James and Shawna Larson v. Tempe Gardens Townhouse Corp

Posted on December 11, 2017 by [email protected]

Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID	17F-H1717038-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2017-12-11
Administrative Law Judge	Thomas Shedden
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	James and Shawna Larson	Counsel	Lisa M. Hanger
Respondent	Tempe Gardens Townhouse Corporation	Counsel	Nathan Tennyson

Alleged Violations

A.R.S. § 33-1255(C); CC&R sections 9 and 9(b)

Outcome Summary

The Administrative Law Judge dismissed the petition and deemed the Respondent HOA the prevailing party, concluding that the HOA acted reasonably and had the authority under CC&R sections 9 and 9(b) to require the removal of the Petitioners' patio cover for building maintenance and painting. Furthermore, pursuant to A.R.S. § 33-1255(C), Petitioners are responsible for the cost of removing and reinstalling their limited common element patio cover.

Why this result: The ALJ concluded that the Respondent's plan for repairing and painting the buildings was reasonable and the Petitioners failed to cite any provision of the CC&Rs that Respondent had currently violated. The cost allocation was determined by A.R.S. § 33-1255(C) based on the patio cover being a limited common element.

Key Issues & Findings

HOA authority to mandate removal of patio cover (limited common element) for maintenance and allocation of associated costs.

Petitioners filed a petition alleging the HOA violated CC&Rs 10(a) by threatening to remove their patio cover during a painting project. The basic issue was Petitioners' assertion that the Respondent lacked authority to mandate the removal of their limited common element patio cover. The ALJ determined the HOA had authority under CC&R sections 9 and 9(b) and A.R.S. § 33-1255(C), and Petitioners must pay the costs of removal and reinstallation.

Orders: Petitioners' petition was dismissed. Respondent was deemed the prevailing party. Respondent has the authority to require Petitioners to remove their patio cover, and Petitioners are responsible for the cost to remove and reinstall it.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

Analytics Highlights

Topics: HOA authority, limited common elements, maintenance costs, patio cover, CC&Rs, A.R.S. 33-1255(C)

Additional Citations:

Video Overview

Audio Overview

Decision Documents

17F-H1717038-REL-RHG Decision – 605540.pdf

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17F-H1717038-REL-RHG Decision – ../17F-H1717038-REL/583987.pdf

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17F-H1717038-REL-RHG Decision – ../17F-H1717038-REL/585505.pdf

Uploaded 2026-01-20T13:44:42 (385.9 KB)

Briefing Doc – 17F-H1717038-REL-RHG

Briefing on Larson v. Tempe Gardens Townhouse Corporation

Executive Summary

This briefing document synthesizes the legal dispute between homeowners James and Shawna Larson (Petitioners) and the Tempe Gardens Townhouse Corporation (Respondent). The core conflict centered on the Respondent’s requirement that Petitioners remove their patio cover at their own expense to facilitate a community-wide building repair and painting project. The case initially faced a jurisdictional challenge, with an Administrative Law Judge (ALJ) recommending dismissal due to the speculative nature of the Respondent’s threat to remove the cover. This recommendation was rejected by the Commissioner of the Department of Real Estate, who found the matter ripe for adjudication and ordered a new hearing.

The final Administrative Law Judge Decision ultimately ruled in favor of the Respondent. The decision found the HOA’s plan to remove the patio covers was reasonable, necessary for the safe and proper completion of the project, and authorized under the community’s CC&Rs. Crucially, the ruling established that the patio cover is a “limited common element” under Arizona statute. Consequently, the financial responsibility for its removal and potential reinstallation rests solely with the Petitioners as the homeowners to whom the element is assigned. The Petitioners’ petition was dismissed, and the Respondent was deemed the prevailing party.

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Procedural History

The case progressed through several distinct legal phases, beginning with a petition and culminating in a final administrative decision after a rehearing.

Outcome/Significance

June 15-16, 2017

Petition Filed

James and Shawna Larson filed a petition with the Department of Real Estate alleging a violation of the Respondent’s CC&Rs.

August 25, 2017

Order Recommending Dismissal

Administrative Law Judge Suzanne Marwil recommended dismissing the petition, finding no “justiciable controversy” because the Respondent had not yet acted on its threat to remove the patio cover, rendering the issue speculative.

August 31, 2017

Order Rejecting Recommendation

Judy Lowe, Commissioner of the Department of Real Estate, rejected the ALJ’s recommendation. Citing a June 1, 2017 letter from the Respondent, the Commissioner determined the matter was “ripe for adjudication” and ordered the hearing to be rescheduled.

September 1, 2017

Notice of Re-Hearing Issued

The Arizona Department of Real Estate formally scheduled a new hearing in the matter.

November 20, 2017

Rehearing Conducted

A full hearing on the merits was conducted before Administrative Law Judge Thomas Shedden.

December 11, 2017

Final Administrative Law Judge Decision

ALJ Thomas Shedden issued a final decision, dismissing the Petitioners’ petition and finding in favor of the Respondent.

Core Dispute Analysis

The conflict arose from a maintenance project initiated by the Tempe Gardens Townhouse Corporation, which consists of 169 units. The project involved repairing and painting the exteriors of the community’s twenty-five two-story buildings.

Respondent’s (HOA’s) Mandate and Rationale

• Project Requirement: The HOA informed homeowners with patio covers that they were required to remove the covers at their own expense before repairs and painting could begin.

• Enforcement Threat: In a letter dated June 1, 2017, the HOA stated that if the Larsons’ patio cover was not removed within ten days, the HOA would remove it under the authority of CC&R section 10(a) and charge the homeowners for the cost.

• Legal Justification: The HOA asserted its authority based on:

◦ CC&R Section 9(b): Grants the Respondent responsibility for maintaining the building exteriors.

◦ CC&R Section 9: States, “Any cooperative action necessary or appropriate to the proper maintenance and upkeep of the … [building] exteriors … shall be taken by the [Respondent].”

• Practical Necessity: The HOA argued that removal was essential for the project’s proper and safe completion, a position supported by its project manager.

Petitioners’ (Larsons’) Objections and Counter-Arguments

• Initial Legal Position: In their brief, the Petitioners stated that “the true issues underlying this issue are not about whether Respondent’s current threatened actions are a violation of the CC&Rs. The true issues relate to Respondent Association’s actions and inactions that have lead up to the point where the Parties now find themselves addressing this administrative law panel.”

• Lack of Authority: In a May 19, 2017 letter, the Larsons’ counsel argued the HOA had no legal authority to support its request.

• Unreasonable Cost: The Petitioners asserted that the cost of removal and reinstallation would be “thousands of dollars” and provided bids ranging from $3,980 to $5,975.

• Historical Precedent: The patio cover was in place when the Larsons purchased their unit in 1999, and they argued the HOA did not disclose any violation at that time.

• Proposed Alternatives:

1. The Larsons offered to have the back of their unit painted at their own expense, which the HOA rejected over concerns about project warranty and management.

2. During the November 20 hearing, after hearing testimony, the Larsons offered not to reinstall their patio cover if the Respondent would pay for its removal.

Key Evidence and Testimony

The final decision heavily relied on the testimony of Wayne King, the project manager hired by the HOA, and an analysis of competing cost estimates.

Testimony of Wayne King (Project Manager)

• Project Scope: King testified that the project involved not only painting but also repairing damaged siding, much of which was caused by improperly flashed patio covers. To “do the job right,” the process required sanding, power washing, and patching before painting.

• Contractor Requirements: All five contractors who bid on the project required the patio covers to be removed.

• Safety and Logistics: King explained why working around the covers was not viable:

◦ Scaffolding: “Regular” scaffolding would not fit, and commercial scaffolding would not provide access to the entire building.

◦ Lifts: Using a “reach” or forklift was not an option due to overhead powerlines creating a safety hazard.

◦ Worker Safety: Allowing painters to walk on homeowners’ patio covers was not a safe option. He noted that changes in safety laws since the buildings were last painted necessitated different methods.

• Warranty: King testified that the paint company would not provide a warranty for the project if individual homeowners, like the Larsons, painted their own units.

Cost Estimates and Discrepancies

• Petitioners’ Estimates: The Larsons submitted two bids for their wooden patio cover:

◦ Bid 1: $1,250 to remove and dispose; $3,980 to remove and rebuild with new wood.

◦ Bid 2: $5,975 to remove and replace the structure.

• Respondent’s Estimates:

◦ The HOA’s initial letter offered a contractor who would remove aluminum covers for $150. The cost for the Larsons’ wood cover was stated as $225, though this was not a firm price.

◦ Wayne King testified that the Petitioners’ estimates were “very high” and opined that $1,000 should cover the cost of removing and rebuilding, assuming existing materials were reused. He acknowledged decking material would likely need replacement but estimated 80% of rafters could be reused.

Legal Findings and Final Decision

The Administrative Law Judge Decision of December 11, 2017, provided a comprehensive legal analysis that concluded in the Respondent’s favor.

Governing Authority and Reasonableness

• Deference to the HOA: Citing Tierra Ranchos Homeowners Ass’n v. Kitchukov, the decision established that the tribunal must accord the HOA deference in its decisions regarding maintenance and repair, provided it acts reasonably.

• Finding of Reasonableness: Based on the credible testimony of Wayne King, the judge found that the Respondent’s proposed plan for repairing and painting was reasonable, as the buildings could not be “properly and safely painted without the patio covers being removed.”

• Authorization under CC&Rs: The judge concluded that CC&R sections 9 and 9(b) were “sufficient to show that Respondent has the authority to remove Petitioners’ patio to complete the painting work.”

“Limited Common Element” Doctrine and Cost Allocation

The central legal issue of financial responsibility was resolved by applying Arizona state statutes.

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

2. Statutory Rule: The judge then applied ARIZ. REV. STAT. section 33-1255(C), which states:

3. Conclusion on Cost: Based on a “reasonable reading” of this statute, the decision concluded that the Petitioners must bear the cost of removing the patio cover and, should they choose to do so, the cost of reinstalling it.

Final Ruling

• The evidence supported the conclusion that the Respondent had the authority to require the removal of the patio cover at the Petitioners’ expense.

• IT IS ORDERED that the petition filed by James and Shawna Larson is dismissed.

• The Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party.

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Key Parties and Representatives

Name(s)

Representation

Petitioners

James and Shawna Larson

Lisa M. Hanger, Esq.

Respondent

Tempe Gardens Townhouse Corporation

Nathan Tennyson, Esq. (Brown Alcott PLLC)

ALJ (Initial)

Suzanne Marwil

Office of Administrative Hearings

ALJ (Final)

Thomas Shedden

Office of Administrative Hearings

Commissioner

Judy Lowe

Arizona Department of Real Estate

Study Guide – 17F-H1717038-REL-RHG

Study Guide for Larson v. Tempe Gardens Townhouse Corporation

This study guide provides a comprehensive review of the administrative case between James and Shawna Larson and the Tempe Gardens Townhouse Corporation, culminating in the Administrative Law Judge Decision of December 11, 2017. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.

Short-Answer Quiz

Instructions: Answer the following ten questions based on the provided source documents. Each answer should be two to three sentences long.

1. Who were the primary parties in this case, and what was their relationship?

2. What was the initial reason given by Administrative Law Judge (ALJ) Suzanne Marwil for recommending the dismissal of the Larsons’ petition?

3. Why did Commissioner of the Department of Real Estate Judy Lowe reject the initial recommendation for dismissal?

4. What was the central issue adjudicated at the November 20, 2017 hearing before ALJ Thomas Shedden?

5. According to the Respondent, Tempe Gardens Townhouse Corporation, which specific sections of the CC&Rs granted it the authority to require the removal of patio covers?

6. Who was Wayne King, and what was the substance of his testimony during the hearing?

7. How did the Arizona Revised Statutes (A.R.S.) classify the Petitioners’ patio cover, and why was this classification legally significant for the case’s outcome?

8. What safety and logistical reasons were provided to justify the necessity of removing the patio covers for the painting project?

9. What was the final decision issued by ALJ Thomas Shedden on December 11, 2017?

10. According to the final ruling, who is financially responsible for the removal and potential reinstallation of the Petitioners’ patio cover, and what was the legal basis for this conclusion?

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Answer Key

1. The primary parties were the Petitioners, homeowners James and Shawna Larson, and the Respondent, their homeowner’s association, Tempe Gardens Townhouse Corporation. The dispute arose from the Respondent’s requirement that the Petitioners remove a patio cover at their unit.

2. ALJ Suzanne Marwil recommended dismissal on August 25, 2017, for a lack of a “justiciable controversy.” She reasoned that the Respondent’s threat to take down the patio cover had not yet been undertaken, making the issue speculative and more appropriate for a declaratory judgment action in superior court.

3. Commissioner Judy Lowe rejected the recommendation on August 31, 2017, stating the matter was “ripe for adjudication.” Her decision was based on a letter from June 1, 2017, in which the Respondent alleged a violation of the governing documents, thus creating a tangible controversy for the administrative tribunal to rule upon.

4. The central issue was whether the Respondent had the authority to mandate the removal of the Petitioners’ patio cover to facilitate a large-scale building repair and painting project. A secondary issue was determining who was financially responsible for the cost of removal and reinstallation.

5. The Respondent cited CC&R sections 9 and 9(b) as the source of its authority. Section 9(b) makes the Respondent responsible for maintaining building exteriors, and section 9 grants it the power to take “any cooperative action necessary or appropriate” for that maintenance.

6. Wayne King was the project manager hired by the Respondent for the painting project. He provided expert testimony that removing the patio covers was necessary to properly and safely repair and paint the buildings, noting that all five bidding contractors required their removal and that alternative methods were not viable or safe.

7. The patio cover was classified as a “limited common element” under A.R.S. § 33-1212(4). This was significant because A.R.S. § 33-1255(C) states that common expenses associated with the maintenance or repair of a limited common element shall be assessed against the units to which it is assigned, placing the financial burden on the Petitioners.

8. Project manager Wayne King testified that removal was necessary to accommodate the 14-foot by 8-foot area required for scaffolding. He explained that using a forklift was unsafe due to overhead powerlines, and allowing painters to walk on the covers was also a safety hazard, especially given changes in safety laws since the last painting project.

9. ALJ Thomas Shedden dismissed the Petitioners’ petition and deemed the Respondent, Tempe Gardens Townhouse Corporation, to be the prevailing party. The order found that the Respondent’s plan was reasonable and that it had the authority to require the patio cover’s removal.

10. The final ruling concluded that the Petitioners, James and Shawna Larson, were responsible for the cost to remove the patio cover and the cost to reinstall it if they chose to do so. The legal basis was A.R.S. § 33-1255(C), which assigns expenses related to a “limited common element” (the patio cover) exclusively to the unit owner it benefits.

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Essay Questions

Instructions: The following questions are designed to test a deeper, more analytical understanding of the case. Formulate a comprehensive response for each, drawing evidence from the provided source documents.

1. Trace the procedural history of case No. 17F-H1717038-REL from the initial petition to the final decision. Explain the reasoning behind each major procedural step, including the initial recommendation for dismissal, its rejection by the Commissioner, and the final order.

2. Analyze the legal arguments presented by both the Petitioners (James and Shawna Larson) and the Respondent (Tempe Gardens Townhouse Corporation) at the November 20, 2017 hearing. Discuss the key pieces of evidence, including witness testimony, cost estimates, and CC&R provisions, that each side used to support its position.

3. Explain the concept of “justiciable controversy” as it was applied by ALJ Suzanne Marwil in her recommendation for dismissal. Contrast her interpretation with Commissioner Judy Lowe’s reasoning for why the matter was “ripe for adjudication.”

4. Discuss the legal significance of classifying the patio cover as a “limited common element.” How did this classification, in conjunction with Arizona Revised Statutes and the community’s CC&Rs, ultimately determine the outcome of the case regarding financial responsibility?

5. Evaluate the role of expert testimony in the final administrative hearing. How did the testimony of Wayne King influence ALJ Thomas Shedden’s findings of fact and conclusions of law regarding the reasonableness and necessity of the Respondent’s actions?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The judge who presides over administrative hearings at a government agency, such as the Office of Administrative Hearings. In this case, Suzanne Marwil and Thomas Shedden served as ALJs.

A.R.S. (Arizona Revised Statutes)

The official compilation of the laws of the state of Arizona. Key statutes cited include A.R.S. § 32-2199, § 33-1212(4), and § 33-1255(C).

CC&Rs (Covenants, Conditions & Restrictions)

The governing documents for a planned community or condominium association that outline the rights and obligations of the homeowners and the association. In this case, sections 9, 9(b), and 10(a) were specifically mentioned.

Declaratory Judgment Action

A legal action filed in superior court where a party asks the court to provide a binding ruling on the rights and obligations of the parties before an actual injury has occurred.

Justiciable Controversy

A real, substantial legal dispute that is appropriate for a court or tribunal to resolve. It cannot be a hypothetical, speculative, or advisory matter.

Limited Common Element

As defined in A.R.S. § 33-1212(4), a common element of a condominium assigned for the exclusive use of one or more units, but fewer than all of them. The Larsons’ patio cover was classified as such.

Petition

The formal written request filed by a party to initiate a case with an administrative body. The Larsons filed their petition with the Department of Real Estate on June 15/16, 2017.

Petitioner

The party who initiates a legal action by filing a petition. In this case, James and Shawna Larson were the Petitioners.

Preponderance of the Evidence

The standard of proof required in this administrative hearing. It means the greater weight of the evidence is sufficient to incline a fair and impartial mind to one side of an issue over the other.

Respondent

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

Tribunal

A body, such as the Office of Administrative Hearings, with the authority to judge, adjudicate on, or determine claims or disputes.

Blog Post – 17F-H1717038-REL-RHG

They Fought the HOA Over a Patio and Lost: 3 Shocking Legal Lessons for Every HOA Member

It’s the letter every homeowner dreads. An official-looking envelope from the Homeowner’s Association (HOA) lands in your mailbox, and the message inside is not a friendly neighborhood greeting. It’s a demand.

This is exactly what happened to Arizona couple James and Shawna Larson. Their HOA, Tempe Gardens Townhouse Corporation, was planning a large-scale project to repair and paint the building exteriors. To do the job properly, the HOA demanded that the Larsons remove their wooden patio cover—at their own expense. The Larsons, believing this was an unreasonable overreach, refused. That refusal kicked off a legal battle that serves as a masterclass in the often-shocking realities of HOA power.

This post distills the most important lessons from their fight. These are the legal realities that every homeowner should understand before they find themselves on the receiving end of a similar notice.

You Can Win the First Round and Still Lose the Case

In the first stage of the dispute, the Administrative Law Judge actually recommended that the Larsons’ petition be dismissed. The judge’s reasoning was based on a crucial legal doctrine: ripeness. Because the HOA had only threatened to remove the patio cover and hadn’t physically done it yet, the judge found the issue “speculative.” In the court’s view, there was no “justiciable controversy” to rule on yet.

The initial ruling contained a powerful statement highlighting the confusion:

Both parties fundamentally misunderstand the limits of this Tribunal’s jurisdiction.

But this initial victory was short-lived. In a surprising twist, the Commissioner of the Department of Real Estate rejected the judge’s recommendation. The Commissioner found that the core question—whether the patio cover violated the association’s rules—was “ripe for adjudication” and ordered the case back to court for a full hearing. This highlights a key principle: administrative bodies often prefer to rule on the substance of a dispute rather than dismiss it on procedural grounds, ensuring that core community conflicts are actually resolved.

A case isn’t over until it’s over. An initial procedural win (or loss) can be overturned, shifting the entire battlefield. With the case now officially back on, the court turned to the central question of the dispute: who was financially responsible for the patio cover?

It’s Your Patio, So It’s Your Bill—Even When the HOA Forces the Work

The central conflict boiled down to one question: who should pay? The Larsons believed that since the HOA required the patio cover to be removed for its maintenance project, the HOA should bear the associated costs. This seems like common sense, but HOA law operates on a different logic.

The case was decided by a key legal concept: the patio cover was legally classified as a “limited common element.” For most homeowners, this is where their jaw hits the floor. A limited common element is part of the common area (like exterior walls or roofs) but is assigned for the exclusive use of a single unit owner. The logic behind this law is that while the HOA maintains general common areas, elements that provide an exclusive benefit to one owner—like their personal patio, balcony, or assigned parking spot—carry an exclusive financial responsibility, even for HOA-mandated work.

This classification has a devastating financial consequence spelled out in Arizona statute A.R.S. § 33-1255(C). The law states that common expenses associated with a limited common element are assessed against the unit it’s assigned to. The judge’s final conclusion was direct and absolute:

Because the patio cover is a limited common element, under a reasonable reading of ARIZ. REV. STAT. section 33-1255(C), Petitioners must bear the cost of removing the patio cover and, if they choose to do so, the cost of reinstalling it.

Under the law, because the patio exclusively benefitted the Larsons, they were solely responsible for all costs associated with it, even when the work was demanded by the HOA for its own project.

Deference is Given to a Well-Prepared HOA

The HOA didn’t win just because of a legal statute; it won because it built a sound, well-documented case for its demand. They didn’t just issue an order; they presented extensive evidence that their plan was “reasonable.”

The testimony of their project manager, Wayne King, was particularly compelling. He laid out a series of facts that were difficult to dispute:

• The project involved necessary repairs to siding and flashing, not just cosmetic painting.

• All five painting contractors who bid on the project required the patio covers to be removed.

• Removal was essential to comply with modern safety laws for scaffolding and to allow for proper work, including sanding and power washing.

• Safety laws had changed since the buildings were last painted, making old methods unsafe and illegal.

• Allowing individual homeowners to paint their own sections would void the painter’s warranty for the entire project.

Faced with this mountain of meticulously documented evidence, the judge ruled that the HOA’s plan was “reasonable.” Because of this, the court was legally bound to “accord Respondent deference in decisions regarding maintenance and repair of the common areas.” In other words, when an HOA acts logically, documents its process, and prioritizes safety and proper procedure, courts will give it significant authority to enforce its decisions.

Conclusion: Knowledge is Power in an HOA

The Larsons’ case is a stark reminder that in an HOA, what feels fair is irrelevant. The only things that matter are procedural correctness (even a ‘win’ can be temporary), the fine print of legal definitions (you can be forced to pay to remove your own property), and an HOA’s documented reasonableness (a well-prepared board is nearly unbeatable). These principles are found not in a sense of fairness, but in the specific, often surprising language of state law and a community’s own CC&Rs.

This case was about a patio cover, but the principles apply to fences, doors, and windows—do you truly know what you own and what you’re responsible for?

Case Participants

Petitioner Side

James Larson (petitioner)
Shawna Larson (petitioner)
Lisa M. Hanger (petitioner attorney)

Respondent Side

Nathan Tennyson (respondent attorney)
Brown Alcott PLLC
Wayne King (witness)
Project Manager for painting project hired by Respondent

Neutral Parties

Suzanne Marwil (ALJ)
Issued initial Recommended Order of Dismissal (August 25, 2017)
Thomas Shedden (ALJ)
Issued Administrative Law Judge Decision (December 11, 2017)
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Rejected initial recommendation of dismissal
Dan Gardner (HOA Coordinator)
Transmitted Commissioner's order

Walter Ward Griffith Jr. v. Alisanos Community Association

Posted on April 15, 2016 by [email protected]

Case Summary

Case ID	15F-H1516011-BFS
Agency	Department of Fire, Building and Life Safety
Tribunal	OAH
Decision Date	2016-04-08
Administrative Law Judge	Thomas Shedden
Outcome	yes
Filing Fees Refunded	$750.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Walter Ward Griffith, Jr.	Counsel	—
Respondent	Alisanos Community Association	Counsel	Mark Sahl, Esq. and Greg Stein, Esq.

Alleged Violations

CC&R Section 7.7

Outcome Summary

The ALJ ruled in favor of the Petitioner. Although the Petitioner installed the tree ring without explicit written approval in 2009, the Respondent conducted routine inspections and had constructive notice of the improvement at that time but failed to object until 2014. Due to the delay and constructive notice, Respondent failed to meet its burden of proof to show a violation.

Key Issues & Findings

Unauthorized Exterior Alteration (Concrete Tree Ring)

Respondent alleged Petitioner violated CC&R Section 7.7 by installing a concrete ring around a jacaranda tree without Architectural Review Committee approval. Petitioner argued the ring was approved with the tree or that Respondent had constructive notice.

Orders: Respondent must repay to Petitioner his filing fee of $750.00.

Filing fee: $750.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

Decision Documents

15F-H1516011-BFS Decision – 491042.pdf

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15F-H1516011-BFS Decision – 499790.pdf

Uploaded 2026-01-27T21:12:40 (60.3 KB)

**Case Summary: Griffith v. Alisanos Community Association**
**Case No:** 15F-H1516011-BFS
**Forum:** Arizona Office of Administrative Hearings
**Date:** April 8, 2016 (Certified Final June 3, 2016)

**Proceedings and Issue**
This hearing involved a dispute between Petitioner Walter Ward Griffith, Jr. and Respondent Alisanos Community Association regarding the community’s Covenants, Conditions and Restrictions (CC&Rs). While the Petitioner initiated the action, the parties agreed to amend the hearing issue to determine whether the Petitioner violated CC&R Section 7.7, which prohibits exterior property alterations without Architectural Review Committee approval. The specific object in dispute was a concrete ring installed around a jacaranda tree in the Petitioner's yard.

**Key Facts and Arguments**
* **Petitioner’s Position:** Griffith received approval to plant the jacaranda tree in December 2008. He argued that his submitted plan included a "squiggly line" intended to represent the concrete ring, meaning the structure was approved. He completed the installation in early 2009. He further argued that the Association conducted inspections of his property in 2009 regarding a separate issue (artificial grass) and did not object to the ring at that time.
* **Respondent’s Position:** The Association argued the ring was never approved by the Committee. They asserted that they did not notice the ring until 2012 or 2013, claiming it only became visible after tree roots lifted it. The Association first issued a written notice of the alleged violation in January 2014.

**Legal Analysis and Findings**
Administrative Law Judge (ALJ) Thomas Shedden applied the preponderance of the evidence standard, noting that the Respondent bore the burden of proof to establish the violation.

1. **Approval Defense:** The ALJ found the Petitioner failed to prove the ring was explicitly approved in 2008. The judge noted that "squiggly lines" on landscape plans typically represent bushes or trees, not concrete structures.
2. **Constructive Notice:** Despite the lack of initial approval, the ALJ determined that the Respondent had **constructive notice** of the ring in 2009. This conclusion was based on evidence that the Association conducted routine inspections of the Petitioner's yard in 2009 and reserved the right to inspect completed improvements.
3. **Failure to Meet Burden:** Because the Association had constructive notice of the structure in 2009 but failed to inform the Petitioner of the alleged violation until 2014, the ALJ concluded the Respondent failed to meet its burden of proof that a violation of CC&R Section 7.7 existed at the time of the hearing.

**Outcome**
The ALJ ruled that the Petitioner was the prevailing party. The Respondent was ordered to refund the Petitioner’s $750.00 filing fee. The decision became final on June 3, 2016, after the relevant state department declined to modify or reject the ALJ's decision.

Case Participants

Petitioner Side

Walter Ward Griffith, Jr. (petitioner)
Appeared on his own behalf

Respondent Side

Mark Sahl (attorney)
Carpenter, Hazlewood, Delgado & Bolen PLC
Appeared for Respondent
Greg Stein (attorney)
Carpenter, Hazlewood, Delgado & Bolen PLC
Appeared for Respondent
Brian Moore (board member)
Alisanos Community Association
Testified at hearing
Greg Kotsakis (committee member)
Alisanos Community Association
Architectural Review Committee member
Augustus Shaw (board member)
Alisanos Community Association
Mentioned in video recording regarding board meeting

Neutral Parties

Thomas Shedden (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Debra Blake (Interim Director)
Department of Fire, Building and Life Safety
Recipient of decision transmission
Greg Hanchett (Interim Director)
Office of Administrative Hearings
Signed Certification of Decision
Joni Cage (staff)
Department of Fire, Building and Life Safety
Care of recipient for Debra Blake
Rosella J. Rodriguez (staff)
Office of Administrative Hearings
Signed mailing certification

Kenneth Nowell vs. Greenfield Village RV Resort

Posted on May 11, 2015 by [email protected]

Case Summary

Case ID	14F-H1415011-BFS
Agency	Department of Fire, Building and Life Safety
Tribunal	OAH
Decision Date	2015-05-11
Administrative Law Judge	Thomas Shedden
Outcome	no
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Kenneth Nowell	Counsel	—
Respondent	Greenfield Village RV Resort Association, Inc.	Counsel	Steven D. Leach

Alleged Violations

CC&Rs 6.4, 6.5; Bylaws 6.4, 10.2
Bylaws 6.4
CC&Rs 3.25, 6.4(b)

Outcome Summary

The ALJ dismissed the petition, ruling that the Petitioner failed to prove by a preponderance of the evidence that the Association violated the CC&Rs or Bylaws regarding land acquisition, financial assessments, or construction projects.

Why this result: Burden of proof not met; Association actions were found to be within their authority and properly voted upon where required.

Key Issues & Findings

Land Purchase and Funding of Improvements

Petitioner alleged the Association violated governing documents by purchasing land and levying assessments/loans without a 2/3 vote. The ALJ found the Association had authority and the required majority votes were obtained.

Orders: Dismissed

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

The $20,000 Option

Petitioner alleged the Board required a membership vote to purchase a $20,000 land option. The ALJ found the expenditure did not exceed the threshold requiring a vote.

Orders: Dismissed

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

The Beverage Serving Center

Petitioner alleged the Board constructed a serving center without a vote (changing common area nature) and improperly used reserve funds. The ALJ found it was a replacement (allowed) and did not change the nature of the area.

Orders: Dismissed

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

Decision Documents

14F-H1415011-BFS Decision – 440536.pdf

Uploaded 2026-01-28T11:12:09 (117.3 KB)

14F-H1415011-BFS Decision – 446583.pdf

Uploaded 2026-01-28T11:12:09 (61.6 KB)

**Case Summary: Nowell v. Greenfield Village RV Resort**
**Case No.** 14F-H1415011-BFS

**Hearing Proceedings and Background**
The hearing was conducted on April 21, 2015, before Administrative Law Judge Thomas Shedden at the Office of Administrative Hearings in Phoenix, Arizona. Petitioner Kenneth Nowell, a resident, filed a petition alleging that Respondent Greenfield Village RV Resort Association, Inc. violated its Covenants, Conditions, and Restrictions (CC&Rs) and Bylaws.

The dispute centered on the Association’s authority and procedures regarding three specific actions: the purchase of land at 4711 East Main Street, the purchase of an option to buy that land, and the construction of a beverage serving center. The Petitioner bore the burden of proof by a preponderance of the evidence.

**Key Arguments and Legal Findings**

**1. Land Purchase and Assessment**
The Association held an election in February 2014 where the membership voted to purchase and improve specific land.
* **Petitioner’s Argument:** Nowell alleged the Association lacked the authority to acquire property and that the assessment used to fund the purchase required approval by two-thirds of the membership.
* **Legal Finding:** The ALJ found that the Articles of Incorporation expressly authorize the Association to acquire property. Regarding the vote, the evidence showed the land was funded by a general assessment, not a special assessment as alleged. Regardless, the CC&Rs and Bylaws require only a majority vote for ratification of assessments, not a two-thirds vote. The assessments were properly ratified .

**2. The $20,000 Land Option**
Prior to the 2014 election, the Board authorized a $20,000 expenditure from operating funds to secure an option on the land.
* **Petitioner’s Argument:** Nowell argued the Association was required to hold a membership vote to authorize this expenditure.
* **Legal Finding:** The Bylaws require a membership vote only for capital expenditures *in excess* of $20,000. Because the expenditure did not exceed this threshold, Nowell failed to prove a vote was required.

**3. The Beverage Serving Center**
The Board approved the construction of a new beverage serving center to replace an old facility located in a flood-prone retention basin

Case Participants

Petitioner Side

Kenneth Nowell (Petitioner)
Resident appearing on his own behalf

Respondent Side

Steven D. Leach (attorney)
Jones, Skelton & Hochuli, P.L.C.
Attorney for Respondent
Ron Thorstad (witness)
Greenfield Village RV Resort Association, Inc.
Association President; testified at hearing

Neutral Parties

Thomas Shedden (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Gene Palma (Agency Director)
Department of Fire Building and Life Safety
Director listed on transmission
Greg Hanchett (OAH Director)
Office of Administrative Hearings
Interim Director; signed Certification of Decision
Debra Blake (Agency Director)
Department of Fire Building and Life Safety
Director; recipient of certified decision
Joni Cage (Agency Staff)
Department of Fire Building and Life Safety
c/o for Debra Blake
Rosella J. Rodriguez (OAH Staff)
Office of Administrative Hearings
Signed mailing certificate

Pontius, Ellsworth vs. Sun City Grand Community Association Management

Posted on August 20, 2007 by [email protected]

Case Summary

Case ID	07F-H067037-BFS
Agency	DFBLS
Tribunal	OAH
Decision Date	2007-08-20
Administrative Law Judge	Michael K. Carroll
Outcome	no
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Ellsworth Pontius	Counsel	—
Respondent	Sun City Grand Community Association Management	Counsel	—

Alleged Violations

Declaration Section 10.4(b); Guidelines Section A.2

Outcome Summary

The Administrative Law Judge denied the petition. The Judge found that the Association's governing documents permitted the Architectural Review Committee to grant conditional approvals. The Committee's response to the Petitioner was unambiguous in disapproving the location 12 feet from the garage corner, which Petitioner subsequently used.

Why this result: The Petitioner's interpretation that the Committee could not issue conditional approvals was incorrect under the governing documents.

Key Issues & Findings

Failure to follow governing documents regarding architectural approval

Petitioner alleged Respondent failed to follow governing documents by granting a conditional approval for an evaporative cooler rather than a strict approval or disapproval. Petitioner installed the cooler in a location specifically noted as disapproved by the Committee.

Orders: The Petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

Decision Documents

07F-H067037-BFS Decision – 174393.pdf

Uploaded 2026-01-25T15:20:47 (92.4 KB)

Briefing Doc – 07F-H067037-BFS

Briefing on Administrative Law Judge Decision: Pontius v. Sun City Grand Community Association Management

Executive Summary

This briefing details the findings and conclusions of the Office of Administrative Hearings for the State of Arizona in the matter of Ellsworth Pontius v. Sun City Grand Community Association Management (No. 07F-H067037-BFS). The case centers on a dispute regarding the installation of an evaporative cooler on the exterior of a residence and whether the Sun City Grand Architectural Review Committee (the Committee) followed its governing documents during the approval process.

The Petitioner, Ellsworth Pontius, contended that the Association’s approval form was ambiguous and that the Committee lacked the authority to issue conditional approvals under its current guidelines. The Administrative Law Judge (ALJ), Michael K. Carroll, ultimately denied the petition. The ruling established that while the Association’s communication may have been “sloppy,” the intent was clear, and the governing documents permitted the Committee to approve or disapprove specific segments of a proposal.

Case Background

On June 11, 2007, Ellsworth Pontius filed a petition alleging that the Respondent, Sun City Grand Community Association Management, failed to follow its governing documents regarding the approval of an evaporative cooler.

The Application Process

In June 2006, the Petitioner submitted a request to install an evaporative cooler. The approval process involved two iterations of forms and diagrams:

• Initial Submission: The original form included three options for the Committee: “Approved,” “Approved as Noted,” and “Disapproved.”

• Revised Submission: At the Respondent’s request, the Petitioner resubmitted the application on a newer form which only offered two options: “APPROVED” or “DISAPPROVED.”

• Proposed Locations: The Petitioner provided a diagram indicating two choices for the cooler’s placement on the exterior garage wall:

◦ Option 1: 24 feet from the front corner of the garage.

◦ Option 2: 12 feet from the front corner of the garage.

The Committee’s Response

The Committee returned the form with “APPROVED” checked. However, the form included conflicting handwritten notations and attachments:

1. A note stating “Option #1 only #2 disapproved” was written and then crossed out.

2. A second note stated “only approved with wall surrounding evaporative cooler.”

3. An attached diagram featured an arrow pointing to Option 1 (24 feet) labeled “Approved Location,” while Option 2 (12 feet) was circled and marked “This location disapproved.”

4. A plot plan provided by the Committee marked the 12-foot distance in red ink as “disapproved.”

Key Themes and Legal Arguments

1. Interpretive Rigidity vs. Intent of Governing Documents

The Petitioner argued that because the newer form lacked a “Conditional Approval” checkbox, the Committee was forced into a binary choice: approve the entire application or disapprove it entirely. He maintained that by checking “Approved,” the Committee had sanctioned his entire plan, including his second choice of location.

The ALJ rejected this interpretation, citing the underlying authority of the Association’s Declaration and Guidelines:

• Declaration Section 10.4 (b): States the Reviewing Body shall advise the party of “(i) the approval of Plans, or (ii) the segments or features of the Plans which are deemed… to be inconsistent… and suggestions… for the curing of such objections.”

• Guidelines Section A.2: Defines “Disapproved” as a state where the “entire document submitted is not approved,” but notes that the response must set forth reasons and suggestions for conformity.

The Judge concluded: “Clearly, both the Declaration and the Guidelines contemplate that the Committee may approve applications subject to certain conditions being satisfied by the applicant.”

2. Ambiguity and “Sloppy” Documentation

The Petitioner argued that the crossed-out notes and the “Approved” checkbox created a level of ambiguity that justified his decision to install the cooler at the 12-foot location (Option 2), which he found more suitable due to interior garage cabinets.

The ALJ characterized the Committee’s paperwork as “sloppy,” but legally “unequivocal.” The inclusion of the plot plan with red ink specifically disapproving the 12-foot location was deemed sufficient to communicate the Committee’s intent.

3. The Spirit of Cooperation

A central theme in the decision was the expectation of reasonableness between homeowners and associations. The ALJ noted that Committee members are often volunteers without technical expertise. The ruling emphasized:

• Clarification: If the Petitioner found the response confusing, he should have requested clarification before proceeding with installation.

• Mutual Cooperation: “Inherent in any contract, and particularly one between neighbors, is a spirit of mutual cooperation and reasonableness.”

Evidence Summary

Evidence Item

Description

Significance

Exhibit P1

Amended and Restated Declaration (CC&Rs)

Established the legal right of the ARC to reject “segments or features” of a plan.

Exhibit P3

Design Guidelines

Outlined the procedure for approval and the definitions of response forms.

Exhibit P4

New Approval Form

Contained only “Approved” and “Disapproved” boxes; the core of Petitioner’s “binary” argument.

Exhibit P5

Plot Plan with Red Ink

Provided clear visual evidence that the 12-foot location was specifically rejected.

Exhibit P7

New Residential Design Guideline

A guideline passed after the violation that actually authorized the 12-foot location.

Conclusion of the Administrative Law Judge

The ALJ determined that the Petitioner violated the Declaration and Guidelines by installing the cooler at the 12-foot location. Despite the Petitioner’s technical arguments regarding the layout of the approval form, the legal authority of the Declaration superseded the design of the form itself.

Final Order: The Petition was denied on August 20, 2007.

Post-Hearing Context: During the hearing, Respondent’s president, Rocky Roccanova, noted that a new design guideline had since been passed which would allow the 12-foot installation. He suggested that if the Petitioner resubmitted his application, it would likely be approved with minor modifications regarding paint color and screening shrubs. Nevertheless, the Petitioner’s failure to follow the original, specific (if poorly communicated) approval was a violation.

Study Guide – 07F-H067037-BFS

Case Analysis: Pontius v. Sun City Grand Community Association Management

This study guide provides an overview and analysis of the administrative law case Ellsworth Pontius vs. Sun City Grand Community Association Management (No. 07F-H067037-BFS). The case centers on disputes regarding architectural review procedures and the interpretation of community governing documents.

Short-Answer Quiz

1. What was the core allegation Ellsworth Pontius made in his petition against the Sun City Grand Community Association?

2. Describe the two location options for the evaporative cooler that the Petitioner originally proposed on his application diagram.

3. What specific notations did the Architectural Review Committee (ARC) make on the Petitioner’s approval form regarding his two location options?

4. Why did the Petitioner choose to install the cooler 12 feet from the front corner of the garage instead of his “first choice” location?

5. What notice did the Petitioner receive after he completed the installation of the evaporative cooler?

6. On what grounds did the Petitioner argue that the Committee’s approval process was limited to only “approved” or “disapproved”?

7. How did Section 10.4 (b) of the Declaration define the responsibilities of the Reviewing Body when responding to a plan submission?

8. According to the Design Guidelines, what information must be included in a “Disapproved” response?

9. What did Respondent’s president, Rocky Roccanova, testify regarding the Association’s rules after the Petitioner’s cooler was already installed?

10. What was the Administrative Law Judge’s final conclusion regarding the alleged ambiguity of the Committee’s response?

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Quiz Answer Key

1. Answer: The Petitioner alleged that the Respondent failed to follow its own governing documents when granting approval for the installation of an evaporative cooler on the exterior of his residence. He specifically challenged the Committee’s authority to impose conditions or specific locations if they marked the form as “Approved.”

2. Answer: The Petitioner’s first choice was to place the cooler 24 feet from the front corner of the garage. His second choice was a location 12 feet from the front corner of the garage.

3. Answer: The Committee checked the “APPROVED” box but included handwritten notes stating “only approved with wall surrounding evaporative cooler” and specifically marked the diagram to show the 24-foot location was approved while the 12-foot location was disapproved. They also provided a plot plan where the 12-foot distance was circled in red ink and marked “disapproved.”

4. Answer: After receiving the form, the Petitioner discovered that built-in cabinets occupied much of the interior garage wall at the 24-foot location. Consequently, he determined the 12-foot location was more suitable for the installation.

5. Answer: The Petitioner received a notice of violation from the Committee stating that he had violated the Committee Guidelines and the Declaration. This was because he installed the cooler in a location different from the one specifically approved by the Committee.

6. Answer: The Petitioner argued that the newer approval form (Exhibit P4) only contained two options: “Approved” or “Disapproved.” He contended that since the “Approved” box was checked, any attempt by the Committee to reject a specific part of the plan was invalid because they did not select “Disapproved” and request a resubmission.

7. Answer: The Declaration required the Reviewing Body to advise the party in writing of either the approval of the plans or the specific segments and features deemed inconsistent with the Declaration or Guidelines. If parts were inconsistent, the body was required to provide reasons and suggestions for curing the objections.

8. Answer: The Guidelines stated that a “Disapproved” status meant the entire document was not approved and no work could commence. The response was required to set forth the reasons for disapproval and offer suggestions for bringing the document into conformity.

9. Answer: Roccanova testified that the Association had passed a new residential design guideline that actually authorized cooler installations at the 12-foot location the Committee had originally rejected. He noted that if the Petitioner resubmitted his application, it would likely be approved with only minor modifications.

10. Answer: The Judge concluded that while the Committee’s response may have been “sloppy,” it was not ambiguous. The Judge ruled that the attached plot plans were unequivocal in showing that the 12-foot location was disapproved and that the Petitioner should have sought clarification before proceeding.

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Essay Questions

1. Procedural Precision vs. Substantive Intent: Analyze the Administrative Law Judge’s argument that community documents do not require “technical precision.” Discuss how this perspective affects the balance of power between homeowners and volunteer boards.

2. The Evolution of Governing Documents: Compare the original approval form (Exhibit P6) with the revised form (Exhibit P4). Explain how the removal of the “Approved as Noted” option contributed to the legal dispute and how the Judge reconciled this change with the overarching Declaration.

3. The Duty of Clarification: The Judge suggested that the Petitioner had a responsibility to request clarification from the Committee before installing the cooler. Discuss the legal and ethical implications of a homeowner’s “duty to cooperate” when faced with confusing instructions from a governing body.

4. Contractual Spirit in Homeowners Associations: Explore the Judge’s statement that a “spirit of mutual cooperation and reasonableness” is inherent in contracts between neighbors. How does this principle influence the interpretation of strict legal text in the context of CC&Rs?

5. Retroactive Rule Changes and Compliance: Even though the Association eventually changed its rules to allow the Petitioner’s preferred location, the Judge still denied the petition. Evaluate the importance of following the process of approval versus following the substance of the current rules.

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Glossary of Key Terms

• Administrative Law Judge (ALJ): A judge who presides over hearings and adjudicates disputes involving government agencies or specific statutory petitions, as seen in this case within the Office of Administrative Hearings.

• Amended and Restated Declaration of Covenants, Conditions, and Restrictions (Declaration): The primary governing document for a common interest community that sets forth the rights and obligations of the association and the owners.

• Architectural Review Committee (Committee/ARC): The body within a community association responsible for reviewing and approving or denying requests for exterior modifications to properties.

• Design Guidelines (Guidelines/RDGs): A set of specific procedures and standards for the submission and approval of architectural plans, which supplement the broader Declaration.

• Disapproved: A status indicating that a submitted plan is rejected in its entirety, meaning no work may commence, and usually requiring a resubmission with revisions.

• Evaporative Cooler: The specific exterior appliance at the center of the dispute, which the Petitioner sought to install on his garage wall.

• Findings of Fact: The portion of a legal decision where the judge outlines the events and circumstances that were proven to be true based on the evidence and testimony presented.

• Petitioner: The party who files a petition or claim; in this case, Ellsworth Pontius.

• Plot Plan: A diagram showing the layout of a building and its location on a lot, used by the Committee to mark approved and disapproved locations for the cooler.

• Respondent: The party against whom a petition or claim is filed; in this case, the Sun City Grand Community Association Management.

Blog Post – 07F-H067037-BFS

The “Approved” Checkbox Trap: How HOA Sloppy Paperwork Can Lead to Legal Disaster

Navigating the bureaucratic maze of Homeowners Association (HOA) approvals is a ritual of modern homeownership that few enjoy. We dutifully fill out forms, attach diagrams, and wait for that one golden word to be checked on the response sheet: “APPROVED.” In a world governed by rigid rules and fine print, that checkbox feels like a definitive green light—a contractually binding “go” for your home improvement dreams.

However, the legal saga of Pontius v. Sun City Grand Community Association serves as a sobering cautionary tale for any homeowner who believes a checkbox is the final word. Mr. Pontius saw the “APPROVED” box checked on his application for an evaporative cooler and proceeded with his installation. Yet, he still found himself locked in a courtroom battle, facing a violation notice for doing exactly what he thought the association had authorized. This case reveals a “bureaucratic bait-and-switch” that every homeowner should study before picking up a hammer.

Takeaway 1: Sloppy Paperwork Isn’t a “Get Out of Jail Free” Card

The friction in the Pontius case began with an administrative hurdle. Mr. Pontius originally submitted a form (Exhibit P6) that offered the Committee three clear choices: “Approved,” “Approved as Noted,” or “Disapproved.” However, he was then forced to resubmit on a newer form (Exhibit P4) that stripped away the middle ground, leaving only “APPROVED” or “DISAPPROVED.”

When the Committee returned this new form, the “APPROVED” box was checked, but the paperwork was a mess of conflicting signals. A handwritten note reading “Option #1 only #2 disapproved” had been physically crossed out and replaced with a different note regarding a “wall surrounding [the] evaporative cooler.” To a homeowner, this looked like the specific disapproval of his second choice had been rescinded.

Administrative Law Judge (ALJ) Michael K. Carroll acknowledged the paperwork was “sloppy,” but ruled it was not “ambiguous.” The court looked past the messy handwriting to the specific diagrams attached to the form.

The lesson? Legal weight is given to the “entirety” of a response. You cannot simply cling to a favorable checkbox while ignoring the red ink on the attachments.

Takeaway 2: The Logic of “Ask, Don’t Assume”

The conflict escalated when Mr. Pontius realized that his “approved” location—24 feet from the garage corner—was impractical due to interior cabinets that blocked the installation. He decided to proceed with his second choice, the 12-foot location, reasoning that because the “Disapproved” note was crossed out and the main box said “Approved,” he was in the clear.

The ALJ took a dim view of this unilateral move. The ruling established that if an HOA’s response is contradictory or confusing, the burden of communication shifts to the homeowner. You don’t get to choose the interpretation that suits your interior design needs.

This “duty to clarify” means that the moment you spot an inconsistency in your HOA’s paperwork, your first move should be to get a written clarification, not a contractor.

Takeaway 3: The “Volunteer Standard” of Precision

As a homeowner advocate, it’s easy to demand that HOA boards operate with the professional precision of a high-end law firm. However, the Pontius ruling highlights a grounded legal reality: these boards are comprised of neighbors who are volunteers, not technical experts.

The ALJ found that the law does not require HOAs to act with “technical precision,” because the governing documents are a contract between neighbors, not a penal code. The judge specifically pointed to Section 10.4(b) of the Declaration and Section A.2 of the Guidelines, which allow the Committee to approve segments of a plan or offer suggestions for curing objections. In the eyes of the court, the underlying contract (the Declaration) overrides a simple checkbox. The ALJ noted that community living requires a “spirit of mutual cooperation,” and the lack of professional-grade administrative work did not invalidate the Association’s right to enforce its standards.

Takeaway 4: The Irony of Being “Right” at the Wrong Time

The most frustrating twist in this case is that Mr. Pontius was eventually proven right—technically. During the dispute, Sun City Grand actually updated its Residential Design Guidelines to permit the 12-foot location he had fought for.

Under the new rules, his cooler would have been perfectly fine. However, this didn’t save him. The judge ruled that he had still violated the process and the specific approval that existed at the time. The absurdity of the situation was compounded by testimony from Association President Rocky Roccanova, who admitted that if Pontius simply resubmitted his application under the new rules, it would likely be approved with “minor modifications”—specifically, a new coat of paint and the planting of a shrub.

This highlights a fundamental truth: in the world of HOAs, the “process” is often treated as more sacred than the project itself. Having a good idea doesn’t excuse bypassing the bureaucratic machinery.

Summary: The Spirit of the Contract

The Pontius case reminds us that community documents are viewed by the courts as contracts rooted in reasonableness rather than rigid checklists. While it is tempting to treat an HOA as a faceless bureaucracy to be outmaneuvered via “gotcha” moments in sloppy paperwork, the legal system prioritizes transparency and mutual effort.

Success in a common-interest community requires homeowners to look beyond the checkboxes and engage with the actual intent of the guidelines.

In a world of rigid rules and messy paperwork, is the “spirit of cooperation” still a viable standard for modern community living?

Case Participants

Petitioner Side

Ellsworth Pontius (petitioner)
Sun City Grand
Resident and member of Sun City Grand Community Association

Respondent Side

Rocky Roccanova (board president)
Sun City Grand Community Association Management
Appeared on behalf of Respondent; testified

Neutral Parties

Michael K. Carroll (ALJ)
Office of Administrative Hearings
Robert Barger (agency official)
Department of Fire Building and Life Safety
Recipient of original decision via mail
Joyce Kesterman (agency staff)
Department of Fire Building and Life Safety
Recipient of original decision via mail (ATTN)

Martin, Sieglinde -v- Bells 26 Homeowners Association

Posted on July 26, 2007 by [email protected]

Case Summary

Case ID	07F-H067020-BFS
Agency	Department of Fire, Building and Life Safety
Tribunal	Office of Administrative Hearings
Decision Date	2007-07-26
Administrative Law Judge	Michael K. Carroll
Outcome	no
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Sieglinde Martin	Counsel	Andrew D. Lynch
Respondent	Bells 26 Homeowners Association	Counsel	R. Corey Hill

Alleged Violations

Declaration, Section 12 B
Declaration, Section 12 B; Declaration, Section 13
Alleged lack of notice and closed meetings
Constitution and By-Laws; Declaration, Section 9 C
Alleged additions extending into common areas

Outcome Summary

The Administrative Law Judge denied the Petition in its entirety. Claims regarding landscaping and painting were rejected based on the HOA taking reasonable steps or Petitioner's own alterations. The claim regarding an ineligible board member was deemed moot as the member resigned. Other claims lacked evidence.

Why this result: Petitioner failed to provide sufficient evidence for claims regarding meetings, encroachments, and painting. Landscaping issues were addressed by the HOA's reasonable efforts. The board composition issue was moot.

Key Issues & Findings

Failure to maintain common grounds and landscaping

Petitioner alleged trees she planted died from lack of water and common areas were poorly maintained. Respondent acknowledged issues but showed reasonable steps were being taken to correct them.

Orders: Denied; Respondent met obligation to take reasonable steps.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

Failure to properly paint Petitioner’s exterior door

Petitioner claimed exterior door was poorly painted and a strip exposed by carpet removal was left unpainted.

Orders: Denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

Failure to hold meetings open to the membership and properly notify membership

Petitioner alleged meetings were not open or properly noticed.

Orders: Denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

Appointment of non-owner to the Board

A former owner who transferred title was appointed to the Board. ALJ found this violated governing documents requiring officers to be owners.

Orders: Denied (Moot).

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

Encroachment of private structures into common areas

Petitioner alleged some units built additions extending into common areas.

Orders: Denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

Decision Documents

07F-H067020-BFS Decision – 172696.pdf

Uploaded 2026-01-25T15:19:58 (86.1 KB)

Briefing Doc – 07F-H067020-BFS

Briefing Document: Sieglinde Martin vs. Bells 26 Homeowners Association (Case No. 07F-H067020-BFS)

Executive Summary

This briefing document analyzes the administrative law judge (ALJ) decision regarding a dispute between Sieglinde Martin (Petitioner) and the Bells 26 Homeowners Association (Respondent). On January 5, 2007, Petitioner filed a petition alleging multiple violations of the Association’s governing documents and state statutes, primarily concerning property maintenance and board governance.

Following a hearing on July 25, 2007, the Administrative Law Judge, Michael K. Carroll, denied the petition. The central takeaway of the ruling is that while the Association experienced documented difficulties in maintaining common areas, it fulfilled its legal obligations by expending assessments and taking reasonable steps toward remediation. Additionally, the ALJ clarified that individual unit alterations by owners can shift maintenance responsibilities away from the Association. While one instance of improper board composition was identified, the issue was rendered moot by the individual’s resignation.

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Detailed Thematic Analysis

The legal proceedings focused on five distinct allegations brought forth by the Petitioner. The following sections synthesize the evidence, findings of fact, and conclusions of law for each theme.

1. Common Ground Maintenance and Landscaping Standards

The Petitioner argued that the Respondent failed to maintain common grounds, specifically citing dead grass, untrimmed hedges, and the poor health of 12 Cypress trees she planted in a common area in January 2004.

• Evidence and Testimony:

◦ Tree Maintenance: Petitioner obtained verbal permission from a board member to plant the trees at her own expense. She later connected “bubblers” to the main irrigation system, but a tree expert report (Exhibit P6) concluded the trees developed poorly due to inadequate water.

◦ General Landscape Decline: Petitioner provided photographic evidence (Exhibit P1) of dead grass and untrimmed hedges.

◦ Association Defense: The Board’s former president, Gene Holcomb, admitted to landscape problems but attributed them to the inability to retain qualified contractors. The Board had fired two consecutive landscaping companies for poor performance, including failure to aerate, fertilize, and plant winter grass.

• Legal Conclusion:

◦ The Association’s Declaration (Section 12 B) requires the Board to “use and expend the assessments collected to maintain, care for and preserve the common elements.”

◦ The ALJ ruled that the Board’s only obligation is to expend assessments and take reasonable steps to maintain the property.

◦ The failure of the landscaping to meet the Petitioner’s expectations did not constitute a violation, as evidence showed the Board was actively attempting to correct the issues through new contracts and communication with members (Exhibits P13 and P15).

2. Exterior Maintenance and Unit Alterations

The Petitioner alleged the Association failed to properly paint her exterior door and neglected to paint a strip below the threshold.

• Findings of Fact:

◦ A painting contractor was hired in 2005 to paint all unit doors.

◦ The Respondent’s witness testified the work was consistent across the property with no apparent defects.

◦ The unpainted strip below the threshold resulted from the Petitioner removing indoor/outdoor carpet to install ceramic tile after the painting contract was completed.

• Legal Conclusion:

◦ Section 13 of the Declaration: While the Association has the authority to repair areas exposed by an owner’s alterations, it is not obligated to do so.

◦ Furthermore, if the Association chose to paint the area, it would be permitted to assess the Petitioner for the cost because the repair was necessitated by her own unit alterations.

3. Board Governance and Membership Requirements

The Petitioner challenged the appointment of Gary Bodine to the Board of Management, alleging he was not a unit owner.

Entity/Element

Detail

Individual Involved

Gary Bodine

Status Change

Executed a quitclaim deed in February 2005, transferring interest in his unit.

Governance Conflict

The Association Constitution and By-Laws define “membership” as “owners” and require officers to be elected from the membership.

Outcome

The ALJ found his appointment violated governing documents, but the issue was moot because Bodine had already resigned.

4. Meeting Transparency and Encroachments

The Petitioner raised concerns regarding the lack of open meetings and the encroachment of private structures into common areas.

• Findings: The Petitioner failed to present any evidence to support these claims.

• Legal Conclusion: Due to the lack of evidence regarding improper notice of meetings or unauthorized structural extensions, these claims were dismissed.

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Final Administrative Order

The Administrative Law Judge issued the following order on July 26, 2007:

1. Denial of Petition: All claims within the petition were denied.

2. Finality: This Order serves as the final administrative decision and is not subject to a request for rehearing under A.R.S. §41-2198.02 (B).

Key Entities and Representatives:

• Administrative Law Judge: Michael K. Carroll

• Petitioner Counsel: Andrew Lynch, The Lynch Law Firm

• Respondent Counsel: Corey Hill, The Cavanagh Law Firm

• Agency Oversight: Robert Barger, Director, Department of Fire, Building and Life Safety

Study Guide – 07F-H067020-BFS

Administrative Law Judge Decision: Martin v. Bells 26 Homeowners Association Study Guide

This study guide provides a comprehensive review of the legal dispute between Sieglinde Martin and the Bells 26 Homeowners Association. It examines the specific allegations, the findings of fact presented during the 2007 administrative hearing, and the subsequent legal conclusions that led to the denial of the petition.

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Short-Answer Quiz

1. What was the Petitioner’s primary complaint regarding the Cypress trees she planted in the common area?

2. How did the Respondent explain the poor maintenance of the community’s landscaping?

3. According to Section 12 B of the Declaration, what is the Board’s specific obligation regarding assessments and maintenance?

4. Why did the Administrative Law Judge (ALJ) conclude that the Association did not violate the Declaration regarding the Cypress trees?

5. What specific issue did the Petitioner have with the painting of her exterior door and the area beneath the threshold?

6. Under what circumstances does Section 13 of the Declaration allow the Association to assess a member for repair costs?

7. Why was Gary Bodine’s appointment to the Board of Management legally problematic according to the Association’s governing documents?

8. Why did the ALJ determine that the issue of Gary Bodine’s board membership was moot?

9. What was the outcome of the Petitioner’s claims regarding non-open meetings and the encroachment of private structures?

10. What is the finality status of the Order issued by Administrative Law Judge Michael K. Carroll?

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Answer Key

1. What was the Petitioner’s primary complaint regarding the Cypress trees she planted in the common area? The Petitioner alleged that the 12 Cypress trees she planted had developed poorly because they did not receive adequate water from the main irrigation system. She supported this claim with a report from a tree expert who concluded the poor development was due to a lack of sufficient hydration.

2. How did the Respondent explain the poor maintenance of the community’s landscaping? The Respondent’s former Board president attributed landscaping problems to the Association’s inability to retain a qualified landscaping service. He noted that previous contractors had failed to properly aerate the soil, fertilize, or plant winter grass, leading the Board to fire multiple companies in succession.

3. According to Section 12 B of the Declaration, what is the Board’s specific obligation regarding assessments and maintenance? Section 12 B requires the Board to use and expend the assessments it collects to maintain, care for, and preserve the common elements, buildings, grounds, and improvements. It does not guarantee a specific aesthetic outcome but dictates how collected funds must be directed.

4. Why did the Administrative Law Judge (ALJ) conclude that the Association did not violate the Declaration regarding the Cypress trees? The ALJ found that the Association was using assessments to provide water to the trees and had taken reasonable steps to improve the landscaping after recognizing problems. Because the Declaration only requires the Board to use assessments for maintenance, the Petitioner’s dissatisfaction with the amount of water did not constitute a legal violation.

5. What specific issue did the Petitioner have with the painting of her exterior door and the area beneath the threshold? The Petitioner was unhappy with the quality of the paint job performed by the Association’s contractor and noted that a strip beneath the door was left unpainted. However, evidence showed the unpainted strip was only exposed after the Petitioner removed a carpet strip to install tile, an action taken after the painter had finished his contract.

6. Under what circumstances does Section 13 of the Declaration allow the Association to assess a member for repair costs? Section 13 authorizes the Association to repair areas of the exterior, but it also permits the Association to charge the member for those costs if the repair was made necessary by the member’s own actions. In this case, the ALJ noted that if the Association chose to paint the area exposed by the Petitioner’s tile installation, they could assess her for that cost.

7. Why was Gary Bodine’s appointment to the Board of Management legally problematic according to the Association’s governing documents? While the Respondent argued ownership was not required, the Constitution and By-Laws define “membership” as the “owners” of the twenty-six units. Because the By-Laws require officers to be elected from the membership, Gary Bodine—who had transferred his interest via quitclaim deed—was ineligible to serve.

8. Why did the ALJ determine that the issue of Gary Bodine’s board membership was moot? The ALJ determined the issue was moot because Gary Bodine had already resigned from the Board by the time the matter was being decided. Although his membership had violated governing documents, his departure resolved the conflict, leaving no further action for the court to take.

9. What was the outcome of the Petitioner’s claims regarding non-open meetings and the encroachment of private structures? Both claims were denied because the Petitioner failed to present any evidence to support them. There was no evidence of meetings held without proper notice or evidence establishing that unit additions had extended into common areas.

10. What is the finality status of the Order issued by Administrative Law Judge Michael K. Carroll? The Order is the final administrative decision of the case. Pursuant to A.R.S. §41-2198.02 (B), the decision is final by statute and is not subject to a request for rehearing.

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Essay Questions

1. The Standard of Maintenance vs. Member Expectations: Analyze the ALJ’s distinction between a failure to maintain property and a failure to meet a member’s personal expectations. How does the language of the Declaration (Section 12 B) protect the Board from liability regarding the quality of landscaping?

2. Governance and Property Rights: Discuss the implications of the Gary Bodine case. Why is the distinction between “owner” and “resident” significant in the context of the Association’s Constitution and By-Laws, and how does this impact the legality of Board appointments?

3. Burden of Proof in Administrative Hearings: Several of the Petitioner’s claims were dismissed for a lack of evidence. Evaluate the importance of evidentiary support (such as photographs, expert reports, and testimony) in the context of this hearing and how the absence of evidence influenced the final Order.

4. Mitigation and Board Responsibility: The Board acknowledged problems with landscaping but was not found in violation of the Declaration. Explain how the Board’s documented attempts to rectify the situation (firing contractors, issuing newsletters) served as a defense against the allegation of failure to maintain the grounds.

5. Individual Alterations and Association Liability: Using the exterior door painting dispute as a case study, discuss the legal boundaries between an Association’s duty to maintain unit exteriors and an individual member’s responsibility for repairs necessitated by their own modifications.

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Glossary of Key Terms

• Administrative Law Judge (ALJ): A judge who moves over trials and adjudicates disputes involving administrative agencies.

• Assessments: Fees collected from association members to be used for the maintenance and preservation of common elements and improvements.

• Common Elements/Areas: Portions of the homeowners association property intended for the use and enjoyment of all members, typically maintained by the association rather than individual owners.

• Constitution and By-Laws: Governing documents of an association that define membership and set the rules for the election of officers and the operation of the Board.

• Declaration of Restrictions: A legal document (often referred to as the “Declaration”) that outlines the obligations of the Board and the rights/restrictions of the homeowners.

• Moot: A point or issue that is no longer subject to legal proceedings because the underlying controversy has been resolved or has ceased to exist (e.g., a board member resigning before they can be removed).

• Petitioner: The party who files a petition or brings a legal case against another (in this case, Sieglinde Martin).

• Quitclaim Deed: A legal instrument used to transfer interest in real property; in this case, used by Gary Bodine to transfer his ownership to another person.

• Respondent: The party against whom a petition is filed or a legal proceeding is brought (in this case, Bells 26 Homeowners Association).

• Section 12 B: A specific provision in the Association’s Declaration regarding the Board’s duty to expend assessments on the maintenance of common grounds and building exteriors.

Blog Post – 07F-H067020-BFS

The Contractual Immunity of Mediocrity: Why “Reasonable Effort” Leaves Homeowners in the Dust

1. The Hook: The Illusion of Control in Community Living

For many, buying into a Homeowners Association (HOA) feels like signing a peace treaty. You trade a slice of your individual autonomy for the assurance of “premium” community standards and protected property values. However, as any seasoned legal analyst will tell you, the deck is structurally stacked in favor of the Board. The grand bargain of community living often reveals itself to be a cautionary tale of procedural compliance versus actual results.

The case of Sieglinde Martin vs. Bells 26 HOA serves as a stark reminder of this reality. Martin approached the Office of Administrative Hearings with a litany of legitimate grievances: dead grass, dying trees, and an ineligible Board member. Yet, despite physical evidence of neglect and admissions of failure from the Board itself, her petition was almost entirely denied. Her experience underscores a chilling legal truth for homeowners: a Board’s “reasonable” attempt to manage—no matter how incompetent the execution—is often enough to grant them a form of contractual immunity.

2. The Low Bar of “Reasonable Effort”: Why Brown Lawns are Legally Acceptable

Homeowners often mistakenly believe that because they pay assessments, they are entitled to a specific aesthetic result, such as lush, green landscaping. In Martin vs. Bells 26, the petitioner presented photographic evidence of dead grass and untrimmed hedges. Even the former Board president admitted they had failed to fertilize, aerate, or plant winter grass.

However, the law does not demand perfection; it demands a process. The judge found that because the Board was actively spending assessment funds and attempting to “cure” the problem—even by repeatedly firing and hiring failed landscaping companies—they were meeting their legal duty. Crucially, the Board used the litigation period to bolster their defense, sending letters and newsletters in June and July of 2007 (Exhibits P13 and P15) to demonstrate active communication and planning. By showing they were “trying” right before the hearing, the Board successfully shielded themselves from liability.

Analysis: This represents a steep uphill battle for homeowners. To win, a petitioner must prove a total abandonment of duty, not just poor results. If a Board is spending your money on a failing solution, they are technically fulfilling their obligation. In the eyes of the law, a busy Board is a compliant Board, regardless of the state of the grass.

3. Handshake Hazards and the Irony of “Footnote 1”

The dispute over twelve Cypress trees planted by Martin highlights the danger of relying on verbal agreements in a governed community. Martin claimed a single board member, Jack Bahr, gave her verbal permission to plant the trees at her own expense. When the trees failed due to a lack of water, she sued for maintenance failure.

The HOA attempted a heavy-handed defense, citing a rule requiring written permission from three board members—a rule that didn’t even exist when the trees were planted. While the judge saw through this “late-adopted” rule (as noted in Footnote 1 of the decision), the victory for Martin was non-existent. She still lost because she couldn’t prove the HOA owed her private trees “special” water service beyond the admittedly poor service provided to the rest of the common area.

Analysis: This reveals the “he-said, she-said” trap. Without a formal, written agreement with the Board as a collective body, any private improvement you make is a legal orphan. The irony is palpable: even when the Board tries to retroactively apply rules to burn you, you can still lose the war if the underlying Declaration doesn’t explicitly guarantee the “premium” service you expected.

4. The Modification Trap: You Break It, You Own It

In another claim, Martin argued the HOA failed to paint a strip of her exterior door threshold. The evidence, however, showed that Martin had removed a strip of carpet to install ceramic tile, leaving the area exposed.

The judge’s ruling was a masterclass in the “modification trap.” Under Section 13 of the Declaration, once a homeowner alters a common element, the HOA’s maintenance duty evaporates. Not only was the HOA not obligated to paint the strip, but the judge noted that if the HOA did choose to fix it, they could legally assess the cost back to Martin.

Analysis: This is a high-impact detail for any DIY-inclined homeowner. Modifying a common element doesn’t just lose you the HOA’s maintenance services; it potentially opens you up to back-charges. By trying to improve her entry, Martin inadvertently signed away her right to have the HOA maintain it, shifting the entire financial and legal burden back to herself.

5. The Hollow Victory: When Winning Doesn’t Change Anything

Perhaps the most frustrating aspect of the Martin case involved Gary Bodine, a non-owner serving on the Board. Martin correctly identified a violation: Bodine had quitclaimed his interest in his unit and was no longer an owner. The Board argued that ownership wasn’t required under Section 9 C of the Declaration.

Here, the legal analyst looks to the “hierarchy of documents.” The judge ruled that the Association’s Constitution and By-Laws were specific: “membership” is defined as “owners,” and officers must be elected from that membership. The By-Laws overrode the Board’s broad interpretation. However, because Bodine resigned before the ruling, the judge declared the issue “moot.”

Analysis: This is the quintessential “hollow victory” of HOA litigation. Martin was legally right, but because of administrative delays and the Board’s ability to “cure” the violation through a well-timed resignation, she received no remedy. It proves that even when you successfully navigate the document hierarchy to prove a violation, the system often allows the Board to escape consequences by simply resetting the board.

6. Summary: The Fine Print of Community Harmony

The Martin vs. Bells 26 ruling confirms a harsh reality: HOA Boards are granted massive deference. If a Board can show they are “trying”—by hiring contractors (even bad ones) or sending out eleventh-hour newsletters—they are legally protected. In the courtroom, “trying and failing” is legally superior to “not trying at all.”

For the homeowner, the lesson is clear: legal duty is about the diligent execution of the Board’s spending powers, not the aesthetic satisfaction of the residents.

Final Thought: Is this broad protection a necessary shield that prevents volunteer boards from being sued into oblivion, or is it a loophole that leaves homeowners completely vulnerable to “reasonable” mediocrity?

Case Participants

Petitioner Side

Sieglinde Martin (Petitioner)
Bells 26 Homeowners Association
Unit owner since October 2003
Andrew Lynch (Attorney)
The Lynch Law Firm
Full name listed as Andrew D. Lynch

Respondent Side

Corey Hill (Attorney)
The Cavanagh Law Firm
Full name listed as R. Corey Hill
Jack Bahr (Board Member)
Bells 26 Homeowners Association
Member of Board of Management who gave permission for trees
Gene Holcomb (Witness)
Bells 26 Homeowners Association
Former Board President; testified regarding landscaping
Gary Bodine (Former Board Member)
Bells 26 Homeowners Association
Transferred ownership but remained on board briefly before resigning

Neutral Parties

Michael K. Carroll (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Robert Barger (Director)
Department of Fire, Building and Life Safety
Recipient of final order
Joyce Kesterman (Agency Staff)
Department of Fire, Building and Life Safety
Recipient of final order (Attention line)

Harris, Mike P. -v- Pointe South Mountain Residential Association

Posted on April 13, 2007 by [email protected]

Case Summary

Case ID	07F-H067017-BFS
Agency	Department of Building, Fire and Life Safety
Tribunal	OAH
Decision Date	2007-04-17
Administrative Law Judge	Brian Brendan Tully
Outcome	partial
Filing Fees Refunded	$550.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Mike P. Harris	Counsel	—
Respondent	Pointe South Mountain Residential Association	Counsel	Lynn M. Krupnik, Kristina L. Pywowarczuk

Alleged Violations

Bylaws Section 2; Bylaws Article IX
CC&Rs; Statutes

Outcome Summary

Petitioner proved technical violations regarding the counting of one ballot (which did not change the election result) and a one-day delay in document production. However, Petitioner failed to prove the majority of the 20 allegations, including claims regarding common area maintenance, financial investments, and meeting conduct. The ALJ ruled the Petitioner was not the prevailing party and denied filing fee reimbursement.

Why this result: While technical violations were found, they resulted in no harm or change in election outcome. Petitioner failed to meet the burden of proof on the remaining substantive claims.

Key Issues & Findings

Election Procedures and Document Inspection

Petitioner alleged improper election handling and delay in document production. Respondent improperly determined Lot 351 was delinquent and excluded the ballot (which did not affect results). Respondent delayed document production by one day.

Orders: Respondent admonished to assure future election ballots are properly counted and that management timely complies with Bylaws Article IX.

Filing fee: $550.00, Fee refunded: No

Disposition: petitioner_win

Cited:

Various Allegations (Maintenance, Funds, Meetings)

Petitioner made approx 20 allegations including improper maintenance, improper investments by Treasurer, failure to allow recording of meetings, and newsletter content. Petitioner failed to sustain burden of proof on these issues.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

Audio Overview

Decision Documents

07F-H067017-BFS Decision – 166129.pdf

Uploaded 2026-01-27T21:08:01 (96.4 KB)

Briefing Doc – 07F-H067017-BFS

Briefing Document: Harris v. Pointe South Mountain Residential Association

Executive Summary

This briefing document summarizes the findings and legal conclusions of the Office of Administrative Hearings (Case No. 07F-H067017-BFS) regarding a dispute between Mike P. Harris (“Petitioner”) and the Pointe South Mountain Residential Association (“Respondent”).

The Petitioner, a homeowner and former director, filed 20 allegations of wrongdoing against the Association. Following a formal evidentiary hearing in March 2007, Administrative Law Judge Brian Brendan Tully found that while the Association committed minor procedural violations regarding election ballot counting and document access, the Petitioner failed to sustain the burden of proof for the vast majority of his claims. The Association was found to have acted within its authority regarding financial investments, maintenance, and the management of board meetings. Consequently, the Petitioner was not deemed the prevailing party and was denied reimbursement for filing fees.

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Analysis of Main Themes and Findings

1. Board Governance and Financial Authority

The investigation addressed several allegations regarding the board’s exercise of authority and its financial management.

• Financial Investments: The Administrative Law Judge (ALJ) ruled that the Association’s treasurer, Dave Harp, acted within his authority when he made two separate $25,000.00 investments with Association funds in May 2004. These investments did not require board approval.

• Property Actions: A Quit Claim Deed for Lot 1585 executed by the Association president, Kay Hatch, was determined to be an error based on a mistaken belief of ownership. The mistake was corrected once recognized, and no damage was caused to the actual property owner.

• Legal and Insurance Obligations: The Association was found to have obtained proper Directors and Officers (D&O) liability insurance. Furthermore, the Association was under no obligation to provide the Petitioner with legal counsel under that policy for this matter.

2. Interpretation of Voting Rights and Election Procedures

A central theme of the dispute involved the interpretation of the CC&Rs (Restated Declaration of Homeowner Benefits and Assurances) regarding member delinquency and voting.

• Suspension of Voting Rights (Article 5.3.2): The CC&Rs state that an owner in arrears for more than fifteen days has their voting rights “suspended automatically.” The ALJ clarified that this suspension is lot-specific. An owner of multiple lots is only disenfranchised regarding the specific lot in arrears and may still vote via their lots that remain in good standing.

• The 2006 Board Election: The Petitioner contested his loss in the 2006 election. The ALJ found one specific error: the Association improperly determined the owner of Lot 351 was delinquent and did not count their ballot.

◦ Impact: Upon opening the ballot during the hearing, it was revealed the owner voted for Frank Frangul and Les Meyers. This did not change the final outcome of the election.

◦ Runoff Elections: The Association was not required to conduct a runoff election for the 2006 cycle.

3. Association Operations and Maintenance

The Petitioner challenged the Association’s performance regarding physical maintenance and contract management.

• Common Area Maintenance: The Respondent was found to maintain common areas in a “reasonable manner.” Testimony intended to prove otherwise from witness Blanch Prokes was stricken from the record because she failed to appear for cross-examination.

• Management and Landscaping Contracts: The board did not fail in its fiduciary duties regarding the property management contract with City Property Management Company (CPMC). Additionally, there is no requirement for the Association to maintain a “comprehensive landscaping contract” as alleged by the Petitioner.

• Content Control: The ALJ ruled that the Association has the right to control the content of its newsletter and was not required to publish articles authored by the Petitioner.

4. Meeting Protocol and Disclosure Compliance

The dispute touched upon the rights of members to record meetings and access Association records.

• Recording of Meetings: The Petitioner failed to establish a legal right to record board meetings with a tape recorder. As these meetings are open to members but not the public, the board acted within its discretion to prohibit recording.

• Notice of Meetings: The Association was found to have provided proper notice for special board meetings.

• Document Access Delays: In December 2006, the property management company provided requested documents to the Petitioner in four days rather than the required three. The ALJ noted this was a violation but determined the Petitioner failed to establish any harm resulting from the one-day delay.

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Legal Conclusions and Order

Violation Found

Outcome/Impact

Failure to count the ballot for Lot 351

Did not affect the 2006 election results.

Failure to allow timely review of the delinquency report

Violation of Bylaws Article IX.

One-day delay in document production

No harm established by Petitioner.

Final Determination

The Administrative Law Judge concluded that the Petitioner failed to sustain the burden of proof on the remaining issues. Because the Petitioner was not the prevailing party, he was not entitled to the reimbursement of the $550.00 filing fee.

Formal Order

The Association was admonished to:

1. Ensure that all future election ballots are properly counted to prevent the disenfranchisement of eligible members, regardless of the impact on the outcome.

2. Ensure that its property management company (CPMC or any successor) complies strictly with the timeline requirements for document access set forth in Article IX of the Bylaws.

Study Guide – 07F-H067017-BFS

Study Guide: Harris v. Pointe South Mountain Residential Association

This study guide provides a comprehensive overview of the administrative hearing between Mike P. Harris and the Pointe South Mountain Residential Association. It explores the legal findings, governing documents, and procedural standards used to resolve disputes within planned community associations.

Part 1: Short-Answer Quiz

Instructions: Provide a 2-3 sentence answer for each of the following questions based on the provided case details.

1. What is the role of the Arizona Department of Building, Fire and Life Safety in homeowner association disputes? The Department is authorized by statute to process petitions from condominium or planned community associations regarding violations of contractual documents or statutes. Once processed, these petitions are forwarded to the Office of Administrative Hearings for formal evidentiary proceedings.

2. What was the Administrative Law Judge’s (ALJ) ruling regarding the suspension of voting rights for owners of multiple lots? The ALJ determined that Article 5.3.2 of the CC&Rs applies to specific lots rather than the individual owner. Therefore, if a member owns multiple lots but is only in arrears for one, they may still vote using the ballots associated with their lots that are in good standing.

3. Why was the testimony of Petitioner’s witness, Blanch Prokes, stricken from the record? Although Prokes provided direct testimony regarding the maintenance of common areas on the first day of the hearing, she failed to appear for cross-examination on the second day. Because the Respondent was unable to cross-examine her, the tribunal was required to strike her direct examination from the record.

4. What authority did the Association Treasurer have regarding the investment of funds? The ALJ found that Treasurer Dave Harp acted within his corporate authority when he made two $25,000 investments on behalf of the association. These actions did not require specific approval from the board of directors to be considered valid.

5. Did the Petitioner have a legal right to record board meetings? The ALJ ruled that the Petitioner failed to establish a legal right to use a tape recorder during board meetings. Consequently, the board maintained the discretion to prohibit recording, as these meetings are open to members but are not considered public forums.

6. How did the ALJ address the error involving the Quit Claim Deed for Lot 1585? The ALJ noted that while the board president executed a Quit Claim Deed under the mistaken belief that the Association owned the property, the mistake was corrected once recognized. Because no damage was caused to the actual property owner, it did not constitute a sustained allegation of wrongdoing.

7. What was the finding regarding the delay in providing requested documents to the Petitioner? The property management company failed to provide requested documents within the required three-day window, taking four days instead. While this was a violation of Article IX of the Bylaws, the Petitioner failed to establish that any specific harm resulted from the one-day delay.

8. What standard and burden of proof applied to this administrative hearing? Under A.A.C. R2-19-119, the Petitioner bore the burden of proof in the matter. The required standard to prevail on the allegations was the “preponderance of the evidence.”

9. Why was the Petitioner denied reimbursement for the $550.00 filing fee? Reimbursement of the filing fee is predicated on being the prevailing party in the dispute under A.R.S. § 41-2198.02(A). Since the ALJ concluded that the Petitioner failed to sustain the burden of proof on the majority of the issues, he was not considered the prevailing party.

10. What specific admonition did the ALJ issue to the Respondent in the final Order? The Respondent was ordered to ensure that future election ballots are properly counted to prevent the disenfranchisement of eligible voters. Additionally, the Association was directed to ensure its property management company complies with the timeline for document reviews.

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Part 2: Answer Key

1. Role of the Department: Process petitions regarding HOA/condo violations of contracts/statutes and forward them to the Office of Administrative Hearings.

2. Multiple Lot Voting: Suspension for arrears applies only to the specific delinquent lot; owners remain eligible to vote for their other lots in good standing.

3. Stricken Testimony: Blanch Prokes did not appear for cross-examination, which is a procedural requirement for testimony to remain on the record.

4. Treasurer Authority: Acted within the scope of authority for $50,000 in investments; board approval was not required.

5. Recording Meetings: No established right to tape record; board has discretion to prohibit it because meetings are not public.

6. Quit Claim Deed: Mistake was corrected with no damage to the owner; therefore, no legal remedy was required.

7. Document Delay: Providing documents in four days instead of three was a technical violation, but no harm was proven.

8. Burden of Proof: Petitioner had the burden; standard was “preponderance of the evidence.”

9. Filing Fee: Petitioner was not the “prevailing party” because most allegations were not sustained.

10. ALJ Order: Ensure accurate counting in future elections and timely compliance with document requests.

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Part 3: Essay Questions

Instructions: Use the case facts to develop detailed responses to the following prompts. (Answers not provided).

1. The Balance of Authority: Analyze the ALJ’s findings regarding the Treasurer’s investments and the Board’s control over the community newsletter. How do these rulings define the boundaries between individual member input and corporate executive authority?

2. Election Integrity vs. Outcome: The ALJ found that the Association improperly excluded the ballot for Lot 351, yet this did not invalidate the election because it did not change the result. Discuss the legal and ethical implications of “harmless errors” in community association governance.

3. Fiduciary Duty and Maintenance: The Petitioner alleged a failure to uphold fiduciary duties regarding property management and landscaping. Based on the findings of fact, evaluate what constitutes “reasonable” maintenance and how a board fulfills its fiduciary duty in vendor contracting.

4. Due Process in Administrative Hearings: Using the instance of the stricken testimony of Blanch Prokes, explain the importance of cross-examination in maintaining the fairness and integrity of an evidentiary hearing.

5. Interpretations of Governing Documents: Compare the Petitioner’s interpretation of Article 5.3.2 (Suspension) with the ALJ’s interpretation. How does the distinction between an “Owner” and a “Lot” affect the democratic process within an HOA?

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Part 4: Glossary of Key Terms

• A.R.S. § 41-2198.01: The Arizona Revised Statute that permits homeowners to file petitions against associations with the Department of Building, Fire and Life Safety.

• Administrative Law Judge (ALJ): A judge who presides over hearings and adjudicates disputes involving government agencies.

• Arrears: The state of being behind in payments, such as homeowner association assessments or dues.

• Burden of Proof: The obligation of a party (in this case, the Petitioner) to provide sufficient evidence to support their claims.

• Bylaws: The governing rules that dictate how an association is managed, including election procedures and document inspection rights.

• CC&Rs (Covenants, Conditions, and Restrictions): The legal documents that establish the rights and obligations of homeowners within a specific development or association.

• D&O Insurance (Directors and Officers Liability): Insurance intended to protect the board members and officers of an association from personal liability for their official actions.

• Disenfranchised: To be deprived of a right or privilege, specifically the right to vote in association elections.

• Fiduciary Duty: A legal obligation of one party to act in the best interest of another; in this context, the board’s duty to the association members.

• Petitioner: The party who initiates a lawsuit or petition (Mike P. Harris).

• Preponderance of the Evidence: The standard of proof in civil and administrative cases, meaning the claim is “more likely than not” to be true.

• Prevailing Party: The party in a lawsuit that wins on the main issues, often entitling them to certain reimbursements or fees.

• Respondent: The party against whom a petition is filed (Pointe South Mountain Residential Association).

• Summary Judgment: A legal decision made by a court or tribunal without a full trial, usually because there are no disputed material facts.

• Tribunal: A body established to settle certain types of disputes; in this context, the Office of Administrative Hearings.

Blog Post – 07F-H067017-BFS

HOA vs. Homeowner: 5 Surprising Lessons from a Real-Life Legal Showdown

Living in a planned community often feels like navigating a private mini-state, where the local “constitution” is a thick stack of Covenants, Conditions, and Restrictions (CC&Rs). While most residents only interact with their board over a paint color request, some disputes escalate into a high-stakes administrative remedy.

The case of Harris vs. Pointe South Mountain Residential Association, heard before the Arizona Office of Administrative Hearings (OAH), provides a masterclass in this arena. The Petitioner, Mike P. Harris—a homeowner and former director who understood the internal machinery of the board—brought twenty distinct allegations against the Association. What followed was a rigorous examination of community governance that every homeowner and board member should study. Here are five surprising lessons from the ALJ’s final decision.

1. The “Partial Disenfranchisement” Rule: Debt Doesn’t Kill Every Vote

In many associations, the common wisdom is that if you owe the board money, you lose your voice. However, for investors or residents owning multiple properties, the Administrative Law Judge (ALJ) identified a critical nuance in the “automatic suspension” of voting rights.

The Association originally interpreted Article 5.3.2 of the CC&Rs as a total ban on participation for any member in arrears. The tribunal disagreed. The ALJ ruled that voting rights are tied to the specific lot, not the individual’s entire portfolio. If an owner is delinquent on one lot but current on three others, they maintain their votes for the properties in good standing. This interpretation prevents the total disenfranchisement of property investors over a single financial slip—a vital protection in a community with multi-lot owners.

2. The $50,000 Executive Decision: When the Treasurer Doesn’t Need the Board

One of the more eye-opening aspects of the hearing involved former treasurer Dave Harp. On May 24, 2004, Harp moved association funds into two separate $25,000.00 investments. To a layperson, a $50,000 expenditure without a formal board vote might look like a breach of fiduciary duty.

However, the ALJ found that Harp acted entirely within his “scope of authority” as the corporate treasurer. This highlights a fundamental truth of community governance: board officers often possess unilateral authority to execute financial transitions if those powers are granted by the bylaws. This underscores the necessity for homeowners to scrutinize their Association’s specific bylaws to understand where a single officer’s authority ends and where a full board resolution is required.

3. No “Record” Button: Why Open Meetings Aren’t Always Public Records

There is a frequent misconception that “open meetings” are synonymous with “public forums.” In this case, the Petitioner attempted to record board proceedings with a tape recorder, only to be shut down by the directors.

The ALJ clarified the legal distinction: while meetings must remain open to members, there is no inherent statutory right for a member to record those proceedings unless the governing documents explicitly allow it. The board maintains the discretion to control the environment of their meetings to ensure decorum. Transparency, in the eyes of the law, means you have the right to be in the room—not necessarily the right to bring a production crew.

4. The Newsletter is Not a Public Square

When the Petitioner found his authored articles rejected by the community newsletter, he challenged the board’s gatekeeping. He essentially argued for a form of community “freedom of the press.”

The tribunal’s ruling was clear: an Association newsletter is a private corporate communication, not a public square. The board maintains the absolute right to control its content. This isn’t a Constitutional First Amendment issue; it is a matter of private property and corporate governance. If you want a platform to criticize the board, you’ll likely have to fund your own stamps and stationery; the Association is not legally obligated to print its own opposition.

5. The “No Harm, No Foul” Clause for Document Delays

In any legal battle, “technicalities” are the favorite weapon of the aggrieved. The Petitioner pointed out that City Property Management Company (CPMC) failed to provide a requested delinquency report within the three-day window required by the bylaws, delivering it on the fourth day instead.

The ALJ acknowledged this was a technical violation. However, the ruling favored the Association because the Petitioner failed to meet the statutory burden of proving actual harm. In the legal world of community governance, being one day late with a delinquency report is a “harmless error” if it doesn’t change the outcome of an election or cause financial damage. This serves as a warning to potential litigants: technical “wins” rarely result in a legal victory without a showing of tangible prejudice.

Conclusion: The High Bar of the “Preponderance of Evidence”

The Harris case is a sobering reminder of the “preponderance of evidence” standard. Out of twenty allegations of wrongdoing, the Petitioner only managed to prove two minor technicalities: the one-day document delay by CPMC and an uncounted ballot for Lot 351.

Even the Lot 351 error—where the owner was mistakenly deemed delinquent—offered no relief. When the ballot was finally opened during the hearing, it revealed the owner had voted for Frank Frangul and Les Meyers, meaning the error hadn’t even affected the election outcome. Because the Petitioner was not the “prevailing party,” he was denied reimbursement of his $550.00 filing fee and left only with an order that the Association be “admonished” to be more careful in the future.

This leaves us with a lingering question for every resident of a planned community: Does the labyrinthine complexity of HOA bylaws truly protect the collective interest, or does it merely create an expensive legal obstacle course for those seeking accountability? Either way, as this case proves, the house—or in this case, the Board—usually wins on the fine print.

Case Participants

Petitioner Side

Mike P. Harris (petitioner)
Pointe South Mountain Residential Association
Owner; former director of the board
Blanch Prokes (witness)
Pointe South Mountain Residential Association
Member; property manager for another company; testimony stricken

Respondent Side

Lynn M. Krupnik (attorney)
Ekmark & Ekmart, LLC
Kristina L. Pywowarczuk (attorney)
Ekmark & Ekmart, LLC
Kay Hatch (board president)
Pointe South Mountain Residential Association
Executed a Quit Claim Deed
Dave Harp (board treasurer)
Pointe South Mountain Residential Association
Made investments with association funds
Frank Frangul (board member)
Pointe South Mountain Residential Association
Allegedly pushed Barry Smith; received votes in 2006 election,
Les Meyers (board candidate)
Pointe South Mountain Residential Association
Received votes in 2006 election

Neutral Parties

Brian Brendan Tully (ALJ)
Office of Administrative Hearings
Robert Barger (agency director)
Department of Fire Building and Life Safety
Copy of decision mailed to him
Joyce Kesterman (agency staff)
Department of Fire Building and Life Safety
Copy of decision mailed to her attention

Other Participants

Barry Smith (member)
Pointe South Mountain Residential Association
Allegedly pushed by Frank Frangul