicle the legal dispute between James and Shawna Larson (Petitioners) and the Tempe Gardens Townhouse Corporation (Respondent) concerning the removal of the Larsons’ patio cover for building maintenance. Initially, an Administrative Law Judge (ALJ) recommended dismissal because the Petitioners did not allege a current violation of the governing documents, thus lacking a justiciable controversy since the association had only threatened action. However, the Department of Real Estate Commissioner rejected this recommendation, asserting that a violation of the governing documents was alleged by the Respondent, making the matter ripe for adjudication. Following a rehearing, a different ALJ issued a final decision finding that the Respondent acted reasonably in requiring the patio cover removal for safe and proper painting and repairs, concluding that the Petitioners must bear the cost of removal and reinstallation as the cover is a limited common element.

3 sources

Based on 3 sources

Case Participants

Petitioner Side

  • James Larson (petitioner)
  • Shawna Larson (petitioner)
  • Lisa M. Hanger (attorney)
    Counsel for Petitioners

Respondent Side

  • Nathan Tennyson (attorney)
    Brown Alcott PLLC
    Counsel for Respondent Tempe Gardens Townhouse Corporation
  • Wayne King (witness)
    Project manager hired by Respondent for the painting project; provided testimony

Neutral Parties

  • Suzanne Marwil (ALJ)
    Office of Administrative Hearings
    Authored Recommended Order Dismissal dated August 25, 2017
  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
    Authored Administrative Law Judge Decision dated December 11, 2017
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Rejected Recommendation of Dismissal
  • Dan Gardner (HOA coordinator)
    Transmitted documents (Order Rejecting Recommendation of Dismissal)

Other Participants

  • Chris Morga (contractor)
    Jacob and Co.
    Mentioned as a vendor who could remove patio covers